Fischbach & Moore, Inc. v. International Union of Op. Eng.

• Decision Date: 06 November 1961
• Docket Number: Civ. No. 1251-60.
• Court: U.S. District Court — Southern District of California
• Parties: FISCHBACH AND MOORE, INC., a corporation, C. D. Draucker, Inc., a corporation, Fischbach and Moore, Inc., and C. D. Draucker, Inc., a Joint Venture, Plaintiffs, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, a labor organization and an unincorporated association, International Union of Operating Engineers, Local Unions Nos. 12, 12A, 12B, 12C and 12D, affiliated with the International Union of Operating Engineers, labor organizations and unincorporated associations, Defendants.

198 F. Supp. 911

FISCHBACH AND MOORE, INC., a corporation, C. D. Draucker, Inc., a corporation, Fischbach and Moore, Inc., and C. D. Draucker, Inc., a Joint Venture, Plaintiffs, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, a labor organization and an unincorporated association, International Union of Operating Engineers, Local Unions Nos. 12, 12A, 12B, 12C and 12D, affiliated with the International Union of Operating Engineers, labor organizations and unincorporated associations, Defendants.

Civ. No. 1251-60.

United States District Court S. D. California, Central Division.

November 6, 1961.

Hill, Farrer & Burrill, Los Angeles, Cal., for plaintiffs.

Brundage, Hackler & Flaum, Los Angeles, Cal., for defendants.

THURMOND CLARKE, District Judge.

This matter is before the court for consideration of several motions by defendants. Because of the significant nature of the issues raised by defendants' motions to dismiss and strike, the court deems it necessary to file a separate opinion explaining the view taken on these motions.

The complaint in this action was filed on November 1, 1960, by two corporations and a joint venture as plaintiffs, for damages arising out of alleged unfair labor practices by defendant unions. The alleged union activities included strikes, picketing and work stoppages occurring at various times in February, May and July of 1957. Jurisdiction is based upon 28 U.S.C. § 1331 (existence of a federal question), 28 U.S.C. § 1332 (diversity of citizenship), 28 U.S.C. § 1337 (action under a federal statute relating to commerce) and, primarily, upon 29 U.S.C.A. § 187(b) (Labor Management Relations Act, § 303(b)), which provides as follows:

"Whoever shall be injured in his business or property by reason or (sic) any violation of subsection (a) of this section pertaining to unfair labor practices by labor organizations may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title not here material without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit."

Motions to dismiss the action for failure to state a claim upon which relief might be granted and to strike certain allegations of the complaint as immaterial, redundant and outlawed by the statute of limitations were filed by defendants. Defendants contend that this action is barred by the statute of limitations and the basic issue for determination herein is the correctness or error of that contention. Although the issue of limitations is normally an affirmative defense to be raised in the answer (F.R. Civ.P., Rule 8(c), 28 U.S.C.), where the passage of time is clearly apparent on the face of the complaint, it is well settled that the defense of limitations may be raised by a motion to dismiss. (Anderson v. Linton, 178 F.2d 304, 309-310 (7 Cir.1949); Wilson v. Illinois Central Railroad Company, 147 F.Supp. 513, 516 (D.C.N.D.Ill.1957); Wagner v. New York, Ontario and Western Railway, 146 F.Supp. 926 (D.C.M.D.Pa.1956); Wells v. Place, 92 F.Supp. 473 (D.C.N.D.Ohio 1950).) Such is the situation in the case at bar, if the defense is available at all.

No limitations provision is found in the Labor Management Relations Act or in any other federal statute which pertains specifically to actions brought under § 303 of the Labor Management Relations Act. In this situation, defendants argue that where a federal statute creates a cause of action but does not adopt a period of limitations, a federal court trying an action based on such statute should adopt some applicable state statute of limitations; in this case, it is generally conceded that the only arguably applicable state statute of limitations is California Code of Civil Procedure § 338, subd. 1, providing that an action upon a liability created by statute (other than a penalty or forfeiture) must be brought within three years. Plaintiffs, on the other hand, contend that the comprehensive scheme of federal regulation of the labor field and judicial interpretation thereof, particularly in the Lincoln Mills case (Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed. 2d 972 (1957)), compel the conclusion that a uniform national regulation of labor activities is so essential that in the absence of an applicable federal statute of limitations, courts should apply no period of limitations until Congress decrees one, or, alternatively, that if some limitations period must be chosen, it should be selected from an analogous federal statute; the statute suggested is 15 U.S.C.A. § 15b, requiring suits for damages for violations of the antitrust laws to be brought within four years. The alleged activities in the case at bar occurred more than three years but less than four years before this action was filed.

