Joyner v. Abbott Laboratories

• Citation: 674 F. Supp. 185
• Decision Date: 21 April 1987
• Docket Number: No. 86-129-CIV-4.,86-129-CIV-4.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Gerald JOYNER, et al., Plaintiffs, v. ABBOTT LABORATORIES, et al., Defendants.

674 F. Supp. 185

Gerald JOYNER, et al., Plaintiffs, v. ABBOTT LABORATORIES, et al., Defendants.

No. 86-129-CIV-4.

United States District Court, E.D. North Carolina, New Bern Division.

April 21, 1987.

COPYRIGHT MATERIAL OMITTED

Ernie Clark, Nashville, N.C., Sherman Rock, Morehead City, N.C., for plaintiffs.

Frank P. Ward, Jr., Thomas A. Farr, Maupin, Taylor, Ellis & Adams, P.A., Raleigh, N.C., for Abbott Laboratories and its Chairman, CMMT and its Chairman, Chief Executive Officer or its President, and Tom Sexton.

J. David James, Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., for Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers, Jackie Presser, Local 391 of Teamsters, Ralph V. Durham, Bruce D. Blevins, Russell H. Hogan, James H. Church, Charles R. Williams and Kenneth H. Mabe.

Gary S. Witlen, Washington, D.C., for Jackie Presser and the IBT, Chauffeurs, Warehousemen and Helpers of America.

John R. Edwards, Tharrington, Smith & Hargrove, Raleigh, N.C., for Leaseway Personnel, Inc., Gerald C. McDonough, Lamar Lea, Lee Lazar, Lebert DePasquale, Joe Kratowicz and Mark Gollan and H. Smith, M. Angel, Doyle Gilliam, B. Amos, and J. Sally.

ORDER

JAMES C. FOX, District Judge.

This matter is before the court as a result of motions to dismiss or for summary judgment filed by all except seven of the twenty-four named defendants,¹ and pursuant to plaintiffs' motions to amend their complaint to add additional parties and causes of action. These matters are now ripe for disposition.

Plaintiffs initiated this action by complaint filed October 29, 1986, which, in a nutshell, alleged that all the defendants conspired together to limit the number of days to less than thirty-three in a ninety-day period that plaintiffs, "casual" truck drivers, could work for defendant Lease-way Personnel in order to prevent plaintiffs from claiming the rights of union membership. In so doing, the complaint alleges, each defendant has violated (a) plaintiffs' right to fair representation by Local 391; (b) the by-laws of Local 391; (c) the by-laws of the International union; (d) the First Amendment to the United States Constitution; (e) the Labor Management Relations Act, 29 U.S.C. § 157 et seq.; and (f) 15 U.S.C. § 15. Plaintiffs seek declaratory judgment, injunctive relief, and compensatory and punitive damages. Jurisdiction is alleged under 28 U.S.C. § 1331(a), 28 U.S.C. § 1343(3) and (4), 15 U.S.C. § 15, and 18 U.S.C. § 1951 and § 1952.²

The full extent of the factual predicate for plaintiffs' claims is set forth in paragraphs 16 and 17 of the complaint:

16.

Save and except Plaintiffs Gerald Joyner, Russell Dixon and Dwight Belty³ it soon became apparent to plaintiffs that their eligibility to claim the rights of Union membership was that they were required to work thirty-three (33) days within ninety (90) calendar days. As each of them approached the thirty-third (33rd) day of such employment, they were no longer called in to work and others were hired to do driving that should have been assigned to them.

17.

This situation arose from a willful and unlawful combination and conspiracy between Abbott, Leaseway, and the Union to limit the number of regular drivers to an arbitrary figure to avoid the cost of fringe benefits due the drivers under the labor agreement and to exclude plaintiffs from that list.

On November 26 and December 23, 1986, the Ruan defendants and the International defendants respectively, filed motions to dismiss or for summary judgment.⁴ On December 18, 1986, one of the law firms representing plaintiffs filed a motion to withdraw as counsel of record in both the instant case and a related case.⁵ That motion was allowed by Magistrate McCotter by order filed January 28, 1987. During the hearing on that motion to withdraw, plaintiffs Clark and Barnes indicated that they no longer wished to be represented by attorney Sherman Rock who withdrew from representation of Balsamo in the related matter, but who apparently continues to represent the remainder of the plaintiffs in the instant matter. Although Clark and Barnes were directed to advise the court by February 27, 1987, as to whether and by whom they are represented, neither has formally complied. However, on March 4, 1987, plaintiff Clark filed a motion to voluntarily dismiss without prejudice his claims in this matter pursuant to F.R.Civ.P. 41,⁶ and stated therein that although he believes he has some meritorious claims, he has yet been unable to obtain counsel without whom he feels he cannot adequately present these claims.

