WILLIAM D. QUARLES, JR., District Judge.
Waugh Chapel South, LLC, WCS LLC, WCS Properties Business Trust, and ELG Inglewood LLC (collectively, "the WCS plaintiffs") sued United Food and Commercial Workers Union Local 27 ("UFCW 27"), United Food and Commercial Workers Union Local 400 ("UFCW 400") and the Mid-Atlantic Retail Food Industry Joint Labor Management Fund ("the Fund") (collectively, "the defendants") for violations of the Labor Management Relations Act, 29 U.S.C. § 151 et seq. ("LMRA"). For the following reasons, the defendants' motion to reassign will be denied. UFCW 27 and 400's motion to dismiss will be granted in part and denied in part. The Fund's motion to dismiss will be granted.
The WCS plaintiffs are developing two commercial real estate projects in Maryland: the Village at Waugh Chapel South ("Waugh Chapel") and the Woodmore Towne Centre at Glenarden ("Woodmore"). ECF No. 51 ¶ 1. A portion of the land was used for mining gravel. ECF No. 31 Attach. 5 ¶ 4. Each development will include a supermarket operated by Wegmans Food Markets, Inc. ("Wegmans"). Id. Wegmans does not employ union labor. Id. 12.
The Fund is an organization associated with UFCW 27 and 400, unions that have collective bargaining agreements with Giant Food, LLC and Safeway, Inc. grocery stores. The Fund's purposes include "improving labor-management relations." ECF No. 51 ¶ 10. Its "activities are limited to government petitioning activity [including] petitioning federal, state and /or local ... regulatory and/or judicial authorities." Id.
To build the Waugh Chapel project, the WCS plaintiffs' developers
On December 1, 2007, the Maryland Department of the Environment ("MDE") entered a consent decree with the WCS plaintiffs' developers after determining that pollutants from a gravel mine on the Waugh Chapel property had seeped into the groundwater. ECF No. 31 Attach. 5 ¶¶ 4, 6, 9.
On April 21, 2008, the County approved a detailed site development plan for the Waugh Chapel project. ECF No. 51 136.
On August 21, 2008, George Murphy Jr., then Secretary-Treasurer of UFCW 27,
On November 5, 2009, Anne Arundel County approved the WCS plaintiffs' request for an extension of time to pay fees and post bonds for a Public Works Agreement permit for the Waugh Chapel project. Id. ¶ 36. On December 3, the Patuxent Riverkeeper, an environmental organization, and others appealed the November 5 extension. Id. ¶ 37. Nelson represented the appellants. Id. On February 9, 2010, the WCS plaintiffs paid the fees and filed the bond. Id. On March 9, 2010, Nelson withdrew the appeal. Id.
On March 15, 2010, the Anne Arundel County Council adopted a resolution approving Tax Increment Financing ("TIF"), bonds to finance the Waugh Chapel project. ECF No. 31 Attach. 8 at 2. On March 17, 2010, Robert Smith and Madonna Brennan,
On June 28, 2010, Smith sued the MDE and others
On June 29, 2010, MDE renewed the mining permit for the Waugh Chapel property, releasing the WCS plaintiffs from that permit.
On May 26, 2011, Smith and Sandra Bowie, represented by Nelson, appealed Anne Arundel County's issuance of four grading permits for Waugh Chapel. ECF No. 35 Attach. 12. On June 23, 2011, Smith, Bowie, and Rosie Shorter,
On October 2, 2007, the Prince George's County Council approved a Detailed Site Plan for the Woodmore project. On December 30, 2007, L. Anthony Perez, a member of UFCW 400, petitioned for judicial review of the approval, alleging the plan would create traffic problems near his home. ECF No. 51 158. On May 13, 2008, the Honorable Thomas P. Smith of the Circuit Court for Prince George's County found that Perez's "sole motive ... was to further the interests of UFCW 400" and his articulation of his "personal concern[s were] pretextual." ECF No. 31 Attach. 20 at 16:10-15, 18:17-18. Judge Smith found that "the detailed site plan... has no direct bearing on traffic." Id. 18:14-17. On May 21, 2008, Judge Smith
On July 22, 2008, after further briefing, the Circuit Court for Prince George's County affirmed the County Council and dismissed the appeal. ECF No. 51 ¶ 59. UFCW 400 paid Perez's legal fees, and Nelson represented Perez for part of the dispute. Id. ¶¶ 58-59.
