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GORWIN v. LOCAL 282

November 5, 1993

DENNIS GORWIN, Plaintiff,
v.
LOCAL 282, I.B.T. and TESTWELL CRAIG LABORATORIES, INC., Defendants.


SOTOMAYOR


The opinion of the court was delivered by: SONIA SOTOMAYOR

SONIA SOTOMAYOR, U.S.D.J.

 Pro se plaintiff Dennis Gorwin moves, pursuant to Fed. R. Civ. P. 12(f), to dismiss two of the affirmative defenses *fn1" of defendant Local 282, I.B.T. ("Union"), his Union during his employment with co-defendant Testwell Craig Laboratories, Inc. ("Testwell"). *fn2" In the alternative, plaintiff moves for summary judgment under Fed. R. Civ. P. 56. Plaintiff also requests a stay of discovery pending my decision on his Rule 12(f) and Rule 56 motions. For the reasons stated herein, I grant plaintiff's motion to strike the Union's statute of limitations defense, but deny his request to strike the mitigation of damages defense. Having addressed these motions, plaintiff's request for a stay of discovery is also denied.

 I. Facts

 Defendant Testwell employed plaintiff Gorwin as a concrete field inspector for approximately three years, from July 1988 up until the time of Gorwin's second discharge from the company in April 1991. During his employment with Testwell, Gorwin complained to his supervisor about Testwell's unauthorized withholding of his wages and its failure to pay him a minimum wage, actions which he claimed violated New York State's labor law.

 On September 28, 1990, Testwell fired Gorwin. The plaintiff successfully challenged this termination before an arbitrator, claiming that Testwell discriminated and retaliated against him after he complained to his supervisor. On March 1, 1991, Gorwin obtained an arbitration award ordering his reinstatement with backpay. When Testwell failed to issue him his outstanding backpay, plaintiff initiated a state action to compel Testwell's compliance. Plaintiff Gorwin requested the Union's assistance with this action.

 Thereafter, plaintiff Gorwin returned to his job with Testwell, but his reemployment proved shortlived. Within a few days, on April 12, 1991, Testwell again discharged Gorwin. Gorwin challenged this second discharge and again sought the Union's assistance. The arbitrator in this second proceeding issued a decision on June 19, 1992, favorable to Testwell, concluding that Testwell fired Gorwin for cause.

 On September 28, 1992, plaintiff filed an action against Testwell and the Union in New York State Supreme Court alleging, inter alia, that his discharge and the Union's failure to represent him were improper. On January 27, 1993, this state action was dismissed, without prejudice, for lack of service. Approximately one month later, on February 26, 1993, Mr. Gorwin refiled his state action.

 The defendants thereafter removed the state action to this Court on May 24, 1993. Simultaneous with defendants' removal, Mr. Gorwin served the summons and complaint on Testwell on May 24, 1993 and the Union on May 25, 1993. Plaintiff Gorwin filed a document designated a "complaint" with this Court on May 24, 1993. This complaint sets forth allegations similar to those in the state action. More specifically, the complaint claims that the Union took no action, or inadequate action, on both the enforcement of his March 1991 arbitration award and his later challenge to his second termination. Gorwin maintains that the Union took no action on his second discharge for approximately eleven months, and that any steps taken thereafter by the Union were woefully inadequate.

 Plaintiff brought his Fed. R. Civ. P. 12 and 56 motions by way of Order to Show Cause on July 27, 1993 claiming that the Union's defenses "are not properly stated, are insufficient as a matter of law, and are otherwise without merit." *fn3" The motions rely exclusively on the complaint, the parties' respective motion papers and their statements pursuant to Local Rule 3(g).

 Plaintiff again moved by Order to Show Cause on October 21, 1993, for a stay of all discovery pending my decision on his motions. Plaintiff claims that extensive discovery would be burdensome and possibly unnecessary based on my determination of the statute of limitations issue.

 II. The Standards for a Motion to Strike and for Summary Judgment

 A party may move to strike "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). A Rule 12(f) motion to strike an affirmative defense is generally disfavored. Even when a motion presents a purely legal question, a court should be reluctant to resolve the issues on a motion to strike, and should prefer to address such issues after discovery and a hearing. William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015, 106 S. Ct. 3324, 92 L. Ed. 2d 731 (1986) (Citing 5 C. Wright and A. Miller, Federal Practice and Procedure § 1381, at 800-801). See also Durham Indus., Inc. v. North River Ins. Co., 482 F. Supp. 910, 913 (S.D.N.Y. 1979) ("ordinarily, a motion to strike a defense will be denied if the defense is sufficient as a matter of law or it fairly presents a question of law or fact which the court ought to hear."); Reliability Research Inc. v. Computer Assoc. Int'l, Inc., 793 F. Supp. 68, 69 (E.D.N.Y. 1992) (quoting Edelman v. Evicon).

 Plaintiff also bears a heavy burden on a Rule 56 summary judgment motion. Plaintiff Gorwin, as the movant, bears the "initial responsibility" of establishing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). To establish the absence of genuine issues of material fact, the movant does not have to "negate the opponent's claim." Id. Rather, the movant must establish that the "nonmoving party has failed to make a sufficient showing on an essential element . . . with respect to which she has the burden of proof." 477 U.S. at 323, 106 S. Ct. at 2552.

 III. Plaintiff Gorwin's Motion.

 A. The Statute of Limitations Defense

 Plaintiff Gorwin argues that the Union's statute of limitations defense is without legal basis, because his first state action against the Union was timely filed in state court, in accordance with New York's procedural rules. The Union instead argues that plaintiff is time barred because Gorwin's first state action must be ignored and Gorwin's instant action, filed almost eleven months after the second arbitration, fails to comply with the applicable federal six-month statute of limitations.

 The Second Circuit has not addressed the specific issue before me of whether filing a labor action of the type at issue here in a state court tolls the federal statute of limitations. Judge Curtin of the Western District of New York, however, who has decided facts similar to those in this case, applied state rules to toll the federal statue of ...


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