DAVID R. GRAND, Magistrate Judge.
Pro se Plaintiff Susan Tocarchick ("Tocarchick") commenced this action against Defendants UAW Region 1 ("the UAW"), UAW Local 412, Duane Anger, Greg Bauer, and "Gus," purporting to assert claims for "Fraudulent Misrepresentation, Gross Negligence, and Depraved Indifference." [1 at 9-10]. She also makes a vague reference to a "civil rights" claim. [Id. at 9]. After removing the action to this Court [1], the UAW filed a motion to dismiss Tocarchick's complaint. [4]. Tocarchick filed a response on May 12, 2015
For the following reasons, the Court RECOMMENDS that the UAW's motion [4] be GRANTED and Tocarchick's claims be DISMISSED.
On January 22, 2015, Tocarchick filed a complaint in Macomb County Circuit Court, which the UAW subsequently removed to this Court. [1]. Tocarchick's complaint purports to principally state claims for "Fraudulent Misrepresentation, Gross Negligence, and Depraved Indifference," but its allegations make clear that she is actually challenging the union's representation of her husband, Joe Tocarchick, when he was alive. [1 at 9-10].
Tocarchick alleges that her husband was, before his death, an employee of Chrysler and a member of the UAW. [Id. at 9]. She alleges that on an unspecified date, her husband arrived at work intoxicated and was sent home by two UAW union stewards, Defendants Duane Anger and "Gus." [Id.]. She alleges that Anger and Gus "misrepresented themselves by not following union rules" when they sent Joe home "sick" "instead of following proper protocol" as described to her by others. [Id.].
Apparently, Tocarchick's husband passed away at some point thereafter, and Tocarchick alleges that if Anger and Gus had "followed the protocol and held him accountable," her husband would still be alive "because [she] would have been able to get to the bottom of his problems" but "[t]heir cover prevented [her] from getting [her] husband help that would have saved his life." [Id.]. She describes these Defendants' conduct in this regard as "negligent." [Id. at 10].
Tocarchick's complaint also addresses an alleged incident in which her husband was accused of stealing computers at work and detained, that the UAW refused to represent him, and, that as a result, he was blackmailed by a detective and ended up pleading guilty. [Id. at 9].
Tocarchick alleges that the foregoing circumstances caused her significant harm beyond her husband's death, including the loss of her home, her car, her health insurance, and an opportunity to adopt two children. [Id. at 10]. She seeks $30,000,000 in damages, as well as other forms of monetary and non-monetary relief.
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests a complaint's legal sufficiency. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]." Twombly, 550 U.S. at 556. Put another way, the complaint's allegations "must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief." League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (emphasis in original) (citing Twombly, 550 U.S. at 555-56).
In deciding whether a plaintiff has set forth a "plausible" claim, a reviewing court must accept the factual allegations in the complaint as true. Id.; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007). This tenet, however, "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," to prevent a complaint from being dismissed on grounds that it fails to sufficiently comport with basic pleading requirements. Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 555; Howard v. City of Girard, Ohio, 346 F. App'x 49, 51 (6th Cir. 2009). Furthermore, a court is not required to "create a claim which [a plaintiff] has not spelled out in his pleading." Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). Ultimately, "[d]etermining 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." Iqbal, 556 U.S. at 679.
Pleadings filed by pro se litigants are entitled to a more liberal reading than would be afforded to formal pleadings drafted by lawyers. See Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007). Nonetheless, "[t]he leniency granted to pro se [litigants] ... is not boundless," Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004), and "such complaints still must plead sufficient facts to show a redressable legal wrong has been committed." Baker v. Salvation Army, 2011 WL 1233200, at *3 (E.D. Mich. Mar. 30, 2011).
Tocarchick labels her complaint as being "for Fraudulent Misrepresentation, Gross Negligence, and Depraved Indifference." [1 at 9]. However, the complaint's allegations make clear that Tocarchick is actually pleading a breach of the duty of fair representation by the Defendants. See Marcus v. Dolan, 2008 WL 3822353, at *2 (D. N.J. Aug. 12, 2008) ("a court may construe state law claims that are, in substance, claims of a breach of the duty of fair representation as a claim arising under the [federal labor laws]."). For example, Tocarchick alleges that UAW "did nothing to protect Joe from being blackmailed" during the police investigation because he was not given representation as per union protocol, [1 at 9-10], and that the union stewards, "instead of following proper protocol" and "union rules" to report her husband's drinking problem, "sent him home sick." [Id. at 9; see also id. at 10 ("Both Duane and Gus were representing the union as Joe's union steward [when they sent] him home sick when it was believed he was drinking.")].
