Ross v. Runyon

156 F.R.D. 150, 147 L.R.R.M. (BNA) 2734, 1994 U.S. Dist. LEXIS 9209, 1994 WL 325374
CourtDistrict Court, S.D. Texas
DecidedJuly 6, 1994
DocketCiv. A. No. H-93-1933
StatusPublished
Cited by5 cases

This text of 156 F.R.D. 150 (Ross v. Runyon) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ross v. Runyon, 156 F.R.D. 150, 147 L.R.R.M. (BNA) 2734, 1994 U.S. Dist. LEXIS 9209, 1994 WL 325374 (S.D. Tex. 1994).

Opinion

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is the Motion to Dismiss or in the Alternative for Summary Judgment (Docket Entry # 7 in No. H-93-4117 prior to consolidation with No. H-93-1933) filed by defendants the American Postal Workers Union, AFL-CIO (“the APWU”), the Houston, Texas Area Local of the APWU (“the Local”), and Terry Stapleton (“Staple-ton”) (collectively “the union defendants”). The APWU seeks dismissal based on improper service of process. All of the union defendants seek dismissal for failure to state a claim, or in the alternative summary judgment, on allegations that they breached their duty of fair representation. The union defendants also seek dismissal, or in the alternative summary judgment, based on federal preemption of the plaintiffs’ state law claims. On the pending motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that the defendants’ motion should be granted.

I. Background.

Plaintiffs Landus Ross (“Ross”) and Eddie Imperial (“Imperial”), employees of the United States Postal Service (“the Postal Service”), are suing the Postal Service and the Postal Workers Union, both the national and the Local, as well as Stapleton, the President of the Local. They allege that the union defendants breached their duty of fair representation and that the Postal Service breached the collective bargaining agreement between the APWU and the Postal Service. In [153]*153addition, Ross and Imperial assert employment discrimination and several state law claims against various of the defendants.

II. Analysis.

A. Service Upon the APWU.

Defendant the APWU asserts that Ross and Imperial’s complaint should be dismissed due to insufficient service of process under Fed.R.Civ.P. 12(b)(5). By statute, service on a postal union must be made on an officer or agent of the labor organization, in his capacity as such. 39 U.S.C. § 1208(e).

In the instant ease, plaintiffs attempted to serve all the union defendants by personally serving Stapleton. The affidavit of plaintiffs’ process server states that to effectuate service, he went to the union hall and asked to see Stapleton. Dessie Brown (“Brown”), Stapleton’s secretary, told him that Stapleton was in a union meeting and was unavailable. Brown said that she could accept the documents and forward them to Stapleton. Accordingly, the process server left the documents, including the summons and the complaint, with Brown. The APWU contends that because neither Stapleton nor Brown was an officer of the APWU, nor were they authorized to accept service of process on its behalf, the organization was not properly served.

A determination of the sufficiency of service turns upon the specific facts of the case. For example, service on a secretary of an officer of a union was held to be insufficient when the secretary told the process server that she was not authorized to receive service on behalf of the union. Wham v. National Post Office Mailhandlers Div. of the Laborers’ Int’l Union, 99 L.R.R.M. 2980, 2981 (D.S.C.1978). By contrast, sufficient service of process was found when a secretary reviewed the documents and erroneously told the process server that she was authorized to accept them. Clipper v. Frank, 704 F.Supp. 285, 287 (D.D.C.1989). In Clipper, the individual for whom the secretary accepted the documents was authorized to accept service on behalf of .the union and ultimately received the summons and complaint.

A review of the facts in this case reveals that the APWU was never properly served. Here, the process server’s affidavit states merely that Brown said that she could accept the documents and forward them to Staple-ton. The process server does not state that he informed Brown of the contents of the documents, that she reviewed them, or that she told him that she was authorized to accept service on behalf of the union. Most significantly, Stapleton, the intended recipient, was not authorized to accept service of process on behalf of the APWU because he was neither an officer nor an agent of the APWU. Therefore, Stapleton’s eventual receipt of the summons and complaint was of no legal effect.

Plaintiffs’ argument that the Local is an agent of the national APWU for the purpose of accepting service is without merit. The Houston local, like all locals of the APWU, is fully autonomous. It is separate and distinct from the APWU, with which it is affiliated, and has its own constitution, bylaws and officers. It has long been recognized that service of process on an autonomous local union is not sufficient to acquire personal jurisdiction over the national union with which it is affiliated. Gray v. International Ass’n of Heat & Frost Insulators, 416 F.2d 313, 316 (6th Cir.1969); Mathis v. Boeing Co., 117 F.R.D. 167, 169 (W.D.Wash.1987); Bacino v. American Fed’n of Musicians, 407 F.Supp. 548, 552-54 (N.D.Ill.1976). Thus, it appears that service meeting the statutory requirements was never effectuated on the APWU.

Ross and Imperial argue that even if service of process were found to be insufficient, the APWU received actual notice of the suit. Actual notice, however, is not determinative. While a defendant may have full knowledge that an action has been commenced against it, a court lacks jurisdiction to enter a judgment against the defendant unless personal jurisdiction has been obtained by strict compliance with the statute designating the method of obtaining such jurisdiction. Frasca v. Eubank, 24 F.R.D. 268, 270 (E.D.Pa.1959); see also Tart v. Hudgins, 58 F.R.D. 116, 117 (M.D.N.C.1972); Rixner v. White, 417 F.Supp. 995, 997 [154]*154(D.N.D.1976). Here, strict compliance with the statute governing service of process on postal unions is lacking.

Moreover, under Fed.R.Civ.P. 4(m) service must be made upon a defendant within 120 days of the filing of the complaint. Otherwise, absent a showing of “good cause” for the delay, the action must be dismissed as to that defendant. More than 120 days have elapsed since plaintiffs filed their amended complaint on December 23,1993. Instead of remedying any prior defects in service and properly serving the APWU with the amended complaint within the statutory period, plaintiffs continue to rely upon their prior effort at service. Consequently, because plaintiffs failed to comply with the statutory requirements for service on the APWU and have not attempted to show “good cause” for the delay, plaintiffs’ claims against the APWU are dismissed for insufficiency of service of process.

B. Duty of Fair Representation.

The relationship between the Postal Service and its employees’ bargaining representatives is governed by the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 141 et seq., which is made applicable to suits involving the Postal Service by the Postal Reorganization Act, 39 U.S.C.

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156 F.R.D. 150, 147 L.R.R.M. (BNA) 2734, 1994 U.S. Dist. LEXIS 9209, 1994 WL 325374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-runyon-txsd-1994.