USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-1130
TODD BOWERS,
Plaintiff – Appellant,
v.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS, AND HELPERS AFL-CIO,
Defendant – Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:21−cv−00089−GMG)
Submitted: October 3, 2022 Decided: November 10, 2022
Before WILKINSON, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Christian J. Riddell, THE RIDDELL LAW GROUP, Martinsburg, West Virginia, for Appellant. Jason R. McClitis, Brandon E. Wood, Jordan L. Glasgow, BLAKE & UHLIG, P.A., Kansas City, Kansas, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 2 of 7
PER CURIAM:
Todd Bowers, a longtime member of the International Brotherhood of Boilermakers
(IBB), started his own welding business and entered into a collective-bargaining agreement
with the union before the relationship soured. After he sued IBB in West Virginia state
court, IBB removed the case based on the Labor Management Relations Act’s creation of
exclusive federal jurisdiction over cases arising from collective-bargaining agreements.
Bowers appeals the district court’s dismissal of his case with prejudice and its denial of his
motion to remand. For the following reasons, we affirm.
I.
Bowers was a member of an IBB local lodge who founded his own welding
business, Elite Mechanical. J.A. 14. He entered into a collective-bargaining agreement with
IBB—the Ohio Valley Agreement (OVA)—wherein IBB would provide Bowers with
certified boilermakers and Bowers would employ boilermakers exclusively through the
OVA and make payments into IBB’s pension and retirement programs. Id. at 14–15.
At some point in or around 2017, the relationship between Bowers and IBB soured
based, in part, on Bowers’s hiring of a boilermaker who had been expelled by the union.
Id. at 15. Bowers also attempted to withdraw from the OVA. Id. In early 2020, IBB’s
pension funds filed a lawsuit against Bowers alleging that he had not properly remitted
contributions to the funds for work performed by OVA-covered employees. Id. at 168–76.
Bowers filed a counterclaim reciting substantially identical claims to those set forth in the
instant case. Id. at 120–25. The parties jointly dismissed their claims. Id. at 210.
2 USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 3 of 7
Bowers filed the complaint at issue in this appeal on February 19, 2021, in West
Virginia state court. Id. at 14. The complaint alleges that IBB plotted to take reprisals
against Bowers for hiring non-union labor, competing with IBB boilermakers for general
welding work, and pulling out of the OVA. Id. at 15–16. It alleges that IBB tried to harass,
intimidate, and put Bowers out of business by “filing meritless lawsuits,” demanding
compensation and threatening legal action for post-2017 work, “[t]hreatening and
harassing” Bowers’s employees to “coerce them into leaving [his] employ,” and “[f]alsely
reporting” him to “relevant oversight organizations.” Id. at 16. The complaint includes five
counts: (1) “tortious interference of business,” (2) abuse of process, (3) intentional
infliction of emotional distress, (4) violation of W. Va. Code § 61-2-13(a) [criminal
extortion], and (5) violation of W. Va. Code § 61-2-9a [criminal harassment]. Id. at 16–18.
IBB removed the case to federal court. Id. at 6. It asserted that because Bowers’s
claims are “directly based on the terms of the collective bargaining agreement or
substantially dependent on” analysis of it, the Labor Management Relations Act (LMRA)
provides for exclusive federal jurisdiction over the complaint. Id. at 8 (citing 29 U.S.C.
§ 185(a)). IBB also moved to dismiss, arguing that (1) the LMRA preempts Bowers’s
claims, (2) the claims are time-barred by the LMRA’s statute of limitations, (3) Bowers
failed to exhaust required contractual remedies, (4) no civil cause of action exists for
Bowers’s West Virginia statutory claims, and (5) the complaint lacks sufficient factual
allegations to state a claim. Id. at 138. Bowers moved to remand the case back to state
court. Id. at 212–21.
