Opinion
CASE NO. C2-01-693
February 20, 2002
OPINION AND ORDER
This matter comes before the Court on Plaintiffs Robert E. Murray's and the Ohio Valley Coal Company's (collectively "Plaintiff") Motion to Strike Exhibits to Defendant's Memorandum in Support of his Motion to Dismiss ("Plaintiff's Motion to Strike") (Doc. # 18), and upon Defendant Carlo Tarley's ("Defendant") Motion to Dismiss (" Defendant's Motion to Dismiss") pursuant to Rule 12(b) of the Federal Rules of Civil Procedure ("Rule 12(b)"). (Doc. # 14). The Court exercises jurisdiction over this action pursuant to 28 U.S.C. § 1332. For the reasons that follow, the Court DENIES Plaintiff's Motion to Strike and GRANTS Defendant's Motion to Dismiss.
I.
Defendant presently serves as the Secretary-Treasurer of the United Mine Workers of America, International Union ("UMWA" or "Union"). (Amended Complaint ¶ 3). The UMWA is the exclusive collective bargaining representative for the coal mining employees who work for the Ohio Valley Coal Company at its Powhatan Number 6 Mine in Belmont County, Ohio. ( Amended Complaint ¶¶ 11, 13).
Plaintiff is the owner of the Ohio Valley Coal Company. ( Amended Complaint ¶ 2). The Ohio Valley Coal Company and UMWA are parties to a collective bargaining agreement ("CBA"). ( Amended Complaint ¶ 13). Plaintiff filed this action for malicious defamation arising from allegedly false and defamatory public statements made about him by Defendant. ( Amended Complaint ¶¶ 15-19). Plaintiff claims that Defendant defamed him in three press releases and at a public rally. Plaintiff specifies the alleged defamatory statements made at the public rally, as discussed infra. Plaintiff does not identify any particular statement alleged to be false or defamatory in any of the three press releases. Instead Plaintiff claims that those statements (and the ones made at the public rally):
[W]ere intended to and did in fact convey: that [Plaintiff] and Ohio Valley are dishonest; that they have broken promises to their employees; that they have abused their employees; that they have engaged in illegal age discrimination; that they have violated agreements with the UMWA; that they have a plan or scheme to abandon or harm their employees by terminating their employment or otherwise; that they have threatened the job security of Ohio Valley's employees; that the UMWA assisted [Plaintiff] and Ohio Valley in renovating the Powhatan No. 6 Mine; that the Ohio Valley employees have accepted frozen or reduced wages to work at the Powhatan No. 6 Mine; and that [Plaintiff] has used profits from the Powhatan No. 6 Mine to finance other of his operations.
( Amended Complaint ¶ 22).
In the first press release, issued on July 10, 2001, the Union indicated that it would observe a "Memorial Day" on July 11, 2001, as part of the Union's effort to publicize an ongoing labor dispute with Ohio Valley. ( Amended Complaint ¶¶ 14, 15 and Ex. A). Memorial Days are provided for in the CBA, which states:
Section (j) Memorial Periods
The International Union, United Mine Workers of America, may designate memorial periods not exceeding a total of ten (10) days during the term of this Agreement at any mine or operation provided it shall give reasonable notice to the Employer.
