Graham v. Goodyear Aerospace Corp., Arizona Division, 1

• Decision Date: 30 March 1978
• Docket Number: No. 1,CA-CIV,1
• Citation: 585 P.2d 884,120 Ariz. 275
• Parties: Thomas L. GRAHAM, Appellant, v. GOODYEAR AEROSPACE CORPORATION, ARIZONA DIVISION, Appellee. 3610.
• Court: Arizona Court of Appeals

Page 884

585 P.2d 884

120 Ariz. 275

Thomas L. GRAHAM, Appellant, v. GOODYEAR AEROSPACE CORPORATION, ARIZONA DIVISION, Appellee.

No. 1 CA-CIV 3610.

Court of Appeals of Arizona, Division 1, Department A.

March 30, 1978.

Rehearing Denied May 2, 1978.

Review Granted June 6, 1978.

Jerome & Gibson, P. C. by Alan M. Schiffman, Phoenix, for appellant.

Snell & Wilmer by Daniel J. McAuliffe, Phoenix, for appellee.

OPINION

HAIRE, Presiding Judge.

The issue presented on this appeal is whether the trial court erred in dismissing plaintiff's complaint with prejudice and in refusing to grant plaintiff's motion to amend his complaint. Plaintiff's original complaint sought to recover from defendant Goodyear Aerospace Corporation certain pension benefits which plaintiff claimed were due by reason of a contract between his union and the defendant.

Prior to the filing of any answer to plaintiff's complaint, defendant filed a motion to dismiss, asserting primarily that the complaint failed to state a claim by reason of plaintiff's failure to exhaust the union contract's grievance procedure remedies. Defendant's motion to dismiss was supported by exhibits which included a copy of the pertinent union contract, together with an affidavit which established the defendant's version of the facts relating to plaintiff's termination from employment and that the union had not submitted to defendant any formal grievance by or on behalf of plaintiff relating to the termination of his employment or concerning his pension rights. Inasmuch as defendant's motion presented matters outside the pleadings, it was treated by the court as a motion for summary judgment pursuant to the provisions of Rule 12(b), Rules of Civil Procedure, 16 A.R.S.

The parties appear to agree that because of plaintiff's failure to allege the exhaustion of the grievance procedures provided by the union contract, plaintiff's original complaint was defective. The parties also agree that an exception to the exhaustion requirement is recognized where the union refuses to process the grievance on the employee's behalf, or does so in a perfunctory fashion which breaches its duty of fair representation. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). While defendant's motion to dismiss (treated as a motion for summary judgment) was pending, and before any ruling thereon was made by the trial court, plaintiff filed a "Motion to Amend Complaint" together with an attached proposed "First Amended Complaint". The amended complaint would have made the plaintiff's union, International Association of Machinists and Aerospace Workers, Aerospace Lodge No. 763, a party to the litigation. It also contained appropriate allegations which would bring plaintiff within the exception to the grievance exhaustion requirements as recognized by the Hines and Vaca decisions, Supra.

In disposing of the defendant's motion to dismiss, and the plaintiff's motion to amend, the trial court granted defendant's motion to dismiss the complaint against defendant Goodyear Aerospace Corporation with prejudice; denied the motion to amend as to the defendant Goodyear Aerosapce Corporation; and granted the motion to amend only insofar as concerns the added defendant, International Association of Machinists and Aerospace Workers, Aerospace Lodge No. 763.

Plaintiff has appealed from the granting of the motion to dismiss With prejudice and from the denial of his motion to amend his complaint insofar as concerns defendant Goodyear Aerospace Corporation.

Plaintiff's primary contention is that because his motion to amend was filed prior to the filing of any answer by the defendant Goodyear Aerospace Corporation and prior to any ruling by the trial court on the pending motion to dismiss, he could amend his complaint as a matter of right, and therefore the trial judge committed error in dismissing his complaint with prejudice and in refusing to allow the filing of the amended complaint. We agree, and therefore hold that the judgment appealed from must be reversed.

Rule 15(a)(1), Rules of Civil Procedure, 16 A.R.S. provides:

"15(a) Amendments.

"1. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave to amend shall be freely given when justice requires." (Emphasis added).

Under the facts presented here, at the time plaintiff submitted his motion to amend and proposed amended complaint, defendant had not filed an answer, but had filed his motion to dismiss. The question thus arises as to whether plaintiff's motion to dismiss is to be considered as a "responsive pleading" so as to defeat plaintiff's right to amend "as a matter of course".

Rule 7(a), Rules of Civil Procedure, sets forth the pleadings allowed under our civil rules, and neither a motion to dismiss nor a motion for summary judgment is listed therein. ¹

In regard to this question, Professor Moore comments as follows:

"The term 'a responsive pleading' as used in Rule 15(a) should be interpreted by reference to Rule 7(a), which defines 'pleadings' as including only the complaint, the answer, the reply, the answer to a cross-claim, and the third-party complaint and answer. So it has been held that a motion to dismiss for failure to state a claim is not a 'responsive pleading' within the meaning of Rule 15, and pleadings may be amended after such motions are made.

"(W)hile there is some authority that a motion for summary judgment should be...