Lampkin v. International Union, United Auto., Aerospace and Agr. Implement Workers of America (UAW), 1093

• Decision Date: 24 August 1998
• Docket Number: No. 96-5212,No. 1093,1093,96-5212
• Citation: 1998 WL 527103,154 F.3d 1136
• Parties: 159 L.R.R.M. (BNA) 2150, 136 Lab.Cas. P 10,225, 98 CJ C.A.R. 4530 Robert D. LAMPKIN, Plaintiff-Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW); Localof the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Defendants-Appellants, and McDonnell Douglas-Tulsa, a division of McDonnell Douglas Corporation, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1136

154 F.3d 1136

159 L.R.R.M. (BNA) 2150, 136 Lab.Cas. P 10,225,

98 CJ C.A.R. 4530

Robert D. LAMPKIN, Plaintiff-Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW); Local No.

1093 of the International Union, United Automobile,

Aerospace and Agricultural Implement Workers of America

(UAW), Defendants-Appellants,

and

McDonnell Douglas-Tulsa, a division of McDonnell Douglas

Corporation, Defendant.

No. 96-5212

United States Court of Appeals,

Tenth Circuit.

Aug. 24, 1998.

Steven R. Hickman of Frasier, Frasier & Hickman, Tulsa, OK, for Defendants-Appellants.

Jon B. Comstock, Bentonville, AR, for Plaintiff-Appellee.

Before BALDOCK and HOLLOWAY, Circuit Judges, and BROWN, ^* Senior District Judge.

HOLLOWAY, Circuit Judge.

The McDonnell Douglas Corporation (the employer or the company) terminated the employment of plaintiff-appellee Robert Lampkin because of his absenteeism. Lampkin brought suit in District Court of Tulsa County, Oklahoma, against McDonnell Douglas for wrongful termination in February 1993. With his claim against McDonnell Douglas, plaintiff joined claims against his unions, the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America and Local 1093 of the UAW, its local affiliate (collectively referred to hereinafter as the unions), for breach of the duty of fair representation in his behalf. Thus this was a "hybrid" action under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185.

The defendants removed the case to the United States District Court for the Northern District of Oklahoma in March 1993. I Aplt.App. at 175. While the notice of removal is not in the appendix, the Agreed Pretrial Order states that plaintiff asserts three claims: (1) for his allegedly unlawful discharge by McDonnell Douglas in violation of his rights under the collective bargaining agreement; (2) for breach by defendant UAW and Local 1093 of their duty of fair representation owed to plaintiff Lampkin; and (3) for allegedly tortious interference with economic expectation for plaintiff relating to unemployment compensation. The first and third claims are not at issue in this appeal. The jurisdiction of the district court is said to be conferred by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. As to claims (1) and (2), the case is one of which the district courts of the United States have original jurisdiction and was therefore removable to the district court. 28 U.S.C. § 1441.

After a jury trial, McDonnell Douglas was found liable for wrongful termination in breach of the collective bargaining agreement and for damages of $16,500 to plaintiff Lampkin. McDonnell Douglas commenced an appeal from the judgment against it, but dismissed its appeal after reaching a settlement with Lampkin.

On the verdict form, the jury also found that the unions had breached their duty of fair representation of Lampkin but awarded no damages against the unions. I Aplt.App. at 114-15. In addition to the verdict form, the jurors had been given a special interrogatory to be completed only in the event that they determined that the unions had breached their duty of fair representation. On this form, the jurors were asked whether "the attorney fees chargeable to the efforts required of plaintiff to enforce the collective bargaining agreement against the employer[ ] should be awarded as an element of damage to the plaintiff?" This interrogatory then informed the jurors that if they answered that question in the affirmative, which the jurors did, then the court would "conduct a hearing after the jury has been dismissed at which time the court will hear evidence and determine the amount of any fee to be awarded." I Aplt.App. at 116.

The district judge ultimately awarded attorneys' fees in the amount of $13,027.48 against the unions as compensatory damages due from the unions for breach of their duty of fair representation of Lampkin. The unions then commenced this appeal after the district court had denied a second motion under Fed.R.Civ.P. 50(b). ¹ We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.

I

We, sua sponte, noted a possible problem regarding the scope of our jurisdiction and ordered the parties to submit memoranda on this issue: Whether this court has jurisdiction to review the judgment on the merits where the notice of appeal was filed more than 30 days after entry of the order of March 22, 1996, denying the appellant unions' Rule 50 motion? We conclude that we have jurisdiction over all issues raised by the unions.

