Allied Intern., Inc. v. International Longshoremen's Ass'n, AFL-CIO

• Citation: 814 F.2d 32
• Decision Date: 23 March 1987
• Docket Number: D,Nos. 86-1947,AFL-CI,86-1987,AFL-CIO,s. 86-1947
• Parties: 124 L.R.R.M. (BNA) 3153, 106 Lab.Cas. P 12,318, 7 Fed.R.Serv.3d 337 ALLIED INTERNATIONAL, INC., Plaintiff, Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,efendant, Appellant. ALLIED INTERNATIONAL, INC., Plaintiff, Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,, et al., Defendants, Appellees. Local 799, International, Longshoremen's Association, , Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 32

814 F.2d 32

124 L.R.R.M. (BNA) 3153, 106 Lab.Cas. P 12,318,

7 Fed.R.Serv.3d 337

ALLIED INTERNATIONAL, INC., Plaintiff, Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO,

Defendant, Appellant.

ALLIED INTERNATIONAL, INC., Plaintiff, Appellee, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, et al.,

Defendants, Appellees.

Local 799, International, Longshoremen's Association,

AFL-CIO, Defendant, Appellant.

Nos. 86-1947, 86-1987.

United States Court of Appeals First Circuit.

Argued Feb. 4, 1987.

Decided March 23, 1987.

Ernest L. Mathews, Jr. with whom Thomas W. Gleason, Kevin Marrinan, and Maura R. Cahill, New York City, were on brief, for Intern. Longshoremen's Ass'n, AFL-CIO.

Joseph T. Doyle, Lecomte, Barber, Emanuelson, Tick & Doyle, Boston, Mass., Charles R. Goldburg and Diana Graham, New York City, on brief, for Local 799, Intern. Longshoremen's Ass'n, AFL-CIO.

Danielle E. DeBenedictis with whom Michael T. Cetrone, Stephen J. Brake, Jennifer A. Parks, Valerie C. Samuels, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for Allied Intern. Inc.

Before CAMPBELL, Chief Judge, ALDRICH and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This litigation has occupied the attention of an assortment of tribunals (including our own) for several years. In this, the latest chapter of what has become an enduring saga, the International Longshoremen's Association (ILA) and its Boston-based affiliate (Local 799) appeal from a judgment of the United States District Court for the District of Massachusetts awarding substantial money damages in favor of Allied Plywood Corporation (APC). The defendants-appellants will be sometimes collectively referred to herein as "the union."

We briefly review the tortuous procedural history of this case. Following the onset of the union's boycott of Russian goods (described post ), APC's predecessor-in-interest, Allied International, Inc. (Allin), brought suit against the present appellants, but without immediate avail. Allin's complaint under 29 U.S.C. Sec. 158(b)(4)(i) ¹ was dismissed by the district court for failure to state a cognizable claim. See Allied Int'l, Inc. v. International Longshoremen's Ass'n, 492 F.Supp. 334 (D.Mass.1980). We reversed, ordering the matter reinstated. Allied Int'l, Inc. v. International Longshoremen's Ass'n, 640 F.2d 1368 (1st Cir.1981). On certiorari, the Supreme Court affirmed our ruling, holding that the complaint stated a cause of action. International Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 102 S.Ct. 1656, 72 L.Ed.2d 21 (1982). While this skirmishing was ongoing, Allin filed a remonstrance before the National Labor Relations Board (NLRB) arising out of the same factual mosaic. The NLRB, see International Longshoremen's Ass'n, 257 N.L.R.B. 1075 (1981), found that the interdicted conduct constituted an unfair labor practice in violation of 29 U.S.C. Sec. 158(b)(4)(i), quoted ante n. 1.

These proceedings, collectively, formed the basis for the continued pursuit by Allin of its claims against the union. The district court subsequently found both the ILA and Local 799 liable, and granted partial summary judgment to that effect. Allied Int'l, Inc. v. International Longshoremen's Ass'n, 554 F.Supp. 32 (D.Mass.1982). Thereafter, before any trial on damages, Allin moved to amend the complaint to substitute APC as the named plaintiff. That motion was granted over objection.

