Turner Indus. Grp., LLC v. Int'l Union of Operating Eng'rs, Local 450, Civil Action No. H–13–0456.

• Citation: 8 F.Supp.3d 875
• Decision Date: 27 March 2014
• Docket Number: Civil Action No. H–13–0456.
• Parties: TURNER INDUSTRIES GROUP, LLC, Plaintiff, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 450, Defendant.
• Court: U.S. District Court — Southern District of Texas

8 F.Supp.3d 875

TURNER INDUSTRIES GROUP, LLC, Plaintiff

v.INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 450, Defendant.

Civil Action No. H–13–0456.

United States District Court, S.D. Texas, Houston Division.

Signed March 27, 2014.

Armin J. Moeller, Jr., Armin J. Moeller, E. Russell Turner, Balch & Bingham LLP, Jackson, MS, Evan Alexander Moeller, Hirsch & Westheimer, Houston, TX, for Plaintiff.

Richard Levy, Deats Durst et al., Matthew Bradley Bachop, Deats Durst Owen & Levy, P.L.L.C., Austin, TX, for Defendant.

OPINION AND ORDER

MELINDA HARMON, District Judge.

In its original Complaint (instrument # 1) in the above referenced cause, grounded in Section 301(a) of the Labor Management Relations Act (“LMRA”), as amended, 29 U.S.C. § 185(a),¹ Plaintiff Turner Industries Group, LLC (“TIG”) sought a declaratory judgment, pursuant to 28 U.S.C. § 2201 and Federal Rule of Civil Procedure 57, that it has an enforceable labor contract² with Defendant International Union of Operating Engineers (“IUOE”), Local 450 (“Local 450”) and that Local 450 is in ongoing, material breach of that agreement. In its Amended Complaint (# 11) for declaratory judgment and damages, TIG has added an alternative claim for tortious interference with its prospective business relations under Texas common law, independently based on diversity jurisdiction under 28 U.S.C. § 1332(a). Pending before the Court inter alia are two motions to dismiss: (1) Defendant Local 450's motion to dismiss the original Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief may be granted, or Rule 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(3) (improper venue) because the contract contains a mandatory arbitration provision (instrument # 9); and (2) Defendant's [supplemental] motion to dismiss Plaintiff's Amended Complaint³ under Rule 12(b)(6) ( # 19).

Allegations of the Second Amended Complaint

TIG is a Louisiana Limited Liability Company licensed to do business in Texas. At all relevant times it is involved in industrial construction and maintenance work at job sites in and near Houston, Texas. TIG asserts that Local 450, a labor organization within the meaning of the LMRA, and TIG are parties to the contract in dispute, which covers wages, hours, and working conditions for certain represented employees working on jobs for TIG. Up until TIG initiated this suit, under the contract Local 450 was notified by TIG through Local 406 about each TIG job in Local 450's area, and TIG paid working dues and apprenticeship fund contributions, which were accepted, for TIG employees who are traveling members of Local 450's Louisiana sister union, IUOE Local 406. Since they entered into the contract, TIG has requested that Local 450 refer employees for TIG's jobs, but Local 450 either refused or was unable to refer enough qualified operators in a timely manner to meet TIG's needs, so TIG relied on traveling members of IUOE Local 406 to provide them.

Before January 28, 2013, Local 450 filed a grievance under the contract in which it specifically stated that the contract was enforceable. Then in a letter dated January 28, 2013 (Ex. 2) Local 450's attorneys claimed that the contract had not been “consummated,” but that even if it had been consummated, TIG had breached it by failing to inform Local 450 of jobs in the Houston area and/or by failing to staff those jobs with Local 450 members. The letter then declared the contract was terminated as of that date.

Around February 11, 2013, Local 450 started refusing to “clear traveling members of IUOE Local 406 to work for TIG in the Houston area serviced by Local 450, even though the contract required such clearance.” It also began, through its agents and representatives, to threaten and coerce Local 406 members and non-Local 406 members with charges, trials, and fines to be assessed against them if they continued to work for TIG. TIG immediately asked IUOE General President James Callahan to intervene in and resolve the dispute, but he did not respond to the request.

On or before February 18, 2013, agents of Local 450 threatened TIG employees, all member of IUOE Local 406, some of whom were working in Louisiana, that if they continued to work for TIG in the Houston area without Local 450 clearance, the IUOE would impose disciplinary fines of thousands of dollars on each of them and that those fines, unless sooner paid, would be deducted from retirement benefits due to them from the Central Pension Fund of the International Union of Operating Engineers and Participating Employers (the “Fund”). The Fund is an ERISA-regulated, multi-employer retirement plan, and Agents of the International Union of Operating Engineers are ERISA plan fiduciaries. If the threats were carried out, these responsible Fund fiduciaries would be exposed to civil and criminal penalties.

TIG claims that because of the clearance refusals, threats of charges, trials, and fines and the threatened retirement benefit deductions, a number of employees have stopped working for TIG in both the area serviced by Local 450 and that serviced by Local 406. It further states that after employees quit, the disruption in TIG's work caused it significant financial loss, all intended by Local 450.

The Amended Complaint asserts causes of action for (1) breach of contract, for which it seeks a speedy hearing and a declaratory judgment that the contract has been in effect and remains in effect and that Local 450 materially breached it⁴ ; alternatively, if Local 450's claimed repudiation of the contract on January 28, 2013 was effective, TIG asserts a cause of action for (2) deliberate tortious interference with prospective business relationships with both Local 406 members and non–406 members.

Standards of Review

Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” When a district court reviews a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do ....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235–236 (3d ed. 2004) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). “Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) [“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”], and instead required that a complaint allege enough facts to state a claim that is plausible on its face.” St. Germain v. Howard, 556 F.3d 261, 263 n. 2 (5th Cir.2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ”), citing Twombly, 127 S.Ct. at 1974. “ ‘A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ”

Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). The plausibility standard is not akin to a “probability requirement,” but asks for more than a “possibility that a defendant has acted unlawfully.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955. Dismissal is appropriate when the plaintiff fails to allege “ ‘enough facts to state a claim to relief that is plausible on its face’ ” and therefore fails to “ ‘raise a right to relief above the speculative level.’ ” Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955.

“Rule 12(b) is not a procedure for resolving contests about the facts or the merits of a case.” Gallentine v. Housing Authority of City of Port Arthur, Tex., 919 F.Supp.2d 787, 794 (E.D.Tex.2012), citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1356, at 294 (1990).

As noted, on a Rule 12(b)(6) review, although generally the court may not look beyond the pleadings, the Court may examine the complaint, documents attached to the complaint, and documents attached to the motion to dismiss to which the complaint refers and which are central to the plaintiff's claim(s), as well as matters of public record. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010), citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir.2000) ; Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n. 6 (5th Cir.1994). See also United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir.2003) (“the court may consider ... matters of which judicial notice may be taken”). Taking judicial notice of public records directly relevant to the issue in dispute is proper on a Rule 12(b)(6) review and does not transform the motion into one for summary judgment. Funk v. Stryker Corp., 631 F.3d 777, 780 (...