Decision Date30 May 1984
Docket NumberCiv. A. No. M-78-436.
Citation588 F. Supp. 902
CourtU.S. District Court — District of Maryland
PartiesPhilip DelCOSTELLO v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS AND WAREHOUSEMEN AND HELPERS OF AMERICA, and Local 557, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Anchor Motor Freight, Inc.

William H. Zinman and Richard P. Neuworth, Baltimore, Md., for plaintiff.

Bernard W. Rubenstein, H. Victoria Hedian and Edelman & Rubenstein, P.A., Baltimore, Md., for defendant Local 557.

Bernard S. Goldfarb, Karen N. Moellenberg and Goldfarb & Reznick, Cleveland, Ohio, Gerard P. Martin and Melnicove, Kaufman, Weiner & Smouse, P.A., Baltimore, Md., for defendant Anchor Motor Freight, Inc.

JAMES R. MILLER, Jr., District Judge.


The plaintiff, Philip DelCostello, began working for Anchor Motor Freight, Inc. (hereinafter referred to as "Anchor" or "employer") in 1973 as a driver engaged in hauling cars and freight.1 During his employment he was, and still is, a member of Local Union No. 557 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, otherwise known as Freight Drivers and Helpers (hereinafter referred to as "Local 557" or "the union"). In June of 1977, the plaintiff was assigned to drive a tractor-trailer loaded with new cars from Anchor's terminal in Baltimore, Maryland to Canada.2 Following a disagreement regarding the safety of the truck, the plaintiff refused to drive the truck, an act which Anchor viewed as a "voluntary quit."3 Thereafter, the plaintiff contacted the business agent of Local 557, Arthur Morningstar, who arranged an informal conference between himself, the plaintiff, and Anchor's management.4 After the efforts during the informal conference proved unsuccessful, Morningstar filed a formal grievance, which was submitted to arbitration before the Eastern Conference Automobile Transporters Joint Committee (hereinafter referred to as the Joint Committee) on July 19, 1977.5 The Joint Committee rendered a decision in favor of the employer later that day, and the plaintiff learned of the result "several days later."6

On March 16, 1978, eight months after learning of the decision of the Joint Committee upholding the position of the employer, the plaintiff filed this suit against Anchor, Local 557, and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as "the International").7 The plaintiff sued the employer for violation of the collective bargaining agreement under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), and sued the union for breach of its duty of fair representation, which is implied under the National Labor Relations Act, 29 U.S.C. § 151 et. seq.8

The employer and the union filed motions for summary judgment based on the alleged untimely filing of the suit. On March 17, 1981, the Honorable Shirley B. Jones determined that a three year limitations period was applicable and denied the motions, DelCostello v. Teamsters, 510 F.Supp. 716 (D.Md.1981). Following the Supreme Court decision in United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), the court reconsidered and granted the motions for summary judgment, holding that the 30 day statute of limitations applicable to suits to vacate an arbitration award applied, DelCostello, 524 F.Supp. 721 (D.Md. 1981). The Court of Appeals for the Fourth Circuit affirmed on the basis of the district court's order, DelCostello, 679 F.2d 879 (4th Cir.1982). In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court reversed, deciding that the six month time period provided in § 10(b) of the National Labor Relations Act for filing unfair labor practice charges was appropriate in hybrid cases such as this in that § 10(b) better balanced the competing interests at stake and was drawn from a statutory scheme more closely analogous to a § 301 lawsuit than any of the other state-law parallels.

This case has now been remanded to this court by the Fourth Circuit in DelCostello, 716 F.2d 247 (4th Cir.1983). The two remaining defendants in this case, Local 557 and Anchor, have filed separate motions for summary judgment,9 to which the plaintiff has replied.10 After reviewing these papers, the court concludes that no hearing is necessary to resolve the motions, Local Rule 6(E).

I. Waiver of Affirmative Defense — Rule 8(c)

In his response to the motion for summary judgment filed by Local 557, the plaintiff asserts that Local 557 is prohibited from raising the defense of the statute of limitations, because Local 557 has not complied with Rule 8(c), Fed.R.Civ.P., by raising the affirmative defense in its answer. Local 557 filed its answer to the complaint on April 10, 1978, and therein failed to raise the defense of limitations.11

Rule 8(c) provides in pertinent part:

"(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively ..., statute of limitations, ... and any other matter constituting an avoidance or affirmative defense."

