Mock v. T.G. & Y. Stores Co., Nos. 90-6344

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtSTEPHEN H. ANDERSON
Citation971 F.2d 522
Parties140 L.R.R.M. (BNA) 3028, 122 Lab.Cas. P 10,289, 23 Fed.R.Serv.3d 638, 7 IER Cases 1168 Charles MOCK, Plaintiff-Appellant, v. T.G. & Y. STORES CO., an Oklahoma corporation, Household International, Inc., a Delaware corporation, Household Merchandising, Inc., an Ohio corporation, Defendants-Appellees. Jim L. CLYMER, Plaintiff-Appellant, v. T.G. & Y. STORES CO., an Oklahoma corporation, Household International, Inc., a Delaware corporation, Household Merchandising, Inc., an Ohio corporation, Defendants-Appellees. Gary BAILEY, Dwayne Hope, Jimmy Hope, Patty Hudson, Glenda Morton, Charles Edwards Owens, Victor E. Silva, Kim Louise Souders, Plaintiffs-Appellants, v. T.G. & Y. STORES CO., an Oklahoma corporation, Household International, Inc., a Delaware corporation, Household Merchandising, Inc., an Ohio corporation, the General Drivers, Chauffeurs, Helpers, Local Union 886, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants-Appellees. Gary BAILEY, Dwayne Hope, Jimmy Hope, Patty Hudson, Glenda Morton, Charles Edwards Owens, Victor E. Silva, Kim Louise Souders, Plaintiffs-Appellants, v. T.G. & Y. STORES CO., an Oklahoma corporation, Household International, Inc., a Delaware corporation, Household Merchandising, Inc., an Ohio corporation, Defendants-Appellees, and The General Drivers, Chauffeurs, Helpers, Local Union 886, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants. , and 90-6415.
Decision Date24 July 1992
Docket Number90-6416,90-6346,Nos. 90-6344,90-6414,90-6345

Page 522

971 F.2d 522
140 L.R.R.M. (BNA) 3028, 122 Lab.Cas. P 10,289,
23 Fed.R.Serv.3d 638, 7 IER Cases 1168
Charles MOCK, Plaintiff-Appellant,
v.
T.G. & Y. STORES CO., an Oklahoma corporation, Household
International, Inc., a Delaware corporation,
Household Merchandising, Inc., an Ohio
corporation, Defendants-Appellees.
Jim L. CLYMER, Plaintiff-Appellant,
v.
T.G. & Y. STORES CO., an Oklahoma corporation, Household
International, Inc., a Delaware corporation,
Household Merchandising, Inc., an Ohio
corporation, Defendants-Appellees.
Gary BAILEY, Dwayne Hope, Jimmy Hope, Patty Hudson, Glenda
Morton, Charles Edwards Owens, Victor E. Silva,
Kim Louise Souders, Plaintiffs-Appellants,
v.
T.G. & Y. STORES CO., an Oklahoma corporation, Household
International, Inc., a Delaware corporation, Household
Merchandising, Inc., an Ohio corporation, the General
Drivers, Chauffeurs, Helpers, Local Union 886, affiliated
with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Defendants-Appellees.
Gary BAILEY, Dwayne Hope, Jimmy Hope, Patty Hudson, Glenda
Morton, Charles Edwards Owens, Victor E. Silva,
Kim Louise Souders, Plaintiffs-Appellants,
v.
T.G. & Y. STORES CO., an Oklahoma corporation, Household
International, Inc., a Delaware corporation,
Household Merchandising, Inc., an Ohio
corporation, Defendants-Appellees,
and
The General Drivers, Chauffeurs, Helpers, Local Union 886,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Defendants.
Nos. 90-6344, 90-6414, 90-6345, 90-6416, 90-6346, and 90-6415.
United States Court of Appeals,
Tenth Circuit.
July 24, 1992.

Page 523

Larry D. Barnett (Barry R. Davis, Bob Burke and Michael Gassaway, with him on the brief) Oklahoma City, Okl., for plaintiffs-appellants.

Mark G. Flaherty of Husch & Eppenberger, Kansas City, Mo. (Kenneth J. Reilly of McDowell, Rice & Smith, Overland Park, Kansas and Randall A. Breshears of Monnett, Hayes, Bullis, Thompson & Edwards, Oklahoma City, Okl., with him on the brief), for defendants-appellees.

Loren Gibson (George J. McCaffrey, with him on the brief) of Lampkin, McCaffrey & Tawwater, Oklahoma City, Okl., for defendant-appellee Local Union No. 886.

Before ANDERSON, BRORBY, and ALDISERT, * Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

This appeal is a consolidation of several cases arising out of an investigation of suspected employee theft and substance abuse at the two Oklahoma warehouses of T.G. & Y. Stores Co., a Delaware corporation engaged in retail merchandising, with its principal place of business in Oklahoma. Plaintiffs, all employees or former employees of T.G. & Y., claim that the investigation was conducted without any factual basis, and in a way which violated federal labor laws, the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18

Page 524

U.S.C. § 1961 et seq., and various state laws.

