Peterson v. Air Line Pilots Ass'n, Intern.

• Decision Date: 29 May 1985
• Docket Number: No. 84-1186,84-1186
• Citation: 759 F.2d 1161
• Parties: 119 L.R.R.M. (BNA) 2001, 103 Lab.Cas. P 11,489 Howard B. PETERSON, III, Appellant, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, William Robert Koontz, William Graham Mathis, David Bruce Crouch, Arthur Ralph Magill, Does 1 through 200, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1161

759 F.2d 1161

119 L.R.R.M. (BNA) 2001, 103 Lab.Cas. P 11,489

Howard B. PETERSON, III, Appellant, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, William Robert Koontz, William Graham Mathis, David Bruce Crouch Arthur Ralph Magill, Does 1 through 200 Appellees.

No. 84-1186.

United States Court of Appeals Fourth Circuit.

Argued Nov. 1, 1984.

Decided April 15, 1985.

Rehearing and Rehearing En Banc Denied May 29, 1985.

Robert F. Gore, Springfield, Va. (Rex H. Reed, Springfield, Va., Hamilton Horton, Horton, Hendrick & Kummer, Winston-Salem, N.C., on brief) for appellant.

Gary Green, Washington, D.C. (Daniel S. Kozma, Washington, D.C., on brief) for appellees.

Before WIDENER and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

MURNAGHAN, Circuit Judge.

Appellant Howard B. Peterson, III, a former pilot for Piedmont Aviation, Inc. ("Piedmont"), has alleged that the Airline Pilots Association, International ("ALPA") and known and unknown union members coerced Piedmont into firing him for failing to respect a nationwide ALPA sponsored job action. Peterson contends that the union thereby failed to live up to its duty of fair representation and, together with individual pilots, violated North Carolina law prohibiting blacklisting, conspiracy, and interference with a contractual relationship. In two orders granting summary judgment in favor of ALPA, the district court ruled that Peterson's state law claims were preempted by the Railway Labor Act, that punitive damages could not be assessed against union defendants, and that Peterson's duty of fair representation claim was time barred.

I.

From May 1977 to January 1979 Peterson was a replacement pilot for Wien Air Alaska, Inc. during a nationwide ALPA sponsored strike. As part of the agreement ending Wien's labor dispute, striking pilots replaced non-union pilots, non-union pilots were furloughed, and ALPA promised there would be no reprisals or recriminations against pilots who had flown during the strike.

In May 1979 Peterson was hired by Piedmont Airlines. All Piedmont employees were represented by ALPA and were protected by the ALPA-Piedmont collective bargaining agreement. ¹ Peterson flew without incident until a fellow Piedmont pilot learned, some time in July 1979, that Peterson previously was a strike-breaker. Over the next several weeks, the complaint alleges, Peterson was harassed by individual pilots and ALPA sponsored a slowdown of flight operations designed to pressure Piedmont into firing Peterson. Peterson further alleges that on or about August 2 1979 he was taken off active flight duty by Piedmont and was told to find employment elsewhere. Peterson, however, apparently was paid by Piedmont until he secured another job with a different airline.

In July 1980, eleven months after the date of his alleged termination, Peterson filed a complaint in federal court claiming that he had been blacklisted by ALPA. His first complaint contained seven causes of action, including claims that Piedmont violated the Railway Labor Act, 45 U.S.C. Secs. 151 et seq. (1982) ("the RLA"), ² breached the contract of employment and did not live up to its duty of good faith and fair dealing. The complaint also asserted causes of action against ALPA alleging a breach of the duty of fair representation, blacklisting intentional interference with a contractual relationship, and civil conspiracy. The complaint sought punitive damages against all parties. The defendants answered the complaint, and, for the next several years, extensive discovery ensued.

On January 27, 1983 the district court, on motions for summary judgment by ALPA, entered an order dismissing six of Peterson's seven causes of action. The court held that appellant's state tort claims were preempted by the RLA (thus dismissing claims against individual union members), that punitive damages against ALPA were unavailable under the RLA, and that appellant failed to state a cause of action against Piedmont for interfering with union activities. The district court denied summary judgment, and left outstanding Peterson's claim against ALPA for breach of the duty of fair representation.