( Defendant's Memorandum in Support of Defendant's Motion to Dismiss, at 4 and Ex. 1) [hereinafter " Defendant's Memorandum in Support"]. Plaintiff claims that the statements made in the press release were false and defamatory. ( Amended Complaint ¶ 15). The statements attributed to Defendant in this press release are:
The UMWA's dispute with [Plaintiff] Murray — as owner, operator and overseer of numerous mining operations — is a classic story about promises made and promises broken, . . . . [Plaintiff Murray] says one thing and does something else. He maintains he wants to build a partnership, yet now it appears he wants to abandon the people who have been the biggest part of the relationship — his UMWA workforce. [Plaintiff] Murray built his expanding corporate enterprise on the backs — and from the wallets of the coal miners who belong to the very union he is now trying to dump, . . . . The UMWA bent over backwards to accommodate [Plaintiff] Murray's financial needs — when he was an upstart operator more than a decade ago — through modifications to the standard coal agreement, enabling him to rehabilitate the mines he purchased from others in the industry and establish a place in the coal market. We did that for the benefit of our members and [Plaintiff] Murray's operations at both the Ohio Valley Powhatan No. 6 mine in Ohio and the Maple Creek mine in Pennsylvania. We formed a partnership with [Plaintiff] Murray during his trying times and now — after we did our part — he wants to call off the whole deal. It's not that easy. We strongly believe that it's now time for our members to reap the rewards they have earned. Today, [Defendant] explained, Bob Murray intends to continue expanding his enterprises at the expense of those who helped him prosper. If Murray is left unchallenged, members of the UMWA Local 1810 at Ohio Valley Coal Company, . . . will fall prey to his callous plan to abandon them and their families. That cannot and will not happen. The UMWA intends to fight Murray with all of its resources to make him recognize that loyalty is a two-way street.
( Amended Complaint, Ex. A)
In the second press release, issued on July 17, 2001, Defendant claims that Plaintiff filed a meritless lawsuit against him. ( Amended Complaint, Ex. B). Plaintiff asserts that Defendant's claim is false and defamatory. ( Amended Complaint ¶¶ 16, 17). The statements attributed to Defendant in this press release are:
Plaintiff states, throughout his Amended Complaint, that the date of this second press release was July 11, 2001. Exhibit B of the Amended Complaint, however, shows a publication date of July 17, 2001.
[Defendant] dismissed the charges as "totally without merit." I stand by every statement I made in the press releases being singled out by [Plaintiff]. . . . And I believe in the end, it will be [Plaintiff] — not me or the UMWA — who will be left trying to defend their company's position . . . I think [Plaintiff] has an interesting history of suing people who oppose him or members of the press who write less than flattering statements about him. In fact, I would encourage the press or anyone else to examine that record. . . . I would also say that I think Murray can certainly find better ways to spend his company's money than pursuing these types of meritless lawsuits.
( Amended Complaint, Ex. B)
In the third press release, issued on July 23, 2001, the Union announced a public rally to be lead by Defendant, in which the dispute between the Union and Plaintiff would be discussed. ( Amended Complaint, Ex. C). Plaintiff Murray claims that the statements made in the press release were false and defamatory. ( Amended Complaint ¶¶ 18, 19). The statements attributed to Defendant in this press release are:
[Plaintiff] likes to promote his supposed `outstanding relationship' with his employees and `steadfast loyalty' to them, but what he doesn't talk about is how he is demanding that the union give him permission to dump his older workers. . . . The UMA is currently embroiled in a bitter dispute with [Plaintiff] over future job security for its members. . . . [Plaintiff] has a history at the Powhatan and Maple Creek mines of making wage and production demands on our members with the threat of losing promised job opportunities at so-called mines nearby, . . . But when those so-called new mines are about to open, he reneges on his promise, refuses to discuss the matter with the union and — in an effort to conquer and divide — relentlessly criticizes and belittles our members and the UMWA. . . . [Plaintiff's] so-called "new mines" are simply new portals connecting to existing operations where UMWA members work. . . . It's a leverage tool for [Plaintiff] and nothing else, . . . . At our rally, we will demand that [Plaintiff] abide by his contractual obligations.
(Amended Complaint, Ex. C).
A public rally was held on July 24, 2001, at the Powhatan High School football stadium in Powhatan Point, Ohio. ( Amended Complaint ¶ 21). At the rally, Defendant allegedly stated that Plaintiff did "not like old people," believed that those over forty could "be discarded just like a piece of machinery that used up its usefulness," "has a track record of once you become a certain age, you should retire," and wants to "dump the old guys." ( Amended Complaint ¶ 21(a)). Further, Plaintiff "`forced' his workers `back into the mine' after a foreman was killed on the job during the previous shift. . . ." ( Amended Complaint ¶ 21 (b)). Finally, that Plaintiff "has trouble telling the truth." ( Amended Complaint ¶ 21(c)).
