Fernandez-Montes v. Allied Pilots Ass'n

• Decision Date: 01 April 1993
• Docket Number: P,FERNANDEZ-MONTE,No. 91-7325,91-7325
• Parties: 142 L.R.R.M. (BNA) 2970, 61 USLW 2660, 124 Lab.Cas. P 10,615, 25 Fed.R.Serv.3d 846 Manuel M.laintiff-Appellant, v. ALLIED PILOTS ASSOCIATION, Fred Vogel, and C.R. Paty, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 278

987 F.2d 278

142 L.R.R.M. (BNA) 2970, 61 USLW 2660,

124 Lab.Cas. P 10,615,

25 Fed.R.Serv.3d 846

Manuel M. FERNANDEZ-MONTES, Plaintiff-Appellant, v. ALLIED PILOTS ASSOCIATION, Fred Vogel, and C.R. Paty,

Defendants-Appellees.

No. 91-7325.

United States Court of Appeals,

Fifth Circuit.

April 1, 1993.

Douglas K. Magary, David L. Paschall, Goins, Underkofler, Crawford & Langdon, Dallas, TX, for plaintiff-appellant.

Roger H. Briton, Seham, Klein & Zelman, New York City, for defendants-appellees.

Appeals from the United States District Court for the Northern District of Texas.

Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.

GOLDBERG, Circuit Judge:

The dispute in this case arises from plaintiff Fernandez-Montes' assertion that as a member of his union, the Allied Pilots Association ("APA"), he has a right to obtain copies of certified verbatim transcripts or audiotapes of certain union meetings. Although the union makes audiotapes of its meetings, it is not required to do so by its own constitution and bylaws or by any federal law. The union claims that the audiotapes are made solely to facilitate the preparation of minutes (which are sent to all union members). Although the union refuses to acknowledge that union members have a right of access to the audiotapes, in practice the union does permit all union members to come to its offices and listen to the audiotapes on the union's audio equipment. ¹

The APA is required by the Labor Management Reporting and Disclosure Act of The APA's constitution and bylaws provide that all members are entitled to receive minutes of union meetings. Plaintiff acknowledges that he has a right to attend meetings and obtain minutes of meetings, but insists that he should not have to attend meetings in order to learn all the details of what transpires at the meetings. In addition to complaining of the expense and time involved in attending meetings, plaintiff insists that he has difficulty comprehending what is said at meetings because English is not his native tongue.

                1959 ("LMRDA"), 29 U.S.C. § 431(a) and (b), to file its constitution and bylaws, as well as periodic reports ("LM Reports") regarding the union's constitution and bylaws and finances, with the Secretary of Labor. 2  The union is also required by the LMRDA to maintain in its files for five years information which will corroborate the LM Reports, in case verification should be sought by the Secretary of Labor or by members of the union who are able to establish "just cause" for suspicion that the union's reports to the Secretary are inaccurate or do not jibe with the union's activities.  29 U.S.C. §§ 431(c) and 436. 3  The union members' bill of rights, 29 U.S.C. § 411, provides union members with a "right to participate," which includes the right to attend union meetings open to the entire membership. 4
                

Prior to filing suit, plaintiff made a demand for access as of right to the audiotapes, and specifically requested that personal copies be made at his expense. This demand was refused by the union. Plaintiff then filed this law suit in the United States District Court for the Northern District In his complaint, plaintiff did not specifically point to anything in the union's minutes which made him suspect that any of the union's LM Reports might be inaccurate, false or misleading. He did suggest, however, that he was worried by the lack of "specifics" in the minutes of a meeting at which allegations of misconduct against one of APA's officers were discussed. He also contended that at some of the meetings in question, matters were discussed pertaining to the union constitution. However, he did not say why the minutes would not suffice for the purpose of verifying that the union was doing what it claimed to be doing in its LM Reports to the Secretary of Labor.

of Texas, asserting claims under § 431.

The union's answer asserted as an affirmative defense that the plaintiff had not stated a claim upon which relief could be granted. Later, the union moved for dismissal on the same ground. The district court denied the motion. ⁵ Three months later, plaintiff was given leave to amend his complaint, which he did by adding a claim under 29 U.S.C. § 411.

After the district court issued the order denying the motion to dismiss, the case was transferred from Judge Mahon to Judge McBryde. On Sept. 4, 1991, approximately two years after plaintiff had filed suit, a pretrial conference was held before Judge McBryde. At the close of the pretrial conference, Judge McBryde stated his intention to "withdraw" Judge Mahon's denial of the union's earlier motion to dismiss the original complaint, and to grant that motion. Later that same day, Judge McBryde dismissed plaintiff's entire amended complaint. Judge McBryde's order did not say whether the dismissal was with prejudice.

