De Malherbe v. Intern. Union of Elevator Constructors

Decision Date28 September 1977
Docket NumberNo. C-76-1668-CBR.,C-76-1668-CBR.
Citation438 F. Supp. 1121
PartiesJohn R. DE MALHERBE, Plaintiff, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, International Union of Elevator Constructors Local No. 8, National Elevator Industry, Inc., Defendants.
CourtU.S. District Court — Northern District of California




Dennis John Woodruff, David R. Lipson, San Francisco, Cal., for plaintiff.

Brundage, Beeson & Pappy, Stephen H. Naiman, Richard J. Davis, Jr., Los Angeles, Cal., for defendants IUEC Local No. 8 and IUEC.

Carter, Cook, Phillips & Voltz, Charles E. Voltz, San Francisco, Cal., Putney, Twombly, Hall & Hirson, Charles O. Strahley, New York City, for defendant National Elevator Industry, Inc.

O'Donoghue & O'Donoghue, Patrick C. O'Donoghue, Joyce A. Mader, Washington, D. C., for defendant IUEC.


RENFREW, District Judge.

Plaintiff, a permanent resident alien of the United States, challenges the refusal of defendants to hire him because of his alien status on the grounds that employment discrimination against aliens violates his rights under 42 U.S.C. § 1981 or, in the alternative, under the Fifth Amendment of the United States Constitution. Plaintiff invokes the jurisdiction of the Court pursuant to 28 U.S.C. §§ 1343(4) and 1331.

Plaintiff filed his original complaint on August 9, 1976. He filed a first amended complaint on March 4, 1977, and a second amended complaint on June 20, 1977. In his initial complaint, plaintiff sought to represent only himself, but in his first and second amended complaints, he sought to represent a class of similarly situated aliens. On April 14, 1977, defendant International Union of Elevator Constructors ("IUEC") filed a motion to dismiss for failure to state a claim upon which relief can be granted under § 1981, for lack of subject-matter jurisdiction due to pre-emption by the National Labor Relations Board, and for failure to state a claim for damages for emotional distress under California law. Also on April 14, 1977, defendant National Elevator Industry, Inc. ("NEII"), filed a motion to dismiss, this one for insufficient service of process and lack of prosecution, for lack of subject-matter jurisdiction or failure to state a claim upon which relief can be granted. NEII also moved to strike the class-action allegations because plaintiff failed to obtain leave of court to include them when he amended his initial complaint. Plaintiff has filed a memorandum in opposition, and defendants have responded to that memorandum. The Court therefore has the benefit of fairly extensive briefing, especially on the statutory history of § 1981.

Plaintiff is a permanent resident alien of the United States, born in Uruguay and a citizen of that country. He was employed in the elevator construction industry pursuant to a work permit issued by International Union of Elevator Constructors Local No. 8 ("Local 8") for various times between 1969 and 1972. Plaintiff again sought work in the industry in the spring of 1974. He also sought admission into the Elevator Industry National Recruitment and Training Program ("EINRTP"). Plaintiff took and passed the test for admission into EINRTP and was placed on the hiring list of Local 8.1 NEII, the bargaining representative of a multi-employer bargaining unit, agreed with IUEC that employers in the industry would hire only individuals on the hiring list, and the hiring list includes only union members and nonmembers who have been granted work permits. On March 26, 1974, Local 8 removed plaintiff from the hiring list at the direction of IUEC because of his lack of citizenship, and Local 8 refused to reinstate plaintiff. As a result of his removal from the hiring list, plaintiff was unable to obtain work in the industry and therefore alleges lost income and emotional injury.

EINRTP was constituted in an agreement between NEII, IUEC, and the United States Office of Federal Contract Compliance. The industry participated in EINRTP at least in part because of pressure from the federal government to increase the percentage of minority employees in the industry. The purpose of EINRTP is to provide a comprehensive national recruitment and training program for qualified and qualifiable members of minority groups. EINRTP's role in the hiring process for non-minorities is unclear, but apparently all new employees and inexperienced employees must be processed through EINRTP in order to become eligible for employment in the industry.2 EINRTP is funded by the Manpower Administration of the United States Department of Labor, and the Office of Federal Contract Compliance monitors the performance of EINRTP.

The federal government itself did not make citizenship an eligibility requirement for EINRTP. NEII and IUEC decided to make citizenship a requirement not only for admission into EINRTP but also for membership in the union.

A. Service of Process on NEII

NEII's Rule 12(b)(5) motion to dismiss for insufficiency of service of process is denied on the ground of mootness, because plaintiff properly served NEII with the second amended complaint on June 29, 1977.

B. Lack of Prosecution

Defendant NEII's motion to dismiss for lack of prosecution is also denied. Dismissal with prejudice for lack of prosecution is a severe sanction appropriate only in extreme circumstances where a plaintiff's conduct approaches contumacious and willfully dilatory. Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5 Cir. 1976); Asociacion de Empleados del Instituto de Cultura Puertoriquena v. Rodriguez Morales, 538 F.2d 915, 917 (1 Cir. 1976). While plaintiff's attorney could have handled this case much more expeditiously and methodically, dismissal with prejudice is unwarranted under the circumstances here where the neglect was moderate and in the absence of a showing of specific prejudice from the delay. See Messenger v. United States, 231 F.2d 328, 331 (2 Cir. 1956) (prejudice to defendant relevant although "operative condition of Rule 41(b) is lack of due diligence on the part of the plaintiff"). Dismissal without prejudice is also inappropriate, because it may have the same effect as dismissal with prejudice due to the probable bar of the applicable statute of limitations if the action is dismissed. See Boazman v. Economics Laboratory, Inc., supra, 537 F.2d at 212-213; Griffin v. Pacific Maritime Ass'n., 478 F.2d 1118, 1119 (9 Cir. 1973) (three or four-year statute of limitations for § 1981 actions in California); cf. Smith v. Cremins, 308 F.2d 187 (9 Cir. 1962) (three-year statute of limitations for § 1983 actions).