(Emphasis added).

Where an affirmative defense has not been pled, the courts have held it is waived unless leave of court or consent of counsel has been obtained to raise the defense. E.g., Pan American Bank of Miami v. Oil Screw Denise, 613 F.2d 599 (5th Cir.1980) (waiver); Consolidated Mortgage & Finance Corp. v. Landrieu, 493 F.Supp. 1284 (D.D.C.1980). This is especially true where the issue is raised after the trial has begun. See, e.g., Dreiling v. General Electric Co., 511 F.2d 768, 776 n. 9 (5th Cir. 1975).

Today, the technical pleading rules from which Rule 8(c) arose, 5 Wright & Miller, Federal Practice & Procedure § 1270 (1969 & 1983 Supp.), are abolished and the pleadings are to be liberally construed, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The identification of an issue as an affirmative defense is required, not to overcome a technical barrier, but to eliminate unfair surprise and possible prejudice to the plaintiff. See Crowe v. Cherokee Wonderland, Inc., 379 F.2d 51, 54 (4th Cir.1967). Rule 8(c) is meant to insure for the plaintiff an opportunity to respond to new matter in a meaningful manner.

As the waiver of a defense is a harsh sanction, it is not automatically applied whenever an affirmative defense is not contained in the answer. See 5 Wright & Miller § 1278, at 344. Courts have permitted the assertion of an affirmative defense, not only in the Answer, but also by way of motion. See Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir.1981) (motion to dismiss); Weston Funding Corp. v. Lafayette Towers, Inc., 410 F.Supp. 980, 982 n. 2 (S.D.N.Y.1976), aff'd, 550 F.2d 710 (2d Cir. 1977) (summary judgment).12 To avoid the inequitable results of a waiver of an affirmative defense, the courts interpret defendants' responses quite liberally, e.g., Barnwell & Hays, Inc. v. Sloan, 564 F.2d 254, 255 (8th Cir.1977), permit an assertion of an affirmative defense when its existence is made apparent by party's proof, e.g., Federal Savings & Loan Ins. Corp. v. Hogan, 476 F.2d 1182 (7th Cir.1973), and permit amendments to the pleadings under Rule 15. See Barnes v. Callaghan & Co., 559 F.2d 1102 (7th Cir.1977); Transport Trailer Service Inc. v. Upjohn Co., 506 F.Supp. 442 (E.D.Pa.1981).

Here the court is satisfied that the interests of justice are served by allowing Local 557 to assert the affirmative defense of the statute of limitations in its recently filed summary judgment motion. The failure to comply with the applicable period of limitations, as the plaintiff recognized in a brief filed before this court on May 27, 1981,13 is apparent from the face of the complaint. In addition, the purpose of Rule 8(c) is more than met. The parties to this lawsuit and the courts have examined the issue of the applicable statute of limitations for more than three years. In light of the history of this case, the plaintiff can hardly complain of any prejudice resulting from lack of a meaningful opportunity to respond to this affirmative defense. Finally, the parties in the present case are prepared to address themselves to this issue, and the court will review the merits of the arguments. Beall v. Kearney & Trecker Corp., 350 F.Supp. 978, 981 (D.Md.1972).

II. Statute of Limitations
A. Applicable Statute of Limitations

In his Opposition to the motions for summary judgment filed by Anchor and Local 557, the plaintiff asserts that the six month filing period contained in § 10(b) of the National Labor Relations Act should be applied prospectively when the factors enunciated in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), are considered.14 In the present case, the plaintiff contends, the three year statute of limitations initially applied in this case at 510 F.Supp. 716 is appropriate.

On June 8, 1983, the Supreme Court held in this very case that the six-month statute of limitations contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160, applied to actions brought by an employee for breach of contract and breach of fair representation, DelCostello, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). A review of that decision reveals that the Supreme Court applied its decision retroactively to the parties before the Court. In the companion case consolidated with DelCostello, United Steelworkers v. Flowers, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), Flowers had filed suit in 1979 on a cause of action which had accrued 10 months earlier. The court of appeals had found his action timely under a state three-year statute. The Court applied the six month statute of limitations of § 10(b) and held that Flowers' action was, therefore, barred. Because there was a question in DelCostello as to whether certain events operated...

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