Sellers v. M.C. Floor Crafters, Inc., No. 480

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore OAKES, NEWMAN and MINER; MINER
Citation842 F.2d 639
Decision Date23 March 1988
Docket NumberD,No. 480
Parties127 L.R.R.M. (BNA) 3158, 108 Lab.Cas. P 10,395, 10 Fed.R.Serv.3d 1056 John SELLERS, Plaintiff-Appellant, v. M.C. FLOOR CRAFTERS, INC., Local 2287 of Resilient Floor Coverers, New York City District Council of Carpenters and United Brotherhood of Carpenters and Joiners of America, Defendants-Appellees. ocket 87-7151.

Page 639

842 F.2d 639
127 L.R.R.M. (BNA) 3158, 108 Lab.Cas. P 10,395,
10 Fed.R.Serv.3d 1056
John SELLERS, Plaintiff-Appellant,
v.
M.C. FLOOR CRAFTERS, INC., Local 2287 of Resilient Floor
Coverers, New York City District Council of
Carpenters and United Brotherhood of
Carpenters and Joiners of
America, Defendants-Appellees.
No. 480, Docket 87-7151.
United States Court of Appeals,
Second Circuit.
Argued Jan. 26, 1988.
Decided March 23, 1988.

Page 640

Rosemary C. Byrne, New York City (Cadwalader, Wickersham & Taft, New York City, of counsel) for plaintiff-appellant.

Elliot J. Mandel, New York City (Kaufman, Frank, Schneider & Rosensweig, New York City, of counsel) for defendant-appellee M.C. Floor Crafters, Inc.

William J. Dealy, New York City (Lawrence H. Stone, Manning, Raab, Dealy & Sturm, New York City, of counsel), for defendants-appellees Local 2287 of Resilient Floor Coverers, New York City Dist. Council of Carpenters and United Broth. of Carpenters and Joiners of America.

Page 641

Before OAKES, NEWMAN and MINER, Circuit Judges.

MINER, Circuit Judge:

Plaintiff-appellant John Sellers appeals from a judgment of the United States District Court for the Eastern District of New York (Costantino, J.), granting summary judgment in favor of defendants-appellees because of Sellers' failure to exhaust union grievance procedures. We reverse. First, the district court failed to advise Sellers, a pro se litigant, of the nature, procedures and consequences of a motion for summary judgment before granting the motion in defendant's favor. Second, the district court improperly relied on the hearsay affidavit of counsel for defendant-appellee M.C. Floor Crafters, Inc. in granting the motion.

BACKGROUND

On October 10, 1985, plaintiff-appellant Sellers commenced this action in New York State Supreme Court, Kings County, for money damages against defendant-appellee M.C. Floor Crafters, Inc. ("Floor Crafters") and the three named unions (collectively the "Unions"). At that time, Sellers had retained counsel. In his verified complaint, Sellers alleges that he was a member of the Unions, and that in or about 1975, the Unions sent him to Floor Crafters as a carpet layer. Sellers claims that he performed work for Floor Crafters as a union member from 1975 to approximately April 23, 1982. Sellers charges that Floor Crafters failed to pay, and the Unions failed to collect, contributions that Floor Crafters was obligated to make on Sellers' behalf, and that Floor Crafters knowingly and wrongfully withheld wages and overtime pay from him and failed to pay medical insurance premiums on his behalf. Sellers claims that on or about April 23, 1982, he applied for certain union benefits, but the Unions refused to pay because Floor Crafters was not a union employer. Sellers also charges that the Unions knew or should have known that Floor Crafters was a union employer or, in the alternative, breached a duty to warn him that Floor Crafters was non-union. 1 Finally, Sellers alleges that Floor Crafters maliciously represented itself to be a union employer in order to induce him to accept employment.

The Unions removed the state action to the Eastern District, on the ground that the matter was within the federal courts' exclusive jurisdiction under the Labor Management Relations Act of 1947, see 29 U.S.C. Sec. 185.

On March 13, 1986, the court granted the application of Sellers' attorney to be relieved. On April 9, 1986, the court granted Sellers' application for appointment of counsel. On May 12, 1986, however, the appointed counsel declined the court's request in a three-page letter to the court because of "other professional commitments."

In December 1986, Floor Crafters moved for judgment on the pleadings, or, in the alternative, for summary judgment, asserting, for the first time, that Sellers had failed to exhaust the Unions' grievance procedures. Floor Crafters also claimed...

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796 practice notes
  • Glendora v. Marshall, No. 96 Civ. 0140 (JSR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 12, 1996
    ...fall into which category, and Plaintiff has not formally moved to strike the affidavit. See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988). The Court has not considered any averment which lacks an appropriate foundation to demonstrate that it has been made on Wicker'......
  • Abraham v. Town of Huntington, the Town Bd. of the Town of Huntington, Frank P. Petrone Berland Cuthbertson LLC, 2:17-cv-03616 (ADS)(SIL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 21, 2018
    ...that the affiant is competent to testify to the matters therein." FED. R. CIV. P. 56(e); see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (requiring affidavits to be based on personal knowledge); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)......
  • Guzman v. Astrue, 09 Civ. 3928 (PKC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 3, 2011
    ..."where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) (citation omitted). Review of the Commissioner's final decision denying disability benefits is limited. The court may not ......
  • Guzman v. Astrue, 09 Civ. 3928 (PKC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 3, 2011
    ..."where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) (citation omitted). Review of the Commissioner's final decision denying disability benefits is limited. The court may not ......
  • Request a trial to view additional results
799 cases
  • Glendora v. Marshall, No. 96 Civ. 0140 (JSR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 12, 1996
    ...fall into which category, and Plaintiff has not formally moved to strike the affidavit. See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988). The Court has not considered any averment which lacks an appropriate foundation to demonstrate that it has been made on Wicker'......
  • Abraham v. Town of Huntington, the Town Bd. of the Town of Huntington, Frank P. Petrone Berland Cuthbertson LLC, 2:17-cv-03616 (ADS)(SIL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 21, 2018
    ...that the affiant is competent to testify to the matters therein." FED. R. CIV. P. 56(e); see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (requiring affidavits to be based on personal knowledge); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)......
  • Guzman v. Astrue, 09 Civ. 3928 (PKC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 3, 2011
    ..."where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) (citation omitted). Review of the Commissioner's final decision denying disability benefits is limited. The court may not ......
  • Guzman v. Astrue, 09 Civ. 3928 (PKC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 3, 2011
    ..."where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) (citation omitted). Review of the Commissioner's final decision denying disability benefits is limited. The court may not ......
  • Request a trial to view additional results

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