Plaintiff filed unfair labor practice charges with the National Labor Relations Board ("NLRB"or "Board") on July 11, 2001. ( Motion to Dismiss, Ex.2). Plaintiff alleged a violation of Section 8(b)(4) of the National Labor Relations Act ("NLRA" or "Act") which prohibits secondary boycotts. On August 29, 2001 the NLRB dismissed the charges for failure to find a violation of the Act. ( Motion to Dismiss, Ex 4). Plaintiff then filed this suit on July 20, 2001. (Doc. # 1).
II.
Defendant does not specify the specific Federal Rule of Civil Procedure upon which he relies to bring his Motion to Dismiss. Plaintiff's Memorandum Contra contends that Defendant relies on Rule 12(b)(6) in his Motion to Dismiss. The Court, however, will address Defendant's Motion as one for dismissal for lack of subject matter jurisdiction under Rule 12 (b)(1). A motion to dismiss based on Rule 12(b)(1) for lack of subject matter jurisdiction must be considered before a motion brought under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir. 1990). A Rule 12(b)(6) motion may be decided only after establishing subject matter jurisdiction since the Rule 12(b)(6) challenge becomes moot if this Court lacks subject matter jurisdiction. See id. citing Bell v. Hood, 327 U.S. 678, 682 (1946) (motion to dismiss for failure to state a cause of action may be decided only after establishing subject matter jurisdiction, since determination of the validity of the claim is, in itself, an exercise of jurisdiction).
Where subject matter jurisdiction is challenged pursuant to Rule 12 (b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. See Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir. 1986). Moreover, this Court is empowered to resolve factual disputes when subject matter jurisdiction is challenged. See id. at 918 (contrasting analysis under Rule 12(b)(6) where existence of genuine issues of material fact warrants denial of the motion to dismiss).
III.
Plaintiff asks the Court to strike Defendant's exhibits that are attached to Defendant's Motion to Dismiss. (Doc. # 18). Defendant asks the Court to dismiss Plaintiff's Defamation claim. (Doc. # 14). The Court addresses each motion in turn.
A. Plaintiff's Motion to Strike Defendant's Exhibits
Plaintiff claims that the four (4) exhibits attached to the Defendant's Motion to Dismiss were not referenced in Plaintiff's Amended Complaint and, therefore, should not be considered by this Court. If the additional matters were submitted in connection with a Rule 12(b)(6) motion to dismiss, Plaintiff's position would be well taken. Rule 12(b) provides in relevant part:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .
Contrarily, "[s]upplementation of the pleadings in connection with a Rule 12(b)(1) motion does not convert the motion into one for summary judgment." Rogers v. Stratton Industries, Inc., 798 F.2d 913, 916 (6th Cir. 1986). Thus, the Court is not restricted "to examining only the pleadings, but may review any evidence, such as affidavits, to resolve factual disputes." Tazelaar v. Integrated Metal Technology, Inc., Nos. 1:90-CV-274, 1:90-CV-321, 1:90-CV-363, 1991 U.S. Dist. LEXIS 5022, *7 (W.D. Mich. April 12, 1991) (citing as an example, Land v. Dollar, 330 U.S. 731 (1947)). Thus, Plaintiff's argument is without merit.
B. Defendant's Motion to Dismiss
Defendant claims that Plaintiff cannot pursue his defamation claim because the claim is preempted by the NLRA and by Section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185. For the reasons that follow the Court concludes that Plaintiff's cause of action for defamation is preempted under the NLRA. Because of this conclusion the Court declines to consider Defendant's Section 301 preemption claim.
