Filed: Oct. 17, 2012
Latest Update: Mar. 26, 2017
Summary: 11-1947 Jenkins v. Collins Building Services UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “
Summary: 11-1947 Jenkins v. Collins Building Services UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “S..
More
11-1947
Jenkins v. Collins Building Services
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17th day of October, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 CHESTER J. STRAUB,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 Frank Jenkins,
15
16 Plaintiff-Appellant,
17
18 v. 11-1947
19
20 Collins Building Services, SEIU
21 Local 32BJ,
22
23 Defendants-Appellees.
24
25 _____________________________________
26
27
1
1 FOR PLAINTIFF-APPELLANT: Frank Jenkins, pro se,
2 Bronx, New York.
3
4 FOR DEFENDANTS-APPELLEES: Samantha Abeysekera, Daniel
5 D. Schudroff, Jackson Lewis
6 LLP, New York, NY.
7
8 Lyle D. Rowen, Office of
9 the General Counsel, SEIU
10 Local, New York, NY.
11 Appeal from a judgment of the United States District
12 Court for the Southern District of New York (Hellerstein,
13 J.).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
15 AND DECREED that the judgment of the district court is
16 VACATED and the case is REMANDED to the district court for
17 further proceedings.
18 Appellant Frank Jenkins, pro se, appeals from a
19 judgment entered on the pleadings, dismissing his employment
20 discrimination complaint against Collins Building Services
21 (“Collins”). We assume the parties’ familiarity with the
22 underlying facts, the procedural history of the case, and
23 the issues on appeal.
24 We review de novo a district court’s decision granting
25 a motion for judgment on the pleadings. Desiano v.
26 Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006). In
27 doing so, “we apply the same standard as that applicable to
28 a motion under Rule 12(b)(6), accepting the allegations
2
1 contained in the complaint as true and drawing all
2 reasonable inferences in favor of the nonmoving party.” Id.
3 (internal quotation marks omitted). “To survive a Rule
4 12(c) motion, the complaint must contain sufficient factual
5 matter, accepted as true, to state a claim to relief that is
6 plausible on its face.” Bank of New York v. First
7 Millenium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (internal
8 quotation marks omitted). We review a district court’s
9 denial of leave to amend for abuse of discretion. In re
10 Tamoxifen Citrate Antitrust Litig.,
466 F.3d 187, 220 (2d
11 Cir. 2006).
12 I. Jenkins’s Discrimination Claims
13 The district court concluded that Jenkins’s statutory
14 discrimination claims against Collins were precluded under
15 14 Penn Plaza LLC v. Pyett,
556 U.S. 247 (2009). However,
16 the Supreme Court there expressly declined to decide whether
17 a CBA “operates as a substantive waiver of [a plaintiff’s]
18 ADEA rights because it not only precludes a federal lawsuit,
19 but also allows the Union to block arbitration of these
20 claims.” Id. at 273-74. For that reason, Pyett did not
21 mandate the dismissal of Jenkins’s discrimination claims.
3
1 The district court therefore abused its discretion in
2 issuing a summary dismissal referencing only that case.1
3 II. Jenkins’s Hybrid Claim
4 Although Jenkins’s pro se complaint was somewhat
5 incoherent, his counseled memorandum of law (in opposition
6 to Collins’s motion for judgment on the pleadings and the
7 Union’s motion to dismiss) clarified that he had intended to
8 bring a “hybrid § 301/fair representation claim” consisting
9 of (1) a claim against Collins under § 301 of the Labor
10 Management Relations Act, 29 U.S.C. § 185, for breaching the
11 collective bargaining agreement (the “CBA”) between the
12 Union and the Realty Advisory Board, a multi-employer
13 bargaining group of which Collins is a member; and (2) a
14 claim against the Union under the National Labor Relations
15 Act, 29 U.S.C. § 159(a), for breaching its duty of fair
16 representation. Jenkins’s memorandum requested leave to
1
Collins requests that we affirm the district court’s
judgment based on the contents of a February 2010
supplemental collective bargaining agreement between the
Union and the Realty Advisory Board that explicitly permits
an individual employee to compel arbitration in the event
that the Union declines to do so on the employee’s behalf.
This agreement was not before the district court, and we
decline to decide its effect on Jenkins’s claims (if any).
See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the
general rule . . . that a federal appellate court does not
consider an issue not passed upon below.”). The district
court may decide whether to consider the supplemental
agreement on remand.
4
1 file an amended complaint to that effect and noted that the
2 general rule requiring a plaintiff to exhaust the
3 contractual remedies in a CBA does not apply to hybrid
4 § 301/fair representation claims. See DelCostello v. Int’l
5 Bhd. of Teamsters, 462 U.S. 151, 164 (1983).
6 A district court enjoys “broad discretion” to consider
7 a request for leave to amend which is informally raised in
8 an opposing memorandum and may (as here) deny such a request
9 by not addressing it. See Tamoxifen, 466 F.3d at 220.
10 The district court will need to reconsider the denial
11 of the request to replead, given our vacatur of its decision
12 on the basis of Jenkins’s discrimination claims, and the
13 lower threshold for amendment when (as here) a plaintiff
14 retains counsel after filing a complaint pro se. See
15 DeCarlo v. Fry,
141 F.3d 56, 62 (2d Cir. 1998).
16 The district court’s judgment is VACATED and the case
17 is REMANDED for further proceedings consistent with this
18 order.
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
5
