Bastani v. American Federation of Government Employees, Afl-Cio

• Court: District Court, District of Columbia
• Decided: June 14, 2022
• Docket: Civil Action No. 2020-3061
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXANDER BASTANI, et al.,

Plaintiffs,

v. Civil Action No. 20-3061 (RDM)

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,

Defendant.

MEMORANDUM OPINION

Plaintiffs in this action are three former officers of the American Federation of

Government Employees (“AFGE”) Local 12 who allege that the national organization of the

AFGE violated their rights under the Labor-Management Reporting and Disclosure Act, 29

U.S.C. §§ 401 et seq., by improperly removing them from their offices. See Dkt. 8 at 2–3 (Am.

Compl. ¶¶ 3–5). Before the Court is Defendant’s motion to dismiss the case for improper

process and improper service of process pursuant to Federal Rules of Civil Procedure 12(b)(4)

and 12(b)(5). Dkt. 17. For the reasons set forth below, the Court will GRANT Defendant’s

motion and will DISMISS the case without prejudice.

Counsel’s failure to comply with the federal rules has kept this matter grounded for well

over a year and a half. Plaintiffs commenced this action on October 22, 2020. See Dkt. 1

(Compl.). The initial version of the complaint, however, was unsigned, and, as a result, the

Court ordered Plaintiffs to file a corrected version of the complaint that complied with the

requirements of Rule 11(a), see Dkt. 7, which they did on April 27, 2021, see Dkt. 8 (Am.

Compl.). Plaintiffs’ next run-in with the rules followed shortly thereafter. Although Plaintiffs properly filed their amended complaint, they neglected to request a summons from the Clerk’s

office, and the case languished for 99 days without the issuance of a summons or service of

process on Defendant. Because Plaintiffs failed to serve Defendant within the 90 days required

by Rule 4(m), on August 4, 2021, the Court ordered Plaintiffs to “cause process to be served

upon Defendant[] and proof of service to be filed with the Court or establish good cause for the

failure to do so” on or before August 18, 2021. Dkt. 9 at 2; see Fed. R. Civ. P. 4(m). The Court

warned Plaintiffs that their “[f]ailure to make such filings” would “result in dismissal of this case

without prejudice.” Id. At Plaintiffs’ request and for good cause shown, the Court later

extended the deadline to September 30, 2021. See Min. Order (Aug. 19, 2021).

Despite receiving an extra 43 days, Plaintiffs waited until the last possible day,

September 30, 2021, before even requesting a summons from the Clerk’s office, Dkt. 11, and the

summons did not issue until October 1, 2021, see Dkt. 13. On October 17, 2021, Plaintiffs filed

an affidavit on the docket from Plaintiffs’ process server, in which the process server attested to

having served AFGE “on 10/13/2021 at 12:01 PM at 815 Black Lives Matter Plz NW,

Washington, DC 20006,” where he personally delivered a copy of the complaint and summons to

the “Front desk/Guards.” Dkt. 16 at 1. The process server further attested that “a copy of [the

summons and complaint] was mailed postpaid, sealed wrapper, properly addressed to American

Federation Of Government Employees, AFL-CIO at 815 Black Lives Matter Plz NW,

Washington, DC 20006 on 10/13/2021 following all requirements of the [District of Columbia].”

Id.

On November 16, 2021, Defendant moved to dismiss the complaint for improper process

under Rule 12(b)(4) and improper service of process under Rule 12(b)(5). Dkt. 17. In its

motion, Defendant points to three errors that, it contends, warrant dismissal of this action. First,

2 Defendant argues that “Plaintiffs did not serve AFGE” and instead “incorrectly delivered their

. . . summons and complaint to the AFL-CIO, a separate organization located at a different

address.” Dkt. 17 at 6. Second, Defendant points out that, even if Plaintiffs’ service was

effective, they failed to comply with the extended deadline the Court set for service pursuant to

Rule 4(m). Id. And, third, Defendant contends that “Plaintiffs’ complaint and summons are

deficient because they contain an incorrect address for AFGE”—that is, 70 F Street, NW, instead

of AFGE’s actual address, 80 F Street, NW. Id. at 6 n.5. Plaintiffs, who are represented by

counsel, have not responded in any way to Defendant’s motion, although months have now

passed since their deadline to do so. For several reasons, the Court agrees that Plaintiffs did not

properly serve Defendant when they caused copies of the complaint and summons to be

delivered to the AFL-CIO at 815 Black Lives Matter Plz NW, Washington, DC 20006, and, thus,

the Court will grant Defendant’s motion and will dismiss this action without prejudice.

