Waugh Chapel S., LLC v. United Food & Commercial Workers Union Local 27

• Decision Date: 28 February 2012
• Docket Number: Civil No. WDQ–11–0841.
• Citation: 855 F.Supp.2d 476
• Court: U.S. District Court — District of Maryland
• Parties: WAUGH CHAPEL SOUTH, LLC, et al., Plaintiffs v. UNITED FOOD & COMMERCIAL WORKERS UNION LOCAL 27, et al., Defendants.

855 F.Supp.2d 476

WAUGH CHAPEL SOUTH, LLC, et al., Plaintiffs

v.UNITED FOOD & COMMERCIAL WORKERS UNION LOCAL 27, et al., Defendants.

Civil No. WDQ–11–0841.

United States District Court,

D. Maryland,

Northern Division.

Feb. 28, 2012.

Ira L. Oring, Neil Dubovsky, Fedder and Garten PA, Baltimore, MD, for Plaintiffs.

Arlus J. Stephens, Lorrie E. Bradley, Murphy Anderson PLLC, John Andrew Durkalski, Butsavage and Associates PC, Laura O. Aradi, Sharon McNeilly Goodman, Slevin and Hart PC, Washington, DC, Joel A. Smith, David Gray Wright, Kahn Smith and Collins PA, Baltimore, MD, Michael Timothy Anderson, Murphy Anderson PLLC, Boston, MA, for Defendants.

MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Waugh Chapel South, LLC, WCS LLC, WCS Properties Business Trust, and ELG Inglewood LLC (collectively, “the WCS plaintiffs”) sued United Food and Commercial Workers Union Local 27 (“UFCW 27”), United Food and Commercial Workers Union Local 400 (“UFCW 400”) and the Mid–Atlantic Retail Food Industry Joint Labor Management Fund (“the Fund”) (collectively, “the defendants”) for violations of the Labor Management Relations Act, 29 U.S.C. § 151 et seq. (“LMRA”). For the following reasons, the defendants' motion to reassign will be denied. UFCW 27 and 400's motion to dismiss will be granted in part and denied in part. The Fund's motion to dismiss will be granted.¹

I. Background ²

The WCS plaintiffs are developing two commercial real estate projects in Maryland: the Village at Waugh Chapel South (“Waugh Chapel”) and the Woodmore Towne Centre at Glenarden (“Woodmore”). ECF No. 51 ¶ 1. A portion of the land was used for mining gravel. ECF No. 31 Attach. 5 ¶ 4. Each development will include a supermarket operated by Wegmans Food Markets, Inc. (“Wegmans”). Id. Wegmans does not employ union labor. Id. 12.

The Fund is an organization associated with UFCW 27 and 400, unions that have collective bargaining agreements with Giant Food, LLC and Safeway, Inc. grocery stores. The Fund's purposes include “improving labor-management relations.” ECF No. 51 ¶ 10. Its “activities are limited to government petitioning activity [including] petitioning federal, state and /or local ... regulatory and/or judicial authorities.” Id.

A. The Waugh Chapel South Project

To build the Waugh Chapel project, the WCS plaintiffs' developers ³ applied to Anne Arundel County to rezone the project property, from agricultural and residential to mixed-use commercial.⁴ On February 28, 2008, Anne Arundel County held a hearing on the application. ECF No. 31 Attach. 4. Charles Storm, the developers' engineering consultant, testified that there were no environmental issues with the property or planned project. Id. at 5. On March 23, 2006, the county Office of Administrative Hearings approved the application. Id. at 11–12.

On December 1, 2007, the Maryland Department of the Environment (“MDE”) entered a consent decree with the WCS plaintiffs' developers after determining that pollutants from a gravel mine on the Waugh Chapel property had seeped into the groundwater. ECF No. 31 Attach. 5 ¶¶ 4, 6, 9.

On April 21, 2008, the County approved a detailed site development plan for the Waugh Chapel project. ECF No. 51 136.

On August 21, 2008, George Murphy Jr., then Secretary–Treasurer of UFCW 27, ⁵ through his attorney G. Macy Nelson, petitioned Anne Arundel County to rescind the March 2006 rezoning decision because, he claimed, the MDE consent decree demonstrated that Storm had not disclosed environmental issues which subjected the permit to rescission. ECF No. 51 ¶ 35. After challenges to Murphy's standing and a subpoena on UFCW 27, Nelson withdrew the petition. ECF No. 35 Attach. 7. The defendants paid Murphy's legal expenses. Id.

On November 5, 2009, Anne Arundel County approved the WCS plaintiffs' request for an extension of time to pay fees and post bonds for a Public Works Agreement permit for the Waugh Chapel project. Id. ¶ 36. On December 3, the Patuxent Riverkeeper, an environmental organization, and others appealed the November 5 extension. Id. ¶ 37. Nelson represented the appellants. Id. On February 9, 2010, the WCS plaintiffs paid the fees and filed the bond. Id. On March 9, 2010, Nelson withdrew the appeal. Id.

On March 15, 2010, the Anne Arundel County Council adopted a resolution approving Tax Increment Financing (“TIF”), bonds to finance the Waugh Chapel project. ECF No. 31 Attach. 8 at 2. On March 17, 2010, Robert Smith and Madonna Brennan,⁶ through Nelson, filed a complaint in the Circuit Court for Anne Arundel County alleging procedural defects in the TIF resolution and seeking a preliminary injunction of the TIF. ECF No. 51 ¶ 39. The Anne Arundel County Council held a hearing, and on May 3, 2010, repealed the March resolution because it had been adopted without the required hearing; the County also re-authorized the TIF. ECF No. 31 Attach. 8 at 2–4. One week later, the County Executive signed the new resolution into law, and the Circuit Court dismissed the petition as moot. ECF No. 51 139.