The Court is aware that Judge Aldrich addressed Section 301 preemption in a case brought in the Northern District of Ohio by Plaintiff. That case was based on the same set of facts Plaintiff sued upon herein. See Murray v. International United Mine Workers of America, AFL-CIO-CLC, No. 1:01 CV2061, Slip. op, (N.D. Ohio 2001). The difference between that case and the case sub judice, is that that case was originally brought in state court and then removed to federal court. The Northern District exercised only federal question jurisdiction because Plaintiff named the UMWA as defendant. The UMWA destroyed diversity because a labor union is deemed to reside in every state where the union's members reside. See United Steelworkers of America v. R.H Bouligny, Inc., 382 U.S. 145 (1965). Since the UMWA has active members in Ohio, the Union's Ohio residence prevented the Northern District from exerting diversity jurisdiction. Consequently, Judge Aldrich was only asked to decide whether the defamation action was preempted by Section 301, which would sustain the court's jurisdiction, or whether the case should be remanded to state court. Thus, the Northern District was not asked to decide the issue of whether the case was subject to the exclusive jurisdiction of the NLRB. That is an issue which will presumably be confronted by the state court in that case.
In San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959), the Supreme Court enunciated a rule of preemption which protects the exclusive jurisdiction of the NLRB over unfair labor practices. The Garmon Court synthesized its prior NLRA preemption cases, concluding that "[w]hen an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the [NLRB] if the danger of state interference with national policy is to be averted." Northwestern Ohio Administrators, Inc., v. Walcher Fox, Inc., 270 F.3d 1018, 1027 (6th Cir. 2001) citing Garmon, 359 U.S. at 245. Garmon preemption is motivated by the expressed congressional desire for uniformity in the nation's labor policy. See Garmon, 359 U.S. at 242. To allow the Board to create uniform labor regulations for the nation's workers and employers, and to make use of the Board's expertise in the area of labor relations, the states necessarily are excluded from the initial process of construing the reach and application of the NLRA. See Walcher Fox, 270 F.3d at 1027.
Section 7 of the NLRA provides that employees "shall have the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. The rights provided and guaranteed by Section 7 are afforded protection by Section 8 of the Act, which proscribes various unfair labor practices. In particular, Section 8(a)(1) deems it unlawful for an employer to "interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7." 29 U.S.C. § 158 (a)(1).
"This same underlying motivation for uniformity, and the principles of federalism, also allowed for exceptions to the general Garmon preemption rule." Id. Thus, where the regulated conduct at issue "touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act," the Court would not find NLRA preemption. Garmon, 359 U.S. at 244. Likewise, where the regulated activity is "merely peripheral" to the central concerns of the NLRA, the states may regulate the activity. Id. at 243.
In Linn v. Plant Guard Workers, 383 U.S. 53 (1966), the Supreme Court applied the principles of labor preemption developed in Garmon to a defamation claim based upon statements made in the course of a labor dispute. Linn held that the NLRA did not completely preempt the application of state laws to malicious libels published during labor disputes if the defamatory statements were circulated with malice and caused damage. See id. at 65. "The Court found that the exercise of state jurisdiction over such defamation actions would be a `merely peripheral concern' of the federal labor laws, within the meaning of Garmon, as long as appropriate substantive limitations were imposed to insure that the freedom of speech guaranteed by federal law was protected." Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 271 (1974). Linn further recognized that the "[s]tates' concern with redressing malicious libel is so deeply rooted in local feeling and responsibility that it fits within the exception specifically carved out by Garmon." Linn, 383 U.S. at 62.
The Austin Court stated that:
The Court has often recognized that in cases involving free expression we have the obligation, not only to formulate principles capable of general application, but also to review the facts to insure that the speech involved is not protected under federal law. . . . We must `make an independent examination of the whole record,' . . . so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression. . . . While this duty has been most often recognized in the context of claims that the expression involved was entitled to First Amendment protection, the same obligation exists in cases involving speech claimed to be protected under the federal labor laws. This obligation, derived from the supremacy of federal labor law over inconsistent state regulation, . . ., requires us to determine whether any state libel award arising out of the publication of the union newsletter involved here would be inconsistent with the protection for freedom of speech in labor disputes recognized in Linn.Austin. 418 U.S. at 282.
