REPORT AND RECOMMENDATION RE: DEFENDANT HERSCHEL HOWARD'S MOTION TO DISMISS

(Docket No. 9)

MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION TO STRIKE

(Docket No. 16)

RONALD E. BUSH, Chief Magistrate Judge.

Now pending before the Court are (1) Defendant Herschel Howard's Motion to Dismiss (Docket No. 9), and (2) Plaintiff's Motion to Strike (Docket No. 16). Having carefully considered the record and otherwise being fully advised, the undersigned enters the following Report and Recommendation as to Defendant Howard's Motion to Dismiss, and Memorandum Decision and Order as to Plaintiff's Motion to Strike:

I. BACKGROUND

Plaintiff Martin Bettwieser, a rural letter carrier in the Boise, Idaho Post Office, initiated this action on October 20, 2015. Plaintiff represents himself pro se. He is in disagreement with the response of the United States Postal Service (the "USPS," a Defendant in this action) to his Freedom of Information Act ("FOIA") request. Specifically, he contends:

Compl., ¶¶ V-VII (Docket No. 1).

Defendant Herschel Howard is a USPS rural letter carrier. Howard also serves in an official union capacity as an Assistant District Representative in the Salt Lake City District for the National Rural Letter Carriers' Association ("NRLCA"), a labor union representing rural letter carrier bargaining unit employees of the USPS. See Mem. in Supp. of MTD, p. 2 (Docket No. 9, Att. 1). With respect to Defendant Howard, Plaintiff alleges:

Compl., ¶¶ VIII-IX (Docket No. 1). Though not immediately clear from the Complaint itself, Plaintiff appears to be alleging that, as a union official, Defendant Howard should have assisted him with his FOIA request.

Defendant Howard now moves to dismiss Plaintiff's Complaint, arguing that (1) this Court lacks jurisdiction over Plaintiff's claims against him because he cannot be held personally liable as a matter of law for any alleged breach of the duty of fair representation, and (2) Plaintiff fails to state any cognizable claim against him. See generally Mem. in Supp. of MTD, pp. 308 (Docket No. 9, Att. 1).2 The undersigned agrees and recommends that Plaintiff's Complaint against Defendant Howard be dismissed.

II. REPORT/DISCUSSION

A. Defendant Howard's Motion to Dismiss (Docket No. 9)

1. Legal Standards

a. FRCP 12(b)(6)

FRCP 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While a complaint attacked by an FRCP 12(b)(6) motion to dismiss "does not need detailed factual allegations," it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.

When reviewing a complaint under this Rule, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). "Factual allegations must be enough to raise a right of relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell, 550 U.S. 544 at 555. In other words, the complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. See id. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. See id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

A dismissal without leave to amend is improper unless it is beyond doubt that the complaint "could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009). The Ninth Circuit has held that "in dismissal for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether the plaintiff will prevail but whether he "is entitled to offer evidence to support the claims." Hydick v. Hunter, 466 F.3d 676, 685 (9th Cir. 2006).

b. FRCP 12(b)(1)

FRCP 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. "It is a fundamental precept that federal courts are courts of limited jurisdiction . . . [and] limits upon federal jurisdiction . . . must be neither disregarded nor evaded." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden of establishing that subject matter jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). "When considering a motion to dismiss for lack of subject matter jurisdiction, the court presumes the factual allegations of the complaint are true and draws reasonable inferences in favor of the non-moving party." Whisnaut v. U.S., 400 F.3d 1177, 1179 (9th Cir. 2005). This tenet that allegations must be taken as true, however, does not extend to legal conclusions contained in the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

2. Plaintiff Has Not Sufficiently Stated a Claim Against Defendant Howard Pursuant to FRCP 12(b)(6)

The factual allegations that undergird Plaintiff's "claim" against Defendant Howard are that: (1) "Herschel Howard has refused to represent me without giving any basis or reasoning from both Billy Gans or Herschel Howard"; and (2) "[T]he information requested may expose fraudulent statements and or action by Kelly Kalbfleisch and endorsed by Billy Gans or Herschel Howard." Compl., ¶¶ VIII-IX (Docket No. 1). From this, however, it is not immediately clear exactly what Plaintiff is alleging by way of his theory of liability concerning Defendant Howard. There is no reference to any statutory provision that would provide the Court with subject matter jurisdiction over any claims against Defendant Howard (assuming Plaintiff has even adequately explained what Defendant Howard is alleged to have done or not done); indeed, there is no legal or factual support for Plaintiff's "claim" whatsoever — whatever that "claim" may be. In short, Plaintiff does not plead "enough facts to state a claim of relief [against Defendant Howard] that is plausible on its face." Bell, 550 U.S. at 570.

Typically, leave to amend accompanies a dismissal for failure to state a claim; this provides the opportunity for a plaintiff to once and for all provide the details from which a claim can be identified and a defense to that claim mounted. See supra. In this case, leave to amend would presumably allow Plaintiff to address Defendant Howard's arguments on the issue, including the following:

Mem. in Supp. of MTD, p. 8 (Docket No. 9, Att. 1) (internal citations omitted). From the undersigned's reading of the Complaint, Plaintiff's claim against Defendant Howard is generally premised upon Defendant Howard's (as a union representative) purported failure to help Plaintiff with his apparently-thwarted FOIA request. Plaintiff's dilemma, however, is that for the reasons discussed below, such a claim cannot stand against Defendant Howard personally; as a result, Plaintiff's Complaint as to Defendant Howard cannot be saved by any amendment.

