Ashland Hosp. Corp. v. Int'l Bhd. of Elec. Workers Local 575, Civil Action Nos. 10–83–DLB–EBA

CourtUnited States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
Writing for the CourtDAVID L. BUNNING
Citation191 L.R.R.M. (BNA) 3348,807 F.Supp.2d 633
Decision Date19 July 2011
Docket Number10–131–DLB–EBA.,Civil Action Nos. 10–83–DLB–EBA
PartiesASHLAND HOSPITAL CORPORATION d/b/a King's Daughters Medical Center, Plaintiff v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 575, et al., Defendants.andAshland Hospital Corporation d/b/a King's Daughters Medical Center, Plaintiff v. Service Employees International Union District 1199 WV/KY/OH, Defendant.

191 L.R.R.M. (BNA) 3348
807 F.Supp.2d 633

ASHLAND HOSPITAL CORPORATION d/b/a King's Daughters Medical Center, Plaintiff
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 575, et al., Defendants.andAshland Hospital Corporation d/b/a King's Daughters Medical Center, Plaintiff
v.
Service Employees International Union District 1199 WV/KY/OH, Defendant.

Civil Action Nos. 10–83–DLB–EBA

10–131–DLB–EBA.

United States District Court,E.D. Kentucky,at Ashland.

July 19, 2011.


[807 F.Supp.2d 635]

W. Mitchell Hall, Jr., Christina Ditty Hajjar, VanAntwerp, Monge, Jones & Edwards, Ashland, KY, for Plaintiff.

Joseph M. D'Angelo, D'Angelo & Szollosi Co., LPA, Toledo, OH, for Defendants.

MEMORANDUM OPINION AND ORDER
DAVID L. BUNNING, District Judge.

Plaintiff Ashland Hospital Corporation d/b/a King's Daughters Medical Center (KDMC) commenced two separate actions against different defendants alleging almost identical causes of action. Against International Brotherhood of Electrical Workers Local 575 (IBEW) and Austin Keyser, KDMC asserts a “harassment” count citing the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 223 et seq., and KRS 525.080, a violation of the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227 et seq., and a state law claim for tortious interference with contractual and prospective contractual relations. KDMC filed suit approximately five months later against Service Employees International Union District 1199 WV/KY/OH (SEIU) alleging the exact same causes of action, except that it premised its harassment claim only on the CDA without citing KRS 525.080. Although these two cases are before the Court at different procedural postures, the relevant facts in both largely overlap. Therefore, the Court addresses both cases in a singular memorandum opinion.

The matter is before the Court on Defendants IBEW and Austin Keyser's (together the “IBEW Defendants”) Motion for Summary Judgment (Doc. # 40) filed in Ashland Civil 10–cv–83 and on Defendant SEIU's Motion to Dismiss (Doc. # 6) filed in Ashland Civil 10–cv–131. The motions have been briefed (IBEW Docs. # 40, 42, 43), (SEIU Docs. # 6, 7), and oral argument in both cases was held on July 12, 2011. Mitchell Hall and Christina Hajjar appeared on behalf of Plaintiff. Joseph D'Angelo appeared on behalf of the IBEW Defendants and Don Meade appeared on behalf of SEIU. The matter is now ripe for review. For the reasons set forth below, because Plaintiff fails to state a federal claim under either the TCPA or CDA and because this Court, in its discretion, declines jurisdiction over Plaintiff's remaining state law claims the IBEW Defendants motion for summary judgment (Doc. # 40) and SEIU's motion to dismiss (Doc. # 6) are granted.

I. FACTUAL AND PROCEDURAL BACKGROUND
KDMC v. IBEW

KDMC is a non-profit corporation that owns and operates a full-service medical center in Boyd County, Kentucky, including a hospital facility in Ashland, Kentucky. The IBEW is a labor union located in Portsmouth, Ohio, that represents electricians living in Southern Ohio and Northern Kentucky. KDMC planned to construct a new hospital facility in Portsmouth and the IBEW learned from KDMC's Vice President, Howard Harrison, that the hospital planned to use an out-of-town contractor, Reddy Electric, to build its facility. Reddy Electric is located in Xenia, Ohio, and does not employ members from the IBEW. In fact, the IBEW claims Reddy

[807 F.Supp.2d 636]

Electric has an ongoing history of wage and labor violations. To dissuade KDMC from retaining Reddy Electric, in early 2010 Austin Keyser—the IBEW's business manager and principal officer—presented KDMC's CEO Fred Jackson with information detailing Reddy Electric's allegedly unfair labor practices. Notwithstanding this information, KDMC retained Reddy Electric to perform its electrical work for the upcoming Portsmouth project.