On the other hand, the Linn Court recognized the danger that unrestricted libel actions under state law could easily interfere with federal labor policy. See Austin, 418 U.S. at 271-72.
The Court observed:
Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions. Indeed, representation campaigns are frequently characterized by bitter and extreme charges, countercharges, unfounded rumors, vituperations, personal accusations, misrepresentations and distortions. Both labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language.Linn, 383 U.S. at 58 citing Cafeteria Union v. Angelos, 320 U.S. 293, 295 (1943).
The Court in Linn noted that it "adopt[s] this terminology to avoid confusion with the concept of libel per se, applied in many States simply to designate words whose defamatory nature appears without consideration of extrinsic facts." Linn, 383 U.S. at 58 n. 2.
"This freewheeling use of the written and spoken word, . . ., has been expressly fostered by Congress and approved by the NLRB." Austin, 418 U.S. at 272. There is "a congressional intent to encourage free debate on issues dividing labor and management," and "the Board has given frequent consideration to the type of statements circulated during labor controversies, and . . . it has allowed wide latitude to the competing parties." Austin, 418 U.S. at 272 citing Linn, 383 U.S. 60-62. "[I]n a number of cases, the Board has concluded that epithets such as `scab,' `unfair,' and `liar' are commonplace in these struggles and not so indefensible as to remove them from the protection of § 7, even though the statements are erroneous and defame one of the parties to the dispute." Linn, 383 U.S. at 60-61.
It is necessary, therefore, to impose substantive restrictions on the state libel laws to be applied to defamatory statements in labor disputes in order to prevent "unwarranted intrusion upon free discussion envisioned by the Act." Linn, 383 U.S. at 65. The NLRB decisions have found that "although the Board tolerates intemperate, abusive and inaccurate statements made by the union during attempts to organize employees, it does not interpret the Act as giving either party license to injure the other intentionally by circulating defamatory or insulting material known to be false." Id. at 61. Thus, the availability of state remedies for libel is limited to those instances in which the complainant can show that the defamatory statements were circulated with malice and caused damage. Id. at 64-65. Further, to show the injury necessary to take a defamation case from the exclusive jurisdiction of the NLRB, a plaintiff must necessarily prove that the words had a defamatory meaning. See Linn, 383 U.S. at 58 n. 2.
The Linn Court adopted by analogy the malice standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Linn, 383 U.S. at 65. Thus, the Act was construed to permit recovery of damages in a state cause of action only for defamatory statements published with knowledge of their falsity or with reckless disregard of whether they were true or false. See id. The Court explained that this standard recognizes legitimate state interests yet does not interfere with effective administration of national labor policy. See id.
Linn "h[e]ld that a complainant may not recover except upon proof of such harm, which may include general injury to reputation, consequent mental suffering, alienation of associates, specific items of pecuniary loss, or whatever form of harm would be recognized by state tort law." Linn, 383 U.S. at 65.
In the case sub judice, Plaintiff claims that Garmon preemption does not apply because his defamation claims did not arise out of a "labor dispute." Alternatively, Plaintiff claims that the alleged defamatory statements were circulated with actual malice and caused him damage. Consequently, the statements constitute malicious libel and fall within the Linn exception to Garmon preemption. Further, Plaintiff claims that the alleged defamatory statements are actionable statements of fact and not constitutionally protected opinion. The Court disagrees with all three of Plaintiff's assertions.
Initially, the Court's analysis must begin with a determination as to whether the alleged conduct, which provides the basis for Plaintiff's defamation claim, constitutes activity that is arguably subject to Section 7 or Section 8 of the NLRA. See Garmon, 359 U.S. at 245. Although it is not clear, the Court will presume that Plaintiff's allegation that his claims did not arise out of a "labor dispute" is to substantiate the claim that the activity is not subject to Sections 7 or 8 of the NLRA.
