Engleson v. Burlington Northern R. Co.

• Decision Date: 06 August 1992
• Docket Number: No. 91-35546,91-35546
• Citation: 972 F.2d 1038
• Parties: 141 L.R.R.M. (BNA) 2100, 122 Lab.Cas. P 10,310, 23 Fed.R.Serv.3d 538 Jerry L. ENGLESON, Steven A. Braaten; Kathryne E. Pike; Joseph M. Corcoran; David C. Wilmes; Michael R. Cunneen, Phillip E. Toldness; Jesse A. Wagner; Thomas W. Hulett; Timothy C. O'Neal; Roger W. Loe; Michael A. Sherrill; Brian D. Donaldson; Gary D. Halseth, Plaintiffs-Appellants, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware Corporation, and Brotherhood of Railway Carmen, a Labor Union, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1038

972 F.2d 1038

141 L.R.R.M. (BNA) 2100, 122 Lab.Cas. P 10,310,

23 Fed.R.Serv.3d 538

Jerry L. ENGLESON, Steven A. Braaten; Kathryne E. Pike Joseph M. Corcoran; David C. Wilmes; Michael R. Cunneen Phillip E. Toldness; Jesse A. Wagner; Thomas W. Hulett Timothy C. O'Neal; Roger W. Loe; Michael A. Sherrill Brian D. Donaldson; Gary D. Halseth, Plaintiffs-Appellants, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware Corporation, and Brotherhood of Railway Carmen, a Labor Union, Defendants-Appellees.

No. 91-35546.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1992.

Decided Aug. 6, 1992.

Kurt M. Jackson, Hoyt and Blewett, Great Falls, Mont., for plaintiffs-appellants.

John A. Edmond, Guerrieri, Edmond & James, Washington, D.C., Turner C. Graybill, Graybill, Ostrem, Warner & Crotty, Great Falls, Mont., for defendant-appellee Broth. of Ry. Carmen.

Lawrence M. Stroik, Burlington Northern R.R., Ft. Worth, Tex., for defendant-appellee Burlington Northern R. Co.

Appeal from the United States District Court for the District of Montana.

Before: ALARCON, RYMER, and T.G. NELSON, Circuit Judges.

ALARCON, Circuit Judge:

Jerry L. Engleson and thirteen other persons ("Appellants") are employees or former employees of Burlington Northern Railroad Company ("Burlington"). They appeal from the district court's grant of summary judgment in favor of the Brotherhood of Railway Carmen ("the Union") and Burlington in this action against the Union for breach of the duty of fair representation and against Burlington for violations of the collective bargaining agreement. The district court concluded that there was no genuine issue of material fact in dispute. We affirm, but on a different ground. See Schneider v. Vennard (In re Apple Securities Litigation), 886 F.2d 1109, 1112 (9th Cir.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3229, 110 L.Ed.2d 676 (1990) (this court may affirm a grant of summary judgment on any ground fairly supported by the record). This action was filed after the statute of limitations had expired.

I.

Appellants are members of the Brotherhood of Railway Carmen of the United States, a railroad labor union. On March 26, 1983, the Union filed a grievance with Burlington alleging that the company's use of clerks to dismantle freight cars in Great Falls violated the "scope rules" provision of the collective bargaining agreement which preserved certain types of work exclusively for carmen. Appellants were not named in the grievance.

In 1984, Burlington and the Union agreed to "tie" the Great Falls claim to a similar claim arising in Minot, North Dakota, which would be sent to arbitration, with the result being dispositive of the issue regarding Burlington's liability, if any, for the Great Falls claim. The Union prevailed in the Minot arbitration. On April 27, 1987, Burlington and the Union settled the Great Falls claim. Burlington agreed to pay a lump sum to the carmen named in the grievance.

This action was filed following the Union's refusal of Appellants' request to share in the award. Appellants claim that the Union breached its duty of fair representation by not including them in the grievance. Burlington was sued in the same action for violation of its collective bargaining agreement.

Appellants filed the original complaint in the district court on September 3, 1987. The complaint incorrectly alleged that the district court had jurisdiction under section 8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158, and section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). In fact, it is undisputed that their claims were covered by the Railway Labor Act, 45 U.S.C. §§ 151 et seq. Burlington filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Burlington argued that the district court lacked subject matter jurisdiction under the statutes cited in the complaint.

On January 19, 1988, the district court granted Burlington's motion and dismissed the action against Burlington for lack of subject matter jurisdiction. The court dismissed the action against the Union sua sponte.