In that same order Peterson was granted leave to amend his complaint within thirty days to add Piedmont to his claim against ALPA for a breach of its duty of fair representation. On February 23, 1983 Peterson filed a second amended complaint, ³ however, because the amended pleading went beyond the scope of the district court's order, the complaint was stricken on August 11, 1983. On August 19, 1983 Peterson filed his third amended complaint. ⁴

While appellees' motion to strike the second amended complaint was pending, the Supreme Court on June 8, 1983 ruled in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) that a uniform six month limitation period applies to hybrid duty of fair representation claims under the National Labor Relations Act. On August 29, 1983 ALPA filed its amended answer wherein, some three years after Peterson originally accused the union of breaching its duty of fair representation and three years after ALPA first joined issue by answering the initial complaint without asserting a time-bar, for the first time raised a limitations defense. Piedmont's answer similarly asserted that appellant's fair representation claim was time-barred. Motions to dismiss the complaint were filed and, on January 14, 1984, the district court granted defendants' motions. Since that time Peterson has settled his dispute with Piedmont, but he appeals the January 27, 1983 and January 14, 1984 orders insofar as they relate to ALPA and individual union members.

II.

Normally, the first issue we should have to consider would be the length of the applicable limitations period, whether the six months announced in DelCostello, the two year period found in 45 U.S.C. Sec. 153 First (r), or a time span lasting one year or possibly three years as provided by the most analogous North Carolina statute. ⁵ That issue, however, currently engages the attention of another panel of the Court. ⁶ It is not profitable for us to complicate the matter since, on our view of things, even assuming that the shorter six months limitations period applies, nevertheless, time-bar has not occurred. That is so because the case established a principle of law new enough that neither Peterson in filing his complaint, nor ALPA in answering it, sought to take advantage of the new principle. ALPA, by failing to raise a limitations defense for three years after the case was initiated, has waived its right to rely on DelCostello.

The initial complaint against ALPA was answered on September 8, 1980 without any reference to limitations as a defense against the duty of fair representation cause of action. That cause of action was initiated eleven months after its accrual, and it was not until August 29, 1983 that ALPA decided to press for summary disposition on grounds of limitations. It is well settled that the defense of limitations is waived unless asserted promptly by way of answer or motion. See Weinberger v. Salfi, 422 U.S. 749, 764, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975); Hayden v. Ford Motor Co., 497 F.2d 1292, 1293-95 (6th Cir.1974); Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1154-56 (2d Cir.1968); Fed.R.Civ.P. 8(c). See also Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1287 (7th Cir.1977). Although waiver is not automatic, requiring a showing of prejudice or unfair surprise, see generally 5 Wright & Miller, Federal Practice and Procedure Sec. 1278 (1969 & Supp.1984), we are persuaded by considerations of fairness, entirely separate from the extensive investment of time and energy expended on discovery before the action was dismissed on limitations grounds.

Under traditional jurisprudential principles Peterson, as plaintiff, is charged with anticipating that the Supreme Court would establish the six months limitations period for his duty of fair representation claim. At the same time what is sauce for the goose is sauce for the gander--fairness calls for uniform application of the same principle to the defendant, in that ALPA had as much cause to anticipate DelCostello as did Peterson. Had ALPA shown the necessary perspicacity so to plead to the original complaint, Peterson would have no viable basis to attack a limitations defense. In such instance ALPA would have been entitled to a complete victory at the early pleading stage, regardless of the strength of plaintiff's claim on the merits. ⁷ ALPA's brief implies that it could not have raised a statute of limitations defense until after DelCostello was decided, but certainty of success is not a prerequisite to deciding whether to assert an affirmative defense in a pleading. ⁸ See Perez v. Dana Corp., 718 F.2d 581, 584 (3d Cir.1983) where the union defendants several years before DelCostello was decided anticipated the result in that case and raised a six-months limitation defense. ⁹ Consequently, since neither side anticipated DelCostello Peterson is entitled to a safe harbor. In short we leave the parties where we find them.

The same result should obtain despite the fact that Peterson filed a series of amended complaints. ¹⁰ It is true that, in cases where, from the very outset, no cloud obscured the right of the defendant to plead limitations, courts have permitted defendants to raise limitations even though not asserted as a defense in the original answer. See, e.g., Pierce v. County of Oakland, 652 F.2d 671 (6th Cir.1981). Here, however, the eclipse was great enough to convince counsel for both parties that neither the threat nor the advantage of limitations was present. In the present case ALPA was on notice since July 7, 1980 that Peterson was asserting a breach of the duty of fair representation. Subsequent amendments to the complaint did not affect the substance of the...