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Grossman v. Local 1118 of the Communication Workers of America

July 10, 2006

DAVID GROSSMAN, PLAINTIFF,
v.
LOCAL 1118 OF THE COMMUNICATION WORKERS OF AMERICA, AFL-CIO; THE COMMUNICATION WORKERS OF AMERICA, AFL-CIO, INTERNATIONAL; VERIZON NEW YORK, INC.; FINE, OLIN & ANDERMAN, P.C.; AND DANIEL R. SIMONETTE, ESQ., DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

ORDER

On May 7, 2006, Plaintiff filed an emergency motion for a temporary restraining order to stay arbitration pending the hearing on his motion to vacate the parties' stipulation discontinuing this action and settlement agreement pursuant to Rules 41(a)(1) and 60(b) of the Federal Rules of Civil Procedure and to restore this action to the Court's calendar. See Dkt. No. 16. On May 8, 2006, the Court issued a Text Order, denying Plaintiff's motion for a temporary restraining order and scheduling a hearing for oral argument in support of and in opposition to Plaintiff's motion.*fn1

Plaintiff filed his complaint on March 30, 2005. See Dkt. No. 1. Only Defendant Verizon New York, Inc. filed an answer in response to that complaint. See Dkt. No. 8. In August 2005, the parties entered into a Settlement Agreement, which provided, in pertinent part, that

[i]n settlement of this action alleging a breach of the duty of fair representation, It is Hereby Stipulated between the parties who appeared in this action as follows:

1. Local 1118 of the Communication Workers of America, AFLCIO and The Communication Workers of America, AFL-CIO, International (hereafter union defendants) and Verizon New York, Inc. (hereafter Verizon) agree to proceed to arbitration with reference to plaintiff's 30-day suspension on Grievance No. G00-00-3635.

2. The union and Verizon have selected Stuart Pohl, Esq. of Buffalo, NY to serve as arbitrator in this matter, and are presently arranging for a date to commence the arbitration proceeding.

3. The arbitration will be scheduled to commence as soon as possible, with the scheduling to happen no later than December 31, 2005 although the arbitration itself may commence thereafter at the earliest feasible date. If scheduling does not occur by December 31, 2005, the parties agree that this action may be restored to active status or re-filed within 60 days after December 31, 2005. If plaintiff is required to re-file this action, defendants agree that this new filing will be deemed by the parties to have occurred on March 30, 2005, the date on which this action was commenced. . . .

4. The union agrees to pay plaintiff's attorney fees in the amount of $1300 upon the filing of a stipulation discontinuing this action.

5. In consideration for the above, plaintiff agrees to discontinue this action with prejudice subject to paragraph 3 supra.

6. Plaintiff understands and acknowledges that no other representations have been made other than those set forth herein.

See Declaration of Sherilyn R. Dandridge, dated May 5, 2006 ("Dandridge Aff."), at Exhibit "D" (emphasis added).*fn2

Plaintiff's attorney (Walter, Thayer & Mishler, P.C.) signed the Settlement Agreement on August 22, 2005; the Union Defendants' attorney (Semel Young & Norum) signed the Settlement Agreement on August 19, 2005, and Defendant Verizon's attorney (Epstein Becker & Green, P.C.) signed the Settlement Agreement on August 22, 2005. See id. at Exhibit "D." These same parties signed the Stipulation Discontinuing the Action on October 22, 2005, October 19, 2005, and October 5, 2005, respectively. See id. at Exhibit "E." The Court so-ordered that stipulation on January 13, 2006. See id.; Dkt. No. 13.

Plaintiff now moves to vacate the stipulation of discontinuance and the settlement agreement, pursuant to Rules 41(a)(1) and 60(b)(4) and (6) of the Federal Rules of Civil Procedure. In support of his motion, Plaintiff argues that the stipulation of discontinuance is ineffective against all non-appearing Defendants and is void because no notice of dismissal was filed. In addition, Plaintiff contends that the settlement agreement is void with respect to the Union Defendants because they never appeared in this action and is ineffective because Defendants have breached that agreement.

Even a cursory review of the record demonstrates that none of Plaintiff's arguments has merit. Pursuant to Rule 41(a)(1), "an action may be dismissed by the plaintiff without order of the court . . . (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. . . ." Fed. R. Civ. P. 41(a)(1)(ii). Alternatively, "an action shall not be dismissed at the plaintiff's instance [sic] save upon ...


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