Rosen v. Transx Ltd

• Decision Date: 26 March 1993
• Docket Number: Civ. No. 4-92-870.
• Citation: 816 F. Supp. 1364
• Parties: Lawrence J. ROSEN, Plaintiff, v. TRANSX LTD., Defendant.
• Court: U.S. District Court — District of Minnesota

816 F. Supp. 1364

Lawrence J. ROSEN, Plaintiff, v.TRANSX LTD., Defendant.

Civ. No. 4-92-870.

United States District Court, D. Minnesota, Fourth Division.

March 26, 1993.

COPYRIGHT MATERIAL OMITTED

Chris H. Berndt, Kimberly K. Westerholm, and Warchol, Berndt & Hajek, Minneapolis, MN, for plaintiff.

John J. McGirl, James C. Ohly, and Doherty, Rumble & Butler Professional Assn., Minneapolis, MN, for defendant.

ORDER

DOTY, District Judge.

This matter is before the court on the defendant's motion to dismiss.Based on a review of the file, record and proceedings herein, the court denies the defendant's motion and remands this matter to state court because the court lacks subject matter jurisdiction over the case.

BACKGROUND

The factual record and legal analyses set forth by the parties are scant.Nevertheless, the court will reconstruct the factual background and ferret out the legal arguments and applicable law so that it can analyze the motion before it.

DefendantTransx Ltd.("Transx") employed plaintiffLawrence J. Rosen("Rosen") as a truck driver.On September 13, 1991, Rosen refused to drive a truck that Transx assigned to him because he believed the brakes were defective.Transx did not offer Rosen another truck to drive.Instead, Transx instructed Rosen to go home if he refused to drive the truck originally assigned to him.Rosen states that went home because he believed that federal or state regulations prohibited him from driving a truck that he believed was unsafe or did not satisfy applicable safety standards.On September 16, 1991, Transx fired Rosen because he failed to complete his September 13, 1991, shift.

A collective bargaining agreement ("agreement") governed the parties' employment relationship.The agreement contains a grievance and arbitration procedure.Article 5 of the agreement, entitled "Grievance Procedure," provides, in part, that:

If ... the parties are not able to resolve the grievance using the informal grievance process set forth in § 5.1 of Article 5, and if the grievance involves an interpretation of an application of the Collective Bargaining Agreement, either party may request arbitration of the grievance.The request for arbitration must be made within three (3) working days from the time the parties determine that the grievance cannot be satisfactorily resolved.

Agreement§ 5.2(attached to Ohly Aff.).Rosen contends that he availed himself of the informal grievance procedure, but his request for a grievance hearing was denied.Rosen proffers no evidence of filing a grievance or the date his alleged request for a grievance hearing was denied.In addition, there is no evidence that Rosen attempted to avail himself of the arbitration procedure set forth in the agreement.

On August 3, 1992, Rosen filed this action in Minnesota state court.Rosen raises three claims.First, Rosen contends that Transx wrongfully discharged him in violation of Minnesota's whistleblower statute, Minn.Stat. § 181.932("Count I").Rosen argues that Transx was prohibited from firing him because he suspected, in good faith, that driving the truck would have violated federal or state laws and regulations.Second, Rosen contends that Transx failed to permit him to review his personnel file in violation of Minn. Stat. § 181.961 et seq.("Count II").Third, Rosen contends that Transx's actions constitute wrongful discharge under common law ("Count III").

Transx removed Rosen's cause of action to the federal district court on September 11, 1992.Transx now moves to dismiss Counts I and III pursuant to Rules 12(b)and19 of the Federal Rules of Civil Procedure and to remand Count II to state court for resolution.Transx proffers three arguments in support of its motion to dismiss:

1.Rosen is barred from asserting the claims set forth in Counts I and III because he failed to file his claims before the expiration of the statute of limitations applicable to his claims;

2.The claims set forth in Counts I and III are preempted by § 301 of the Labor Management Relations Act("LMRA"), 29 U.S.C. § 185(a), because resolution of those claims would require the court to interpret the agreement;

3.Rosen failed to arbitrate his wrongful discharge claims as required by the Federal Arbitration Act("Arbitration Act"), 9 U.S.C. §§ 1-16.¹

