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Carlone v. Asbestos Workers Local 34

United States District Court, D. Minnesota

April 9, 2014

PATRICK A. CARLONE, Plaintiff,
v.
ASBESTOS WORKERS LOCAL 34, et al., Defendants.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, Magistrate Judge.

The above matter came before the undersigned Magistrate Judge of the District Court upon defendants' Motion for Sanctions and Attorney's Fees Pursuant to Rule 11 [Docket No. 35]; plaintiff's Motion for Employment [Docket No. 54]; plaintiff's Amended Complaint [Docket No. 55]; and plaintiff's Motion to Remove all of the Defendants' Exhibits [Docket No. 60]. Pro se plaintiff, Patrick A. Carlone appeared on his own behalf; Brendan D. Cummings, Esq. appeared on behalf of Asbestos Workers Local 34[1] and Roger LeClaire.

This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(A), (B) and Local Rule 72.1(c).

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant Asbestos Workers Local 34 ("Union") is an unincorporated labor organization representing approximately 400 members performing mechanical insulation work in Minnesota and western Wisconsin. Cummins Aff., ¶ 2. Defendant Roger LeClaire is the Union's elected recording secretary. Id., ¶ 3. Plaintiff Patrick Carlone was a member of the Union. Id., ¶ 4.

On June 23, 2007, Carlone filed a charge of age and disability discrimination against the Union with the Equal Employment Opportunity Commission ("EEOC") and the St. Paul Department of Human Rights. Cummins Aff., Ex. 1 (EEOC Determination and Notice of Charge); Plaintiff's Rebuttal to Defendant's Motions [Docket No. 48] ("Pl.'s Rebuttal"), Ex. 1 (State Charge and Determination). Carlone alleged that he took leave from his job in December 2005, and informed the Union that he was able to return to work in January 2006, however, the Union failed to provide him with any jobs despite the fact that jobs were available. Id . (Charge of Discrimination). On March 18, 2008, the St. Paul Department of Human Rights found that there was probable cause regarding age discrimination but not based on disability discrimination. Pl.'s Rebuttal, Ex. 1. Notwithstanding the St. Paul Department of Human Rights' determination, on December 31, 2008, the EEOC concluded that the evidence obtained during its investigation did not establish violations of the Americans with Disabilities Act of 1990 or the Age Discrimination in Employment Act of 1967, as amended. Cummins Aff., Ex. 1 (December 31, 2008 EEOC Determination); Pl.'s Rebuttal, Ex. 1. In making this determination, the EEOC gave the substantial weight to the findings of the St. Paul Department of Human Rights. Cummins Aff., Ex. 1.

On September 25, 2008, Carlone filed a charge with the National Labor Relations Board ("NLRB"), alleging that the Union unlawfully refused to refer him for work because of his age and disability. Cummins Aff. Ex. 2 (Charge to the NLRB). The NLRB dismissed the charge on November 21, 2008, based on insufficient evidence of a violation. Cummins Aff. Ex. 2 (NLRB Determination). Carlone appealed the NLRB's dismissal of his charge, which was denied on February 19, 2009, because he failed to demonstrate any violation of the National Labor Relations Act ("NLRA"). Cummins Aff., Ex. 3 (NLRB Office of Appeals Decision). The Office of Appeals noted that the Union was not an exclusive hiring hall, Carlone had quit a job previously referred to him, and he was issued a notice of withdrawal card in November 2006. Id . Subsequently, Carlone revoked the withdrawal card in order to obtain work and was told that to be returned to membership, he would have to pay membership dues that had accrued since his withdrawal. Id . The NLRB Office Appeals found that the Union followed standard and nondiscriminatory procedures with respect to Carlone. Id.

On October 12, 2009, the Union settled a case with Carlone brought by him in Ramsey County District Court, involving a claim for the return of a fee he paid in 2007 related to a Union withdrawal card. Defendants' Reply Memorandum of Law in Support of Their Motion for Sanctions Under Rule 11 ("Defs.' Reply") [Docket No. 49], p. 5; Cummins Aff. Ex. 4; see also Second Affidavit of Brendan D. Cummins in Support of Motion for Sanctions under Rule 11 [Docket No. 50], Ex. C.