Federal Rule of Civil Procedure 4(h) provides that service upon an unincorporated

association, such as a labor union, must be accomplished “by delivering a copy of the summons

and of the complaint to an officer, a managing or general agent, or to any other agent authorized

by appointment or by law to receive service of process.” Fed. R. Civ. P. 4(h)(B). Alternatively,

under Rule 4(e)(1), a plaintiff may effect service on an association in the same manner provided

by “state law for serving a summons in an action brought in courts of general jurisdiction in the

state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). D.C.

Superior Court Civil Rule 4(h), in turn, permits service by delivery of the summons and

complaint “to an officer, a managing or general agent, or any other agent authorized by

appointment or by law to receive service of process,” D.C. Sup. Ct. Civ. R. 4(h); see also D.C.

Code § 29-104.12(c), and further authorizes delivery by registered or certified mail, return

3 receipt requested, D.C. Sup. Ct. Civ. R. 4(c)(4). Finally, the Labor-Management Relations Act

of 1947 (“LMRA”) includes a specific provision related to service of process on labor unions.

Under the LMRA, “[t]he service of summons, subp[oe]na, or other legal process . . . upon an

officer or agent of a labor organization, in his capacity as such, shall constitute service upon the

labor organization.” 29 U.S.C. § 185(d).

When a defendant moves to dismiss for insufficient service of process, the plaintiff “has

the burden of establishing [the] validity” of the service. Light v. Wolf, 816 F.2d 746, 751 (D.C.

Cir. 1987) (quoting 4A Wright & Miller, Federal Practice and Procedure § 1083 (4th ed.

2015)). “[T]o do so, he must demonstrate that the procedure employed satisfied the requirements

of the relevant portions of Rule 4 and any other applicable provision of law.” Id. “[U]nless the

procedural requirements for effective service of process are satisfied, a court lacks authority to

exercise personal jurisdiction over the defendant.” Candido v. District of Columbia, 242 F.R.D.

151, 160 (D.D.C. 2007). As a result, “[f]ailure to effect proper service is . . . a ‘fatal’

jurisdictional defect, and is grounds for dismissal.” Jouanny v. Embassy of Fr. in the U.S., 220

F. Supp. 3d 34, 38 (D.D.C. 2016).

Here, although represented by counsel, Plaintiffs have failed to respond to Defendant’s

challenge to their service of process for over seven months, and, for that reason alone, they have

failed to meet their burden of establishing that service was properly effected. But, even looking

beyond that default, the Court is convinced that Plaintiffs failed properly to effect service. As

discussed, Plaintiffs’ process server attempted to effectuate service upon Defendant through two

means: first, he delivered a copy of the complaint and summons to the front desk at 815 Black

Lives Matter Plz NW, Washington DC 20006, and, second, he mailed a copy of the complaint

and summons to the same address. Dkt. 16 at 1. Unfortunately for Plaintiffs, both of these

4 methods admit of a fatal flaw: 815 Black Lives Matter Plz NW, Washington DC 20006 is the

address of the American Federation of Labor and Congress of Industrial Organizations (“AFL-

CIO”), which is “a separate organization from AFGE and located at a different address from

where AFGE is headquartered.” Dkt. 17 at 4. Indeed, that address is different from the one that

Plaintiffs themselves listed for AFGE on their complaint, which correctly identifies AFGE’s

place of business as 80 F Street NW. Compare Dkt. 8 at 3 (Am. Compl. ¶ 6), with Dkt. 16 at 1.

To be sure, Plaintiffs sued AFGE under the name “American Federal of Government

Employees, AFL-CIO,” Dkt. 8 at 1 (Am. Compl.) (emphasis added), and AFGE’s own website

explains that the union “has been nationally affiliated with the AFL-CIO since AFGE was

founded in 1932,” About Us, AFGE, https://www.afge.org/about-us (last visited June 13, 2022).

