Opinion
01 Civ. 6566 (RCC) (KNF).
March 14, 2007
REPORT and RECOMMENDATION
I. INTRODUCTION
Before the Court is a motion made by the defendants, pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, for an order dismissing the plaintiff's amended complaint. In response to the motion, the plaintiff has made an application, pursuant to Fed.R.Civ.P. 56(f), to the court for an order postponing the resolution of the defendants' motion and granting the plaintiff the opportunity to pursue discovery for the purpose of presenting an affidavit(s) demonstrating that a material issue(s) of fact exists such that the defendants are not entitled to judgment as a matter of law.
II. BACKGROUND
Carl Simmons, Jr. ("Simmons") maintains the defendant union breached the duty of fair representation it owed to him by failing to represent his interests adequately at an arbitration proceeding commenced to challenge the circumstances under which his employment relationship with the Terrace Health Care Center came to an end on July 16, 1999. In addition, Simmons alleges that the union breached the duty of fair representation it owed to him when, after the arbitrator made an award adverse to him, the union failed to petition the court for an order vacating the arbitrator's award.
At a prior juncture in the litigation, the defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56. After the time for the plaintiff to respond to the motion had elapsed, he requested, pursuant to Fed.R.Civ.P. 56(f), that the court permit him to engage in discovery activities respecting twelve theories, under which he alleged the union had breached the duty of fair representation it owed to him, so that he might present competent evidence via an affidavit(s) to demonstrate to the court that the defendants were not entitled to judgment as a matter of law.
In a memorandum and order dated February 14, 2005, your Honor determined that it would be appropriate to permit the plaintiff to pursue discovery regarding only two of the twelve theories upon which he relied in alleging that the union had breached the duty of fair representation it owed to him. Specifically, the court permitted Simmons to explore: (1) the involvement Shirley Flores ("Flores"), a union delegate, had in the plaintiffs resignation from his position with his former employer; and (2) the determination made by the union to refrain from summoning Flores as a witness at the arbitration proceeding mentioned above. When the period fixed by the court for Simmons to pursue his discovery efforts closed, and shortly before he was to make a supplemental submission in opposition to the then outstanding motion for summary judgment, Simmons requested that he be permitted, by the Court, to file an amended complaint. However, the Court determined that, since the defendants had never served a responsive pleading, Simmons did not need permission from the Court to amend his complaint; he was free to do so, as a matter of course, pursuant to Fed.R.Civ.P. 15(a).
After Simmons filed his amended complaint, the instant dispositive motion was made. It prompted Simmons to make the application described above, pursuant to Fed.R.Civ.P. 56(f), to pursue discovery perchance to prepare an affidavit(s) demonstrating that a material issue(s) of fact exists that bars the defendants from obtaining judgment as a matter of law. In particular, Simmons wishes to depose Mehira Gilden ("Gilden"), the union employee who represented him at the arbitration proceeding, to ascertain: (a) how she prepared for that proceeding; and (b) with whom she conferred preparatory to appearing with Simmons at that proceeding. The plaintiff's identification of Gilden as one of the persons from whom he would seek discovery, if his application were to be granted, is curious, since your Honor determined previously, and made clear in the February 14, 2005 memorandum and order, that "[e]ven if additional discovery would produce evidence demonstrating that the [union official] who represented plaintiff's interest at the [arbitration proceeding] was inexperienced, ill-prepared, or even incompetent, he would not be able to establish a triable issue of fact."
Simmons has indicated a need to obtain discovery from defendants' Allan Sherman, Jay Sackman, George Gresham, Neva Shillingford, as well as the union's counsel, Carl Levine, Esq. and Daniel Ratner, Esq. and "any other union employee with knowledge of the union's preparation for the arbitration proceeding in February 2001." According to Simmons, he also needs to explore with these persons, the process out of which came the union's decision not to seek a court order vacating the arbitrator's award, given that the arbitrator denied the plaintiff's grievance based, in part, upon the expressed mistaken view that Flores witnessed Simmons' resignation because her signature appears on the document he signed at the time he resigned from his position.
III. DISCUSSION
Motion to Dismiss
A court may dismiss an action pursuant Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). In considering the motion, the court must take "as true the facts alleged in the complaint and [draw] all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).
However, Fed.R.Civ.P. 12(b) informs that when matters outside the pleadings are presented to a court on a motion to dismiss for failure to state a claim upon which relief may be granted, and not excluded by the court, the subject motion is to be treated as one for summary judgment and disposed of as provided for in Fed.R.Civ.P. 56.