In 2009, Carlone filed suit against the Union in the United States District Court, District of Minnesota. See Civil No. 09-204 (JMR/FLN) ("Carlone I"). Carlone alleged that he made a complaint in November 2004 to a contractor, Gagnon, Inc., that the sheet metal he was being asked to work was too thick, and that by working with it, he was infringing on the sheet metal workers' trade. See Carlone I Amended Complaint [Docket No. 6], ¶¶ 13-15. Carlone asserted that Gagnon retaliated against him for making the complaint by placing him in a position that required him to work at high elevations, which was difficult for him to do given his age, diabetes and asbestosis, and despite the fact that there were other jobs available that did not require working with heights. Id., ¶¶ 16, 17. After taking a medical layoff and filing the complaint against Gagnon, Carlone alleged that he was placed on a "do not hire" list by Gagnon, and the Union did not defend him in connection with this action. Id., ¶¶ 18-29. Carlone also alleged that between October 2005, through the filing of the suit in 2009, the Union referred others for employment, but refused to refer him for employment, and the Union caused him to be placed on the "do not for hire" lists with all of the Union's signatory contractors without his knowledge. Id., ¶¶ 32, 35, 36, 43. Carlone asserted the following claims in Carlone I against the Union: Employment Discrimination Because of Age (Count I), Employment Discrimination Because of Disability (Count II), Tortious Interference with Prospective Contractual Relations (Count III), Breach of Written Contract (Count IV), and Breach of Fair Duty of Representation (Count V). Counts III and V were dismissed on a motion to dismiss. See Carlone I, September 9, 2009 Order [Docket No. 26]. By stipulation of the parties, Counts I and II of the Amended Complaint were dismissed without prejudice. See Carlone I, December 15, 2009 Order [Docket No. 41]. This left only the breach of contract claim (Count IV). Carlone then filed a Second Amended Complaint in which the only claim he alleged was that the Union breached its bylaws and constitution by refusing and failing to (a) investigate his complaints against Gagnon; (b) challenge his placement on "do not hire" lists maintained by some or all of its signatory contractors; (c) defend him against contractors that placed him on "do not hire lists;" and (d) refer him to its signatory contractors for employment at relevant times when such signatory contractors requested manpower or otherwise notified the Union of open positions. See Carlone I, Second Amended Complaint, ¶¶ 62-65. This remaining claim was dismissed on the grounds that while the claim had been cast as a breach of contract claim, it actually alleged a breach of the duty of fair representation and was time-barred. See Carlone I, May 28, 2010 Order [Docket No. 86], p. 8.[2] Further, the court concluded that even if the claim was framed as a breach of contract claim, the claim failed to allege facts showing a failure to allege a plausible entitlement to relief. Id . On July 14, 2010, the Eighth Circuit Court of Appeals dismissed Carlone's appeal. Cummins Aff., Exs. 6, 7.

Carlone also filed three complaints with the Office of Lawyers Professional Responsibility ("OLPR") against the Union's lawyer, Kelly Jeanetta, related to her representation of the Union against him. See Cummins Aff., Exs. 8 (February 8, 2010 Complaint); 9 (March 1, 2010 decision by OLPR); 11 (June 15, 2012 Complaint); 12 (June 21, 2012 decision by OLPR); 13 (June 25, 2012 Complaint); and 14 (June 28, 2012 decision by the OLPR).[3] No adverse action was taken by the OLPR against Jeanetta. Id.

On May 31, 2012, Carlone filed a complaint with the FBI, making accusations of collusion with criminal intent against Jeanetta and his own pro bono attorneys from Robins, Kaplan, Miller & Ciresi. Cummins Aff., Ex. 10.

On January 14, 2013, Carlone filed "Complaint for Arrest" with the FBI, seeking the arrest of Union officers, including defendant LeClaire, based on the discrimination shown against him and asserting that Union officers possessed loaded machine guns and should be considered "armed and dangerous." Cummins Aff., Ex. 15.

On February 6, 2013, Carlone filed a suit in Ramsey County Conciliation Court claiming that the Union failed to properly manage his health and welfare plan. Cummins Aff., Ex. 16 (February 6, 2013 Conciliation Complaint (62-CO-13-588)). The Complaint was dismissed with prejudice on the basis that Carlone had failed to submit the necessary forms to receive benefits, and on the basis that he had named the wrong defendant, as the health and welfare trust appeared to be the correct defendant. Cummins Aff., Ex. 17 (March 22, 2013 Order and March 28, 2013 Judgment).[4]

On March 5, 2013, the initial Complaint in this matter was filed by Carlone in Ramsey County Conciliation Court, in which Carlone only alleged that the "intentional negligence of the defendants" caused him to lose wages. See Complaint [Docket No. 1]. Carlone did not set forth any facts to support his claim. Id . Defendants removed Carlone's suit to federal court and moved to dismiss his case for failure to state a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Docket Nos. 1, 4.