On March 19, 2010, the MDE issued a permit authorizing Woodmore Town Centre to extend a roadway to the Woodmore development, through a wetlands area. ECF No. 51 160. On April 16, 2010, the Patuxent Riverkeeper, through Nelson, petitioned for judicial review of the permit and sought a preliminary injunction. ECF No. 31 Attach. 21 at 1. The Circuit Court for Prince George's County dismissed the petition for lack of standing. Patuxent Riverkeeper v. Md. Dep't of the Env't, No. 10-11819, 2010 WL 6599778 (Md.Cir.Ct. Dec. 1, 2010). On February 18, 2011, the Maryland Court of Appeals granted certiorari to consider the standing issue. Patuxent Riverkeeper v. Md. Dep't of the Env't, 418 Md. 190, 13 A.3d 798 (2011). On September 30, 2011, the Maryland Court of Appeals held that the Riverkeeper had standing to challenge the permit and remanded to the Circuit Court. Patuxent Riverkeeper v. Md. Dep't of the Env't, 422 Md. 294, 310, 29 A.3d 584, 594 (2011).
On July 7, 2010, The Patuxent Riverkeeper, through Nelson, sued the United States Army Corps of Engineers ("the Corps"), the United States Environmental Protection Agency ("EPA"), and officials of both agencies in the United States District Court for the District of Maryland, seeking review of the Corps's decision to verify a permit application for development of the Woodmore project. Patuxent Riverkeeper v. U.S. Army Corps of Eng'rs, No. AW-10-1834. On November 16, 2010, United States District Judge Alexander Williams permitted the Woodmore developers to intervene as defendants. No. AW-10-1834, ECF No. 14. Riverkeeper's complaint alleged that the permit would "impact 33,407 square feet of forested nontidal wetlands" in violation of the Clean Water Act, and the Corps's decision to verify the permit application was arbitrary and capricious. No. AW-10-1834, ECF No. 1 ¶¶ 29, 40-76.
On September 26, 2011, Judge Williams granted summary judgment for the Patuxent Riverkeeper defendants and closed the case. No. AW-10-1834, ECF No. 43. Judge Williams held that the Riverkeeper plaintiff lacked standing to challenge the permit.
On March 31, 2011, the WCS plaintiffs filed this suit alleging violations of the LMRA. ECF No. 1. The WCS plaintiffs alleged that the defendants had financed the Waugh Chapel and Woodmore litigation "with the objective of forcing [the WCS plaintiffs] to cease their business relationship with Wegmans." ECF No. 51 ¶¶ 35, 37, 39, 40-43, 46, 47, 54, 59, 61, 62. The WCS plaintiffs alleged that "the appeals and litigation filed by the Defendants constitute a series of overlapping, repetitive, baseless and sham lawsuits." Id. ¶ 21.
On April 27, 2011, the defendants moved to assign Waugh Chapel to Judge Williams as related to Patuxent Riverkeeper v. U.S. Army Corps of Engineers, No. AW-10-1834. ECF No. 22. On May 25, 2011, the Fund moved to dismiss. ECF No. 27. On the same day, UFCW 27 and 400 jointly moved to dismiss. ECF No. 31. The WCS plaintiffs opposed the motions. ECF
The defendants seek to assign this case to Judge Williams under local Rule 103(1)(b)(iii) because they contend it is related to Patuxent Riverkeeper v. U.S. Army Corps of Engineers, No. AW-10-1834. ECF No. 22. The defendants contend that Judge Williams's familiarity with Patuxent Riverkeeper places him in the best position to determine whether that case is protected First Amendment petitioning activity or "sham" litigation that may support liability in this case under 29 U.S.C. § 158(b)(4)(ii)(B). ECF No. 22 Attach. 1 at 6-7.
