OPERATIVE PLASTERERS & CEMENT MASONS ASSOC. v. Benjamin, No. S91-293M.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: MILLER
• Citation: 776 F. Supp. 1360
• Parties: OPERATIVE PLASTERERS & CEMENT MASONS INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO, et al., Plaintiffs, v. James E. BENJAMIN, Defendant.
• Decision Date: 30 October 1991
• Docket Number: No. S91-293M.

776 F. Supp. 1360

OPERATIVE PLASTERERS & CEMENT MASONS INTERNATIONAL ASSOCIATION OF THE UNITED STATES AND CANADA, AFL-CIO, et al., Plaintiffs,
v.
James E. BENJAMIN, Defendant.

No. S91-293M.

United States District Court, N.D. Indiana, South Bend Division.

October 30, 1991.

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Barry A. Macey, Indianapolis, Ind., Robert J. Henry, Charles W. Gilligan, Washington, D.C., for plaintiffs.

Charles L. Berger, Evansville, Ind., for defendant.

MEMORANDUM AND ORDER

MILLER, District Judge.

This cause comes before the court on defendant James Benjamin's motion to dismiss the plaintiffs' complaint for lack of subject matter jurisdiction. The plaintiffs, an international union and its affiliated local, seek equitable relief and money damages against James Benjamin for alleged acts of misconduct he committed while he was an official of the local union. The union claims this court has jurisdiction over this action under Section 501 of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 501, Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, the general jurisdictional grant of 28 U.S.C. § 1337, and the doctrine of pendent jurisdiction with regard to several state common law claims. Mr. Benjamin claims that neither § 501 of the LMRDA nor § 301 of the LMRA provides subject matter jurisdiction for a union's suit against an individual union member. Mr. Benjamin further claims that without an independent jurisdictional base, the court lacks jurisdiction under 28 U.S.C. § 1337 and also lacks jurisdiction over the unions' pendent state law claims. The court heard argument on the motion on October 29, 1992.

For the following reasons, the court finds that Mr. Benjamin's motion to dismiss must be denied. Although § 501 of the LMRDA provides no jurisdiction for these claims, the court finds ample jurisdictional authority under 28 U.S.C. § 1337, § 301 of the LMRA, and 28 U.S.C. § 1367.

I.

The plaintiffs are the Operative Plasterers and Cement Masons International Association of the United States and Canada, AFL-CIO ("OPCMIA"), and affiliated Local Union No. 101 ("Local 101"), located in

776 F. Supp. 1362

South Bend, Indiana. Mr. Benjamin served as the Local 101's chief executive officer for nearly twenty years until he resigned from that position on or about June 13, 1991

The complaint alleges that from May 1 through June 13, 1991, Mr. Benjamin breached his oath of office and fiduciary duty by, among other things, trying to solicit the mass resignation of Local 101's membership, encouraging Local 101 contractors to disregard their collective bargaining obligations and assign work to a rival union, discouraging Local 101 members from paying their dues, using confidential property and information of Local 101 on behalf of the rival union, and misrepresenting to both union members and contractors that the OPCMIA was preparing to merge with another labor organization.

In response to this alleged course of conduct, the OPCMIA ordered Local 101 placed into trusteeship on June 13, 1991, in accordance with the terms of Article XIII of its international constitution, and ordered Mr. Benjamin to turn over to the appointed Trustee all Local 101 property in his possession. The complaint alleges that Mr. Benjamin failed to comply with this order, retaining in his possession certain Local 101 property and using that property to the detriment of Local 101 and for the benefit of a rival union.

The plaintiffs seek equitable relief and monetary damages from Mr. Benjamin. They allege that the court has jurisdiction to hear its claims for equitable relief under § 501 of the LMRDA (29 U.S.C. § 501), § 301 of the LMRA (29 U.S.C. § 185), and 28 U.S.C. § 1337. The plaintiffs seek the return of union property currently in Mr. Benjamin's possession and an order enjoining Mr. Benjamin from using the property to Local 101's detriment. They also claim monetary damages for Mr. Benjamin's alleged breaches of contract and tortious acts, and allege the court has jurisdiction over these state law causes of action as claims pendent to the federal causes of action.

II.

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of complaints that fail to bring an actionable claim within the subject matter jurisdiction of the federal courts. The party asserting jurisdiction bears the burden of demonstrating that he has alleged a claim under federal law and that claim is not frivolous. Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Evans v. Tubbe, 657 F.2d 661 (5th Cir.1981); Fuehrer v. Owens-Corning Fiberglas Corp., 673 F.Supp. 1150 (D.Conn.1986); Cospito v. Califano, 89 F.R.D. 374 (D.N.J.1981).