C. Amendment to Include Class Allegations

Defendant NEII's motion to strike plaintiff's class allegations because plaintiff did not obtain leave of court to include them in his first and second amended complaints is denied. Generally, amendments of complaints before the defendant has filed a responsive pleading are permitted as a matter of course without leave of court under Rule 15(a) of the Federal Rules of Civil Procedure. Since defendants have filed only a motion to dismiss, which is not a responsive pleading within the meaning of Rule 15(a), Nolen v. Fitzharris, 450 F.2d 958 (9 Cir. 1971) (per curiam); 6 Wright & Miller, Federal Practice and Procedure §§ 1475 and 1483 (1969), adding class allegations would not require leave of the Court. However, Rule 21 requires leave of court if parties are added "at any stage of the action." Putative classes are parties within the meaning of Rule 21. "Absent class members are parties to an action, properly before the court, and subject to its judicial orders." McCubbrey v. Boise Cascade Home & Land Corp., 71 F.R.D. 62, 72 (N.D. Cal.1976). Whether Rule 15 or Rule 21 takes precedence when a party adds parties before a responsive pleading is served is the subject of a growing controversy. See, e. g., McLellan v. Mississippi Power & Light Co., 526 F.2d 870, 872-873 & n. 3 (5 Cir. 1976) (leave not required), other parts vacated, 545 F.2d 919, 922 n. 3 (5 Cir. 1977) (en banc), and authorities cited therein; 6 Wright & Miller, Federal Practice and Procedure § 1479, at 400-402 & nn. 55 & 58 (1969 and 1977 Supp.). The Court concludes that Rule 15 prevails and that plaintiff may add the class allegation without leave of court. Although turning an individual action into a class action fundamentally affects the character of the lawsuit, the addition of new parties does not as a general rule affect the interests of parties already in the lawsuit significantly more than the addition of new claims. Plaintiffs have complete freedom to name parties when they commence an action, and the interests of defendants will not be substantially prejudiced in the early stage of a lawsuit by any delay in adding parties. Indeed, courts would grant motions to add parties at the early stages of litigation almost as a matter of course since the liberal standard of Rule 15 also applies to Rule 21 motions. See Fair Housing Development Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y.1972). Consequently, involving the court in these matters serves no useful purpose and simply imposes an unnecessary burden on courts and litigants alike.


Before reaching the merits of this lawsuit, the Court must resolve a threshold jurisdictional question. Defendant IUEC contends that the Court's jurisdiction over plaintiff's constitutional and statutory claims is pre-empted by § 10(a) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(a), which gives the National Labor Relations Board (NLRB) exclusive jurisdiction over claims involving conduct arguably protected or prohibited by §§ 7 and 8 of the NLRA, 29 U.S.C. §§ 157-158.

Defendants' conduct is arguably prohibited by the NLRA. The NLRA imposes a duty of fair representation on unions that benefit from its protection, and that duty requires unions not to discriminate among...

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  • Olegario v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 16, 1980
    ...of course, to state what the standard is not than to define precisely what it is. See De Malherbe v. International Union of Elevator Constructors, 438 F.Supp. 1121, 1135 (N.D.Cal.1977) (Renfrew, J.) ("The Supreme Court in Mow Sun Wong refused to decide what level of scrutiny federal discrim......
  • De Malherbe v. Intern. U. of Elevator Constructors
    • United States
    • U.S. District Court — Northern District of California
    • April 12, 1978
    ...of this action is described in detail in the Court's earlier Memorandum of Opinion filed herein on September 28, 1977 (438 F.Supp. 1121 (N.D.Cal.1977)). Plaintiff claims that defendants deprived him of employment opportunities because he is an alien. His claim under 42 U.S.C. § 1981 dismiss......
  • Sagana v. Tenorio
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 7, 2004
    ...492 U.S. 901, 109 S.Ct. 3207, 106 L.Ed.2d 558 (1989), reinstated, 887 F.2d 609 (5th Cir.1989); De Malherbe v. Int'l Union of Elevator Constructors, 438 F.Supp. 1121, 1136-42 (N.D.Cal.1977). 4. The cases track the courts' heroic efforts to determine what constitutes "white-ness" and "race" f......
    • United States
    • U.S. District Court — Northern District of California
    • July 16, 1979
    ...had not intended § 1981 to apply to claims of private discrimination against aliens. De Malherbe v. International Union of Elevator Constructors, 438 F.Supp. 1121, 1136-1142 (N.D.Cal.1977). Plaintiff, therefore, must now rely solely on his Fifth Amendment claim. Since the Fifth Amendment's ......
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1 books & journal articles
  • Restricting the freedom of contract: a fundamental prohibition.
    • United States
    • Yale Human Rights and Development Law Journal No. 16, January 2013
    • January 1, 2013
    ...[section] 1981(c). (305.) Runyon v. McCrary, 427 U.S. 160, 168 (1976). Contra De Malherbe v. Int'l Union of Elevator Constructors, 438 F. Supp. 1121, 1137 (1977) (refusing to accept arguments based on dicta that [section] 1981 applies only to racial (306.) Graham v. Richardson, 403 U.S. 365......

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