Under Local Rule 103(1)(b), the Court may, after notice from a party, reassign a case to another judge if it and a previous or pending civil action in this Court are related. Actions are related if they:
LR 103(1)(b)(i).
The WCS plaintiffs argue that Patuxent Riverkeeper "is but one in a series of lawsuits and administrative challenges undertaken by the defendants as part of their secondary boycott activity" and "the issue in [this case] is whether the flurry of litigation and administrative challenges as alleged in the Complaint was part of a pattern or practice of successive filings brought without regard to the merits." ECF No. 24 at 13-14. They contend that resolution of this case by this Court would not entail "substantial duplication of labor" because (1) Judge Williams did not determine whether Patuxent Riverkeeper is a sham litigation, and (2) the court that decides this suit will need to "scrutinize all of the cases, including the Patuxent Riverkeeper litigation" to determine whether "collectively [they] constitute a .. pattern and practice of [sham] litigation." Id. (emphasis added).
As Judge Williams did not consider the issues raised in this case, denying the motion to reassign will not "entail substantial duplication of labor." LR 103(1)(b)(i). The motion to reassign will be denied.
UFCW 27 and UFCW 400, and separately the Fund, moved pursuant to Fed. R.Civ.P. 12(b)(6) to dismiss the amended complaint. ECF No. 27; ECF No. 31.
Under Fed.R.Civ.P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief may be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006).
The Court bears in mind that Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th Cir.2001). Although Rule 8's notice-pleading requirements are "not onerous," the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir.2003). These facts must be sufficient
This requires that the plaintiff do more than "plead[] facts that are `merely consistent with a defendant's liability'"; the facts pled must "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). The complaint must not only allege but also "show" that the plaintiff is entitled to relief. Id. at 1950. "Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief." Id. (internal quotation marks omitted).
A court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice" without converting a 12(b)(6) motion into a motion for summary judgment. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). A district court may take judicial notice of "matters of public record." Clark v. BASF Salaried Emps.' Pension Plan, 329 F.Supp.2d 694, 697 (W.D.N.C. 2004), aff'd, 142 Fed.Appx. 659 (4th Cir. 2005). State court filings are matters of public record. See, e.g., Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir.2008); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.1994).
The LMRA prohibits labor organizations from "threaten[ing], coerc[ing], or restrain[ing] any person engaged in commerce" for the purpose of forcing "any other employer to recognize or bargain with [that] labor organization." 29 U.S.C. § 158(b)(4)(ii).
The defendants contend that the WCS plaintiffs' claims are "barred by the Noerr-Pennington doctrine." ECF No. 31 Attach. 1 at 1; ECF No. 27 Attach. 1 at 2.
"The Noerr-Pennington doctrine grants First Amendment immunity" from civil liability to participants in petitioning activity such as litigation. IGEN Int'l v. Roche Diagnostics GmbH, 335 F.3d 303, 310 (4th Cir.2003). The First Amendment and Noerr-Pennington do not protect "sham" litigation: litigation that is (1) "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits," and (2) instituted in subjective bad faith. Id. at 312 (quoting Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993)). Established in the context of anti-trust litigation, Noerr-Pennington applies equally to labor litigation. Bryant v. Military Dep't of Miss., 597 F.3d 678, 691-92 (5th Cir.2010).
When the defendants raise Noerr-Pennington immunity in a motion to dismiss, the burden shifts to the plaintiffs to establish that the litigation in question was a sham. IGEN Int'l, 335 F.3d at 312.
UFCW 27 and 400 contend that the "defining element of a `sham' is that the litigation ... deprived the plaintiffs of their own First Amendment right to be heard" by barring access to the courts. ECF No. 31 Attach. 1 at 22.
In Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. ("PRE"), the Supreme Court stated "a two-part definition of `sham' litigation." 508 U.S. 49, 60, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). Sham litigation is "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." Id. If the litigation is objectively baseless, the Court "consider[s] the litigant's subjective motivation." Id. The Court defined sham litigation without reference to access-barring. Instead, it focused on the action's likelihood of success on the merits and the litigant's motive in bringing the challenged action. Id.
Earlier in PRE, the Court noted that it had previously "recognized ... that the institution of legal proceedings without probable cause will give rise to a sham if such activity effectively bars competitors from meaningful access to adjudicatory tribunals." Id. at 58, 113 S.Ct. 1920 (internal quotation marks and citations omitted). The Court did not hold that only access-barring litigation is a sham; it made clear that baseless litigation is a sham. Compare id. at 58, 113 S.Ct. 1920 (baseless litigation "will give rise to a sham if ... [it] effectively bars" access), with id. at 61, 113 S.Ct. 1920 ("Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation." (emphasis added)).
Accordingly, access-barring litigation may be a sham only if it is objectively baseless and in subjective bad faith. See PRE, 508 U.S. at 58, 113 S.Ct. 1920.
The WCS plaintiffs must allege and show that each action was baseless, even if they allege a series of sham actions. See Bryant, 597 F.3d at 691-92 (plaintiff alleging series of sham lawsuits had burden to show each was objectively baseless).
The WCS plaintiffs contend that "when... a pattern of successive filings is at issue, it must not be alleged or proved that each filing was baseless." ECF No. 35 at 11. Its reliance on USS-POSCO Indus, v. BE & K Constr. Co. is unpersuasive, 31 F.3d 800 (9th Cir.1994). California Motor Transport v. Trucking Unlimited, on which POSCO relied, requires the plaintiff to prove the baselessness of each claim in an alleged pattern of sham litigation. 404 U.S. 508, 513, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) ("[A] pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused." (emphasis added)). PRE indicates that no litigation "may be sham" unless it is objectively baseless.
Further, POSCO has never been relied on by the Fourth Circuit.
UFCW 27 and 400 note that "all but one of the ... [alleged harassing petitions] sought relief only against government entities, without suing the developers." ECF No. 31 Attach. 1 at 10. They contend that the WCS plaintiffs "had the option of voluntary intervention, [but] they were not haled into court in" those actions. Id. The WCS plaintiffs respond that "each of the actions ... [was] designed to attack zoning, financing, and permit approvals with the single objective to interfere with and obstruct the ... development[s]." ECF No. 35 at 24.
A party that instigates litigation against defendants cannot later claim that the defendants engaged in sham litigation
UFCW 27 and 400 argue that the complaint does not state a claim because it includes only "conclusory" allegations that the litigation was baseless. ECF No. 31 Attach. 1 at 33. When "there is no dispute over the predicate facts of the underlying proceeding, a court may decide [objective baselessness] as a matter of law." PRE, 508 U.S. at 63, 113 S.Ct. 1920. The burden of alleging baselessness is not so high as proving it on a summary judgment motion. Smithfield Foods, Inc. v. U. Food & Comm'l Workers Int'l Union, 593 F.Supp.2d 840, 843-44 (E.D.Va.2008) (deciding motion for judgment on the pleadings under Rule 12(b)(6) standard).
Successful litigation "is by definition a reasonable effort at petitioning for redress and therefore not a sham." PRE, 508 U.S. at 61 n. 5, 113 S.Ct. 1920. However, losing litigation is not necessarily baseless. Id. When a litigant institutes a proceeding knowing, or under circumstances in which he should know, that he lacks standing, the proceeding is baseless. Bait. Scrap, 237 F.3d at 400. On the other hand, when the litigation is resolved only after thoughtful consideration, and there is recognition of some merits of the claim, despite denial of "a logical extension" of an existing rule, the litigation was not baseless. Id.
With respect to the subjective intent requirement of a sham litigation claim, courts are "lenient in allowing scienter issues... to survive motions to dismiss" because those issues "are appropriate for resolution by the trier of fact." In re DDAVP Direct Purchaser Antitrust Litigation, 585 F.3d 677, 693-94 (2d Cir. 2009).