In the instant case, the parties have invited the Court to convert the defendants' motion to dismiss to a motion for summary judgment by directing the Court's attention to documents outside the pleadings and by asking the court, as the plaintiff has, to postpone the adjudication of the defendants' motion so that he might pursue discovery, as provided for in Fed.R.Civ.P. 56(f), before filing a response to the defendants' summary judgment motion. As a result, the Court finds that it would be appropriate to convert the defendants' motion to dismiss to a motion for summary judgment and to dispose of it in accordance with Fed. R Civ. P. 56. However, before reaching the defendants' motion, it is appropriate to consider the plaintiffs request for discovery which, if granted, will, obviate the need to address the defendants' motion at this time.
Fed.R.Civ.P. 56(f) states the following:
When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.
A party to a litigation seeking to postpone a court's disposition of a motion for summary judgment, so that discovery may be pursued, is required to explain through an affidavit: "(1) the information sought and how it is to be obtained; (2) how a genuine issue of material fact will be raised by that information; (3) what efforts the affiant has made to obtain the information; and (4) why those efforts were unsuccessful." Sage Realty Corp. v. Ins. Co. of North America, 34 F.3d 124, 128 (2d Cir. 1994). Furthermore, the discovery sought has to be material to the opposition of the summary judgment motion. See id.
In the case at bar, counsel to the plaintiff has supplied the Court with an affidavit which addresses the four factors noted above. However, the Court is not persuaded by the information in the affidavit that the discovery the plaintiff seeks, in addition to that already obtained by him in this litigation, needs to be obtained to address the defendants' motion. In particular, the Court is not persuaded either that Simmons needs to discover information concerning how the union and the person it assigned to assist Simmons at his arbitration proceeding, Gilden, prepared for that proceeding, or that obtaining this information from Gilden is material to the plaintiff's opposition to the defendants' motion for summary judgment. As noted above, your Honor has determined already that neither lack of preparation, incompetence or inexperience on behalf of the union official who was assigned to represent the plaintiff at the arbitration proceeding, which might be uncovered through additional discovery efforts, would enable the plaintiff "to establish a triable issue of fact." The plaintiff did not request that your Honor reconsider so much of the court's February 14, 2005 order as spoke to this matter; furthermore, the time for requesting that the court revisit this issue has long since passed. See Local Civil Rule 6.3 of this court. Accordingly, there is no reason to go backwards and revisit a matter through additional discovery efforts that the court has determined previously will not establish a triable issue of fact. The litigation must move forward.
To establish a breach by the union of the duty of fair representation it owed to him, Simmons must establish that the union's conduct was "arbitrary, discriminatory, or in bad faith," and, in addition, that the arbitral process "was seriously undermine[d]" as a result of the union's conduct. Barr v. United Parcel Service, Inc., 868 F.2d 36, 43 (2d Cir. 1989). A union's conduct may be found to be arbitrary if it is so far outside the range of reasonableness as to be irrational. In addition, bad faith may be attributed to a union when its acts are performed "with an improper intent, purpose, or motive." Spellacy v. Airline Pilots Assn.-Int'l, 156 F.3d 120, 126, 129 (2d Cir. 1998). Moreover, to be successful on a claim that a union breached the duty of fair representation, a plaintiff must also show that the union's improper conduct caused him or her to lose the arbitration proceeding. See Spellacy, 156 F.3d at 126.
In the instant case, the plaintiff contends the discovery he seeks to pursue will enable him to demonstrate that the decision made by the union: to forgo petitioning the court for an order vacating the arbitrator's award, was a breach of the union's duty of fair representation because "the Union knew or had reason to believe [that the arbitrator's award] did not have a barely colorable justification." Affidavit of Bernadette A. Smith, at 9. (Internal quotation marks and citation omitted). According to Simmons, if he is permitted to depose Gilden, he "may be able to flesh out the details necessary to establish that, under the specific circumstances of [his] case, the union had a duty to move to vacate the arbitral award."