"Labor dispute" is defined within the NLRA as "any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee." 29 U.S.C. § 152 (9). The definition of labor dispute under the NLRA is very broad and "rarely have courts found concerted union activities to fall outside this broad definition." Beverly Hills Foodland, Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191 (8th Cir. 1994) citing Hasbrouck v. Sheetmetal Workers Local 232, 586 F.2d 691, 694 n. 3 (9th Cir,. 1978). Where a union acts for some arguably job-related reason and not out of pure social or political concern, a "labor dispute" exists. See Hasbrouck, 586 F.2d at 694 n. 3.
The Court finds that the Union Press Releases and Defendant Tarley's speech at the Public Rally fit comfortably within the broad NLRA definition of "labor dispute." The statements concerning Plaintiff's alleged broken promises and agreements and his alleged unfair, untruthful, and discriminatory treatment of employees involve "terms" and "conditions" of employment as defined in the NLRA. See e.g. Hasbrouck, 586 F.2d at 195 (finding that a union campaign publicizing an employer's non-union status, wages, and benefits paid to employees, and alleged racial discrimination involved the terms and conditions of employment as defined under the NLRA's definition of labor dispute).
In addition, the Court notes that Plaintiff claims that the allegedly defamatory statements were made "in order to coerce [Plaintiff] into accepting UMWA representation at another facility in Ohio where the employees do not desire UMWA representation." ( Amended Complaint ¶ 29). If this is true, then the alleged defamatory statement would constitute a secondary boycott under the Act. 29 U.S.C. § 158 (b)(4). A secondary boycott is a violation of the NLRA. Indeed, Ohio Valley filed unfair labor practice charges with the NLRB containing the identical allegation and claiming that the Union had violated Section 8(b)(4) of the Act. 29 U.S.C. § 158 (b)(4). ( Motion to Dismiss, Ex. 2 and 3). Clearly, Plaintiff and Defendant are involved in a "labor dispute."
Next, the Court concludes that Plaintiff's defamation claim does not falls within the Linn exception to Garmon preemption because the statements are not defamatory. The statements at issue here typify the freewheeling debate intended to be protected and encouraged by federal labor law in order to foster uninhibited, robust, and wide open debate between management and labor. See Linn, 383 U.S. at 60, 62; Austin, 418 U.S. at 273. Plaintiff alleges that because he pleaded "actual malice" by claiming, in seven separate paragraphs of his Amended Complaint, that Defendant made the defamatory statements knowingly and maliciously, or with reckless disregard for the truth, his claim survives Defendant's Motion to Dismiss. ( Plaintiff's Response to Motion to Dismiss, at 4; Amended Complaint ¶¶ 14-19, 21). Plaintiff's argument misses the mark. The issue is not whether Plaintiff sufficiently pleads malicious defamation, which he clearly did. Instead, the question is whether the alleged defamatory statements can be considered defamatory as a matter of law. To remove a defamation case from the exclusive jurisdiction of the NLRB, a plaintiff must necessarily prove that the words had a defamatory meaning. See Linn, 383 U.S. at 58 n. 2. This inquiry must be made prior to applying the malice test to the statements. See Austin, 418 U.S. at 284 citing Gertz v. Robert Welch, Inc., 412 U.S. 917, 339-340 (1973).
"Linn recognized that federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point." Austin, 418 U.S. 283. "The sine qua non of recovery for defamation in a labor dispute under Linn is the existence of falsehood." Id. at 283. The Linn Court put it quite bluntly: "the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth." Id. at 283-84 citing Linn, 383 U.S., at 63. The use of phrases like "doesn't like old people," "over forty can be discarded like old machinery," "dumps old guys," "forced his workers back into the mine after a foreman was killed," and, "has trouble telling the truth" cannot be construed as representations of fact in the context of a heated labor dispute.
