Allen v. United Parcel Serv., Inc.

• Decision Date: 19 December 2013
• Docket Number: No. 12 Civ. 02378(ILG)(RER).,12 Civ. 02378(ILG)(RER).
• Citation: 988 F.Supp.2d 293
• Parties: Patrick ALLEN, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

988 F.Supp.2d 293

Patrick ALLEN, Plaintiff,

v.UNITED PARCEL SERVICE, INC., Defendant.

No. 12 Civ. 02378(ILG)(RER).

United States District Court, E.D. New York.

Dec. 19, 2013.

Patrick Allen, William John Fallon, Rockville Centre, NY, for Plaintiff.

Basil Constantine Sitaras, Daniel L. Schwartz, Day Pitney LLP, Stamford, CT, for Defendant.

MEMORANDUM AND ORDER

GLASSER, Senior District Judge.

Plaintiff has objected, pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), to the Report and Recommendation of Magistrate Judge Ramon E. Reyes, Jr. (Dkt. No. 26) (the “R & R”), dated October 25, 2013, recommending that the Court deny plaintiff's motion for leave to amend his complaint. For the reasons stated below, the Court adopts the R & R in its entirety.

BACKGROUND

Patrick Allen filed a complaint against his former employer, United Parcel Service (“UPS”), in New York State court on March 31, 2012, for violating the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. §§ 290–301, and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8–101–131. Notice of Removal (Dkt. No. 1). He alleged that he worked for UPS from 1993 to 2009 as a “pre-loader,” which involved sorting packages before they were loaded onto trucks. Id. He was terminated on October 29, 2009, after he reported a disabling work injury (that he does not describe in his complaint), because UPS concluded he had faked the injury.¹Id.

UPS removed the action to this Court on May 11, 2012. Notice of Removal. On July 5, 2012, Judge Reyes entered a scheduling order establishing a deadline for amending pleadings of September 3, 2012. Scheduling Order (Dkt. No. 9). Discovery was originally scheduled to be completed by January 15, 2013, but the deadline was extended to April 15, 2013. Id.; Order dated January 10, 2013. On April 18, 2013, Allen's attorney asked for, and was granted, leave to withdraw due to a breakdown in his relationship with Allen. Order dated April 18, 2013. Allen's new attorney filed a notice of appearance on May 17, 2013. Notice of Appearance (Dkt. No. 16).

On May 28, 2013, Allen moved for leave to amend his complaint to add a claim of breach of a collective bargaining agreement (“CBA”) pursuant to § 301 of the Labor Management Relations Act (“LMRA”), codified at 29 U.S.C. § 185. ² Motion to Amend (Dkt. No. 17). UPS responded on June 6, 2013. (“Def.'s First Response”) (Dkt. No. 19). Allen filed a new proposed amended complaint (confusingly filed as an “Amended Complaint”) on June 13, 2013. (“Proposed Am. Compl.”) (Dkt. No. 20). UPS filed a second “response” to address the new proposed amended complaint on June 20, 2013. (“Def.'s Second Response”) (Dkt. No. 23). Allen then filed what he called a “motion to amend/correct/supplement,” which is in substance a reply to UPS's responses, on June 25, 2013. (“Pl.'s Reply”) (Dkt. No. 25).

Allen's proposed claim is based on allegations that UPS breached the CBA between his union and UPS by terminating his employment without giving him 72 hours' notice, assigning a union delegate, conducting a grievance hearing, or arbitrating his grievance.³ Proposed Am. Compl. at ¶¶ 55–60. He also alleges that his union breached its duty to fairly represent him in the grievance proceedings by refusing to assign a union delegate, which, combined with UPS's actions, prevented him from exhausting the grievance process. Id. at ¶¶ 61–62.

This Court referred the motion to Judge Reyes for a report and recommendation. (Dkt. No. 24). In the R & R, Judge Reyes recommends denying Allen's motion for leave to amend because the proposed § 301 claim would be futile on account of being untimely and because Allen hasn't demonstrated good cause for seeking to amend his complaint several months after the deadline to do so passed. Allen filed an objection to the R & R on November 12, 2013.⁴ (“Pl.'s Objection”) ( Dkt. No. 32). UPS filed a response on November 20, 2013. Defendant's Opposition (“Def.'s Opp'n”) (Dkt. No. 33).

DISCUSSION

I. Timeliness of Objection

UPS asserts that Allen's objection, filed on November 12, was untimely and that he has accordingly waived review of the R & R. Def.'s Opp'n at 2–3. Parties have 14 days after service of an R & R to file objections. Fed. R. Civ. P. 72(a), (b)(2). If an R & R is served electronically, as it was here, “3 days are added after the period would otherwise expire.” Fed. R. Civ. P. 6(d); accord Green v. City of New York, No. 05–CV–429, 2010 WL 148128, at *3 n. 1 (E.D.N.Y. Jan. 14, 2010); Sembler v. Advanta Bank Corp., No. 07–CV–2493, 2008 WL 2965661, at *1 (E.D.N.Y. Aug. 1, 2008). The R & R was served electronically on October 25. Fourteen days after October 25 was November 8, and three days after November 8 was November 11. Since November 11 was a legal holiday (Veterans' Day), Allen had until the next business day—November 12—to file his objection. SeeFed. R. Civ. P. 6(a)(1)(C); Local Civ. R. 6.4; Blessing v. Sirius XM Radio, Inc., 756 F.Supp.2d 445, 452–53 (S.D.N.Y.2010). His objection is thus timely and he has not waived further judicial review of the R & R.