In response, the IBEW initially decided to “forge a broad grass-roots community based coalition to amplify its message” that KDMC should hire locally. (Doc. # 40 at 3). In June 2010, the IBEW authorized Keyser to form a 501(c)(4) non-profit corporation called the Community Reinvestment Agency of Ohio (“CRAO”) to carry out this purpose. Keyser was the sole incorporator of CRAO and the union paid for CRAO's incorporation. On June 21, 2010, Keyser, acting on behalf of CRAO, sent an email to Jackson again urging him to hire locally. The email outlined the planned campaign to “expose the truth about KDMC,” which would include erecting a billboard on U.S. 23 and U.S. 52 in Portsmouth, creating handbills for dissemination, creating a website, and hosting yard sales explaining KDMC's refusal to hire locally. Keyser's email further explained “[w]e will also be running weekly robocalls to the tens of thousands of residents in Southern Ohio and Northern Kentucky to highlight the many reasons we feel KDMC is bad for our community.” (Doc. # 40–4, Ex. 2). Keyser asserts that CRAO did not take any further action against KDMC after this email was sent. In his assessment, the organization “never got off the ground.” (Doc. # 40–3 at 14). Despite this hitch in the IBEW's plan to urge KDMC to reinvest in local workers, the union itself pressed forward with the plans that CRAO was created to execute.

The IBEW launched a robocall campaign against KDMC beginning in June 2010 continuing through the first week of July. The IBEW contracted out to Ohio AFL–CIO Communications, Inc. to conduct the robocall campaign. Ohio AFL–CIO is a Columbus-based nonprofit organization that provides resources, expertise, and networking opportunities for labor organizations. It would use prerecorded messages provided by the union to institute the robocalls. Keyser and the members of his staff developed the script for recording onto Ohio AFL–CIO's robocall equipment, which read:

Hello, my name is Kelly and I am confused by King's Daughters Medical Center and the choices they are making here in Scioto County. King's Daughters' CEO Fred Jackson has received bids from several contractors, including one that will put local people to work. Sadly, for the price of a few medical procedures, it appears that KDMC CEO Fred Jackson is going to bring in out-of-town companies and workers to build their new facility. Southern Ohio Medical Center has always committed to using local businesses and local workers, so how can we support a hospital that won't make the same commitment? Please press 1 now to leave a message for Fred Jackson, who received more than $1,150,000 in yearly compensation, and ask him why he would expect you to spend our hard-earned dollars at King's Daughters while he spends his out of town. Thank you.

(Doc. # 40–4, Ex. 5).

If the robocall system failed to connect to a live answer, it would leave a message at the recipient's residence. Calls were allegedly made to residents of Southern Ohio and Northern Kentucky who could then choose whether to connect to Fred Jackson or Howard Harrison at KDMC.

[807 F.Supp.2d 637]

Thousands of the Ohio and Kentucky residents contacted opted to connect directly to KDMC in the months of June and July 2010. KDMC alleges that this activity “tied up multiple incoming telephone lines at KDMC's hospital facility” in violation of 47 U.S.C. § 227(b)(1)(D). (Compl. ¶¶ 8, 10, 17).

The purported goal of the robocall campaign was to “truthfully inform the public of the Union's concerns about KDMC and to mobilize KDMC's prospective customer base to action to persuade KDMC to reconsider its planned use of Reddy Electric.” (Doc. # 40 at 4–5). The IBEW terminated its robocall campaign, however, when it learned that KDMC temporarily halted construction of the new Portsmouth facility. To the parties' knowledge, the Portsmouth project has not resumed construction.

After a brief period of discovery, the IBEW Defendants filed the pending motion for summary judgment premised on federal labor law preemption. (Doc. # 40).

KDMC v. SEIU

Approximately five months after initiating suit against the IBEW, KDMC filed suit against SEIU on December 29, 2010. SEIU is an Ohio union that represents thousands of health care and social service workers across the state. Some of SEIU's members are KDMC employees.

Albeit for different reasons, SEIU launched a similar robocall campaign against KDMC in December 2010, which allegedly continued through the filing of the Complaint on December 29, 2010.1 The robocall campaign in this case, operated in an identical fashion to the one launched by the IBEW: individual residents were contacted in the communities KDMC services and a prerecorded message would prompt individuals to press a number on the keypad to connect to CEO Fred Jackson. KDMC's call logs indicate that all of these calls originated from a single telephone number out of Columbus, Ohio. Between mid-morning on December 28, 2010 and late afternoon on December 29, 2010, 536 calls were placed to Jackson's extension at KDMC. KDMC alleges that these calls tied up “multiple incoming telephone lines at KDMC's hospital facility, including telephone lines that support calls to all numbers and extensions within KDMC, including emergency services and other medical departments, patient rooms, security, and administration.” (Doc. # 1 at ¶ 14).