Mere affiliation of an unincorporated association with a larger umbrella organization, however,

does not by itself establish the larger organization as an agent of the smaller one for the purposes

of Rule 4.

Because the provisions of Rule 4(h) apply with equal force to unincorporated associations

and corporations, decisions assessing analogous relationships in the corporate context are

instructive. See 4A Wright & Miller, Federal Practice and Procedure § 1105 (4th ed. 2015)

(“When Rule 4(h) is invoked to serve a partnership or other unincorporated association that is

suable in its common name, the principles discussed in the preceding sections in connection with

serving process on corporate officers and agents generally apply . . . .”). In general, “service on a

parent, subsidiary, cosubsidiary, or affiliate of a corporate defendant is not service on the

defendant,” and many cases so hold. Delta Constructors, Inc. v. Roediger Vacuum, GmbH, 259

F.R.D. 245, 249 (S.D. Miss. 2009) (collecting cases); see 4A Wright & Miller, Federal Practice

and Procedure § 1104 (4th ed. 2015). “[C]ourts have consistently recognized” an exception to

5 this rule, however, whereby a “subsidiary may be found to be a parent corporation’s agent at law

for service of process, or . . . a parent may be held a subsidiary’s agent at law for service of

process” if the “evidence shows that one is the agent or alter ego of the other.” Delta

Constructors, Inc., 259 F.R.D. at 249. As Wright and Miller explains,

the parent-subsidiary relation alone ordinarily does not establish the necessary agency for making service on one through the other if the two maintain separate identities . . . . The cases indicate that to sustain service on the parent through the subsidiary, or vice versa, a showing that the subsidiary corporation is acting as an agent for the parent corporation’s separate business within the state or that the two corporations are not really separate entities has been required.

4A Wright & Miller, Federal Practice and Procedure § 1104 (4th ed. 2015). In line with these

cases, the D.C. Circuit has held that, “[w]hile the relationship of a parent and subsidiary alone

[does] not suffice, where the two corporations are not really separate entities[,] service on the

parent will reach a . . . subsidiary.” I.A.M. Nat’l Pension Fund, Benefit Plan A v. Wakefield

Indus., Inc., Div. of Capehart Corp., 699 F.2d 1254, 1258–59 (D.C. Cir. 1983).

Consistent with these principles, courts have long recognized, as a general matter, that the

“national and local affiliates of a union are not [usually] the same organization,” Sullivan v.

Potter, No. 05-818, 2006 WL 785289, at *2 (D.D.C. Mar. 28, 2006); see, e.g., Wentz v. Int’l Bhd.

of Elec. Workers, 578 F.2d 1271, 1272 (8th Cir. 1978); Di Giorgio Fruit Corp. v. NLRB, 191

F.2d 642, 647–48 (D.C. Cir. 1951), and that service upon a local labor organization does not

effectuate service upon a larger parent union if the local organization maintains a degree of

autonomy, see, e.g., Morgan Driver Away, Inc. v. Int’l Bhd. of Teamsters, Chauffeurs,

Warehousemen & Helpers of Am., 268 F.2d 871, 877 (7th Cir. 1959); Gray v. Int’l Ass’n of Heat

& Frost Insulators & Asbestos Workers, Local No. 51, 416 F.2d 313, 316 (6th Cir. 1969); see

also 4A Wright & Miller, Federal Practice and Procedure § 1105 (4th ed. 1105) (“[A]n

autonomous local labor union usually is not considered the agent of a national or international

6 union for purposes of service on the latter.”). The converse is also true: service on the parent

union will not suffice to effectuate service on a local union that maintains a degree of autonomy.

Here, Defendant has represented that AFL-CIO is a “separate organization” from AFGE,

and there is nothing in the record to suggest that AFL-CIO either was AFGE’s agent for the

purposes of receiving service or that AFGE is an “alter ego” of—or functionally inseparable

from—AFL-CIO. Plaintiffs might have attempted to establish one of these conditions in

response to Defendant’s motion, but they declined to avail themselves of that opportunity.

Accordingly, the Court will GRANT Defendant’s motion to dismiss, Dkt. 17, and will

DISMISS this action without prejudice.

A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: June 14, 2022