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INTERNATIONAL UNION OF OPERATING ENG'RS LOCAL UNIO

August 18, 1995

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL UNION NO. 17, Plaintiff,
v.
JOHN C. LEXO, Defendant.



The opinion of the court was delivered by: HECKMAN

 CAROL E. HECKMAN

 UNITED STATES MAGISTRATE JUDGE

 The parties have consented to final disposition of this case before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). Plaintiff has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, plaintiff's motion is denied, and the case is dismissed pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.

 BACKGROUND

 On November 1, 1993, Robert Pritchard, the Recording Secretary and Business Representative of Local 17 of the International Union of Operating Engineers ("IUOE"), saw defendant John Lexo working within Local 17's jurisdiction. Pritchard approached defendant and informed him that he had to sign a contract and receive clearance before he could perform work in the jurisdiction of Local 17, in accordance with the IUOE constitution. *fn1" Defendant Lexo is a member of IUOE Local 463, and has been since March 7, 1978. He did not respond.

 On December 1, 1993, defendant was again seen working in Local 17's jurisdiction. This time Gerald Thompson, the Business Representative of Local 17, left two contract books with the job foreman for Lexo to sign. On December 14, 1993, after repeated attempts, Thompson finally contacted Lexo. Lexo informed Thompson that he did not intend to sign the contracts.

 On December 16, 1993, Thompson brought charges against defendant for violating the IUOE constitution and the by-laws of Local 17 (Item 1, Ex. C). A letter was sent to Lexo's residence that same day informing him of the pending charges and explaining that, under the union constitution, Lexo had until January 10, 1994 in which to answer, defend, or enter a plea (Item 1, Ex. D). A letter was also sent to Winslow Hunt, the Recording Correspondence Secretary for IUOE Local 463 (Lexo's Local) informing Local 463 of the charges filed against Lexo (Item 1, Ex. E). The letters were sent certified mail, return receipt requested (Item 12, Ex. A). Lexo never claimed the letters and they were returned to Local 17.

 On January 12, 1994, Pritchard sent defendant a second letter informing him that he was to appear for trial at the regular meeting of Local 17 on February 4, 1994 (Item 1, Ex. F). A copy of this letter was sent to Local 463. The letter was sent via certified mail, return receipt requested. Lexo never claimed this letter and it was returned to Local 17 (Item 12, Ex. B).

 Lexo did not appear at the trial on February 4, 1994, and Local 17 conducted the proceeding in his absence, in accordance with the IUOE constitution. Not surprisingly, the membership of Local 17 found Lexo guilty of working in its jurisdiction without clearance. Local 17's Financial Secretary, Thomas Hopkins fined Lexo in the amount of $ 5,000.00.

 On February 8, 1994, a letter was sent to Lexo's home by certified mail, return receipt requested, informing him of the disposition of the trial and of his right to appeal to the General Executive Board of the IUOE. The letter also informed Lexo that his Local (Local 463) could not accept his dues until his fine was paid. A copy of the IUOE constitution was enclosed. This letter was also returned unclaimed. Lexo has not paid the fine.

 Local 17 filed this action on October 24, 1992 under Section 301(a) of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), seeking a judgment in the amount of $ 5,000.00. Defendant answered on December 19, 1994, asserting the defense that he did not breach the union constitution.

 On January 20, 1995, plaintiff moved for summary judgment. According to plaintiff, because the federal district court has jurisdiction under LMRA § 301(a) over a suit brought by a union local against a member of another local to collect a fine imposed under the union constitution, and because there are no issues of fact to be tried regarding defendant's violation of the constitution, it is entitled to a judgment as a matter of law in the amount of $ 5,000.00 against defendant.

 In his response to plaintiff's motion, defendant did not address the jurisdictional issue raised by plaintiff. Instead, he claims that he never received notice of the charges. In addition, defendant points out that the supporting affidavit accompanying plaintiff's motion is signed by plaintiff's ...


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