Donato v. McCarthy, et al.

• Court: District Court, D. New Hampshire
• Decided: November 18, 1999
• Docket: CV-99-344-B
• Status: Published

Opinion

Donato v. McCarthy, et a l . CV-99-344-B 11/18/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sandra Donato

v. Civil No. 99-344-B

Sheilah McCarthy, Esq., et a l .

O R D E R

I grant defendants' motion to dismiss Sandra Donato's claims

against the Union defendants and remand her claim against Sheilah

F. McCarthy for the following reasons.

First, a state law claim that depends upon the meaning of a

collective bargaining agreement is completely preempted by

Section 301 of the Labor Management Relations Act ("LMRA"), 29

U.S.C. § 185. See BIW Deceived v. Local S6, Indust. Union of

Marine and Shipbuilding Workers of Am., 132 F.3d 824, 829-30 (1st

Cir. 1997). Complete preemption also results when a claim

"though garbed in state-law raiment, sufficiently asserts a claim

implicating the duty of fair representation." Id. at 832.

Further, whenever preemption pursuant to either § 301 of the LMRA

or the duty of fair representation is warranted, removal is

justified because the claims are deemed to arise under federal

law even though they purport to allege state law causes of action. See id. at 831-32 Although Donato argues that her causes

of action against the Union defendants are based on state law,

she cites no authority to support her claim that the Union

defendants owe her any duty based upon state law that survives

the preemptive effect of § 301 of the LMRA and the duty of fair

representation. Accordingly, Donato's state law claims against

the Union defendants must be dismissed.

Second, to the extent that Donato purports to assert federal

claims against the Union defendants based upon the duty of fair

representation, her claims must be dismissed both because they

are barred by the applicable statute of limitations and because

she has failed to plead essential elements of a fair represen­

tation claim. If Donato had a fair representation claim against

any of the Union defendants, her claim would be subject to a six-

month statute of limitations that began to run when the

arbitrator denied her grievance. See DelCostello v. Int'l Bhd.

of Teamsters, 4 62 U.S. 151, 172 (1983); Cote v. Janes River

Corp., 761 F.2d 60, 61 (1st Cir. 1985). It is undisputed that

Donato did not file her lawsuit until nearly three years after

the arbitrator dismissed her grievance. Even if I accept as true

Donato's claim that the Union defendants and her attorney

fraudulently concealed her fair representation claim, her

argument that defendants' fraudulent concealment tolls the

-2- running of the statute of limitations fails because she has not

alleged facts that would support a conclusion that she exercised

reasonable diligence in failing to discover her cause of action

sooner. See Demars v. Gen. Dynamics Corp., 779 F.2d 95, 98-99

(1st Cir. 1985). Accordingly, her fair representation claims are

barred by the statute of limitations.

Even if Donato's fair representation claims were not time

barred, they would have to be dismissed because Donato has failed

to allege conduct that would support a breach of the duty of fair

representation. Mere negligence of the type Donato cites in

support of her claim will not support a fair representation

claim. See United Steelworkers of Am. v. Rawson, 495 U.S. 362,

376 (1990); Miller v. United States Postal Serv., 985 F.2d 9, 12

(1st Cir. 1993). Accordingly, I decline to construe Donato's

claims against the Union as stating claims for breach of the duty

of fair representation.1

1 Donato does not assert a claim based on § 301 of the LMRA. Therefore, I need not consider the viability of any such claim. Third, Donato's state law negligence claim against McCarthy

is not preempted by either § 301 of the LMRA or the federal law

duty of fair representation. See Aragon v. Federated Dept.

Stores, Inc., 750 F.2d 1447, 1457 (9th Cir. 1985); Niezbecki v.

Eisner & Hubbard. P.C., No. 98-cv-5938 1999 WL 144513 (S.D.N.Y.

1999); Piper v. Yamaha Corp. of America, No. 4:90-cv-69, 1992 WL

21199, at *6 (W.D. Mich. Jan. 13, 1992) . While McCarthy may well

be immune from liability for damages based on § 301 (b), see

Montplaisir v. Leighton, 875 F.2d 1, 4 (1st Cir. 1989); Peterson

v. Kennedy, 771 F.2d 1244, 1256-61 (9th Cir. 1985), the existence

of a federal immunity defense does not make Donato's claim

against McCarthy a claim arising under federal law. As Donato's

claim against McCarthy is based on state law and I have dismissed

her federal claims, I decline to retain jurisdiction over her

remaining claim and remand it to state court. See Camelio v.

American Fed'n, 137 F.3d 666, 672 (1st Cir. 1998).

SO ORDERED.

Paul Barbadoro Chief Judge November 18, 1999

cc: Robert V. Johnson, Esg. Tod Cochran, Esg. R. Matthew Cairns, Esg.