The WCS plaintiffs repeatedly alleged that the defendants covertly instigated and supported 18 actions with the subjective intent to "forc[e] [the WCS plaintiffs] to cease their business relationship with Wegmans." ECF No. 51 ¶¶ 35, 37, 39-42, 44, 58, 60, 61. It alleged that the actions "constitute a series of overlapping, repetitive, baseless and sham lawsuits and [administrative] appeals." See id. 121. The WCS plaintiffs must not only allege but also "show" that the plaintiff is entitled to relief. Ashcroft, 129 S.Ct. at 1950. Accepting the alleged facts as true and drawing all inferences in favor of the
The Anne Arundel County Council determined that, as the petitioners alleged, the original TIF resolution was enacted without a public hearing, in violation of the Maryland Constitution. ECF No. 31 Attach. 8 at 3. Accordingly, the challenge to that resolution was not baseless. PRE, 508 U.S. at 61 n. 5, 113 S.Ct. 1920 (successful litigation is by definition not baseless).
The Riverkeeper's Maryland court challenge to the Woodmore permits has not been evaluated on the merits, but the Maryland Court of Appeals has held that the Riverkeeper had standing to bring the suit. Patuxent Riverkeeper, 422 Md. at 310, 29 A.3d at 594. As the state court has not decided the merits of the suit, the Court will not assess whether it is objectively baseless; to do so would usurp the state circuit court's role. See Bill Johnson's Rests., Inc., 461 U.S. at 746-47, 103 S.Ct. 2161 (NLRB "must not deprive a litigant of his right to have genuine state-law legal questions decided by the state judiciary."). Further, as the burden is on the WCS plaintiffs to establish baselessness, the Court's inability to infer that a suit is baseless prevents application of the sham exception. See IGEN Int'l, 335 F.3d at 312.
The Circuit Court for Anne Arundel County dismissed Smith and the Riverkeeper's challenge to the June 29 permit for lack of standing, and on the merits because it found that MDE "complied with the statutory scheme governing surface mine permit renewals." ECF No. 31 Attach. 13 at 7. The appeal was stayed pending the Maryland Court of Appeals's decision on the Riverkeeper's standing in Patuxent Riverkeeper, 422 Md. at 294, 29 A.3d at 584. ECF No. 31 Attach. 16. Now that the Court of Appeals has concluded that the Riverkeeper has standing, it is ripe for state court review and nothing in the record permits an inference of baselessness. See Bill Johnson's Rests., Inc., 461 U.S. at 746-47, 103 S.Ct. 2161; IGEN Int'l, 335 F.3d at 312.
Judge Williams did not consider the frivolity of the Riverkeeper's federal challenge to the permits, and his opinion granting summary judgment does not suggest that the Riverkeeper should have known it lacked standing. Patuxent Riverkeeper, No. AW-10-1834, ECF No. 43 at 7-14. In addition, the Maryland Court of Appeals applied the federal standing rules to decide that the Riverkeeper had standing in a similar challenge. See Patuxent Riverkeeper, 422 Md. at 297, 29 A.3d at 585-86. Accordingly, the Court cannot infer that the federal challenge was a baseless sham.
Nelson, representing the petitioners in the alleged sham actions, voluntarily withdrew or dismissed 10 of the challenges to the Waugh Chapel South project soon after the WCS plaintiffs sought or served subpoenas on UFCW 27 and 400 for financial records. ECF No. 51 ¶¶ 35, 44. Though this suggests that the defendants instigated the actions with an improper subjective intent — which they may have tried to conceal by withdrawing the challenges — it conveys nothing about the objective merits of the actions. See PRE, 508 U.S. at 61 n. 5, 113 S.Ct. 1920 (ultimately unsuccessful action is not necessarily baseless). Likewise, that "other individuals were added as movants" to George Murphy Jr.'s motion to rescind zoning approval for the Waugh Chapel South project when his standing was challenged,
Little information is available about the petitioners' challenge to the corrected mining permit renewal, other than that they consented to dismiss it after appealing the July 1, 2010 permit challenge. See ECF No. 51 ¶ 42. As discussed above, voluntary withdrawal of a petition does not indicate that it is baseless.
