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Earl Forsythe v. Local 32bj

June 23, 2011

EARL FORSYTHE,
PLAINTIFF,
v.
LOCAL 32BJ, SEIU, AND ALMAGAMATED WARBASSE HOUSES, INC. DEFENDANTS.
EARL FORSYTHE,
PLAINTIFF,
v.
LOCAL 32BJ, SEIU DEFENDANT.



The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge

MEMORANDUM AND ORDER

Presently before the Court are five motions in two of three related cases brought by pro se plaintiff Earl Forsythe ("plaintiff" or "Forsythe") relating to his termination by his former employer Amalgamated Warbasse Houses, Inc. ("Amalgamated"), and the subsequent decision of his union, Local 32BJ, SEIU ("Local 32BJ"), to not bring his case to arbitration. In the first case, Forsythe v. Amalgamated Warbasse Houses,

Inc., 10 Civ. 2549 ("Forsythe I"), plaintiff alleges that Amalgamated discriminated against him based on his race and national origin. In the second case, Forsythe v. Local 32BJ, SEIU, 10 Civ. 4609 ("Forsythe II"), plaintiff alleges that Local 32BJ "refused to go to arbitration which is a contractual obligation" and thereby violated the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411 et seq. And in the third case, Forsythe v. Local 32BJ, SEIU and Amalgamated Warbasse Houses, Inc., 10 Civ. 8557 ("Forsythe III"), plaintiff similarly alleges that he was "wrongfully terminated on July 23, 2009 by [his] former employer Amalgamated Warbasse Houses, Inc." and that Local 32BJ breached a contract by not going to arbitration on his behalf. See Amalgamated's Notice of Mot. to Dismiss, Ex. B.*fn1

The five motions currently before this Court are: (1) plaintiff's motion to remand Forsythe III; (2) Amalgamated and Local 32BJ's motions to dismiss Forsythe III on the grounds that it is (a) time-barred and (b) duplicative of Forsythe I and Forsythe II; (3) plaintiff's motion to amend his complaint in Forsythe III to add a claim alleging that the defendants violated the National Labor Relations Act ("NLRA"); (4) plaintiff's motion to dismiss his own complaint in Forsythe II; and (5) plaintiff's motion to compel discovery in Forsythe II.

We consider each motion in turn, beginning with the motions in Forsythe III. *fn2

Forsythe III

I.Background

Plaintiff originally filed the complaint in Forsythe III in the Supreme Court of the State of New York, County of New York on October 29, 2010, alleging that he was "wrongfully terminated on July 23, 2009 by [his] former employer Amalgamated Warbasse Houses, Inc." and that Local 32BJ breached a contract by not going to arbitration on his behalf. See id.

On November 12, 2010, Amalgamated filed a notice of removal on the grounds that this Court has original federal question jurisdiction pursuant to 28 U.S.C. § 1331 because plaintiff seeks relief for alleged violations of § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. Id., Ex. A. Local 32BJ consented to the removal. Id.

On December 17, 2010, both defendants moved to dismiss the complaint on the grounds that it is (1) untimely and (2) duplicative of Forsythe I and Forsythe II.

On December 20, 2010, plaintiff filed a motion to remand this action to state court. Then, on February 9, 2011, plaintiff moved to amend his complaint to include an allegation that the defendants violated the NLRA, 29 U.S.C. § 151 et seq. by allowing "employees to discipline employees." Pl.'s Notice of Mot. to Amend, at 1.

II.Motion to Remand

A.Standard of Review

"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants. . . ." 28 U.S.C. § 1441(a). If, after removal, a plaintiff files a motion to remand, "the party seeking to sustain the removal, not the party seeking remand, bears the burden of demonstrating that removal was proper." Hodges v. Demchuk, 866 F.Supp. 730, 732 (S.D.N.Y. 1994); see also United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). Moreover, "[i]n light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence ...


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