On February 10, 1988, more than six months after the causes of actions accrued, Appellants filed a new action alleging the same claims and a count of conspiracy against Burlington. The Appellants properly alleged that the district court had subject matter jurisdiction under 28 U.S.C. § 1337. The Union and Burlington subsequently filed motions to dismiss or in the alternative for summary judgment. They contended that the carmen's new action was barred by the applicable six-month statute of limitations of section 10(b) of the NLRA, 29 U.S.C. § 160(b). ¹

Appellants filed oppositions to the motions to dismiss. They argued that they "should not be denied their day in court based upon a technical error of pleading in their original complaint." They also contended that their mistake in pleading jurisdiction should not have resulted in dismissal of their first complaint, citing Raus v. Brotherhood of Railway Carmen, 663 F.2d 791 (8th Cir.1981) (holding that district court erred in dismissing complaint against a union for breach of its duty of fair representation where plaintiffs mistakenly pled 29 U.S.C. § 185 as the basis for jurisdiction, because basis for federal court jurisdiction was clear on complaint's face). The crux of the Appellants' argument in opposition to the motions to dismiss, however, was that Montana's "saving statute," section 27-2-407, tolled the applicable limitations' period. In their response to the Appellants' opposition, the Union and Burlington argued that the state-savings statute was not applicable to this action.

The district court denied the motions to dismiss without a hearing. Recognizing that the Appellants' second action was barred by the applicable statute of limitations, the court held that it would treat the complaint filed in the new action as a motion under 60(b)(1) of the Federal Rules of Civil Procedure for relief from the judgment of dismissal of the first action and for leave to file an amended complaint. The court declined to address the question whether the application of Montana's savings statute tolled the applicable limitations period in this case. The court stated that it was "unwilling to deny plaintiffs their day in court based upon a technical error in pleading their original complaint" and held that the claims raised in the second complaint were not time-barred because they related back to the date of the initial complaint pursuant to Federal Rule of Civil Procedure 15(c). Federal Rule of Civil Procedure 15(c) provides, in part, that "[a]n amendment of a pleading relates back to the date of the original pleading when ... 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 court set aside its judgment dismissing the first action and consolidated it with the second action.

The Union and Burlington filed motions requesting the court to reconsider its order denying their motions for dismissal on statute-of-limitations grounds. They argued that the court lacked jurisdiction to treat the second complaint as a Rule 60(b) motion. They also asserted that the Appellants' mistake in pleading the incorrect jurisdictional statutes did not justify Rule 60(b) relief. Alternatively, the Union and Burlington requested that the court certify the question whether the district court had abused its discretion for interlocutory appeal to this court pursuant to 28 U.S.C. § 1292(b). The motions were denied.

Burlington and the Union thereafter filed motions for summary judgment stating that there was no genuine issue of material fact that would support a judgment for the Appellants. The court granted the motions by a summary judgment on the merits. The Appellants filed a motion for a new trial or to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59. The district court made a minor amendment to its previous order but denied the Rule 59 motion in all other respects. The Appellants now timely appeal.

II.

The Union argues that the district court abused its discretion in treating the complaint filed in the Appellants' second action as a motion under Rule 60(b)(1). The Appellants contend that this court has no jurisdiction to hear the Union's statute-of-limitations contention because it failed to file a cross-appeal from the district court's denial of its motions for reconsideration of the order treating the complaint as a Rule 60(b) motion and for interlocutory review.

Generally, "a cross-appeal is required to support modification of the judgment, but ... arguments that support the judgment as entered can be made without a cross-appeal." C. Wright, A. Miller, and E. Cooper, 15A Federal Practice and Procedure § 3904, 195-96 (1992). A cross-appeal is unnecessary even where the argument being raised has been explicitly rejected by the district court. United States v. Hilger, 867 F.2d 566, 567 (9th Cir.1989) (although in granting defendant's motion for dismissal district court specifically rejected defendant's argument of improper venue, upon plaintiff's appeal, defendant could support dismissal on the venue ground without cross-appeal as he was not seeking any relief greater than dismissal); Bullard v. Sercon Corp., 846 F.2d 463, 467 (7th Cir.1988) (appellees may properly advance jurisdictional argument as an additional ground to support judgment in their responsive brief, even though argument was not raised below).

Appellants rely upon Radio WHKW, Inc. v. Yarber, 838 F.2d 1439 (5th Cir.1988), and Alaska Industrial Bd. v. Chugach Electric Ass'n, Inc., 356 U.S. 320, 78 S.Ct. 735, 2 L.Ed.2d 795 (1958), in support of their argument that a cross-appeal was necessary in this case. Radio WHKW, however, is inapposite. That case deals with the application of...