The plaintiff's desire to obtain discovery, in part, to attack the decision made by the union not to petition a court for an order vacating the arbitrator's award would not warrant the court in delaying the resolution of the defendants' motion. Even if the plaintiff could establish through additional discovery that the union's decision not to seek a judicial order vacating the arbitrator's award was an error in judgment, and tactically flawed, it would be of no import. This is so because "[t]actical errors [and errors of judgment] are insufficient to show a breach of the duty of fair representation; even negligence on the union's part does not give rise to a breach." Barr, 868 F.2d at 43. Furthermore, where a union acts in good faith, a court is not permitted to intercede on behalf of an employee who may be prejudiced by a rationally founded decision that operates to the employee's disadvantage. See id. Here the union has presented reasons for its decision to forgo seeking a judicial order vacating the arbitrator's award: 1) Supreme Court precedent establishing that an arbitrator's reliance on an error(s) of fact in rendering an award is not grounds for a court to review the merits of the arbitrator's award, see, e.g., United Paperworkers v. Misco, Inc., 484 U.S. 29, 36, 108 S. Ct. 364, 370 (1987); and (2) the absence of evidence of partiality or corruption on the part of the arbitrator. See 9 U.S.C. § 10. Under these circumstances, the Court finds that the union's decision, not to seek judicial review of the arbitrator's award, was based on reason and, therefore, was not arbitrary, irrational or made in bad faith. Moreover, the plaintiff's speculation about what might be "fleshed out" through a deposition of Gilden, without more, is an insufficient basis upon which the court would be justified in delaying the adjudication of the instant dispositive motion while Simmons pursues discovery.
In addition, the plaintiff's contention that he needs to examine orally defendants Sherman, Sackman, Gresham, and Shillingford to obtain evidence concerning the union's decision not to pursue a court order vacating the arbitrator's award is wrong. As stated above, any tactical decision made by the union regarding the pursuit of judicial relief from the arbitrator's award, if shown to be erroneous would not support a finding that the union breached the duty of fair representation it owed the plaintiff regardless of whether the decision was reached based on input from any or all of these defendants. Furthermore, inquiring of the union's counsel about advice they gave to their client about mounting a judicial review of the arbitrator's award would implicate the attorney-client communication privilege, a privilege the plaintiff has not shown the union would waive. Therefore, seeking discovery from the union's counsel would, in such a circumstance, be fruitless. Consequently, for all of the reasons noted above, delaying the resolution of the instant dispositive motion to permit Simmons to pursue additional discovery is not justified based upon the submissions made by the plaintiff in support of his Fed.R.Civ.P. 56(f) application.
Defendants' Summary Judgment Motion
Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), cert. denied, 524 U.S. 911, 118 S. Ct. 2075 (1998). When considering a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L. B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
It is undisputed that the plaintiff was employed by Terrace Health Care Center and that while he was so employed, the defendant union was his collective bargaining agent. On July 16, 1999, the plaintiff signed a statement through which he resigned from his position with his employer. The union presented a grievance to an arbitrator on the plaintiff's behalf, unsuccessfully. The award rendered by the arbitrator was based, in part, on his determination that Flores witnessed the plaintiff's resignation, although there was evidence before him demonstrating that Flores did not witness Simmons' resignation. The union determinated that it would not seek a judicial order vacating the arbitrator's award because, in its view, no statutory or jurisprudential basis for petitioning a court for such an order existed.
The plaintiff has pursued discovery, after having been allowed to do so by your Honor when he was faced with a prior motion for summary judgment. The discovery the plaintiff has indicated he wishes to pursue now either has been determined to be unnecessary by the court previously, or does not appear to be material to the plaintiff's opposition to the defendants' motion because it will not create a dispute concerning a material issue(s) of fact, the resolution of which would require that a trial be held. Discovering facts about the factors the union weighed in exercising its judgment and deciding to forgo a judicial challenge to the arbitrator's award will not, for the reasons discussed above, establish that the union breached the duty of fair representation it owed to the plaintiff. Neither will using discovery to delve into the level of experience and preparedness that Gilden brought to the arbitration proceeding establish that a triable issue of fact exists.
Inasmuch as the plaintiff cannot submit competent evidence through an affidavit(s) demonstrating that a material issue(s) of fact is in dispute that must be resolved at a trial and, furthermore, since the record before the Court is devoid of facts establishing that the union either: (a) acted arbitrarily or in bad faith when it represented Simmons at the arbitration proceeding; or (b) undermined the arbitral process in a serious way by its conduct, the defendants are entitled to summary judgment.
IV. RECOMMENDATION
For the reasons set forth above, the plaintiffs application to the court for an order postponing the resolution of the defendants' dispositive motion, and granting him the opportunity to pursue discovery, perchance to demonstrate the existence of a material issue(s) of fact that would preclude the defendants from obtaining judgment as a matter of law, should be denied and the defendants' motion for summary judgment should be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1350, New York, New York 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).