The question here presented, to wit, whether a state statute of limitations is properly applicable in a cause of action based upon § 303 of the Labor Management Relations Act, is one of first impression. Although a Tennessee limitations statute was applied in the case of United Mine Workers of America v. Meadow Creek Coal Co., 263 F.2d 52 (6 Cir.1959), cert. den. 359 U.S. 1013, 79 S.Ct. 1149, 3 L.Ed.2d 1038, the issue was which of two possible state statutes should be applied, the question of the proper applicability of any state statute apparently not being raised. No other published decision appears to bear on the question at all.

After careful consideration of this problem, the court has reached the conclusion that the often-expressed policy favoring a single, uniform, national labor law (see, e. g., San Diego Building Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 240 et seq., 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Garner v. Teamsters Union, 346 U.S. 485, 488, 490, 74 S.Ct. 161, 98 L.Ed. 228 (1953)) compels the conclusion that diverse state statutes may not be permitted to qualify or undermine a federally-created right. Hence, California Code of Civil Procedure § 338, subd. 1 may not be invoked to bar this action and defendants' motions to dismiss and strike must be denied.

In reaching this result, the court takes as its point of departure the Lincoln Mills case (353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972). Therein, the Supreme Court of the United States held that, in an action commenced under Section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185, federal courts were not bound to apply state substantive law but were instead to apply federal substantive law "which the courts must fashion from the policy of our national labor laws". (353 U.S., at pages 456-457, 77 S.Ct. at page 918.) The Lincoln Mills case thus stands clearly and unequivocally for the proposition that, in actions under Section 301 at least, variegated state rules must yield to a uniform federal rule which must be drawn from the statute where possible and from judicial interpretation where the statute is silent.

It is the opinion of the court that the reasoning of Lincoln Mills applies with as much, if not more, compelling force to actions brought under Section 303 of the Labor Management Relations Act. In the case of Section 301, a strong argument, which forms the basis of a lengthy dissent by Mr. Justice Frankfurter, had been presented to the effect that the statute was merely intended to be a grant of jurisdiction to federal courts over what had previously been a state cause of action for breach of contract. In rejecting the applicability of state law, the court had been forced to conclude that Section 301 "is more than jurisdictional—that it authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements * * *". (353 U.S., at pages 450-451, 77 S.Ct. at page 915.) Thus, what had clearly previously existed as a state cause of action was taken over as a federal cause of action to which federal law must be applied.

Actions under Section 303 are clearly of a different character. The right to bring an action for damages for unfair labor practices is a federally-created right which did not exist at state law. The statute patently confers new substantive rights and confers jurisdiction to enforce these rights upon both state and federal courts. In such a situation, it appears axiomatic that a uniform body of federal law should be developed to regulate the rights and obligations of parties and that the right to recover should not be conditioned upon the fortuitous operation of a tremendous variety of state statutes of limitations. With these principles in mind, the court applies the Lincoln Mills doctrine, by analogy, to actions brought under Section 303 of the Labor Management Relations Act.

As was noted in Lincoln Mills, "it is not uncommon for federal courts to fashion federal law where federal rights are concerned." (353 U.S., at 457, 77 S. Ct. at page 918.) Limitations upon the applicability of state law, including state statutes of limitations, and development of a uniform federal law, have been decreed by federal courts in numerous cases, including McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958); Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S. Ct. 573, 87 L.Ed. 838 (1943); and Davis v. Rockton & Rion R. R., 65 F.Supp. 67 (D.C.W.D.S.C.1946).

The court is fully cognizant of the fact that in many cases where federal statutes, which create federal rights of action, do not include a period of limitations, it has been the practice of state and federal courts to apply state statutes of limitations. (See, e. g., United Mine Workers of America v. Meadow Creek Coal Co., 263 F.2d 52, 61 et seq. (6 Cir. 1959), cert. den. 359 U.S. 1013, 79 S.Ct. 1149, 3 L.Ed.2d 1038; Reliford v. Eastern Coal Corporation, 260 F.2d 447, 455 (6 Cir.1958), cert. den. 359 U.S. 958, 79...