The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
On March 7, 2007, plaintiff brought suit pursuant to the Labor Management Relations Act, 29 U.S.C. § 185, against defendants Roadway Express, Inc. ("Roadway") and Local 707, International Brotherhood of Teamsters ("Local 707"), claiming that Roadway, his employer, unlawfully discharged him and that Local 707, his labor union, breached the duty of fair representation it owed him as a union member. Plaintiff seeks reinstatement as a Roadway employee and damages from both defendants. Defendants move to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or in the alternative, for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6). For the reasons set forth below, the court finds that plaintiff has stated a claim that Local 707 breached its duty of fair representation by failing to investigate a number of plaintiff's grievances, but that plaintiff has failed to state a claim that Local 707 breached its duty of fair representation through its alleged complicity in plaintiff's discharge. Additionally, the court finds that it lacks jurisdiction to consider plaintiff's claims against Roadway. Defendant Roadway's motion to dismiss is thus granted in its entirety, and defendant Local 707's motion to dismiss is granted in part and denied in part.
Plaintiff worked for eighteen years as a truck driver at the Brooklyn office of Roadway, a Delaware corporation. (Compl. ¶¶ 2-4.) Local 707, of which plaintiff was at all relevant times a member, is the recognized collective bargaining representative of Roadway's trucking and transportation employees. (Id. at ¶ 5.) Between July 26, 2006 and December 26, 2006, plaintiff registered a series of grievances and complaints about Roadway with Local 707's shop steward. (Id. at ¶¶ 13-32.) Plaintiff initially complained about alleged deficiencies in various tractors, including a defective registration that caused him to receive a police summons and an exhaust problem that required him to seek emergency medical treatment. (Id. at ¶¶ 13, 16, 18, 19, 26.) Plaintiff also complained on two occasions about being denied overtime compensation. (Id. at ¶¶ 24, 30.) On August 11, 2006, plaintiff filed another grievance, alleging that three of his earlier grievances were not being handled properly and that his Roadway manager had harassed him in retaliation for his complaints. (Id. at ¶¶ 14, 20, 22.) In December 2006, plaintiff filed a complaint with the National Labor Relations Board ("NLRB"), alleging that Local 707 had engaged in unfair labor practices by failing to investigate his grievances. (Compl. ¶ 34.) The complaint does not indicate whether defendants knew of the complaint, nor whether the NLRB took any action in response to the complaint.
Roadway terminated plaintiff on January 18, 2007 for threatening another employee. (Id. at ¶¶ 35; Parkhurst Aff. Ex. B.) The same day, plaintiff filed another grievance with his shop steward alleging he was unjustly discharged from his employment duties in retaliation for his earlier complaints and in violation of Article 47 of the New Jersey-New York General Trucking Supplemental Agreement (the "Agreement"), to which both Roadway and Local 707 are parties.
(Compl. ¶¶ 35-36; see Parkhurst Aff. Ex. A.) On January 31, 2007, the New Jersey-New York Joint Area Committee (the "JAC")-arbitrators empowered by the Agreement and by the express permission of Roadway and Local 707 to render a decision regarding plaintiff's termination-set aside plaintiff's discharge and ordered him reinstated pending the completion of an anger management course, with his time off served as a suspension. (Parkhurst Aff. Ex. D.) Plaintiff never attended an anger management course and has not returned to work. There is no indication that Local 707 acted on, or the JAC arbitrated, any of plaintiff's other grievances.
On March 7, 2007, plaintiff commenced the instant action against defendants, alleging that Roadway unjustly discharged him and that Local 707 breached its duty of fair representation. On May 17, 2007, Local 707 moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6). Plaintiff filed an affirmation in opposition on June 8, 2007.*fn1 Roadway joined Local 707's motion in its entirety in a letter brief dated August 15, 2007.
Plaintiff advances two claims in his complaint: (1) that Local 707 breached its duty of fair representation and (2) that Roadway unlawfully discharged him. Defendants argue the unlawful discharge claim should be dismissed pursuant to Rule 12(b)(1) because the court's jurisdiction is preempted by that of the NLRB, and that the fair representation claims should be dismissed pursuant to Rule 12(b)(6) because plaintiff has failed to state a claim for which relief may be granted. Because resolution of the 12(b)(1) motion depends in part upon the court's resolution of the 12(b)(6) motion, the court looks first to determine whether plaintiff has stated a claim that Local 707 breached its duty of fair representation.
A. Defendants' Rule 12(b)(6) Motion
1. Standards on a Rule 12(b)(6) Motion
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may make a motion, in lieu of an answer, to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). On a motion to dismiss under Rule 12(b)(6), the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). In Bell Atlantic Corp. v. Twombly, the Supreme Court retired the standard set forth half a century ago in Conley v. Gibson, that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," in favor of the requirement that plaintiff plead enough facts to "state a claim to relief that is plausible on its face." Bell Atlantic, 127 S.Ct. 1955, 1968-69, 1974 (2007) (quoting Conley, 355 U.S. 41, 45-46 (1957)). Pursuant to Bell Atlantic, in order to be facially plausible, a complaint cannot make merely "a formulaic recitation of the elements of a cause of action," but must allege facts that "raise a right of relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic, 127 S.Ct. at 1964-65 (citations omitted). The Second Circuit has interpreted the foregoing language to "requir[e] a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible," rather than to mandate a "universal standard of heightened fact pleading." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007).
When material outside the complaint is "presented to and not excluded by the court, the motion must be treated as one for summary judgment . . . and all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). For the purposes of this rule, however, the complaint is deemed to include writings and documents attached to the complaint, referenced in the complaint, or integral to the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Fed. R. Civ. P. 10(c). A document is "integral" to the complaint where "the complaint relies heavily upon its terms and effects." Chambers, 282 F.3d at 153 (citations omitted). "A plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id. (emphasis in original).
Plaintiffs are harmed when material outside the complaint is considered on a motion to dismiss because they lack notice that such consideration is taking place. Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). Rule 12(d)'s conversion requirement remedies this problem by "deter[ring] trial courts from engaging in fact finding when ruling on a motion to dismiss and ensur[ing] that when a trial judge considers evidence dehors the complaint, a plaintiff will have an opportunity to contest defendant's relied-upon evidence by submitting material that controverts it." Id. Accordingly, where there is actual notice by the opposing party ...