Fischbach & Moore, Inc. v. International Union of Op. Eng., Civ. No. 1251-60.

• Court: United States District Courts. 9th Circuit. United States District Court (Southern District of California)
• Writing for the Court: Hill, Farrer & Burrill, Los Angeles, Cal., for plaintiffs
• Citation: 198 F. Supp. 911
• 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.
• Decision Date: 06 November 1961
• Docket Number: Civ. No. 1251-60.

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.

198 F. Supp. 912

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

198 F. Supp. 913

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...