II. Standard of Review

For a dispositive matter, the district court reviews de novo the parts of the R & R to which the parties object and reviews for clear error the parts of the R & R to which the parties do not object. Fed. R. Civ. P. 72(b)(3); Integrity Elecs., Inc. v. Garden State Distribs., No. 09 Civ. 2367, 2012 WL 1041349, at *1 (E.D.N.Y. Mar. 28, 2012). For a non-dispositive matter, the district court reviews the R & R for clear error. Fed. R. Civ. P. 72(a); Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.2007). Authority is divided about whether a motion for leave to amend a complaint is a dispositive or non-dispositive matter. See Jean–Laurent v. Wilkerson, 461 Fed.Appx. 18, 25 (2d Cir.2012) (remanding after the district court treated a recommendation to partially deny motion to amend as non-dispositive); Fielding, 510 F.3d at 178 (stating in dicta that a motion to amend a complaint is non-dispositive); Klaper v. Cypress Hills Cemetery, No. 10–CV–1811, 2012 WL 959403, at *6 n. 6 (E.D.N.Y. March 21, 2012) (explaining that the Second Circuit has not explicitly addressed this question and that some district courts have reviewed recommendations to deny a motion to amend as dispositive and to grant a motion as non-dispositive). In any event, whether reviewed de novo or for clear error, this Court would adopt the R & R. See Wilson v. City of New York, No. 06–CV–229, 2008 WL 1909212, at *3–4 (E.D.N.Y. Apr. 30, 2008) (deciding not to take a position on this question because the court would adopt the R & R either way). The district court may accept, reject, or modify, in whole or in part, the R & R. Fed. R. Civ. P. 72(a), (b)(3); Integrity Elecs., 2012 WL 1041349, at *1.

III. Allen's Motion for Leave to Amend His Complaint

Federal Rule of Civil Procedure 15 instructs a Court to freely grant leave to amend a complaint. Fed. R. Civ. P. 15(a)(2). Pursuant to Rule 15, however, a Court has discretion to deny a motion for leave to amend a complaint for, inter alia, futility of the amendment. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200–01 (2d Cir.2007). An amendment is futile if the proposed claim could not withstand a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Islamic Soc'y of Fire Dep't Pers. v. City of New York, 205 F.Supp.2d 75, 80 (E.D.N.Y.2002). When a motion for leave to amend a complaint is made after a scheduling order's deadline to do so has elapsed, as here, the Court must balance Rule 15(a)'s instruction to freely grant leave against Rule 16(b)'s instruction to not modify a scheduling order unless good cause is shown. Fed. R. Civ. P. 16(b); Holmes v. Grubman, 568 F.3d 329, 334–35 (2d Cir.2009); Bensinger v. Denbury Res., Inc., No. 10–CV–1917, 2013 WL 3353975, at *3 (E.D.N.Y. July 3, 2013). The good-cause inquiry turns on whether the moving party was diligent. Holmes, 568 F.3d at 335;Morales v. Cnty. of Suffolk, 952 F.Supp.2d 433, 434–35 (E.D.N.Y.2013).

A. Rule 15 Analysis

Allen proposes a claim pursuant to § 301 of the LMRA, which provides a federal cause of action for breach of a CBA. 29 U.S.C. § 185; UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 697, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). There are two types of § 301 claims. A pure § 301 claim is one that simply alleges that the employer breached the CBA. Id. at 705 n. 7, 86 S.Ct. 1107. Before bringing a pure § 301 claim, a party must exhaust the grievance process required by the CBA. Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Semper v. New York Methodist Hosp., 786 F.Supp.2d 566, 585 (E.D.N.Y.2011). A hybrid § 301 claim pairs a claim that the employer breached the CBA with a claim that the union's breach of its duty to fairly represent the employee prevented the employee from exhausting the grievance process. DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 163–64, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Carrion v. Enterprise Ass'n, 227 F.3d 29, 34 (2d Cir.2000). A hybrid § 301 claim thus provides an avenue for a party who has not exhausted the grievance process. DelCostello, 462 U.S. at 163–64, 103 S.Ct. 2281;Semper, 786 F.Supp.2d at 585. The nature of the claim, and not who is sued, determines whether a § 301 claim is considered pure or hybrid. Carrion, 227 F.3d at 34;Doyle v. United Airlines, Inc., 914 F.Supp.2d 325, 338 n. 6 (E.D.N.Y.2012).

Section 301 does not provide a statute of limitations, so courts have borrowed limitations periods from analogous claims. The differences between pure and hybrid § 301 claims have resulted in the borrowing of different limitations periods. In Hoosier, the Supreme Court concluded that the claim most analogous to a pure § 301 claim is breach of contract, reasoning that a pure § 301 claim “is essentially an action for damages caused by an alleged breach of an employer's obligation embodied in a collective bargaining...