3. Dismissal is Proper Under FRCP 12(b)(1) Because This Court Does Not Have Subject Matter Jurisdiction Over Plaintiff's Claims Against Defendant Howard

As Defendant Howard properly notes, "[t]o the extent that Plaintiff's claims against Defendant Howard attempt to allege a breach of the duty of fair representation, Plaintiff has failed to name the proper defendant." Id. at p. 3. This is because individual union officials cannot be held individually liable for breach of the duty of fair representation. See id. at pp. 3-4 (citing 39 U.S.C. § 1208(c) ("Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets."); 29 U.S.C. § 185 (same); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 249 (1962) (endorsing notion that "union as an entity, like a corporation, should in the absence of agreement be the sole source of recovery for injury inflicted by it" and that "[t]his policy cannot be evaded or truncated by the simple devise of suing union agents or members . . . for damages for violation of a collective bargaining contract for which damages the union itself is liable.") (internal quotation marks and citation omitted); Evangelista v. Inlandboatmen's Union of Pacific, 777 F.2d 1390, 1400 (9th Cir. 1985) (recognizing "shield for individual union members in suits for breach of the duty of fair representation"); Carter v. Smith Food King, 765 F.2d 916, 920-21 (9th Cir. 1985) (affirming summary judgment in favor of union member, finding that "[i]t is well settled that section 301 provides the basis for an action for breach of the duty of fair representation only against a union as an entity, and not against individuals who happen to hold positions in that union."); Peterson v. Kennedy, 771 F.2d 1244, 1257 (9th Cir. 1985) (reading Atkinson as precluding "employees from maintaining a state tort claim against union officials in conjunction with a section 301 breach of duty claim against a union" and noting that "[o]ther)).

Plaintiff is no-doubt familiar with the jurisdictional limitations associated with bringing a claim against union representatives like Defendant Howard, having already attempted to do so in a previous legal action before this Court. See, e.g., Bettwieser v. NLRB Region 27, Case No. 08-CV-78-S-BLW (D. Idaho, Dec. 15, 2008). In his prior case, Plaintiff attempted to assert claims for breaches of the collective bargaining agreement between the United States Postal Service and the Idaho Rural Letter Carriers Association (the "Union"), breach of the Union's duty of fair representation, due process violations, and failure of the National Labor Relations Board, Region 27 to properly investigate and prosecute these alleged violations. Plaintiff also named individual Union officials as defendants. Ultimately, U.S. District Judge William F. Downes (sitting by special designation) granted the various federal defendants' motions to dismiss and, of particular relevance here, ruled that individual liability could not lie against the individually-named Union individuals. See id. at p. 8 ("Nor may liability lie against the named Union officials in this case, since they are not parties to the collective bargaining agreement at issue.") (citing Atkinson, 370 U.S. at 249). Plaintiff's claims were dismissed without leave to amend.

In short, there is no subject matter jurisdiction over the claims against Defendant Howard. Therefore, pursuant to FRCP 12(b)(1), Defendant Howard's Motion to Dismiss (Docket No. 9) should be granted and Plaintiff's claims against Defendant Howard should be dismissed.3

B. Plaintiff's Motion to Strike (Docket No. 16).

Plaintiff objects to various filings from Defendant Howard. See 11/25/15 Notice, p. 2 (Docket No. 11) ("It is further noted for the court and Clerks that the Plaintiff OBJECTS to the various pleadings that have been filed on behalf of the individual, Herschel Howard, that are not properly signed or just partially signed pursuant to FRCP 11(a), specifically Notice of Appearances, Certificates of Service, Applications for Admission Pro Hac Vice, Motions and Memorandums [sic] to Dismiss.") (capitalization in original).

Plaintiff now crystallizes this objection into a formal Motion to Strike. See Mot. to Strike (Docket No. 16). Specifically, Plaintiff contends:

Id. at p. 2. Plaintiff is mistaken.

Local Civil Rule 5.1(j) addresses signatures when filing materials electronically. See Dist. Idaho Loc. Civ. R. 5.1(j) ("The electronic filing of any document by a Registered Participant shall constitute the signature of that person for all persons provided in the Federal Rules of Civil and Criminal Procedure. For instructions regarding electronic signatures, refer to the Electronic Case Filing Procedures."). And, at Local Civil Rule 5.1(j)'s direction, the Electronic Case Filing Procedures state in no uncertain terms:

Dist. Idaho Elec. Case Filing Procedures, ¶ 13; see also id. at ¶ 2(F) ("Electronic signature refers to the fact that an electronic document is deemed signed when filed by an attorney, trustee, judicial officer, deputy clerk or other person authorized by the Court, using a valid CM/ECF login and password.") (emphasis in original).

The undersigned's review of the at-issue filings indicate that Defendant Howard's counsel has complied with Local Civil Rule 5.1(j). Plaintiff's Motion to Strike is therefore denied.

III. RECOMMENDATION/ORDER

Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendant Howard's Motion to Dismiss (Docket No. 9) be GRANTED and Plaintiff's claims against Defendant Howard should be dismissed.

Pursuant to District of Idaho Local Civil Rule 72.1(b)(2), a party objecting to a Magistrate Judge's recommended disposition "must serve and file specific, written objections, not to exceed twenty pages . . . within fourteen (14) days. . ., unless the magistrate or district judge sets a different time period." Additionally, the other party "may serve and file a response, not to exceed ten pages, to another party's objections within fourteen (14) days after being served with a copy thereof."

Additionally, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion to Strike (Docket No. 16) is DENIED.