On March 23, 2013, Carlone filed a complaint with the OLPR against the Union's legal counsel, Brendan Cummins, alleging that Cummins failed to produce documents ordered by a court pursuant to a subpoena in the conciliation court matter, 62-CO-13-588. Cummins Aff., Ex. 25 (March 23, 2013 OPLR Complaint). The OPLR determined that neither an investigation nor discipline was warranted. Cummins Aff., Ex. 26 (April 5, 2013 decision by OPLR).

On March 25, 2013, Carlone filed five separate additional actions against the Union in Ramsey County Conciliation Court. Cummins Aff., Ex. 24. In all of these cases, Carlone's petitions for proceeding in forma pauperis were denied, and the cases were closed administratively. Id.

On April 18, 2013, defendants notified Carlone by letter that if he did not withdraw his Complaint in the instant lawsuit within 21 days, they would move to dismiss his Complaint and seek sanctions under Rule 11 of the Federal Rules of Civil Procedure, in the form of requiring Carlone to pay the attorneys' fees and costs they had incurred in defending the present action, and precluding Carlone from filing additional administrative or legal charges against defendants without leave of court. Cummins Aff., Ex. 27 (April 18, 2010 Letter from Cummins to Carlone).

On April 26, 2013, Carlone filed a Motion to Change Charge [Docket No. 16] in the present action, in which he asked to change the original charge of intentional negligence to a hate crime by a union black list. This Court denied that motion. See May 2, 2013 Order [Docket No. 21].

On June 25, 2013, this Court issued a Report and Recommendation [Docket No. 29], in the present action as to defendants' motion to dismiss, finding as follows:

Carlone's Complaint consists solely of a "conclusory statement, " which lacks the specificity required by the pleading standards set forth in Iqbal.[5] While a "district court has the power to sua sponte dismiss a complaint'" when it was obvious that a plaintiff could not prevail on the facts alleged, (see Smith v. Boyd , 945 F.2d 1041, 1043 (8th Cir. 1991) (quoting Mildfelt v. Circuit Court , 827 F.2d 343, 345 (8th Cir. 1987) (per curiam)), here, where Carlone commenced his suit in state conciliation court and the same principles for pleading in federal court are not required, the Court believes that the better course of action is to give Carlone 30 days to file and serve an amended complaint that can survive the requirements of Iqbal
Therefore, if Carlone elects to amend, he must comply with the basic pleading rules prescribed by Iqbal. In addition, Carlone must present his allegations in separate, serially numbered paragraphs, as required by Fed.R.Civ.P. 10(b). This new pleading must provide a much more complete and cogent statement of the specific facts on which Carlone's claims are based. Vague accusations will not suffice. Carlone must also clearly identify the specific legal basis for his claims against each defendant. In sum, if Carlone intends to continue to pursue this action, he will have to provide a clear and comprehensive description of what, specifically, each named defendant actually did, or failed to do, and he will have to describe how each defendant's acts or omissions allegedly violated his legal rights under some clearly identified provision [of] law.
Therefore, within 30 days of the issuance of an order by the District Judge adopting this Report and Recommendation, Carlone shall serve and file an amended complaint that meets the requirements of this Report and Recommendation. In the event that Carlone does not serve and file an amended complaint consistent with this Report and Recommendation, the Court will proceed to recommend dismissal of the suit.

June 25, 2013 Report and Recommendation [Docket No. 29], pp. 5-6 (emphasis added).

On October 4, 2013, defendants filed the instant Motion for Sanctions and Attorney's Fees Pursuant to Rule 11. On October 25, 2013, United States District Judge Susan R. Nelson issued an order adopting the Report and Recommendation in its entirety, stating:

[T]he Court denies Defendants' Motion to Dismiss and Plaintiff's Motion/Injunction, and the Court grants Plaintiff 30 days to serve and file an amended complaint that satisfies federal pleading standards. The Court reiterates that, to survive a motion to dismiss in federal court, a complaint must contain "enough facts tostate a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Although a complaint need not contain "detailed factual allegations, " it must contain facts with enough specificity "to raise a right to relief above the speculative level." Id. at 555. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " are insufficient. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) ...

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