The plaintiff requested the court to vacate or reconsider the order dismissing the amended complaint. The plaintiff characterized the order as one granting summary judgment, and claimed that the order was in error for failure to comply with Fed.R.Civ.P. 56, which requires ten days notice and an opportunity to respond prior to the grant of summary judgment for an opposing party.

On Nov. 15, 1991, Judge McBryde issued an order in response to plaintiff's motion to vacate or reconsider. Judge McBryde made it clear that:

Contrary to plaintiff's contentions, the dismissal of his claims was not the result of the court's granting summary judgment in favor of defendants. Rather, plaintiff's amended complaint was dismissed because plaintiff failed to state a claim and, given the opportunity at the pretrial conference, plaintiff was unable to articulate a claim upon which relief could be based.

Plaintiff appeals, contending that he stated a claim under sections 411 and 431(c) of the LMRDA, and was improperly denied notice and an opportunity to respond to what he characterizes as the court's sua sponte entry of summary judgment for defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291. ⁶

DISCUSSION

I. WHETHER JUDGE MCBRYDE'S ORDER AMOUNTED TO SUMMARY JUDGMENT, TRIGGERING THE REQUIREMENTS FOR NOTICE AND AN OPPORTUNITY TO RESPOND UNDER FED.R.CIV.P. 56

At the pretrial conference, Judge McBryde stated that he was "withdrawing" the order in which Judge Mahon had denied defendants' motion to dismiss the original complaint. Judge McBryde then stated that he was granting the motion to dismiss. The same day, he issued an order dismissing plaintiff's amended complaint. The parties dispute whether Judge McBryde's order was in effect a summary judgment for defendants, due to Judge McBryde's alleged consideration of matters outside the pleadings. ⁷ In his order dated Nov. 15, 1991, Judge McBryde explicitly denied that he had granted summary judgment for defendants. In effect, he simply reversed the court's earlier decision that the complaint stated a cause of action. He did not explicitly deny considering matters outside the pleadings, but in denying that he had granted summary judgment, he implicitly denied considering matters outside the pleadings. See, e.g., Ware v. Associated Milk Producers, Inc., 614 F.2d 413, 414-15 (5th Cir.1980) (appellate court accepted on face value "the express wording of the Order of Dismissal [which] affirmatively indicates that the district court did not consider the extra-pleading matters"); Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980) (appellate court must give credence to district court's statement that it did not consider matters outside the pleadings). See generally 2A Moore's Federal Practice para. 12.09 at 12-77 (n. 5) (2d ed. 1991) (collecting cases). Only if it appears that the district court did rely on matters outside the pleadings should an appellate court treat the dismissal as a summary judgment. See United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 57 n. 3 (5th Cir.1979) (citing Moch v. East Baton Rouge Parish Sch. Bd., 548 F.2d 594 (5th Cir.), cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54 L.Ed.2d 132 (1977)). See generally 2A Moore's Federal Practice para. 12.09 12-82 (n. 10) to 12-83 (2d ed. 1991). Thus, the Rule 56 requirements for an additional ten days notice and an opportunity to respond did not come into play.

The fact that plaintiff arrived at the pretrial conference without any reason to think that the motion to dismiss the § 431(c) claim would be revived and reconsidered is immaterial, for he previously had notice and an opportunity to respond to that motion. Plaintiff claims that even if there was no summary judgment in this case, he should have been given notice and an opportunity to respond to Judge McBryde's intention of revisiting the question whether plaintiff had failed to state a claim upon which relief could be granted under § 431(c). We do not agree. Plaintiff had notice and an opportunity to respond, and did respond, when defendants initially filed their motion for dismissal based on plaintiff's failure to state a claim. He was not entitled to fresh notice and an opportunity to reargue his position, despite the fact that the case was transferred from one judge to another. Judge McBryde was fully capable of reviewing the motions and briefs filed in connection with the initial motion to dismiss, and presumably also had access to a transcript or audiotape of the hearing on the motion to dismiss. That being so, Judge McBryde, like Judge Mahon before him, was in a position to consider the best arguments plaintiff could muster once given notice that his § 431(c) claim was in jeopardy. The revisitation by the court of its earlier order denying the motion to dismiss was not error, both because plaintiff had ample opportunity to respond to that motion and because a court may correct its own errors. The fact that Judge McBryde was not correcting his own error, but that of another judge who initially had been in charge of the case, is of no moment. See generally 1B Moore's...