Properly characterizing Tocarchick's claims is important because, as discussed below, claims for breach of the duty of fair representation are governed by federal labor laws under Section 9(a) of the National Labor Relations Act ("NLRA"), 9 U.S.C. § 159(a), and Section 301 of the Labor Management Relations Act ("Section 301"), 29 U.S.C. § 185 et seq., rather than by state law which would otherwise apply. As another district court has explained, "[s]tate law claims are preempted if they attempt to impose obligations on a union that are subsumed by [the duty of fair representation]." Fenn v. Verizon Communications, Inc., 2010 WL 908918, at *6 (S.D.N.Y. Mar. 15, 2010). See also, Reiss v. Bhd. of Ry. & Airline Clerks, 629 F.Supp. 1029, 1030 (E.D. Pa. 1986) (state law claims arising from a union's conduct in its capacity as a collective bargaining representative were displaced by federal law); Mohr v. Ass'n of Flight Attendants, Local Council 66, 2012 WL 2361729, at *2 (D. Ariz. Jun. 20, 2012) ("The Ninth Circuit, along with other circuit courts, holds that state law breach of contract and tort claims are subsumed in the duty of fair representation if they arise out of conduct that forms the basis for a breach of fair representation claim."). In Maynard v. Revere Copper Products, Inc., 773 F.2d 733, 735 (6th Cir. 1985), the Sixth Circuit made clear that "[t]he duty of fair representation relates to an area of labor law which has been so fully occupied by Congress as to foreclose state regulation." Thus, the Sixth Circuit has held that state-law tort claims arising out of an alleged breach of a collective bargaining agreement are preempted by Section 301 unless they are "`independent' of the [collective bargaining agreement]." Mattis v. Massman, 355 F.3d 902, 905 (6th Cir. 2004) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10 (1989)). In order for a state-law claim to be "independent" enough to avoid preemption, it must neither "require interpretation of the terms of the collective bargaining agreement" nor encompass rights "created by the collective bargaining agreement." Mattis, 355 F.3d at 906 (citing DeCoe v. General Motors Corp., 32 F.3d 212, 216-17 (6th Cir. 1994)).
Here, because Tocarchick asserts that all of her claims arise out of the Defendants' alleged violation of their union duties owed to her late husband due to his union membership, she has actually plead a claim for breach of the duty of fair representation by Defendants. Properly construed as such, the Court now turns to Defendants' argument as to why Tocarchick's claims are ripe for dismissal under applicable federal labor laws.
As discussed above, Defendants correctly argue that Tocarchick's complaints about the UAW not representing her husband during the police investigation and mishandling the reporting of his drinking problem are properly characterized as invoking a claim for breach of the duty of fair representation. These claims fail because they are governed by a six month statute of limitations.
The statute of limitations for claims alleging a breach of the duty of fair representation is six months. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 169 (1983); Moore v. Int'l Bhd. of Elec. Workers Local 8, 51 F. App'x 486, 487-88 (6th Cir. 2002); Adkins v. Int'l Union of Elec., Radio & Mach. Workers, 769 F.2d 330, 335 (6th Cir. 1985). "`The statute of limitations begins to run when the claimant knows or should have known of the union's alleged breach of its duty of fair representation.'" Moore, 51 F. App'x at 488 (quoting Schoonover v. Consol. Freightways Corp., 49 F.3d 219, 221 (6th Cir. 1995)). Here, both breaches alleged by Tocarchick — the failure to provide representation to her husband during the police investigation, and the decision to send him home sick rather than follow some unspecified internal union "protocol" — occurred in 2008. Her complaint, however, was not filed until January 22, 2015. [1 at 1].
Tocarchick does not claim that she was unaware of either of those incidents at the time that they happened. And, Tocarchick's argument that at least some of her claims are timely because the grievance filed by UAW was "still in place as of September 2010" is immaterial because, as just discussed, the statute of limitations that applies to her instant claims is six months, not six years, as she seems to presume. [7 at 18-19].
In sum, Tocarchick's claims against the UAW for breach of its duty of fair representation are barred by the applicable six-month statute of limitations and should be dismissed.
In her Complaint, Tocarchick alleges that her husband was "detained for 45 minutes" during the police investigation, which she claims "violat[ed] his civil rights." [1 at 9]. She also alleges in her response that the UAW violated her husband's "civil rights" because "these people are covering something up," [7 at 34] and "it took 22 months to return my husband's belongings." [Id. at 30]. These allegations fail to state a claim for relief against the UAW or the individual defendants.
First, while it appears Tocarchick is claiming that it was the police who unlawfully detained her husband, her instant complaint is brought only against the UAW and the individual defendants identified above. Second, her conclusory assertion of a "civil rights" claim fails to provide the "facial plausibility" necessary to survive a motion to dismiss. Iqbal, 556 U.S. at 678. For example, whereas civil rights claims may only be asserted against "state actors," Tocarchick does not allege that any of the Defendants in this case are state actors. See Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003) (noting that a plaintiff bringing a civil rights action "must satisfy two elements: (1) the deprivation of a right secured by the Constitution or laws of the United States and (2) the deprivation was caused by a person acting under color of state law. A plaintiff may not proceed under § 1983 against a private party no matter how discriminatory or wrongful the party's conduct."); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991) (noting that generally, "the conduct of private parties lies beyond the Constitution's scope....").
Second, Tocarchick's allegation about the Defendants "covering something up" amounts to nothing more than the type of pure "speculation or suspicion" that is insufficient to state a claim for relief. Bredesen, 500 F.3d at 527. Thus, as to any "civil rights" claim, Tocarchick fails to state a claim upon which relief can be granted, and any such claim should be dismissed. Fed. R. Civ. P. 12(b)(6).
For the foregoing reasons, the Court
