English v. Cowell, 92-4032

• Citation: 10 F.3d 434
• Decision Date: 12 November 1993
• Docket Number: No. 92-4032,92-4032
• Parties: 144 L.R.R.M. (BNA) 2754, 126 Lab.Cas. P 10,928, 27 Fed.R.Serv.3d 513 Forrest Gene ENGLISH, Plaintiff-Appellant, v. William J. COWELL, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 434

10 F.3d 434

144 L.R.R.M. (BNA) 2754, 126 Lab.Cas. P 10,928,

27 Fed.R.Serv.3d 513

Forrest Gene ENGLISH, Plaintiff-Appellant, v. William J. COWELL, et al., Defendants-Appellees.

No. 92-4032.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 1993.

Decided Nov. 12, 1993.

Paul A. Levy (argued), Alan B. Morrison, Public Citizen Litigation Group, Washington, DC, for plaintiff-appellant Forrest G. English.

Michael W. O'Hara (argued), Cavanagh & O'Hara, Springfield, IL, for defendants-appellees Charles J. Connor, Donald Siddens, William J. Cowell and Local Union No. 46, Intern. Ass'n of Bridge, Structural and Ornamental Iron Workers.

Before POSNER, Chief Judge, CUMMINGS, Circuit Judge, and ZAGEL, District Judge. ^*

ZAGEL, District Judge.

Forrest G. English, who is also known as Guy Levine, challenges a district court order dismissing his suit for failure to join an indispensable party and for failure to sue in the proper name. This order was entered before any brief in opposition to the pending motion was filed, indeed, five days before the opposition brief was due. Because the district court deprived English of any opportunity to respond to the pending motion to dismiss and/or summary judgment, a deprivation we cannot say was harmless, we vacate the dismissal and remand the case with directions that English be afforded a reasonable opportunity to resist the defendants' motion.

English has been here before. Since the late 1970's, he has filed thirteen pro se complaints against Local 46 ("Local 46") of the International Association of Bridge, Structural, and Ornamental Iron Workers ("International"), alleging violations of the Labor-Management Reporting and Disclosure Act ("LMRDA"). This is the only case still pending. English was a member of Local 46 until December 27, 1983, when William J. Cowell (President of Local 46) and Donald Siddens informed English by letter that his union membership was terminated. English had received no prior notice of any impending membership termination. The letter (dated December 27, 1983, printed on Local 46 letterhead, and addressed to Forrest English) read as follows:

We have noted the fact that you are convicted of a felony and are serving a long term in prison.

In view of this, your membership in the local union has been terminated effective immediately. You already have a copy of the Constitution and By-Laws of the International Union and the Local Union.

Please do not send any further dues or money of any nature or kind whatsoever to the local union. Any further attempts to send dues to the local union will be returned to you.

English had been convicted of a felony and began serving his sentence in February 1980. Nevertheless, English routinely sent in, and Local 46 unquestionably accepted, his membership dues until his expulsion.

English quickly filed this action against Local 46 and International, challenging his expulsion as a violation of his due process rights under the LMRDA, 29 U.S.C. Sec. 411(a)(5), and alleging a conspiracy among various officers of Local 46 and International "to rid themselves of English." Although International was named as a defendant, English never perfected service on International. ¹ Judge Mills eventually dismissed International "[b]ecause no good cause has been shown why service was not made [timely] ... or why Plaintiff did not move for a continuance of that time period or make any attempt to begin alternative service." English did not appeal this dismissal.

Local 46 answered the complaint; it did not raise a defense based on either the failure to join an indispensable party or the failure to sue in a proper name (perhaps because it did not know about English's other name at that time). Judge Mills entered several orders to control discovery and ultimately stayed further discovery. Judge Mills then dismissed the case as filed outside the six-month limitations period that this Court held was applicable to Sec. 101 of LMRDA in Vallone v. Local Union No. 705, Int'l Brotherhood of Teamsters, 755 F.2d 520 (7th Cir.1985). English v. Cowell, 117 F.R.D. 137 (C.D.Ill.1987). We affirmed, ² and the Supreme Court granted certiorari. Then the Supreme Court rejected the six-month limitation in Reed v. United Transp. Union, 488 U.S. 319, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989), and vacated the judgment against English. English v. Siddens, 493 U.S. 801, 110 S.Ct. 37, 107 L.Ed.2d 8 (1989). ³

The second time around, the case was dismissed on grounds the district court raised sua sponte, to wit, that English's expulsion was not discipline but an "objective reclassification" of his membership status and that, even if considered a disciplinary measure, his due process rights were not violated since he received due process during his criminal trial and his conviction constituted sufficient evidence to support his expulsion under Sec. 101(a)(5) of LMRDA. English v. Siddens, 751 F.Supp. 1343, 1347-48 (C.D.Ill.1990).

