Layne v. INTERN. BROTH. OF ELEC. WORKERS (AFL-CIO)

• Decision Date: 27 July 1976
• Docket Number: Civ. A. No. 76-254.
• Citation: 418 F. Supp. 964
• Court: U.S. District Court — District of South Carolina
• Parties: Howard LAYNE, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (AFL-CIO), and International Brotherhood of Electrical Workers (AFL-CIO), Local No. 382, Defendants.

418 F. Supp. 964

Howard LAYNE, Plaintiff, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (AFL-CIO), and International Brotherhood of Electrical Workers (AFL-CIO), Local No. 382, Defendants.

Civ. A. No. 76-254.

United States District Court, D. South Carolina, Columbia Division.

July 27, 1976.

Julian H. Gignilliat, Columbia, S. C., and J. Roy Weathersby, of Wilson & Wilson, Atlanta, Ga., for plaintiff.

Larry L. Eubanks, of Eubanks & Villegas, Winston-Salem, N. C., for Local Union No. 382, Intern. Broth. of Elec. Workers.

Michael O. Johnson, Columbia, S. C., and Renn Drum, Drum & Liner, Winston-Salem, N. C., for Intern. Broth. of Elec. Workers (AFL-CIO).

ORDER ON DEFENDANT LOCAL UNION NO. 382'S MOTION TO DISMISS

HEMPHILL, District Judge.

This civil action was brought pursuant to the provisions of the Labor-Management Reporting and Disclosure Act of 1959, commonly referred to as the Landrum-Griffin Act, 29 U.S.C. §§ 411 and 412, which was passed to protect the individual rights of members of labor organizations. The complaint alleges that plaintiff Layne was expelled from the defendant Union after many years of membership and was denied his pension benefits. The complaint further alleges that he was expelled from the Union without being afforded a "fair trial" as required by the Landrum-Griffin Act. The defendant Union has now moved for dismissal on the ground that Howard Layne, the plaintiff, died on or about June 3rd or June 4th, 1976 and that the claim asserted in the complaint was thereby extinguished.

The defendant Union filed in support of its motion to dismiss a brief which consisted, in its entirety, of the following:

The statutory right upon which plaintiff bases his claim for relief fails to provide for survivorship. Defendant's attorney can cite no precedent for or against dismissal of this action.

The only guide is the Court's review based on the common law.

Plaintiff's counsel, on the other hand, was able to find specific authority in support of his position. In Sands v. Abelli, 290 F.Supp. 677 (S.D.N.Y.1968), the court considered the very issue now before this court and concluded that an action under 29 U.S.C. § 412 does survive the death of the plaintiff. It must be conceded, however, that this conclusion in Sands was merely dictum, because the court had previously held that judgment had actually been rendered for the plaintiff and that the action was not "in a state of pendency" at the time of plaintiff's death. In discussing the issue of survival, the court stated:

Assuming, arguendo, the pendency of the action at the time of death, the case for abatement fails on other grounds. Although there appears to be no case squarely on point under the LMRDA, the better reasoned cases hold that where a federal statute grants a right to an individual, whether it be deemed a personal or property right, to deny the remedy on the theory of abatement would be, "perpetuation of a policy which has now had its day." Without belaboring the point, the sound approach is clearly in favor of survivability where, as here, the statute is designed to have a deterrent effect. Were the Court to hold otherwise, the incentive for discipline of a more permanent nature would be manifest.

The statements above obviously were not necessary to the court's decision in Sands, and they are also somewhat in conflict with the law of this circuit. In Barnes Coal Corp. v. Retail Coal Merchants Assn., 128 F.2d 645 (4th Cir. 1942), the court held that the survival of a federal statutory cause of action

. . . is to be determined by an interpretation of the statute in light of the common law and is not governed by state survival statutes or state decisions relating to the subject. The decision of the Supreme Court in Erie R. Co. v. Tompkins, has no bearing on the matter; for the question is not one as to a state common law rule but as to the interpretation of a federal statute and the consequences which flow from it. 128 F.2d at 648 (citations omitted).

This much of the holding in Barnes is consistent with the conclusions reached in Sands, but the Fourth Circuit went on to adopt principles contrary to the view that an action such as this would survive regardless of whether it is deemed to involve a personal right or a property right. In...