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JULIANO v. STROEHMANN BAKERIES

April 17, 1990

MICHAEL JULIANO, ET AL., PLAINTIFFS,
v.
STROEHMANN BAKERIES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Curtin, District Judge.

BACKGROUND

Plaintiffs Michael Juliano, Timothy Rambler, and Salvatore Sacco were at all relevant times employees of defendant Stroehmann Bakeries, Inc. ("Stroehmann"), and members of defendant Local 15080 of the United Steelworkers of America and defendant District 4, United Steelworkers of America, AFL-CIO-CLC (referred to collectively as "the Union"). They seek confirmation of an arbitration award and charge that the Union breached its duty of fair representation. Presently pending before the court is Stroehmann's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Union has joined in the motion.

FACTS

Pursuant to the collective-bargaining agreement between Stroehmann and the Union, an arbitration hearing was held on February 5, 1987, to resolve certain grievances being pursued by the plaintiffs, and the arbitrator subsequently issued an opinion and award on April 6, 1987. On April 25, 1987, the arbitrator issued a clarification of the award pursuant to a request made by the Union on behalf of the plaintiffs. At some point, a dispute arose regarding the amount, if any, that Stroehmann owed the plaintiffs pursuant to the arbitration award.*fn1 On October 26, 1987, six months after the arbitrator had clarified his award, the plaintiffs delivered to the Sheriff of Erie County and filed with the Clerk for New York Supreme Court in Erie County a "Summons With Notice." That document apprised the defendants that the plaintiffs were seeking confirmation of the arbitration award against Stroehmann, and were charging that the Union had breached its duty of fair representation. See Item 14, Exhibit A. It appears that all defendants were personally served with the summons and notice by November 4, 1987. See Item 1 at ¶ 1; Item 14 at ¶ 9. On November 20, 1987, the Union, with the consent of Stroehmann, removed the case to this court pursuant to 28 U.S.C. § 1441, and filed a "Demand For Complaint." See Items 1-3.

According to plaintiffs' counsel, he and the Union's attorney then agreed that the filing of the complaint could be deferred until he had had the chance to speak with Stroehmann's attorney about the possibility of settling the case, and he subsequently confirmed that understanding in a letter to Stroehmann's attorney dated December 9, 1987. See Item 14 at ¶ 8 and Exhibit B. Plaintiffs' counsel and Stroehmann's counsel also discussed the case by telephone on April 6, 1988. See Item 14 at ¶ 8 and Exhibit C. Although it is not clear from the record, it appears that Stroehmann's attorney never explicitly agreed to any delay in filing. See Item 14 at ¶ 8. With settlement negotiations obviously having stalled at some point, the plaintiffs finally filed a complaint on October 3, 1988. See Item 4.

DISCUSSION

The defendants argue that the plaintiffs' suit is time-barred because they failed to file their complaint with this court within six months of the date on which their claims for relief arose, citing DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), and Cannon v. Kroger Co., 832 F.2d 303 (4th Cir. 1987), reh'g and reh'g en banc denied, 837 F.2d 660 (4th Cir. 1988). See Items 5, 9, 16. The plaintiffs argue that the statute of limitations was tolled by their delivery of the summons and notice to the Erie County Sheriff pursuant to New York Civil Practice Law and Rules § 203(b)(5). See Item 10 at ¶ 8; Item 14 at ¶¶ 5-6. In the alternative, they argue that the filing of the summons and notice in state court gave both Stroehmann and the Union sufficient notice of their claims so as, effectively, to constitute a complaint. See Item 14 at ¶ 10(A).

In DelCostello, the Supreme Court, borrowing from Section 10(b) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(b), set a six-month limitation period for initiating so-called "hybrid" Section 301/fair representation claims — actions alleging both that an employer has breached a provision of a collective-bargaining agreement under Section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185, and that a union has breached its duty of fair representation in any ensuing grievance-and-arbitration proceedings, a duty implied under the scheme of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 151 et seq., and enforced through Section 8(b) of the NLRA, 29 U.S.C. § 158(b). Later, in West v. Conrail, 481 U.S. 35, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), the Court held that it would not apply the service provisions of Section 10(b) of the NLRA to a hybrid claim, holding that service of process should be governed by Rule 4 of the Federal Rules of Civil Procedure. The Court stated that "when the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary to borrow a limitations period from another statute, the action is not barred if it has been `commenced' in compliance with Rule 3 within the borrowed period." Id. at 39, 107 S.Ct. at 1541.

In the present case, the plaintiffs did not act to toll the limitation period until precisely six months after the arbitrator had issued his clarification of the arbitration award. Under New York law, the steps taken by the plaintiffs were sufficient to keep their claim alive. New York Civil Practice Law and Rules § 304 (McKinney 1972) provides that "[a]n action is commenced and jurisdiction acquired by service of a summons." Section 203(a) (McKinney 1972) states that "[t]he time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed." Section 203 (McKinney Supp. 1990) also provides in relevant part:

    (b) Claim in complaint. A claim asserted in the
  complaint is interposed against the defendant or a
  co-defendant united in interest with him when:
      5. The summons is delivered to the sheriff of
    that county outside the city of New York or is
    filed with the clerk of that county within the
    city of New York in which the defendant resides,
    is employed or is doing business, or if none of
    the foregoing is known to the plaintiff after
    reasonable inquiry, then of the county in which
    the defendant is known to have last resided,
    been employed or been engaged in business, or in
    which the cause of action arose; or if the
    defendant is a corporation, of a county in which
    it may be served or in which the cause of action
    arose; provided that:
      (i) the summons is served upon the defendant
    within sixty days after the period of limitation
    would have expired but for this provision. . . .

As indicated above, the summons and notice were served on all defendants within a few days of their delivery to the Erie County Sheriff. New York law does not require that a complaint be served with a summons, allowing a plaintiff instead to provide notice with the summons of the nature of the action and of the relief sought. See N.Y.Civ.Prac.L. & R. §§ 305(b), 3012 (McKinney Supp. 1990).

In contrast, Rule 3 of the Federal Rules of Civil Procedure provides that "[a] civil action is commenced by filing a complaint with the court." The federal rules do not explicitly address the issue of whether an action can be commenced without a complaint if, as in the present case, it originates in a state court but is subsequently removed to federal court. In DelCostello, the Supreme Court did not expressly ...


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