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The district court dismissed the case with prejudice and denied Bowers’s motion to
remand. Bowers v. Int’l Bhd. of Boilermakers, No. 3:21-CV-89, 2022 WL 421145, at *6
(N.D. W. Va. Jan. 20, 2022). It concluded that every asserted basis in IBB’s motion to
dismiss warranted dismissal. Id. at *2. Nothing in the complaint “c[ame] close to alleging
a factual basis to support a lawsuit,” West Virginia’s criminal statutes created no private
right of action, and the LMRA preempted the suit because evaluating Bowers’s claims
would require the court “to consider and interpret the OVA at great length.” Id. at *2–4.
Even if Bowers had properly alleged claims under the LMRA, he had failed to exhaust his
contractual remedies, and those claims would be time-barred. Id. at *5–6.
Bowers raises numerous assignments of error. We conclude that none has merit.
II.
First, Bowers argues that the district court lacked subject-matter jurisdiction because
his claims did not sufficiently relate to any collective-bargaining agreement under the
LMRA, so his complaint raises no federal question. We review de novo whether the district
court had subject-matter jurisdiction. See Foy v. Giant Food Inc., 298 F.3d 284, 287 (4th
Cir. 2002). We conclude that the district court had jurisdiction because § 301 of the LMRA
preempts Bowers’s claims.
Section 301 of the LMRA completely preempts state law, and any claim so
preempted “is considered, from its inception, a federal claim, and therefore arises under
federal law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987). Removal of such
claims is therefore proper. See id.; 28 U.S.C. § 1441(a). The LMRA preempts a state-law
claim “when resolution of the claim requires the interpretation of a collective-bargaining
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agreement or is inextricably intertwined with consideration of the terms of the labor
contract.” Foy, 298 F.3d at 287 (quotation marks and citations omitted).
Bowers’s claims are “inextricably intertwined with consideration of the terms of”
the OVA. His claim for tortious interference of business depends on whether he was
violating the terms of the OVA’s exclusive-referral provision and whether IBB was within
its rights under the OVA’s jobsite-access provision to talk to and try to convince his
employees to leave. See J.A. 39 (exclusive-referral provision), 55 (jobsite-access
provision). Resolution of this claim requires interpretation and application of these
provisions. Bowers’s abuse-of-process claim depends on whether IBB’s funds filed
meritless lawsuits, and that question is inextricably intertwined with consideration of the
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USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-1130
TODD BOWERS,
Plaintiff – Appellant,
v.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS, AND HELPERS AFL-CIO,
Defendant – Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:21−cv−00089−GMG)
Submitted: October 3, 2022 Decided: November 10, 2022
Before WILKINSON, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Christian J. Riddell, THE RIDDELL LAW GROUP, Martinsburg, West Virginia, for Appellant. Jason R. McClitis, Brandon E. Wood, Jordan L. Glasgow, BLAKE & UHLIG, P.A., Kansas City, Kansas, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 2 of 7
PER CURIAM:
Todd Bowers, a longtime member of the International Brotherhood of Boilermakers
(IBB), started his own welding business and entered into a collective-bargaining agreement
with the union before the relationship soured. After he sued IBB in West Virginia state
court, IBB removed the case based on the Labor Management Relations Act’s creation of
exclusive federal jurisdiction over cases arising from collective-bargaining agreements.
Bowers appeals the district court’s dismissal of his case with prejudice and its denial of his
motion to remand. For the following reasons, we affirm.
I.
Bowers was a member of an IBB local lodge who founded his own welding
business, Elite Mechanical. J.A. 14. He entered into a collective-bargaining agreement with
IBB—the Ohio Valley Agreement (OVA)—wherein IBB would provide Bowers with
certified boilermakers and Bowers would employ boilermakers exclusively through the
OVA and make payments into IBB’s pension and retirement programs. Id. at 14–15.
At some point in or around 2017, the relationship between Bowers and IBB soured
based, in part, on Bowers’s hiring of a boilermaker who had been expelled by the union.
Id. at 15. Bowers also attempted to withdraw from the OVA. Id. In early 2020, IBB’s
pension funds filed a lawsuit against Bowers alleging that he had not properly remitted
contributions to the funds for work performed by OVA-covered employees. Id. at 168–76.