No party interposed a timely demand for empanelling of a jury. Fed.R.Civ.P. 38(b). ² At the ensuing bench trial, the district court held, inter alia, that damages in the nature of lost profits were recoverable, and that, on the evidence presented, lost profits were ascertainable with a reasonable degree of certainty through January 31, 1984. Allied Plywood Corp. v. International Longshoremen's Ass'n, 123 L.R.R.M. (BNA) 2455, 2458 (D.Mass.1986) Finding the plaintiff's proven damages (including but not limited to lost profits) to be in the sum of $8,055,490, id. at 2460, the court entered judgment for that amount, plus prejudgment interest. Id. These appeals followed.

Liability is not in dispute at this stage. And, although the appellants have served up a bouillabaisse of arguments as to damages, many of their asseverations are so bereft of substance that we need not savor them at any length. We will discuss only those assignments of error which provide some food for serious thought.

I.

The union's flagship contention is that the trial judge erred in permitting amendment of the complaint. The appellee first moved to amend on June 12, 1985. The amendment was narrow: it sought only to change the party plaintiff. The appellants argue that this added an entirely new claim to the case--the claim for APC's lost profits. This new claim, the union's thesis runs, was time-barred when initially asserted, see M.G.L. c. 260, Sec. 2A (three year statute of limitations for actions in tort), and should not have been allowed.

We must set this aspect of the matter into perspective. Allin began importing wood products from the U.S.S.R. over a decade ago. On January 9, 1980, the ILA flexed its political muscle and declared a boycott of all Russian cargo entering at United States ports. Its edict called for "immediate suspension in handling all Russian ships and all Russian cargoes in ports from Maine to Texas and Puerto Rico where ILA workers" were responsible for offloading. Union members, by and large, followed the ILA's lead with the same enthusiasm as the Irish citizenry displayed in ostracizing the English land agent, Captain Charles C. Boycott (the man whose name has come to be synonymous with concerted refusals to deal). Local 799 was a willing--indeed, eager--participant in this effort.

When the union mounted the boycott in 1980, Allin was actively engaged in the business of importing and distributing Russian lumber products. APC had not yet appeared on the horizon. Contending that its business had been, and was being, ravaged by the boycott, Allin brought the instant suit on March 28, 1980. Some thirteen months later, all of the assets of Allin were sold to APC, an unrelated corporation. As part of this transaction, Allin assigned its claims against the union to APC in their entirety. On the record before us, the conclusion is inescapable that all of the material facts concerning the assignment, the sale of the assets of Allin to APC, and the overall method and manner in which the latter thereafter ran the shop, were known to the defendants.

The business continued as before under the new ownership and within the new corporate shell. No major operational aspect of the enterprise was altered in consequence of the sale. For the most part, the same employees managed the business from the same locus in much the same way as had theretofore been the case. Meantime, the ILA, its zeal unabated, remained intransigent. The boycott endured for some weeks past the date of sale. Though the hands-off policy was interrupted at certain times and in certain ports by, for example, judicial injunctions, the ILA did not rescind its orders concerning Russian cargo until June of 1981.

The litigation between the distributor and the union proceeded after the sale as it had before. It was not until June 12, 1985 (some four months prior to the start of trial) that the district court granted a motion to amend the complaint to substitute APC as the party plaintiff. The revision was nominal in the most literal sense of the word: the amended complaint restated verbatim the factual averments and prayers for relief contained in the original complaint which Allin had filed; the only change was to delete the references to Allin qua plaintiff and to insert in their place references to APC.

Although the matter is not free from doubt, ³ we assume arguendo that the effect of amending the complaint was, as the union contends, to add a new claim for APC's boycott-related lost profits. The parties--who agree on little else--concur in their assessment that M.G.L. c. 260, Sec. 2A controlled, and that the applicable limitations period was three years from the time the cause of action accrued. Inasmuch as any neoteric claim asserted by APC arose out of the unlawful boycott which ended in June 1981, such a claim would have been time-barred unless, under Fed.R.Civ.P. 15(c), it related back to the date when the suit was first started.

We look initially to Rule 15(c) itself. The rule provides in pertinent part that:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Fed.R.Civ.P. 15(c).

Although the relation back of amendments switching plaintiffs--as opposed to defendants--is not explicitly treated in Rule 15(c), "the attitude taken in [the rule] toward change of defendants extends by analogy to amendments changing plaintiffs." Fed.R.Civ.P. 15(c) advisory committee note. Thus, when revision of a complaint has the effect of substituting a fresh plaintiff for the original one, three requirements must be met if the former's claim is different and is to relate back: the amended complaint must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; there must be a sufficient identity of interest between the new plaint...