On June 28, 2010, Smith sued the MDE and others ⁷ in the Circuit Court for Anne Arundel County. Id. ¶ 40. He claimed that MDE's inadequate enforcement of the December 1, 2007 consent decree was causing a nuisance; he sought an injunction of development until the contamination was abated. ECF No. 31 Attach. 9 ¶¶ 11–12. On November 12, 2010, Smith added the Patuxent Riverkeeper as a plaintiff. Nelson represented Smith and the Riverkeeper. Id. They retained Dr. Edward Bouwer, a Geography and Environmental Engineering professor at Johns Hopkins University, to assess the contaminationand remediation. On December 10, 2010, Dr. Bouwer concluded that the remediation was causing hazardous water contamination. ⁸ ECF No. 31 Attach. 10. On May 17, 2011, the Circuit Court for Anne Arundel County dismissed the claims, finding that there was no evidence of a new nuisance, and the remediation was reducing the preexisting nuisance. ECF No. 58 Attach. 1.⁹

On June 29, 2010, MDE renewed the mining permit for the Waugh Chapel property, releasing the WCS plaintiffs from that permit.¹⁰ ECF No. 51 541. On July 1, 2010, Smith and the Riverkeeper, through Nelson, petitioned for judicial review, and a stay, of MDE's decision. Id. On July 28, 2010, MDE issued a corrected mining permit renewal. ECF No. 51 ¶ 42. On August 26, 2010, Smith, the Riverkeeper, and two others petitioned for review of the corrected permit. Id. On September 3, 2010, the Circuit Court for Anne Arundel County dismissed Smith's first petition for lack of standing and on the merits. ECF No. 31 Attach. 13 at 5–7. The petitioners appealed, and the appeal has not been decided. See ECF No. 31 Attachs. 14, 16. They consented to a dismissal of the second petition. ECF No. 51 542. Nelson represented the petitioners. Id.

On May 26, 2011, Smith and Sandra Bowie, represented by Nelson, appealed Anne Arundel County's issuance of four grading permits for Waugh Chapel. ECF No. 35 Attach. 12. On June 23, 2011, Smith, Bowie, and Rosie Shorter, ¹¹ through Nelson, appealed four building permits for Waugh Chapel. Id. They appealed a fifth building permit on July 6, 2011. Id. The Anne Arundel County Board of Appeals handled the four grading permit and five building permit appeals. ECF No. 51 144. The WCS plaintiffs moved to dismiss the appeals and subpoenaed the defendants' financial records to determine whether they were paying Smith, Bowie, and Shorter's legal fees. Id. ¶ 45. Soon after the subpoenas issued, Smith, Bowie, and Shorter dismissed the appeals. Id. The WCS plaintiffs “incurred substantial costs and expenses in opposing the appeals.” Id.

B. Woodmore Towne Centre

On October 2, 2007, the Prince George's County Council approved a Detailed Site Plan for the Woodmore project. On December 30, 2007, L. Anthony Perez, a member of UFCW 400, petitioned for judicial review of the approval, alleging the plan would create traffic problems near his home. ECF No. 51 158. On May 13, 2008, the Honorable Thomas P. Smith of the Circuit Court for Prince George's County found that Perez's “sole motive ... was to further the interests of UFCW 400” and his articulation of his “personal concern[s were] pretextual.” ECF No. 31 Attach. 20 at 16:10–15, 18:17–18. Judge Smith found that “the detailed site plan ... has no direct bearing on traffic.” Id. 18:14–17. On May 21, 2008, Judge Smith held that Perez's motive in filing the action “ma[de] no difference,” he had standing to bring the claim. Id. at 12–13.

On July 22, 2008, after further briefing, the Circuit Court for Prince George's County affirmed the County Council and dismissed the appeal. ECF No. 51 ¶ 59. UFCW 400 paid Perez's legal fees, and Nelson represented Perez for part of the dispute. Id. ¶¶ 58–59.

On March 19, 2010, the MDE issued a permit authorizing Woodmore Town Centre to extend a roadway to the Woodmore development, through a wetlands area. ECF No. 51 160. On April 16, 2010, the Patuxent Riverkeeper, through Nelson, petitioned for judicial review of the permit and sought a preliminary injunction. ECF No. 31 Attach. 21 at 1. The Circuit Court for Prince George's County dismissed the petition for lack of standing. Patuxent Riverkeeper v. Md. Dep't of the Env't, No. 10–11819, 2010 WL 6599778 (Md.Cir.Ct. Dec. 1, 2010). On February 18, 2011, the Maryland Court of Appeals granted certiorari to consider the standing issue. Patuxent Riverkeeper v. Md. Dep't of the Env't, 418 Md. 190, 13 A.3d 798 (2011). On September 30, 2011, the Maryland Court of Appeals held that the Riverkeeper had standing to challenge the permit and remanded to the Circuit Court. Patuxent Riverkeeper v. Md. Dep't of the Env't, 422 Md. 294, 310, 29 A.3d 584, 594 (2011).

On July 7, 2010, The Patuxent Riverkeeper, through Nelson, sued the United States Army Corps of Engineers (“the Corps”), the United States Environmental Protection Agency (“EPA”), and officials of both agencies in the United States District...