Likewise, the following allegedly defamatory "conveyances" cannot be construed as representations of fact: that Plaintiff abandoned, abused, discriminated, and threatened the job security of his employees; that Plaintiff broke promises, was dishonest, used profits from his Powhatan Mine to finance his other mine, and that the Union assisted in the renovation of the Powhatan Mine. As the Supreme Court "recognized long before Linn, `to use loose language or undefined slogans that are part of the conventional give-and-take in our economic and political controversies'" is not to falsify facts. Austin, 418 U.S. at 284 citing Cafeteria Employees Local 302 v. Angelos, 320 U.S. 293, 295 (1943) (finding that using words like "unfair" or "fascist" is not to falsify facts; rather, such words were obviously used in a loose, figurative sense to demonstrate the union's strong disagreement with the views of those workers who oppose unionization).
Plaintiff does not specify exactly which statements in the Press Releases are defamatory. Instead, he claims that the Press Releases and Public Rally intended and did "convey" certain malicious libels. ( Amended Complaint ¶ 22).
There is a long recognized "distinction between actionable defamation and mere obscenities, insults, and other verbal abuse. Statements which are merely annoying or embarrassing or no more than rhetorical hyperbole or a vigorous epithet are not defamatory." Beverly Enterprises, Inc. v. Trump, 182 F.3d 183 (3rd Cir. 1999) (concluding that statements alleging a vice president and others were "criminals" were not defamatory because such a statement is reasonably understood as a vigorous and hyperbolic rebuke, not a specific allegation of criminal wrongdoing).
In sum, the Court concludes that the above referenced statements made by Defendant are expressions are opinion, and as such "even in the most pejorative terms, [are] protected under federal labor law." Austin, 418 U.S. at 284. In the context of a labor debate, too, '"there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.'" Id. citing Gertz, 412 U.S. at 339-40. Based on the foregoing, this Court concludes that it lacks subject matter jurisdiction over Plaintiff's Complaint.
IV.
The Court addresses the additional issue of res judicata, which was not briefed by either party, yet is properly raised by the Court sua sponte. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 231 (1995) (stating that "trial courts may in appropriate cases raise the res judicata bar on their own motion"). On January 3, 2002, the Federal District Court for the Western District of Pennsylvania issued an opinion on the exact issues before this Court in the case at bar. See Murray v. Tarley, No. 01-1324, slip op. (W.D. Penn. 2002). In that case Robert B. Murray and Maple Creek Mining, Incorporated (a Pennsylvania corporation owned by Murray) sued Carlo Tarley for malicious defamation based on the same three press releases and the same public rally which are the bases of the cause of action in the case sub judice. The Pennsylvania court dismissed the action for lack of subject matter jurisdiction. See Fed.R.Civ.Pro. 12(b)(1).
The Court recognizes that claim preclusion is an additional basis for dismissal of the claim at issue here. In general, sua sponte application of preclusion is appropriate when the parties have reasonable notice and opportunity to be heard. See e.g. McClain v. Apodaca, 793 f.2d 1031, 1032-33 (9th Cir. 1986). Because the Court does not base its dismissal of this case on claim preclusion, the Court need not consider issuance of notice or further hearings.
"Claim preclusion, or res judicata, bars a subsequent action between the same parties or their privies based upon the same claims or causes of action that were or could have been raised in a prior action." Cobbs v. Katona; United States Postal Service, No. 00-2071, 2001 U.S. App. LEXIS 8105, *3 (6th Cir. April 27, 2001) citing Federated Dep't Stores, Inc. v. Motie, 452 U.S. 394, 398 (1981). A claim will be barred under the doctrine of claim preclusion if the following four elements are present: (1) a final decision on the merits; (2) a subsequent action between the same parties or their privies; (3) an issue in a subsequent action which was or should have been litigated in the prior action; and (4) an identity of the causes of action. See Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995), cert. denied, 517 U.S. 1220 (1996).