To date, no discovery has been conducted and, although KDMC asserts identical claims in this action, Defendant moved to dismiss on 12(b)(1) grounds for lack of jurisdiction and 12(b)(6) grounds for failure to state a claim. (Doc. # 6).

II. ANALYSIS
A. Standard of Review1. Motion to Dismiss

SEIU has moved for dismissal under Federal Rule of Civil Procedure 12(b)(1) and (6). The Court, however, considers the 12(b)(1) argument first as its Rule 12(b)(6) argument becomes moot if the Court lacks subject matter jurisdiction. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990) (citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) for the proposition that a “motion to dismiss...

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10 practice notes
  • Smith v. Alphabet Inc., CA 16-0086-CG-C
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 23, 2016
    ...Id. (citations omitted). Defendants cite to Ashland Hospital Corp. v. International Brotherhood of Electrical Workers Local 575, 807 F.Supp.2d 633 (E.D. Ky. 2011), where the court noted it was "well settled" "the CDA does not authorize a private right of action." Id. at ......
  • Vanhook v. Somerset Health Facilities, LP, Civil No. 14–121–GFVT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • December 15, 2014
    ...right of action in criminal statutes. [Def.'s Mot. Dismiss, R. 3 at 23–24]. E.g., Ashland Hosp. v. Int'l Brotherhood of Elec. Workers, 807 F.Supp.2d 633 (E.D.Ky.2011) (declining to find a private right of action in a federal statute); Bridges v. Wooten, 305 Ga.App. 682, 700 S.E.2d 678 (2010......
  • Conner v. U.S. Dep't of the Army, Civil Action No. 1:12–CV–192.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • March 11, 2014
    ...plaintiff has the burden of proving jurisdiction in order to survive the motion.” Ashland Hosp. Corp. v. Int'l Broth. of Elec. Workers, 807 F.Supp.2d 633, 638 (E.D.Ky.2011) (quoting Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, 287 F.3d 568, 573 (6th Cir.2002)). Sp......
  • Chute v. Odom, NO. 3:12-0607
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • August 28, 2013
    ...No private right of action was created by the statute. Ashland Hosp. Corp. v. International Broth. of Elec. Workers Local 575, 807 F.Supp.2d 633, 644-45 (E.D. Ky. 2011) (citations omitted). Therefore, Plaintiffs have failed to state a claim, and claim (g) of Count I should be dismissed. Thu......
  • Request a trial to view additional results
10 cases
  • Smith v. Alphabet Inc., CA 16-0086-CG-C
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 23, 2016
    ...Id. (citations omitted). Defendants cite to Ashland Hospital Corp. v. International Brotherhood of Electrical Workers Local 575, 807 F.Supp.2d 633 (E.D. Ky. 2011), where the court noted it was "well settled" "the CDA does not authorize a private right of action." Id. at ......
  • Vanhook v. Somerset Health Facilities, LP, Civil No. 14–121–GFVT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • December 15, 2014
    ...right of action in criminal statutes. [Def.'s Mot. Dismiss, R. 3 at 23–24]. E.g., Ashland Hosp. v. Int'l Brotherhood of Elec. Workers, 807 F.Supp.2d 633 (E.D.Ky.2011) (declining to find a private right of action in a federal statute); Bridges v. Wooten, 305 Ga.App. 682, 700 S.E.2d 678 (2010......
  • Conner v. U.S. Dep't of the Army, Civil Action No. 1:12–CV–192.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • March 11, 2014
    ...plaintiff has the burden of proving jurisdiction in order to survive the motion.” Ashland Hosp. Corp. v. Int'l Broth. of Elec. Workers, 807 F.Supp.2d 633, 638 (E.D.Ky.2011) (quoting Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, 287 F.3d 568, 573 (6th Cir.2002)). Sp......
  • Chute v. Odom, NO. 3:12-0607
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • August 28, 2013
    ...No private right of action was created by the statute. Ashland Hosp. Corp. v. International Broth. of Elec. Workers Local 575, 807 F.Supp.2d 633, 644-45 (E.D. Ky. 2011) (citations omitted). Therefore, Plaintiffs have failed to state a claim, and claim (g) of Count I should be dismissed. Thu......
  • Request a trial to view additional results

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