The WCS plaintiffs alleged that the Riverkeeper withdrew its December 2009 appeal of Anne Arundel County's extension of time for the WCS plaintiffs to pay public works fees and bonds after they paid those fees and the appeal became moot. ECF No. 51 137. Had the petitioners maintained the appeal despite its clear mootness, the WCS plaintiffs might be able to show that it was baseless. Instead, the petitioners withdrew the appeal when it became moot. That withdrawal does not enable the Court to infer baselessness. See IGEN Int'l, 335 F.3d at 312.
Smith supported his June 29, 2010 suit for enforcement of the MDE consent decree with an expert report. ECF No. 31 Attach. 10. In a 21 page opinion, the Circuit Court for Anne Arundel County assessed the ten counts of the complaint, ultimately dismissing six with prejudice and two without prejudice, and granting summary judgment for the defendants on the remaining two. ECF No. 58 Attach. 1. The court noted that some of the issues in the case were "complicated," and did not summarily reject any of the claims. See id. at 5-21. The court resolved the litigation only after thoughtful consideration, demonstrating that it was not objectively baseless. Balt. Scrap, 237 F.3d at 400.
Like the petitions withdrawn to avoid subpoenas, Judge Smith's finding that Perez challenged the Woodmore site plan only to further the interests of UFCW 400 does not support an inference of objective baselessness. As Judge Smith noted, Perez's subjective motivation "ma[de] no difference," as he had standing, and his claim was not clearly frivolous or nonjusticiable. ECF No. 31 Attach. 20 at 12-13. That the detailed site plan Perez challenged "ha[d] no direct bearing on traffic," however, suggests that Perez's traffic-disruption-based challenge to the plan might have been objectively baseless. Id. at 18:14-17. Accordingly, the WCS plaintiffs have sufficiently alleged baselessness with respect to Perez's challenge to the site development plan.
The WCS plaintiffs have alleged a violation of the LMRA that is not protected by Noerr-Pennington with respect to Perez's challenge to the Woodmore project. The other alleged sham petitions are protected. Count I, the claim based on challenges to the Waugh Chapel project, will be dismissed with prejudice. Count II will survive, but will be limited to Perez's petition.
The defendants contend that the WCS plaintiffs failed to state a claim for recoverable damages, and accordingly did not state a claim for which relief may be granted. ECF No. 31 Attach. 1 at 42-43. They argue that the LMRA does not permit recovery of the cost of prior litigation, and the WCS plaintiffs cannot support a claim for damages based on delay or risk in the development of the projects.
The LMRA permits an injured party to recover "the damages by him sustained." 29 U.S.C. § 187(b). Damages may include the expense of prior litigation
Here, the WCS plaintiffs claim that the previous lawsuits, instituted by the defendants, constitute unfair labor practices. Accordingly, Bill Johnson's Restaurants governs. 461 U.S. at 747, 103 S.Ct. 2161. On the single potential sham litigation claim, the WCS plaintiffs have pled a sufficient injury to survive the motion to dismiss.
Finally, the defendants contend that the challenged actions are primary boycotting, which is protected under the NLRA. ECF No. 31 Attach. 1 at 45. The NLRA's prohibition on secondary boycotting — that is, coercing an entity to cease doing business with a non-union entity — excepts "any primary strike or primary picketing" from liability, even if the action otherwise qualifies as secondary boycotting. 18 U.S.C. § 158(b)(4)(B). Section 158 "preserve[s] the right to picket during a strike" on property owned by neutral third parties who work for the organization against whom the strike is aimed. U. Steelworkers of Am., AFL-CIO v. N.L.R.B., 376 U.S. 492, 499, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964).