In the case at bar, there is no question that there is an identity of the causes of action. The Amended Complaints in each case are virtually identical. The parties are the same, save the corporate plaintiffs, which in each case is a different company wholly owned by Plaintiff Robert Murray. The corporate plaintiff in the case sub judice, the Ohio Valley Coal Company, would be bound by the Pennsylvania judgment because its interests are so closely aligned with the interests of Plaintiff Murray, and with the Maple Creek Mining Company, as to make them its virtual representative. See Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, (6th Cir. 1997) (stating that the "virtual representation" standard relies on balancing the equities as a result of a close inspection and analysis of the relationship between the parties to the current suit and parties to the previous suit and look for and balance a variety of elements in which parties to the first suit are said to be "accountable" to parties to the second). "The doctrine of virtual representation binds parties to a subsequent action who were not parties to the prior action when a party to the prior action with interests that are closely aligned to those of the subsequent party vigorously litigated the prior action." 18 Moore's Federal Practice, § 131.40[3][e][i][B] (Matthew Bender 3d ed.).
It is not clear from the record whether the Ohio corporation and the Pennsylvania corporation are in alter ego status to one another. The record shows, however, that Plaintiff Robert Murray purchased both corporations and is the ultimate shareholder of each, which the Court understands to reflect Plaintiff is the sole owner of each. (Amended Complaint, ¶¶ 2, 6); ( Murray v. Tarley, No. 01-1324, (W.D. Penn. 2002) ( Amended Complaint, ¶¶ 2, 6).
The only issue which needs explanation then, is whether the decision from the Pennsylvania court does constitute a final decision on the merits. The Court concludes that for the purpose of claim preclusion, the Pennsylvania decision constitutes a final decision on the merits.
Normally, Rule 12(b)(1) dismissals are not considered dismissals on the merits. See Rogers v. Stratton Industries, Inc., 798 F.2d 913, 916-17 (6th Cir. 1986). The rationale behind this is that merely because one court does not have jurisdiction over a dispute does not necessarily mean that another court is precluded from properly exercising jurisdiction over the matter. See id. at 917. Moreover, if a court does not have jurisdiction over a matter, it cannot properly reach the merits of the case. See id. In contrast, a dismissal for failure to state a claim under Rule 12(b)(6) is considered a dismissal on the merits. See id. The Rogers Court went on to explain, however, that where a statutory right is being pursued, and the defense raised is that the plaintiff or defendant does not come within the purview of the statute, the judicial acceptance of this defense, however it is accomplished, is the death knell of the litigation and has the same effect as a dismissal on the merits. See id. at 716; see also Truitt v. County of Wayne, 148 F.3d 644, 647 (6th Cir. 1998) (citing approvingly to Rogers and holding that the district court's dismissal of plaintiff's Title VII claims under Rule 12(b)(1) would be construed as a dismissal under Rule 12(b)(6) since it made no difference to the outcome of the case).
The Court finds that the factual situations in which the Sixth Circuit has construed a Rule 12(b)(1) dismissal as a dismissal on the merits are analogous to the situation in the Pennsylvania case. In NLRA preemption cases in which the district court concludes that the defendant's actions were arguably subject to the NLRA, the action is preempted and the district court is divested of jurisdiction. This ruling most certainly is the death knell of any and all claims a plaintiff could bring. Plaintiff's claims are dismissed and he is left with no one to sue in federal court. For that reason, the Court concludes that although the Pennsylvania court dismissed pursuant to Rule 12(b)(1), this Court will construe the dismissal as one on the merits. Thus, all four elements of res judicata are met. Consequently, res judicata is an alternative basis for dismissal of this case.
V.
In light of the foregoing, Plaintiff's Motion to Strike (Doc. # 18) is DENIED and Defendant's Motion to Dismiss (Doc. # 14) is GRANTED. This case is hereby DISMISSED. The Clerk is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.