Under the notice pleading of the Federal Rules of Civil Procedure, a complaint must include allegations respecting all material elements of all claims asserted, including elements establishing federal jurisdiction. Bare legal conclusions attached to narrated facts will not suffice. Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir.1985); Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984). Ordinarily, then, a motion to dismiss for want of subject matter jurisdiction may take the form of a facial attack on the complaint. Evans v. Tubbe, 657 F.2d at 664; Claxton v. Small Business Administration of the U.S. Government, 525 F.Supp. 777 (S.D.Ga.1981).

A district court may, however, consider other materials in the evidentiary record outside of the pleadings in determining the nature of the jurisdictional facts. Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183 (5th Cir.1986); Enka B. V. of Arnhem, Holland v. E.I. Du Pont De Nemours & Co., 519 F.Supp. 356 (D.Del.1981); Dangerfield v. Bachman Foods, Inc., 515 F.Supp. 1383 (D.N.D.1981). In this circuit, the non-moving party must respond to a motion to dismiss for want of subject matter jurisdiction with affidavits or other relevant evidence to resolve the factual dispute regarding the court's jurisdiction. Kontos v. United States Dept. of Labor, 826 F.2d 573 (7th Cir.1987); see also Bowyer v. United States, 875 F.2d 632, 635 (7th Cir. 1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990); Crawford v.

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United States, 796 F.2d 924, 928-29 (7th Cir.1986). The court will consider Mr. Benjamin's motion with the above standards in mind

III.

A. Jurisdiction under § 501(b) of the LMRDA

Mr. Benjamin first claims that the court lacks jurisdiction to hear the plaintiffs' claim under § 501 of the LMRDA, which provides in relevant part:

The officers, agents, shop stewards, and other representatives of a labor organization occupy a position of trust in relation to such organization and its members as a group. It is therefore the duty of each such person ... to refrain from dealing with such organization as an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization....

29 U.S.C. § 501(a). The plaintiffs claim that Mr. Benjamin's actions violated the duty of loyalty to the union set forth in § 501(a).

Mr. Benjamin claims that this court lacks jurisdiction to hear a claim brought by a union against an individual union official under § 501 of the LMRDA because § 501(b) does not contemplate a suit by a union for breach of duty by an official, but, rather, only permits suits in federal court by individual union members after the union has refused to sue.

Section 501(b) provides that:

When any officer ... of any labor organization is alleged to have violated the duties declared in subsection (a) of this section and the labor organization ... refuses or fails to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer ... in any district court of the United States.

29 U.S.C. § 501(b). Thus, Congress explicitly gave union members a right to sue union officers in federal court for breaches of the duties described in § 501(a) upon the fulfillment of certain conditions. The statute is silent, however, as to whether a union may bring a federal suit against a union official. According to Mr. Benjamin, this silence precludes a union's suit under § 501.

Mr. Benjamin places primary reliance on the Ninth Circuit's decision in Building Material and Dump Truck Drivers Local 420 v. Traweek, 867 F.2d 500 (9th Cir.1989), which held that the plain language of § 501(b) gives a federal cause of action only to individual union members and does not contemplate a suit brought by a union. The court noted that its construction of the statute was consistent with the general principle that the scope of federal jurisdictional statutes should be narrowly construed. Several district courts also have relied on the statute's plain language to find that § 501(b) did not give a union the right to sue an individual union member in federal district court. See Int'l Brotherhood of Boilermakers, etc. v. Freeman, 683 F.Supp. 1190 (N.D.Ill.1988); Local 443, Int'l Brotherhood of Teamsters v. Pisano, 753 F.Supp. 434 (D.Conn.1991).

The plaintiffs claim that Mr. Benjamin's reading of the statute contradicts the policies underlying § 501. The enforcement scheme embodied in § 501(b) contemplates that a union is the appropriate party to bring suit to remedy fiduciary breaches by its officers. Therefore, the plaintiffs argue, it defies logic and congressional intent to allow individual union members to sue in federal court while relegating a union pursuing the same cause to state court. Other federal courts have adopted this reasoning and have exercised jurisdiction over claims brought by unions under § 501. See Brotherhood of Railway Clerks v. Orr, 95 L.R.R.M. 2701 (E.D.Tenn.1977) (court held that § 501(b) gave it jurisdiction to hear a suit brought by a union...