A union "may not exert pressure on an unrelated, secondary or neutral employer in order to coerce the secondary employer to cease dealing with the primary employer, thereby advancing the union's goals indirectly." R.L. Coolsaet Const. Co. v. Local 150, Int'l Union of Operating Eng'rs, AFL-CIO, 177 F.3d 648, 655 (7th Cir.1999) (internal quotation marks and citation omitted). Union conduct will be deemed secondary, rather than primary boycotting "if any object of that activity is to exert improper influence on secondary or neutral parties" — even when "the union acts with mixed motives." Id. at 654-55 (internal quotation marks and citation omitted).
UFCW 27 and 400 argue that boycotting the construction of the developments is indistinguishable from boycotting Wegmans on the Woodmore or Waugh Chapel properties once the developments are built, which would be primary picketing activity. ECF No. 31 Attach. 1 at 46. The distinction, however, depends on whether the union's motive is to advance its goals directly, by a primary picket, or indirectly, by an impermissible secondary boycott. See R.L. Coolsaet Const., 177 F.3d at 654-55. That is a factual question that the Court will not resolve on a motion to dismiss.
The secondary boycotting claim based on Perez's challenge to the Woodmore site plan will survive the motion to dismiss. The claims based on the other petitions will be dismissed for failing to state a claim.
The Fund contends that the WCS plaintiffs failed to state a claim against it because it is not a labor organization. ECF No. 27 Attach. 1 at 1-2. The LMRA's secondary boycott ban applies only to labor organizations. 29 U.S.C. § 158(b)(4)(ii).
A labor organization is:
29 U.S.C. § 152(5). Under the LMRA, an organization that does not "exist for the purpose of dealing with, or does not actually deal with, an employer over matters affecting employment" is not a labor organization. N.L.R.B. v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262, 1270 (4th Cir.1994). "[D]ealing with" employees requires "a bilateral mechanism involving proposals from the [organization] concerning the subjects listed in [§ 152(5) ], coupled with real or apparent consideration of those proposals by management." EFCO Corp. v. N.L.R.B., 215 F.3d 1318 (table), 2000 WL 632468, *5 (4th Cir. May 17, 2000). Further, there must be "a pattern or practice" of proposals by the organization to the employer. Id.
The WCS plaintiffs do not allege that the Fund exists to deal with or actually deals with employers. See ECF No. 51 ¶¶ 10-11. According to the WCS plaintiffs' description, the Fund is prohibited from making proposals to employers. Id. Accordingly, the Fund is not a labor organization
For the reasons stated above, the defendants' motion to reassign will be denied. UFCW 27 and 400's motion to dismiss will be granted in part and denied in part. The Fund's motion to dismiss will be granted.
It then applied a test that is inconsistent with PRE: the district court considered only "the actor's immediate purpose" in instituting the petition, determining that "[i]f the actor seeks to ... bar a competitor from the decision-making process, there is no protection." Id. at 910.
PRE clarified that the court must consider the objective merits of the case before considering intent, and demonstrated that access-barring was not required; it has superseded Racetrac Petroleum.
Further, in Racetrac Petroleum, the plaintiffs had initiated, and lost, the alleged sham litigation. Id. at 911. As the district court noted, "there can be no suggestion that ... the plaintiff was subjected to baseless litigation" when the plaintiff initiated that litigation. Id.
Summit Valley, 456 U.S. at 726, 102 S.Ct. 2112 (emphasis added) (internal quotation marks and citation omitted). If the WCS plaintiffs had previously succeeded on an unfair labor practice claim, then tried to recover costs from that action in this one, they would be barred. See id.
U. Steelworkers of Am., AFL-CIO v. N.L.R.B., 376 U.S. 492, 499, 84 S.Ct. 899, 11 L.Ed.2d 863 (1964).
In Petrochem, the union's actions were directly aimed at non-union developers because of their non-union status. Id. at 27. Here, by contrast, the WCS plaintiffs allege that the unions are directing their boycotting at them, the developers, because of the non-union status of their future business partner, Wegmans. ECF No. 51 ¶ 35. Accordingly, Petrochem is not relevant.
