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ALEDIDE v. BARR

February 26, 1985

ALEXIS ALEDIDE, Plaintiff,
v.
MORTY BARR, etc., et al.,*, Defendants



The opinion of the court was delivered by: LOWE

MARY JOHNSON LOWE, D.J.

 MEMORANDUM OPINION AND ORDER

 Plaintiff brought this action in the Civil Court of New York, Small Caims [Claims] Part, alleging that his union illegally deprived him of the proceeds of an arbitration award against his former employer. The defendants, who are both officers of plaintiff's former union, the Communications Workers of America ("CWA" or "Union"), removed the action to this Court. Presently before the Court is plaintiff's motion to remand and defendants' cross-motions to dismiss or in the alternative to grant summary judgment, and for leave to file an amended petition of removal. For the reasons stated below we deny plaintiff's motion to remand; deny defendants' motion to file an amended petition of removal; deny defendants' motion to dismiss for failure to state a claim; grant defendants' motion to dismiss as time barred in part; and remand the case to the state court, sua sponte.

 I

 BACKGROUND

 Plaintiff, Alexis Alcide ("Alcide"), was a member of CWA while he was employed at the Western Union Company ("Western"). During that time CWA filed a series of grievances against the company on behalf of several workers, including Alcide. All but one of the grievances were stayed pending the outcome of an arbitration on a lead case. On March 9, 1982 the Arbitrator ruled in favor of the union and ordered CWA and Western to attempt to stipulate to damages. On September 9, 1982 Alcide resigned his position with Western, apparently to attend law school. On January 12, 1983 CWA and Western Union reached an agreement as to damages for all of the grievances.

 Western pursuant to the settlement and under the instructions of the CWA, paid the settlement to "the named grievant and other active employees in the classifications affected by the award who are bargaining unit members at the time of the settlement." Defendants' Memorandum of Law in support at 4 [emphasis added]. Because Alcide resigned after the grievance and before the settlement, the effect of this distribution was to exclude Alcide from any share of the arbitration proceeds. It also had the effect of proportionally increasing the other bargaining unit members' shares. Thus they received more than their share and Alcide received nothing.

 Beginning about May of 1983 Alcide wrote a series of letters to CWA and Western officials in an attempt to ascertain the status of the grievance. He eventually learned that the money had been distributed pursuant to the above outlined policy. When his attempt to gain some satisfaction from the union failed, he filed this action in the Civil Court of New York, Small Claims Part. This Court takes note that the practice and pleading in the Small Claims Part is singularly informal. The Complaint form, which asks for $900.00 in damages reads in its entirety: "The above defendants withou [without] cause defendants without cause denied claimant proceeds of an Arbitrator's award to which claimant had legal right to Interest due 5/83 [sic]." *fn1"

 The defendants removed the action to this Court claiming that it states a federal claim for breach of the union's duty of fair representation; however, they argue that the complaint should be dismissed for failure to state a claim upon which relief may be granted or in the alternative that it should be dismissed as time barred.

 The plaintiff argues for remand on the ground that the action sounds in tort, therefore no federal subject matter jurisdiction exist.

 II

 DISCUSSION

 The Motion to Remand:

 The pertinent inquiry on this removal motion is whether plaintiff's complaint, fairly read, states a claim for breach of the duty of fair representation. It has long been established that a federal question must appear on the face of plaintiff's well pleaded complaint, unaided by the defendant's answer or the petition for removal. Gully v. First Nat. Bank of Miss., 299 U.S. 109, 81 L. Ed. 70, 57 S. Ct. 96 (1936). However, a suit may be removed where the real nature of the claim asserted in the complaint is federal irrespective of whether it is so characterized, or where the plaintiff inadvertently, mistakenly or fraudulently conceals the federal question that would necessarily have appeared if the complaint had been well ...


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