López v. UnióN De Trabajadores De La Industria Eléctrica Y Riego

Decision Date17 July 2019
Docket NumberCIVIL ACTION NO. 3:17-01919-WGY
Citation392 F.Supp.3d 263
Parties Javier COTTO LÓPEZ, Plaintiff, v. UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO, X, Y, and Z Insurance Companies, and A, B, and C Unidentified Persons, Defendants.
CourtU.S. District Court — District of Puerto Rico

Francisco R. Gonzalez-Colon, F.R. Gonzalez Law Office, San Juan, PR, for Plaintiff.

Diego Corral-Gonzalez, Harry Anduze-Montano, Harry Anduze Montano Law Office, San Juan, PR, Jose A. Morales-Boscio, Caguas, PR, for Defendants.




Plaintiff Javier Cotto López ("Cotto")2 seeks to amend his complaint against his union, defendant Unión de Trabajadores de la Industria Eléctrica y Riego (the "Union"). See Compl., ECF No. 1; Am. Compl. ("Proposed Am. Compl."), ECF No. 46. Pursuant to a collective bargaining agreement, the Union represents all workers within Cotto's bargaining unit at the Puerto Rico Electric Power Authority (the "Power Authority"), a Puerto Rico "government instrumentality." Proposed Am. Compl. ¶¶ 2-4; P.R. Laws Ann. tit. 22, § 193. Cotto contends that the Union violated his free speech and due process rights because it required him to support political ideas that he dislikes and enforced a provision of the collective bargaining agreement mandating Union membership. See generally Proposed Am. Compl.

At a hearing, this Court dismissed Cotto's original complaint for failure to state a claim. See March 27, 2019 Minute Order ("Minute Order"), ECF No. 47. The Court, however, granted Cotto leave to file a motion to amend his complaint to clarify his claim arising out of Janus v. American Fed'n of State, Cty., & Mun. Emp., Council 31, ––– U.S. ––––, 138 S. Ct. 2448, 201 L.Ed.2d 924 (2018). See Minute Order; see generally Samuel Mark Lyon, Casenote, Mandatory Fees No More!: Janus v. AFSCME Continues First Amendment Trend and Effectively Eliminates Union Power, 70 Mercer L. Rev. 799 (2019).

For the reasons set forth below, this Court ALLOWS in part and DENIES in part Cotto's motion for leave to amend his complaint. Cotto may go forward only with his claims for damages related to his allegedly compelled attendance at a February 11, 2016 Union rally and an order for the Union to accept his resignation.

A. Factual Background

On August 8, 2012, the Power Authority hired Cotto as an electrical maintenance technician. Proposed Am. Compl. ¶ 3. Contingent upon his employment, the Power Authority required Cotto to be a dues-paying Union member, even though Cotto opposed the Union's political stances and bargaining positions. See id. ¶ 4. In particular, Cotto complains that the Union engages in activism unrelated to workplace issues and uses "union facilities and resources[ ] for leftist groups, marches, and demonstrations against the USA, Free Market, Free World, [and] Private Property Rights." Id. ¶ 5.

Cotto further asserts that the Union requires him to participate in the very political activism with which he disagrees. See id. ¶ 11. Cotto's proposed amended complaint specifically describes two such occurrences. See id. First, Cotto complains that, on June 17, 2014, the Union held a General Assembly in which Union leaders forced the membership to approve a strike. Id. ¶ 11(a). After the vote, Union leaders "oblige[d]" the members to march on Plaza Las Americas "to disrupt its commercial activities and to ‘attack the exploitation of the rich against the people.’ " Id. ¶ 11(b). Cotto claims that he disagreed with the strike and the sentiments that the Union leaders expressed at the march. See id.

Second, on February 10 and 11, 2016, the Union demonstrated against the Puerto Rico legislature's restructuring of the Power Authority. See id. ¶¶ 8, 11(c). Cotto alleges that he attended the February 11 demonstration, but that the Union excused him from the February 10 demonstration because of "an accident that occurred with a colleague in the Barranquitas Technical Station." Id. On September 13, 2016,3 as a result of Cotto's alleged failure to attend the February 11 demonstration, the Union's Discipline Committee fined Cotto $200. Id. ¶¶ 7-9.4 The Discipline Committee sent Cotto "several letters" about the fine, but Cotto believed that the Union's attempt to enforce its policy requiring members to attend protests "was so intrusive, persecutory and discriminatory," so did not respond to them. Id. On May 29, 2017, the Union filed a civil suit to recover the fine and attorneys' fees in the Caguas, Puerto Rico Municipal Court. See id. ¶ 9.