Transx failed to specify in its moving papers, supporting memoranda or at oral arguments which subsection of Rule 12(b) of the Federal Rules of Civil Procedure it relies on.Despite Transx's omission, the court will analyze Transx's arguments and determine the standard that must be applied in this matter.Transx also failed to make any showing in its memoranda in support of its arguments concerning Rule 19 of the Federal Rules of Civil Procedure.Transx stated that it was moving under Rule 19 in its Notice of Motion and Motion to Dismiss, but left the court to divine its argument.²Because Transx fails to set forth any argument regarding Rule 19, the court will not address any application that Rule 19 might have to the issues before the court.The court notes that even if it had addressed the application of Rule 19 in this case, the court would reject Transx's argument because no part of Rosen's action is premised on a failure-to-represent claim.

Rosen captioned his submission in response to Transx's motion as a motion.SeeClerk of Court's File, Docket EntryNo. 7.If the court were to treat the submission as a motion, it would not consider the submission because Rosen did not comply with LocalRule 7.1(b)(1) in filing it.LocalRule 7.1(b)(1) provides:

No motion shall be heard by a district judge unless the moving party delivers one copy ... of the necessary moving papers to opposing counsel and an original and two copies to the Clerk of Court at least 28 days prior to the hearing....

Rosen filed his submission on February 11, 1993, seeClerk of Court's File, Docket EntryNo. 7, less than twenty-eight days prior to the February 26, 1993, hearing on this matter.Rosen, however, did comply with the terms of LocalRule 7.1(b)(2) in filing his submission.That rule provides:

Any party responding to the motion shall deliver one copy of the ... responsive papers to opposing counsel and an original and two copies to the Clerk of Court at least 9 days prior to the hearing....

LocalRule 7.1(b)(2).Transx has not alleged that it will suffer prejudice if the court considers Rosen's submission as a timely response to its motion.Accordingly, the court will consider Rosen's submissions as a response to Transx's motion because it finds Transx will suffer no prejudice by its doing so.

Rosen contends that Transx misconstrued his complaint, arguing that it is premised solely on two Minnesota state statutes, the whistleblower statute, Minn.Stat. § 181.932, and the employee personnel record disclosure statute, Minn.Stat. § 181.960 et seq.Armed with that construction, Rosen contends that the court need not interpret the agreement to resolve the dispute before it and, therefore, federal labor law does not preempt his state law claims.Rosen also contends that the six-year statute of limitations applicable to the whistle blower statute applies to his claims, not the statute of limitations applicable to federal labor law.Rosen thus contends that the court should deny Transx's motion to dismiss and remand his state law claims to state court.

Rosen also moves the court for permission to amend his complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure.Rosen seeks to make his complaint more clearly reflect that his claims are based solely on state law.Rosen's proposed amended complaint is almost identical to his original complaint except that Count III is deleted.Because the court determines that it lacks subject matter jurisdiction over this action, the court will not rule on Rosen's request that the court permit him to amend his complaint.However, the court will construe Rosen's request to amend as a voluntary dismissal of his claim as set forth in Count III.The court notes that if it were to consider the merits of Count III, it would dismiss that count under § 301 of the LMRA.

DISCUSSION

Transx moves to dismiss the claims asserted against it pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, but fails to specify which subsection it relies on.The court determines that Transx raises only jurisdictional issues in its motion and that subsection 1 of Rule 12(b) is therefore the applicable subsection.Rule 12(b)(1)"jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide."Osborn v. United States,918 F.2d 724, 729(8th Cir.1990)(citation omitted).Transx may support a Rule 12(b)(1) motion with affidavits and other documents.Id. at 730(citation omitted).The court may weigh the evidence submitted in support of the Rule 12(b)(1) motion and use that evidence to evaluate the merits of the motion.The Eighth Circuit stated in Osborn that:

The ... court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56.Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.

Id.(footnote omitted from the original)(quotingMortensen v. First Fed. Sav. and Loan Ass'n,549 F.2d 884, 891(3d Cir.1977)).Once the evidence is submitted, the court may "not simply rule that there is or is not enough evidence to have a trial on the issue."Id.(citation omitted).The court must decide whether it has...