Bowers filed a counterclaim reciting substantially identical claims to those set forth in the
instant case. Id. at 120–25. The parties jointly dismissed their claims. Id. at 210.
2 USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 3 of 7
Bowers filed the complaint at issue in this appeal on February 19, 2021, in West
Virginia state court. Id. at 14. The complaint alleges that IBB plotted to take reprisals
against Bowers for hiring non-union labor, competing with IBB boilermakers for general
welding work, and pulling out of the OVA. Id. at 15–16. It alleges that IBB tried to harass,
intimidate, and put Bowers out of business by “filing meritless lawsuits,” demanding
compensation and threatening legal action for post-2017 work, “[t]hreatening and
harassing” Bowers’s employees to “coerce them into leaving [his] employ,” and “[f]alsely
reporting” him to “relevant oversight organizations.” Id. at 16. The complaint includes five
counts: (1) “tortious interference of business,” (2) abuse of process, (3) intentional
infliction of emotional distress, (4) violation of W. Va. Code § 61-2-13(a) [criminal
extortion], and (5) violation of W. Va. Code § 61-2-9a [criminal harassment]. Id. at 16–18.
IBB removed the case to federal court. Id. at 6. It asserted that because Bowers’s
claims are “directly based on the terms of the collective bargaining agreement or
substantially dependent on” analysis of it, the Labor Management Relations Act (LMRA)
provides for exclusive federal jurisdiction over the complaint. Id. at 8 (citing 29 U.S.C.
§ 185(a)). IBB also moved to dismiss, arguing that (1) the LMRA preempts Bowers’s
claims, (2) the claims are time-barred by the LMRA’s statute of limitations, (3) Bowers
failed to exhaust required contractual remedies, (4) no civil cause of action exists for
Bowers’s West Virginia statutory claims, and (5) the complaint lacks sufficient factual
allegations to state a claim. Id. at 138. Bowers moved to remand the case back to state
court. Id. at 212–21.
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The district court dismissed the case with prejudice and denied Bowers’s motion to
remand. Bowers v. Int’l Bhd. of Boilermakers, No. 3:21-CV-89, 2022 WL 421145, at *6
(N.D. W. Va. Jan. 20, 2022). It concluded that every asserted basis in IBB’s motion to
dismiss warranted dismissal. Id. at *2. Nothing in the complaint “c[ame] close to alleging
a factual basis to support a lawsuit,” West Virginia’s criminal statutes created no private
right of action, and the LMRA preempted the suit because evaluating Bowers’s claims
would require the court “to consider and interpret the OVA at great length.” Id. at *2–4.
Even if Bowers had properly alleged claims under the LMRA, he had failed to exhaust his
contractual remedies, and those claims would be time-barred. Id. at *5–6.
Bowers raises numerous assignments of error. We conclude that none has merit.
II.
First, Bowers argues that the district court lacked subject-matter jurisdiction because
his claims did not sufficiently relate to any collective-bargaining agreement under the
LMRA, so his complaint raises no federal question. We review de novo whether the district
court had subject-matter jurisdiction. See Foy v. Giant Food Inc., 298 F.3d 284, 287 (4th
Cir. 2002). We conclude that the district court had jurisdiction because § 301 of the LMRA
preempts Bowers’s claims.
Section 301 of the LMRA completely preempts state law, and any claim so
preempted “is considered, from its inception, a federal claim, and therefore arises under
federal law.” Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987). Removal of such
claims is therefore proper. See id.; 28 U.S.C. § 1441(a). The LMRA preempts a state-law
claim “when resolution of the claim requires the interpretation of a collective-bargaining
4 USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 5 of 7
agreement or is inextricably intertwined with consideration of the terms of the labor
contract.” Foy, 298 F.3d at 287 (quotation marks and citations omitted).