Cotto also objects to a variety of other Union practices. Cotto alleges that the Union "unexpected[ly] calls" union members encouraging them to: (1) not work on certain days, (2) report all vehicles as being "unusable," (3) not work overtime, and (4) deliberately delay work to reduce efficiency and productivity. See id. ¶ 11(d). Furthermore, Cotto states that the Union's protests consisted of "foul language, insults, and drinking," which created a "hostile environment" for Union members, such as Cotto, who "respect others" for their personal beliefs and morals. See id. ¶ 11(g). According to Cotto, the Union also conducted an illegal secondary boycott of Banco Popular, an affiliate of Cotto's wife's longtime employer. See id. ¶ 6. Cotto's proposed amended complaint omits several details about this supposed secondary boycott: For instance, although he says the Union "obliged" him to participate, he does not say whether he did participate or if the Union threatened to, or actually did, impose adverse employment consequences on him for refusing to participate. See id. ¶ 19. Nor does Cotto's proposed amended complaint allege when those demonstrations took place. See generally id.

Additionally, Cotto alleges that he attempted to resign his Union membership in September 2018. See id. ¶ 10. Cotto sent the Union a resignation letter, which argued that the Supreme Court's recent decision in Janus permitted him to quit the Union. See id. In October 2018, the Union's president sent Cotto a letter asserting that Janus did not alter the legality of the Union's union shop agreement with the Power Authority and refused to accept Cotto's resignation. See id.

B. Procedural History

Cotto filed his original complaint on July 5, 2017. Compl. 1. Cotto's original complaint contained three "causes of action" alleging: (1) violations of the First Amendment to the United States Constitution; (2) violations of the Due Process Clause of the Fifth or Fourteenth Amendment5 to the United States Constitution; and (3) violations of the Puerto Rico constitution. Id. ¶¶ 13-21. In his original complaint, Cotto demanded $300,000 in compensatory damages and $300,000 in punitive damages. Id. ¶¶ 24-25(a). He also sought a permanent injunction against the Union, requiring it to "respect his Free Speech and Free Association rights" and to "refrain from further engaging in adverse union member action based on ideological beliefs." Id. ¶ 25(b).

The Union moved to dismiss the original complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6). Mot. Dismiss Under Rule 12(b)(1) & (6) Fed. R. Civ. P. ("Union Mot. Dismiss"), ECF No. 9. The parties fully briefed the motion. See Pl.'s Opp'n Def.'s Mot. Dismissal, ECF No. 28; Reply Pl.'s Opp'n Def.'s Mot. Dismissal ("Union Reply"), ECF No. 36; Pl.'s Surreply to Def.'s Reply, ECF No. 39.

At the March 27, 2019 hearing, this Court allowed the Union's motion to dismiss and gave Cotto leave to file a motion to amend his complaint to clarify his First Amendment claim as it related to the Janus decision. Minute Order. On April 5, 2019, Cotto purported to file an "amended complaint." Proposed Am. Compl. 1. The proposed amended complaint largely restates the original complaint's allegations, "causes of action," and prayer for relief. Compare generally Proposed Am. Compl. with Compl. In addition, the proposed amended complaint asserts that the Union thwarted Cotto's attempt to resign from the Union and asks the Court to order the Union to allow him to resign. See Proposed Am. Compl. ¶ 12. On April 25, 2019, the Union moved to dismiss Cotto's proposed amended complaint, which Cotto opposed on May 18, 2019. Mot. Dismiss. Proposed Am. Compl. Under Rule 12(b)(1) & (6) Fed. R. Civ. P. ("Union Opp'n Mot. Leave"), ECF No. 48; Pls.' Opp'n Defs. 2nd Mot. Dismissal Filed April 25, 2019 ("Cotto Mem. Leave"), ECF No. 50. The Court construes these post-motion hearing filings as briefing on a motion for leave to amend the complaint. See Minute Order.

After careful consideration of the parties' submissions with respect to both the motions to dismiss and for leave, the Court ALLOWS Cotto's motion for leave to file his amended complaint, ECF No. 46, only to the extent that the proposed amended complaint theorizes that Cotto's compelled attendance at the February 11, 2016 rally and inability to resign from the Union violates the First Amendment. See Proposed Am. Compl. ¶ 12.


The Union challenges this Court's exercise of subject matter jurisdiction. See Union Mot. Dismiss 23-25; Union Reply 2-6; Union Opp'n Mot. Leave 11-17, 19-20. A party may attack the Court's subject matter jurisdiction on any ground, including the plaintiff's constitutional standing, at any time in the case. See Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) ; Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016).

The Union appears to raise two objections to this Court's subject matter jurisdiction. See Union Mot. Dismiss 23-25; Union Reply 2-6; Union Opp'n Mot. Leave 11-17, 19-20. First, it argues that the proposed amended complaint does not allege that Cotto suffered an injury in fact sufficient for him to have standing. Union Opp'n Mot. Leave 15-17. Second, it suggests that the proposed amended complaint does not arise under federal law. Id. at 11-14, 19-20. Both objections are meritless. Cotto alleges at least two injuries in his proposed...

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