     15-951
     Nelson v. Local 1181-1061, Amalgamated Transit Union, AFL-CIO et al.


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 16th day of June, two thousand sixteen.
 4
 5   PRESENT:
 6               AMALYA L. KEARSE,
 7               RALPH K. WINTER,
 8               DENNIS JACOBS,
 9                     Circuit Judges.
10   _____________________________________
11
12   Gerald Nelson,
13
14                              Plaintiff-Appellant,
15
16                     v.                                                                 15-951
17
18   Local 1181-1061, Amalgamated Transit Union,
19   AFL-CIO, Jessica D. Ochs, MV Transportation,
20   Inc., Michalaire Phantor,
21
22                              Defendants-Appellees.
23
24   _____________________________________
25   FOR PLAINTIFF-APPELLANT:                                        Gerald Nelson, pro se, Brooklyn, NY.
26
27   FOR LOCAL 1181-1061,                                            Richard A. Brook (with Richard N. Gilberg
28   AMALGAMATED TRANSIT                                             on the brief), Meyer, Suozzi, English &
29   UNION, AFL-CIO AND JESSICA D.                                   Klein, P.C., New York, NY.
30   OCHS:
31
32
33   FOR MV TRANSPORTATION, INC.                           Jeffrey D. Pollack, Mintz & Gold LLP,
34   AND MICHALAIRE PHANTOR:                               New York, NY.
35
36          Appeal from a judgment of the United States District Court for the Eastern District of New

37   York (Cogan, J.; Go, M.J.).


38          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

39   DECREED that the judgment of the district court is AFFIRMED.

40          Appellant Gerald Nelson, pro se, appeals from a judgment in favor of Appellees,

41   principally his employer and his union, in his suit originally filed in state court and raising state

42   law claims for misrepresentation, fraud, breach of contract, breach of fiduciary duty, malpractice,

43   unjust enrichment, and conversion. Appellees removed the case to federal court, arguing that

44   Nelson’s claims were completely preempted by section 301 of the Labor Management Relations

45   Act, 29 U.S.C. § 185, and the district court denied Nelson’s motion to remand, construing the

46   allegations to raise a “hybrid” claim for breach of the collective bargaining agreement and for

47   breach of the union’s duty of fair representation, and dismissed his complaint, concluding that he

48   failed to state a claim.    We assume the parties’ familiarity with the underlying facts, the

49   procedural history of the case, and the issues on appeal.

50          We review de novo a district court’s decisions on a motion to remand and a motion for

51   dismissal of a complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). ACLU v.

52   Clapper, 785 F.3d 787, 800 (2d Cir. 2015) (Rule 12(b)(6)); Cuomo v. Crane Co., 771 F.3d 113,

53   115 (2d Cir. 2014) (remand). To survive a motion to dismiss, a plaintiff must allege sufficient

54   facts to state a claim of relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

55   544, 570 (2007). We review the denial of a reconsideration motion for abuse of discretion.

56   Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012).

57
 1          Preliminarily, Nelson does not adequately challenge the ruling that Appellees Ochs and

 2   Phanor could not be held personally liable. Nor has Nelson presented any argument as to why the

 3   Union Appellees’ failure to sign the notice of removal rendered their consent to removal invalid.

 4   Accordingly, these issues are waived on appeal. See Norton v. Sam’s Club, 145 F.3d 114, 118 (2d

 5   Cir. 1998) (stating that “the appellee’s casual reference to” a claim was insufficient to preserve it

 6   on appeal); LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (concluding that pro

 7   se appellant abandoned issue by failing to raise it in his appellate brief).

 8          Section 301 confers “an especially broad jurisdiction” on the federal courts in actions

 9   involving collective bargaining agreements. Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir.

10   2001). “Section 301 governs claims founded directly on rights created by collective-bargaining

11   agreements, and also claims substantially dependent on analysis of a collective-bargaining

12   agreement.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987) (internal quotation marks

13   omitted); Allis-Chambers Corp., 471 U.S. at 213 (“[S]tate-law rights and obligations that do not

14   exist independently of private agreements, and that as a result can be waived or altered by

15   agreement of private parties, are pre-empted by those agreements.”); see also Hernandez v. Conriv

16   Realty Assocs., 116 F.3d 35, 38 (2d Cir. 1997). Nelson’s state law claims were held to be

17   preempted by section 301. Although Nelson makes much of the fact that his claims did not

18   require analysis of any of the terms of the collective bargaining agreement (“CBA”), his claims

19   were “founded directly on rights created by [the CBA]”; without the CBA, neither his employer

20   nor union would have had any obligation to participate in or be bound by the arbitration

21   proceedings. Accordingly, the district court properly denied Nelson’s motions to remand. See

22   Franchise Tax Bd. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 23 (1983)


                                                        3
1    (“[T]he preemptive force of § 301 is so powerful as to displace entirely any state cause of action

2    for violation of contracts between an employer and a labor organization. Any such suit is purely a

3    creature of federal law, notwithstanding the fact that state law would provide a cause of action in

4    the absence of § 301.” (internal quotation marks and footnote omitted)).

5           The district court properly construed Nelson’s petition to raise the strongest claim it

6    suggested—a hybrid § 301/fair representation claim—and concluded that it was legally

7    insufficient. “To establish a hybrid § 301/[fair representation] claim, a plaintiff must prove both

8    (1) that the employer breached a collective bargaining agreement and (2) that the union breached

 9   its duty of fair representation vis-a-vis the union members.” White v. White Rose Food, 237 F.3d

10   174, 178 (2d Cir. 2001).

11          Nelson was therefore required to show that, in reaching the agreement, his employer

12   breached the CBA and his union breached its duty of fair representation. As the district court

13   ruled, there was no breach. The arbitrator’s supplemental award specifically contemplated that

14   additional income, such as unemployment benefits, would be set off against the back pay award.

15   And even if Nelson were correct that the supplemental award was somehow invalid, he has

16   presented no persuasive argument that Appellees were required to adopt his preferred

17   interpretation of “made whole”--the relevant language from the initial arbitral award--much less

18   that the union “act[ed] in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to

19   breach its duty of fair representation” in failing to do so. See DelCostello v. Int’l Bhd. of

20   Teamsters, 462 U.S. 151, 164 (1983).

21

22


                                                      4
1         We have considered Nelson’s remaining arguments and find them to be without merit.

2   Accordingly, we AFFIRM the district court’s judgment.

3
4
5                                            FOR THE COURT:
6                                            Catherine O’Hagan Wolfe, Clerk




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