On January 6 and on February 6, 1987, plaintiffs filed identical motions to amend their complaint. On January 23, 1987, the Abbott defendants filed Rule 12(b) motions to dismiss; on February 27, 1987, the Leaseway defendants filed motions to dismiss or for summary judgment. Memoranda in opposition to plaintiffs' motions to amend their complaint have been filed by all defendants. On March 4, 1987, plaintiffs filed a document entitled "Memorandum in Support of Plaintiffs' Complaint." On March 16, 1987, the Leaseway defendants filed a "Motion to Strike and for Attorney's Fees" on grounds that material contained in plaintiffs' Memorandum is "untrue, improper, irrelevant, scandalous and libelous."

It appears, therefore, that the court has before it dispositive motions by all defendants except the Local 391 defendants, as well as plaintiffs' motions to file an amended complaint and Leaseway's Motion to Strike and for Attorney's Fees.

Plaintiffs' Motions to Amend Complaint

The two motions to amend are identical except, attached to the January 6 motion is an affidavit of proposed additional plaintiff Billy W. Carr, whereas proposed additional plaintiff George N. Boone's affidavit accompanies the February 6 motion.

By their proposed amended complaint, plaintiffs seek to make the following changes or additions:

(1) to add as parties plaintiff George N. Boone and Billy W. Carr;

(2) to add as parties defendant Ruan Leasing Co., a division of Ruan Financial Corp.,⁷ Leaseway Transportation Corp., Leaseway Transportation Leasing Corp., and CMM Transportation, Inc.;

(3) to add claims that the defendants' alleged conspiracy also violated plaintiffs' rights under the "Employee Retirement Income Security Act ERISA, 29 U.S.C. § 1001 et seq.; the Social Security Act, 42 U.S.C. § 401 sic et seq.; and the Rocketeer sic Influenced and Corrupt Organizations Act RICO, 18 U.S.C. § 1961 et seq."

As to the proposed additional parties, paragraphs 15 and 16 of the proposed amended complaint omit plaintiff Joyner as one of the three plaintiffs who actually were regular union members and adds the names of proposed additional plaintiffs Carr and Boone. No explanation whatsoever is offered either for the deletion of Joyner's name therein, or for the addition as plaintiffs, of Carr and Boone who, according to plaintiffs' own complaint, were "given union membership cards, pension rights, seniority, status as regular members, ... and other ... alleged benefits of Union members."⁸ Similarly, although plaintiffs add the names of at least four additional defendants, no explanation is offered for so doing and plaintiffs offer no clue as to these entities' alleged involvement in this matter. The only mention of any of these proposed defendants in the body of the proposed amended complaint is in paragraph 7: "Ruan Leasing Company has been licensed to do business in North Carolina since March 11, 1986." There are no jurisdictional allegations as to any of the other proposed additional defendants. As to the proposed new claims plaintiffs wish to add by amendment, there are no allegations in the proposed amended complaint which indicate in any way what specific provision of any of these three comprehensive acts has been violated or how any of the defendants have violated any of the provisions of any of these three comprehensive acts.

While leave to amend under Rule 15 of the Federal Rules of Civil Procedure is to "be freely given when justice so requires," leave to amend may be denied when the pleading as amended is subject to dismissal. Warren v. Nat'l Bank of Detroit, 759 F.2d 542, 546 (6th Cir.1985); Jones v. Community Redevelopment Agency of Los Angeles, 733 F.2d 646, 650 (9th Cir.1984); Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983). When a proposed amendment is frivolous or advances a claim or defense that is legally insufficient on its face, the motion to amend should be denied. 6 Wright & Miller, Federal Practice and Procedure, § 1487 (1971).

In the present case, the plaintiffs' allegations are completely conclusory and give no hint as to how the alleged actions of the defendants violate the Social Security Act, ERISA, or RICO. Rule 8 of the Federal Rules of Civil Procedure requires that a pleading set forth a short and plain statement of the claim showing that the pleader is entitled to relief. F.R.Civ.P. 8(a)(2). While a complaint must be construed in the light most favorable to the plaintiffs, the complaint must give each of the defendants fair notice of the nature and the basis of plaintiffs' claims. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Local 1852 Waterfront Guard Ass'n of Port of Baltimore I.W.A. v. Amstar Corp., 363 F.Supp. 1026, 1030 (D.Md. 1973), enforced, 508 F.2d 839 (4th Cir.1974); Harper v. United States, 423 F.Supp. 192, 196 (D.S.C.1976). None of the allegations in plaintiffs' proposed amended complaint give the defendants fair notice of the nature and the basis of the plaintiffs' claims under RICO, the Social Security Act, or ERISA.

For instance, the courts have set out very specific requirements that a plaintiff must meet to properly allege a violation of RICO. 18 U.S.C. § 1964(c) gives a private right of action for RICO violations under 18 U.S.C. § 1962. Section 1962 has been read to require allegations that the defendants have engaged in a "pattern of...