Bowers’s claims are “inextricably intertwined with consideration of the terms of”
the OVA. His claim for tortious interference of business depends on whether he was
violating the terms of the OVA’s exclusive-referral provision and whether IBB was within
its rights under the OVA’s jobsite-access provision to talk to and try to convince his
employees to leave. See J.A. 39 (exclusive-referral provision), 55 (jobsite-access
provision). Resolution of this claim requires interpretation and application of these
provisions. Bowers’s abuse-of-process claim depends on whether IBB’s funds filed
meritless lawsuits, and that question is inextricably intertwined with consideration of the
OVA’s provisions governing employer contributions. See id. at 60–67. And Bowers’s
claim for intentional infliction of emotional distress closely parallels the claim that we held
preempted in Foy: Such a claim “requires an inquiry into whether [IBB] was legally
entitled to act as [it] did,” which “can be determined only by interpreting the collective
bargaining agreement.” 298 F.3d at 288 (quotation marks omitted).
Thus, the Labor Management Relations Act preempted Bowers’s claims and
established federal jurisdiction over his case.
III.
Next, Bowers contends that the district court erred in concluding that Counts Four
and Five fail to state a claim because the West Virginia criminal statutes do not create a
private cause of action. Whether a statute creates a private cause of action is a question of
law subject to de novo review. See Diaz de Gomez v. Wilkinson, 987 F.3d 359, 363 (4th
5 USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 6 of 7
Cir. 2021). It is clear that the West Virginia criminal-extortion and criminal-harassment
statutes, §§ 61-2-13(a) and 61-2-9a, do not create private causes of action.
In West Virginia, whether a private cause of action exists based on a violation of a
statute is determined by applying the four-part test set forth in Hurley v. Allied Chemical
Corporation, 262 S.E.2d 757 (W. Va. 1980). This test considers (1) whether the plaintiff
is a member of the statute’s intended class of beneficiaries, (2) whether there exists express
or implied legislative intent to create a private cause of action, (3) whether a private cause
of action is consistent with the statutory scheme, and (4) whether a private cause of action
would intrude into exclusively federal areas. Hurley, 262 S.E.2d at 763.
Here, §§ 61-2-13(a) and 61-2-9a are criminal statutes “enacted for the protection of
the general public;” they do not “expressly identif[y]” a class they intend to benefit. Id. at
761 (quotation marks omitted). Moreover, the plain language of these statutes—and other
statutes in the same chapter—provides only for criminal penalties; neither the statutory text
nor scheme suggests any intent to create a private cause of action. So, these criminal
statutes do not create private causes of action. Counts Four and Five failed to state a claim.
IV.
Finally, Bowers argues that we lack appellate jurisdiction because the district court
dismissed his suit without giving him an opportunity to amend his complaint and did not
certify that the complaint’s deficiencies could not be cured by amendment. We disagree.
We have jurisdiction because this is an appeal of a dismissal with prejudice, which
is a final decision of the district court. See 28 U.S.C. § 1291; Harrison v. Edison Bros.
Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir. 1991). Bowers never properly moved to
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amend his complaint, so the district court was not required to offer him the opportunity to
amend. See J.A. 1–5; Cozzarelli v. Inspire Pharms. Inc., 549 F.3d 618, 630–31 (4th Cir.
2008) (holding that a request for leave to amend made in a response to a motion to dismiss
“did not qualify as [a] motion[] for leave to amend” under Fed. R. Civ. P. 7(b), 15(a)).
Moreover, amendment would have been futile: Even if Bowers had properly stated claims
under the LMRA, those claims would have been time-barred by the applicable six-month
statute of limitations and precluded by his failure to exhaust his remedies under the
collective-bargaining agreement. See Smith v. United Parcel Serv., Inc., 776 F.2d 99, 100
(4th Cir. 1985) (statute of limitations); Republic Steel Corp. v. Maddox, 379 U.S. 650, 652–
53 (1965) (exhaustion requirement).
We have reviewed Bowers’s other assignments of error and find them to be without
merit. For the foregoing reasons, the judgement is affirmed.
AFFIRMED