Judgment was entered for three plaintiffs, supervisory employees who were terminated after the investigation, pursuant to a Fed.R.Civ.P. 68 offer of judgment, and, through a series of orders and rulings, judgment was ultimately entered for defendants T.G. & Y. and its related corporations, Household International, Inc. and Household Merchandising, Inc. against all remaining plaintiff-employees on all remaining claims. The three plaintiffs who received the Rule 68 judgment were denied prejudgment interest on their awards. These appeals followed, asserting error in certain of the many rulings of the district court.

Defendants filed a motion to dismiss the appeal for lack of jurisdiction as to the three plaintiffs for whom the Rule 68 judgment was entered. Following oral argument to this court, counsel for T.G. & Y. notified the court that T.G. & Y. had filed for protection under the federal bankruptcy laws in the United States Bankruptcy Court for the Southern District of New York. Plaintiffs' appeal was therefore stayed as to T.G. & Y. under 11 U.S.C. § 362. This court then granted the motion of defendants Household International, Inc. and Household Merchandising, Inc. to continue the appeal as to those two defendants.

We affirm the judgments of the district court in favor of defendants Household Merchandising and Household International.

BACKGROUND

T.G. & Y. was a retail merchandising company which operated hundreds of stores throughout the United States. Household Merchandising is an Ohio corporation authorized to do business in Oklahoma. Household International is a Delaware corporation, and is the parent company of both Household Merchandising and T.G. & Y.

The General Drivers, Chauffeurs, and Helpers Local Union No. 886 (the "Union"), an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, was the certified bargaining representative of most of the hourly paid employees of T.G. & Y. Pursuant to the Collective Bargaining Agreement ("CBA") between T.G. & Y. and the Union, T.G. & Y. could discharge any employee for "just cause." Additionally, the CBA contained no limitation on T.G. & Y.'s right to interview or investigate employees, and all "management functions, prerogatives, and rights not expressly delegated, limited, or abridged by the terms" of the CBA were "reserved by the company." Agreement, Articles 13.1, 26, Appendix to Brief of Bailey Plaintiffs Vol. III at 215-16, 230. Finally, the CBA provided for a mandatory, binding and exclusive grievance and arbitration procedure to resolve all disputes between T.G. & Y. and the Union or its members concerning their employment.

Apparently concerned that employees had been stealing merchandise and engaging in other misconduct, T.G. & Y. interviewed approximately 100 employees during the week of April 29, 1985, at one of T.G. & Y.'s warehouses. Some employees were terminated as a result of the interviews and investigation and some were not. The essence of plaintiffs' claim is that they were "wrongfully interrogated, abused and coerced" during the course of the interviews, Brief of Plaintiffs/Appellants at 6, and that the Union conspired with the other defendants to deprive them of their jobs. 1

There are two groups of plaintiffs/appellants before us, each of whom we treat separately. The first group, plaintiffs Charles Mock, Jim Clymer and Dwayne Hope ("Mock Plaintiffs") were supervisors at T.G. & Y. and were therefore not Union members. They were discharged following their interviews. Mock and Clymer filed separate, but very similar, actions in Oklahoma state court. Both actions were ultimately removed to the United States District

Page 525

Court for the Western District of Oklahoma.

The other plaintiffs/appellants in this appeal, Gary Bailey, Jimmy Hope, Patty Hudson, Glenda Morton, Charles Owens, Victor Silva, and Kim Louise Souders ("Bailey Plaintiffs"), were all Union members. Owens, Morton and Hudson were interviewed but were not discharged. Bailey, Jimmy Hope, Silva and Souders were interviewed and, after admitting misconduct, were discharged. The Bailey Plaintiffs filed an action in federal district court. 2 The actions of the Mock Plaintiffs and the Bailey Plaintiffs were eventually consolidated in this court.

I. Mock Plaintiffs

We address the Mock Plaintiffs' appeal first. They filed similar actions against defendants T.G. & Y., Household Merchandising, and Household International, alleging violations of RICO and asserting various state law claims. Defendants' motions to dismiss Mock's and Clymer's RICO claims were granted, as was defendants' motion for summary judgment on Hope's RICO claims. Defendants' other motions for summary judgment on many, but not all, of the state law claims were granted. 3

In September, 1990, T.G. & Y., Household Merchandising, and Household International sent to the Mock Plaintiffs offers to accept judgment in accordance with Rule 68. With the exception of the amount offered, the offers had identical wording, and provided in part as follows:

Please take notice of our offer to allow judgment to be taken against the defendants in this case for the sum of [ ] with costs accrued to date. This offer is good for ten (10) days, pursuant to Rule 68, F.R.Civ.P. If, within ten (10) days after the service of this offer, you serve written notice on me that this offer is accepted, I will then file the offer and notice of acceptance with the proof of service thereof, in which case the clerk will enter judgment in this case.