The jury verdict was returned on April 6, 1994, but, as noted, the jury put zeroes in the blanks asking for the amount of damages against the two unions. The court did not immediately enter judgment on the jury verdict, but invited the parties to submit proposed judgment forms and motions as to the issue of attorneys' fees that might be awarded against the unions. All three defendants filed post-trial motions for judgment as a matter of law under Fed.R.Civ.P. 50(b) within ten days of the jury verdict. Also within ten days of the verdict, plaintiff Lampkin filed an "Application For Post-Verdict Determination of Attorney Fees and Entry of Judgment On Jury Verdict." Judgment was entered against McDonnell Douglas on April 29, 1994, but entry of judgment against the unions did not come until later.

The district court held a hearing on the motions of Lampkin and the unions on November 7, 1995, at which the judge denied the unions' Rule 50(b) motion and took the remaining issues under advisement. IV Aplt.App. at 1034. On March 22, 1996, the district judge entered an order formally denying the unions' motion for judgment as a matter of law and setting a hearing to determine the number of attorney hours for which plaintiff should be compensated. Testimony and argument were heard on April 10, 1996, and the judge fixed Lampkin's recovery at $13,027.48. Judgment in that amount was entered on May 14, 1996. I Aplt.App. at 127-28. On May 28, 1996, the unions filed a second Rule 50(b) motion, which alternatively asked for a new trial. The district court denied that motion in an order entered on September 3, 1996, and the unions filed their notice of appeal on September 12.

Lampkin urges that the district court's order of March 22, 1996, which denied the unions' post-trial motion for judgment as a matter of law, was an appealable final order "on the merits." Accordingly, Lampkin contends In Budinich, the Court rejected an argument that "the general status of attorney's fees for [28 U.S.C.] § 1291 purposes must be altered when the statutory or decisional law authorizing them makes plain ... that they are to be part of the merits judgment." 486 U.S. at 201, 108 S.Ct. 1717. A close reading of the Court's opinion reveals, however, that the holding there does not apply to cases such as this one, which does not involve an award for the prosecution of the case against the unions, but instead makes the unions responsible, as a part of compensatory damages, for the attorneys' fees incurred in pressing plaintiff's claim against the employer.

                that the unions' appeal is timely only as to the amount of fees awarded.  At argument, counsel for Lampkin stated that the case most closely on point is Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988).  We disagree.  The holding in that case was that, even in diversity cases, the question whether the district court's decision on the merits is appealable before the attorneys' fees determination has been made is one of federal law under which the determination of attorneys' fees is ordinarily a collateral matter which does not suspend finality of the judgment on the merits.  Id. at 200, 202, 108 S.Ct. 1717.   See White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982)
                

Budinich held that "the § 1291 effect of an unresolved issue of attorney's fees for the litigation at hand should not turn upon the characterization of those fees by the statute or decisional law that authorizes them." Id. at 201, 108 S.Ct. 1717 (emphasis added). This limitation of the Court's holding to attorneys' fees requests for the "litigation at hand" is crucial to our resolution of the jurisdictional issue here. The Court justified its holding in large part by the substantial need for a uniform rule providing "operational consistency and predictability in the overall application of § 1291." Id. at 202, 108 S.Ct. 1717. The Court repeated the limitation of its holding, on which we rely in this case, when it said that the goal of consistency and certainty of application under § 1291 "requires, we think, a uniform rule that an unresolved issue of attorney's fees for the litigation in question does not prevent judgment on the merits from being final." Id. (emphasis added). Nor are these the only expressions in the case which we take as instructive here. Repeating the holding that we have just quoted and its underlying policy considerations, the Court said: "Courts and litigants are best served by the bright-line rule, which accords with traditional understanding, that a decision on the merits is a 'final decision' for purposes of § 1291 whether or not there remains for adjudication a request for attorney's fees attributable to the case." Id. at 202-03, 108 S.Ct. 1717 (emphasis added). In spite of the Court's recognition of the need for a bright-line rule, the holding is not universally applicable. We think the Court's careful limitation of the type of attorneys' fees recoveries subject to its holding was a recognition that there are cases which must be analyzed differently. And we are convinced that this is such a case.

Under the circumstances of this case the award of attorneys' fees is an award of compensatory damages for breach of the duty of fair representation under the LMRA, which...