United States District Court, D. Minnesota
AMENDED ORDER ADOPTING REPORT AND
Wilhelmina M. Wright United States District Judge
matter is before the Court on the March 19, 2018 Report and
Recommendation (R&R) of United States Magistrate Judge
Katherine M. Menendez, (Dkt. 49), which recommends granting
Defendant United Airlines's motion to dismiss Plaintiff
Robert Alan Schwartz's complaint for lack of
subject-matter jurisdiction as to United because
Schwartz's claims are preempted by the Railway Labor Act
(RLA), 45 U.S.C. § 184. Schwartz filed timely objections
to the R&R. For the reasons addressed below, the Court
overrules Schwartz's objections and adopts the R&R.
worked for United as a ramp agent at the Minneapolis-St. Paul
International Airport. After Schwartz returned to work
following a medical leave, Schwartz's supervisor accused
Schwartz of forging work restrictions on a work-status form.
United conducted an investigation and ultimately terminated
Schwartz's employment. Defendant IAM District 141, a
union of which Schwartz was a member, declined to appeal the
termination of Schwartz's employment to the relevant
review board. Schwartz thereafter filed this lawsuit,
alleging that the process Defendants followed that resulted
in the termination of his employment violated the terms of a
binding collective bargaining agreement. United moves to
dismiss Schwartz's complaint under Rule 12(b)(1), Fed. R.
Civ. P., arguing that the Court lacks subject-matter
jurisdiction because Schwartz's claims are preempted by
the RLA. The R&R recommends granting United's motion.
moves to dismiss Schwartz's complaint for lack of
subject-matter jurisdiction. See Fed. R. Civ. P.
12(b)(1). When, as here, a motion to dismiss relies solely on
the allegations in a complaint, Schwartz, the non-moving
party, receives the same protections as he would defending
against a motion to dismiss. Osborn v. United
States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). To
survive a motion to dismiss, a complaint must allege
sufficient facts that, when accepted as true, state a
facially plausible claim to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). When determining
whether the complaint states such a claim, a district court
accepts as true all of the factual allegations in the
complaint and draws all reasonable inferences in the
plaintiff's favor. Blankenship v. USA Truck,
Inc., 601 F.3d 852, 853 (8th Cir. 2010).
carriers are subject to the RLA. 45 U.S.C. § 184. The
United States Court of Appeals for the Eighth Circuit has
determined that the RLA preempts federal subject-matter
jurisdiction over “minor” disputes and requires
mandatory arbitration. Pittari v. Am. Eagle
Airlines, 468 F.3d 1056, 1060 (8th Cir. 2006). A dispute
that requires the application of a collective bargaining
agreement to a specific factual situation is a
“minor” dispute. See Bloemer v. Nw. Airlines,
Inc., 401 F.3d 935, 938-39 (8th Cir. 2005); Gilmore
v. Nw. Airlines, Inc., 504 F.Supp.2d 649, 653 (D. Minn.
2007). A dispute between an employee and an airline is
presumed to be minor. See Bloemer, 401 F.3d at 939.
are four common exceptions to RLA preemption-the hybrid
exception, the repudiation exception, the futility exception,
and the Childs exception. Martin v. Am.
Airlines, Inc., 390 F.3d 601, 607-08 (8th Cir. 2004).
The hybrid exception requires allegations of collusion
between an airline and a union. See Martin, 390 F.3d
at 608 (hybrid exception). The futility exception applies
when circumstances indicate that administrative review of a
claim would prove fruitless. Glover v. St. Louis-S.F. Ry.
Co., 393 U.S. 324, 325-27 (1969). The repudiation
exception applies when an employer allegedly abandons
contractually mandated grievance procedures. Martin,
390 F.3d at 608. The Childs exception applies when a
union allegedly breaches its duty of fair representation by
causing an employee to lose the opportunity to obtain
meaningful relief before the relevant review board.
Id. at 609 (citing Childs v. Pa. Fed'n Bhd.
of Maint. Way Emps., 831 F.2d 429 (3d Cir. 1987)).
R&R recommends granting United's motion to dismiss
for lack of subject-matter jurisdiction because
Schwartz's complaint alleges a minor dispute that is
preempted by the RLA and because no exception to preemption
applies. Schwartz objects to the R&R, arguing that the
union is too selective when determining which grievances to
appeal, that he never received a clear explanation addressing
why his dispute was not appealed, and that his dispute should
be submitted to arbitration. Schwartz separately contends-for
the first time-that United terminated his employment in
retaliation for an e-mail Schwartz wrote to United's CEO
complaining about United's conduct. The Court reviews
these objections de novo. See 28 U.S.C. §
636(b)(1)(C); Fed.R.Civ.P. 72(b)(3); LR 72.2(b)(3);
Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996)
Schwartz's complaint seeks the application of a
collective bargaining agreement to specific conduct, the RLA
preempts federal subject-matter jurisdiction over this
dispute unless Schwartz establishes an exception to
preemption. Even when liberally construed, Schwartz's
objections to the R&R fail to do so. Schwartz's
argument that either the union is overly selective in
appealing grievances or that the union failed to clearly
explain its decision-making to Schwartz is insufficient to
establish an exception to preemption. See, e.g.,
Smith v. United Parcel Serv., Inc., 96 F.3d 1066,
1068 (8th Cir. 1996) (explaining that the Childs
exception requires more than mere negligence, poor judgment,
or ineptitude); Bautista v. Pan. Am. World Airlines,
Inc., 828 F.2d 546, 552 (9th Cir. 1987) (explaining that
plaintiff's disagreement with a union's assessment of
the merits of plaintiff's wrongful-termination claim did
not support applying the futility exception to RLA
preemption). Schwartz's argument that his dispute should
be submitted to arbitration also does not qualify as an
exception to preemption. See Smith v. Am. Airlines,
Inc., 414 F.3d 949, 953 (8th Cir. 2005) (recognizing
that a plaintiff seeking judicial assistance in compelling
arbitration is insufficient to establish the repudiation
exception to preemption). Finally, the Court will not
consider Schwartz's allegation of retaliation because it
is not alleged in Schwartz's complaint and was not argued
to the magistrate judge. See Hylla v. Transp.
Commc'ns Int'l Union, 536 F.3d 911, 921-22 (8th
Cir. 2008) (holding that a party may not present new legal
arguments or theories in an objection to an R&R).
Accordingly, Schwartz's objections to the R&R are
Court also reviews for clear error those portions of the
R&R to which no objections have been made. See
Fed. R. Civ. P. 72(b) 1983 advisory committee note;
Grinder, 73 F.3d at 795. Having completed this
review, the Court concludes that the R&R is neither
clearly erroneous nor contrary to law.
on the foregoing analysis, the March 19, 2018 Report and
Recommendation, and all the files, records, and proceedings
herein, IT IS HEREBY ORDERED:
Plaintiff Robert Alan Schwartz's objections to the Report
and Recommendation, ...