We reversed and remanded again. English v. Cowell, 969 F.2d 465 (7th Cir.1992). We held that English's expulsion was an act of discipline (whether or not labelled by the union as such), taken pursuant to the union's right to control the member's conduct, and he was entitled to due process. Expressing no opinion as to the validity of the union's ultimate decision, we held that the union's need to provide due process protection was not obviated by the fact that English was lawfully convicted of a felony. The union had to comply with the mandatory procedural protections of Sec. 101(a)(5). If it did, only then would we consider whether its disciplinary decision was supported by "some evidence."

Moreover, we refused to affirm the dismissal on the alternative grounds that International was a necessary and indispensable party and that English, who filed suit in his birth name instead of his legal name, was not a proper party. We wrote:

First, with regard to the claim that Mr. English's alleged pseudonym makes him an improper party to this suit, we note that the record is unclear on what Mr. English's name actually is. Indeed, his deposition testimony suggests that he has legally changed his name from Guy Levine to Forrest English. In addition, the defendants do not claim that they have been confused or otherwise prejudiced by Mr. English's decision to sue as Forrest English, rather than Guy Levine. We accordingly decline to dismiss this case based on that argument. This matter is left to the district court's sound discretion.

Second, we disagree that this case should be dismissed for plaintiff's failure to serve the Iron Workers' International. Except for averring that the International is a "necessary" and "indispensable" party, the defendants offer no explanation for why failure to serve, within the facts of this case, requires dismissal. Absent a more detailed justification for this assertion, we shall not dismiss this suit for failure to serve.

English, 969 F.2d at 468 n. 6 (citations omitted).

On the third time around, Judge Mills directed the parties to file motions for summary judgment as to whether English received due process under LMRDA Sec. 101(a)(5), but did not set deadlines for these filings. On October 19, 1992, the parties were ordered to file dispositive motions by October 28, 1992. English requested an extension of time, explaining that he had just retained counsel, intended to file affidavits in support of his position, and might seek discovery depending on Local 46's arguments. The deadline was extended to November 16, 1992.

On November 16, 1992, both parties served cross-motions. Local 46 filed a motion to dismiss and/or summary judgment, claiming: (1) English was not a proper party, that the suit filed under a pseudonym was a nullity and the claim was barred under the statute of limitations; and (2) International was a necessary and indispensable party whose absence required dismissal of the case. English sought summary judgment on liability for a violation of due process.

On November 25, 1992, before any briefs in opposition were filed or due, Judge Mills granted Local 46's motion to dismiss, denied English's motion for summary judgment, and entered final judgment terminating the case. There were two grounds: (1) Rule 10(a) required English, who legally changed his name to Guy Levine on April 5, 1974, to commence this action under his true name (and no exception to this rule applied); (2) English failed to serve timely International, which was a necessary and indispensable party under Rule 19 because it directed Local 46 to expel English and its absence would prejudice the remaining parties in the case. English appeals.

In ruling on dismissal, the district court considered matters outside the pleading. This the court may do either by treating a motion to dismiss for failure to state a claim as a motion for summary judgment or by resolving factual questions pertaining to jurisdiction, process, or indispensable parties. See Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir.1993). Here, the dismissal was based on grounds other than the failure to state a claim, so there was no conversion of a motion to dismiss into a motion for summary judgment. See Crawford v. United States, 796 F.2d 924, 928 (7th Cir.1986) ("The omission ... of a provision for converting a Rule 12(b)(1) motion into a summary judgment motion ... was not an oversight."). When a court treats a dismissal motion as a summary judgment motion, it must give the nonmovant a "reasonable opportunity" to contradict the material facts asserted by the movant. Rule 12(b) says this, but it says nothing about a "reasonable opportunity" to contradict when dismissal motions are not treated as summary judgment motions.

Nonetheless, we can think of no reason to justify the denial of an opportunity to respond to a dispositive dismissal motion which entails consideration of extra-pleading evidence. Unless a claim is frivolous, it is...