Appendix of Plaintiff/Appellant Mock at 94; Appendix of Plaintiff/Appellant Clymer at 110; Defendants/Appellees' Supplemental Appendix at 13 (emphasis added). Each plaintiff thereafter sent a letter accepting the offer "to allow judgment to be taken by the Plaintiff and against the Defendants in this case...." Mock Appendix at 95; Clymer Appendix at 79; Defendants/Appellees' Supplemental Appendix at 13 (emphasis added). Plaintiffs then submitted a "Proof of Acceptance of Offer to Allow Judgment and Request for Entry of Judgment" to be filed "in the above styled cause." Exhibit B to Motion of Defendants-Appellees to Dismiss Appeal, with Memorandum in Support. Judgments were therefore entered by the district court on October 4, 1990 in the amounts of $400,000 plus costs for Mock, $270,000 plus costs for Dwayne Hope, and $85,000 plus costs for Clymer.

Plaintiffs then filed motions to assess pre- and post-judgment interest. Defendants did not dispute plaintiffs' entitlement to post-judgment interest, but did challenge their entitlement to pre-judgment interest. The district court denied their motion for pre-judgment interest, concluding that the "goal [of Rule 68] would be undermined if a party was permitted to subsequently add

Page 526

pre-judgment interest to the sum contained in an offer of judgment."

Plaintiffs Mock and Clymer attempt to appeal from the district court's earlier grant of defendants' motion for partial summary judgment on the pleadings as to...

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195 practice notes
  • Kline v. Security Guards, Inc., No. 03-3404, 03-3610, 03-3620.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 6, 2004
    ...completely preempted by § 301. See, e.g., In re General Motors Corp., 3 F.3d 980, 982 (6th Cir.1993); Mock v. T.G. & Y. Stores Co., 971 F.2d 522 (10th Cir.1992); In re Amoco Petroleum Additives Co., 964 F.2d 706 (7th Cir.1992); and Kirby v. Allegheny Beverage Corp., 811 F.2d 253 (4th Ci......
  • Good Samaritan Med. Ctr. v. Nat'l Labor Relations Bd., Nos. 15-1347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 31, 2017
    ...292, 142 L.Ed.2d 242 (1998) (finding no bad faith where there was "no intent to mislead"); Mock v. T.G. & Y. Stores Co. , 971 F.2d 522, 531 (10th Cir. 1992) ("Bad faith requires a showing of fraud, deceitful action or dishonest action."); Baxter v. United Paperworker......
  • Yu v. Brown, No. CIV 97-1491 MV/WED.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • January 28, 1999
    ...12(c) motion for judgment on the pleadings is governed by the same standards as a Rule 12(b)(6) motion to dismiss. Mock v. T. G. & Y., 971 F.2d 522, 528 (10th Cir.1992). In reviewing a defendant's Rule 12(c) motion, the court assumes the veracity of the "well-pleaded factual allega......
  • Carroll v. City of Albuquerque, No. CIV 10–0588 JB/ACT.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 13, 2010
    ...implied employment contract would require an analysis of what the CBA permitted the City to do. Cf. Mock v. T.G. & Y. Stores, Co., 971 F.2d 522, 530 (10th Cir.1992) (“[A]n analysis of whether [the defendant] acted properly or not will inevitably require an analysis of what the CBA permi......
  • Request a trial to view additional results
197 cases
  • Kline v. Security Guards, Inc., No. 03-3404, 03-3610, 03-3620.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 6, 2004
    ...completely preempted by § 301. See, e.g., In re General Motors Corp., 3 F.3d 980, 982 (6th Cir.1993); Mock v. T.G. & Y. Stores Co., 971 F.2d 522 (10th Cir.1992); In re Amoco Petroleum Additives Co., 964 F.2d 706 (7th Cir.1992); and Kirby v. Allegheny Beverage Corp., 811 F.2d 253 (4th Ci......
  • Good Samaritan Med. Ctr. v. Nat'l Labor Relations Bd., Nos. 15-1347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 31, 2017
    ...292, 142 L.Ed.2d 242 (1998) (finding no bad faith where there was "no intent to mislead"); Mock v. T.G. & Y. Stores Co. , 971 F.2d 522, 531 (10th Cir. 1992) ("Bad faith requires a showing of fraud, deceitful action or dishonest action."); Baxter v. United Paperworker......
  • Yu v. Brown, No. CIV 97-1491 MV/WED.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • January 28, 1999
    ...12(c) motion for judgment on the pleadings is governed by the same standards as a Rule 12(b)(6) motion to dismiss. Mock v. T. G. & Y., 971 F.2d 522, 528 (10th Cir.1992). In reviewing a defendant's Rule 12(c) motion, the court assumes the veracity of the "well-pleaded factual allega......
  • Carroll v. City of Albuquerque, No. CIV 10–0588 JB/ACT.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 13, 2010
    ...implied employment contract would require an analysis of what the CBA permitted the City to do. Cf. Mock v. T.G. & Y. Stores, Co., 971 F.2d 522, 530 (10th Cir.1992) (“[A]n analysis of whether [the defendant] acted properly or not will inevitably require an analysis of what the CBA permi......
  • Request a trial to view additional results

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