              Case: 19-14194    Date Filed: 05/06/2020   Page: 1 of 9



                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-14194
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:19-cv-60242-RKA

DARYL BROWN,

                                                               Plaintiff-Appellant,

                                      versus

AIR LINE PILOTS ASSOCIATION,

                                                         Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (May 6, 2020)

Before JORDAN, NEWSOM and MARCUS, Circuit Judges.

PER CURIAM:

      Daryl Brown, an airline pilot proceeding pro se, appeals the district court’s

dismissal of his complaint that raised claims brought under the Railway Labor Act

(“RLA”), 45 U.S.C. § 152, and Florida law. Brown’s claims arose out of a collective
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bargaining agreement entered into between JetBlue Airways and a union, the Air

Line Pilots Association, which contained an agency shop agreement that gave

JetBlue authority to fire any pilots who were not members of the union and who

failed to pay service charges for the union’s representation. On appeal, Brown

argues that the district court abused its discretion in dismissing his complaint as a

shotgun pleading and also erred in dismissing his claims on the merits, for failure to

state a claim for which relief could be granted. After thorough review, we affirm.

      We review de novo the district court’s grant of a motion to dismiss under Rule

12(b)(6) for failure to state a viable claim. Hill v. White, 321 F.3d 1334, 1335 (11th

Cir. 2003). A plaintiff abandons a claim on appeal if he does not include it in his

brief. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

      Rule 12(b)(6) provides for dismissal of a complaint that fails to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).      When considering a

motion to dismiss, the district court generally must limit “its consideration to the

pleadings and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d

1228, 1231 (11th Cir. 2000) (quotations omitted).

      Rule 8(a)(2) provides that a pleading that states a claim for relief must contain

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the

defendant fair notice of what the claim is and the grounds upon which it rests.” Bell


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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations and alterations

omitted). The complaint must contain more than “labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Id. While the

factual allegations in the complaint need not be detailed, they must state a claim to

relief that is plausible on its face. Id. at 555, 570. Pro se pleadings are liberally

construed and held to less stringent standards than those drafted by attorneys, but

they still must suggest some factual basis for a claim. Jones v. Fla. Parole Comm’n,

787 F.3d 1105, 1107 (11th Cir. 2015).

      So-called “shotgun” pleadings do not provide a short and plain statement of a

claim as required by Rule 8. Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358

(11th Cir. 2018). Shotgun pleadings include complaints that: (1) contain multiple

counts where each adopts the allegations of all preceding counts; (2) are filled with

“conclusory, vague, and immaterial facts not obviously connected to any particular

cause of action”; (3) do not separate each cause of action or claim into separate

counts; or (4) assert multiple claims against multiple defendants but do not specify

which defendant is responsible for which acts or omissions. Weiland v. Palm Beach

Cty. Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015). Shotgun pleadings

are characterized by their failure “to give the defendants adequate notice of the

claims against them and the grounds upon which each claim rests.” Id. at 1323.




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      “When a more carefully drafted complaint might state a claim, a plaintiff must

be given at least one chance to amend the complaint before the district court

dismisses the action with prejudice.” Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1254

(11th Cir. 2017) (quotations omitted). However, a district court need not allow for

amendment: “(1) where there has been undue delay, bad faith, dilatory motive, or

repeated failure to cure deficiencies by amendments previously allowed; (2) where

allowing amendment would cause undue prejudice to the opposing party; or (3)

where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th

Cir. 2001). An amendment would be futile if “the complaint as amended would still

be properly dismissed or be immediately subject to summary judgment for the

defendant.” Evans, 850 F.3d at 1254 (quotations omitted).

      The RLA allows employees of carriers to “organize and bargain collectively

through representatives of their own choosing.” 45 U.S.C. § 152, Fourth. Once a

union is formed, that union becomes the exclusive bargaining representative for a

class of employees and, thus, owes a duty “fairly and equitably to represent all

employees of the craft or class, union and nonunion.” Int’l Ass’n of Machinists v.

Street, 367 U.S. 740, 761 (1961); see also Steele v. Louisville & N.R. Co., 323 U.S.

192, 200 (1944) (holding that a labor organization must represent all members of a

“craft or class of employees . . . regardless of their union affiliations or want of

them”). That duty of representation requires the negotiation and administration of


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collective bargaining agreements, which are expensive endeavors. Street, 367 U.S.

at 761-62. To help offset that cost and prevent “free riders,” the RLA allows unions

to collect fees from non-members of the collective class by way of an agency shop

agreement. Id. (quotations omitted); see also 45 U.S.C. § 152, Eleventh. An agency

shop agreement is an agreement requiring all employees to join a union and pay

union dues. Harris v. Quinn, 573 U.S. 616, 628 (2014). The union must use non-

member fees to pay for “negotiating and administering collective agreements, and

the costs of the adjustment and settlement of disputes.” Street, 367 U.S. at 764.

      The union may not, however, use those fees collected from non-members to

force “employees, over their objection, to support political causes which they

oppose.” Id. But even if a union improperly spends non-member fees, it is not an

appropriate remedy to suspend the agency shop agreement or prevent the union from

collecting fees from an objecting non‑member. Id. at 771-74.

      An employee class member may be exempted from the non‑member service

charge if he is denied membership, required to pay fees that are atypical, or is

expelled from the union. 45 U.S.C. § 152, Eleventh. However, where a class

member has an equal choice to join a union, but chooses not to exercise that choice,

he has “no voice in the affairs of the union.” N.L.R.B. v. Allis Chalmers Mfg. Co.,

388 U.S. 175, 191 (1967).




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       To maintain a claim in Florida for intentional infliction of emotional distress,

a plaintiff must allege conduct so “outrageous” in character and so extreme in degree

as to go “beyond all bounds of decency,” and to be regarded as “utterly intolerable

in a civilized community.” Kim v. Chang, 249 So. 3d 1300, 1305 (Fla. Dist. Ct.

App. 2018) (quotations omitted). A union may publish a list of non-members in a

newsletter. See Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers, AFL-

CIO v. Austin, 418 U.S. 264, 283 (1974). In Austin, a union published in its

newsletter a list of the names of non-members titled “List of Scabs.” Id. at 267

(quotations omitted). The Supreme Court held that the plaintiff -- a non-member

“scab” -- could not succeed on a libel suit against the union because the information

published “was literally and factually true.” Id. at 283 (quotations omitted).

       Here, Brown’s complaint failed to state a claim for which relief could be

granted, so allowing for the amendment of the shotgun nature of his complaint would

have been futile. See Evans, 850 F.3d at 1254 (noting that an amendment is futile if

a complaint would be subject to immediate dismissal even after amendment). 1 For

starters, Brown abandoned any claim concerning the union’s initial ratification by




1
  When the district court informed Brown that his earlier complaint had failed to incorporate any
factual allegations into his claims, it is not clear from the record that Brown was put on notice
that, when he amended his complaint, he could not have each count adopt the allegations of all
preceding counts. See Jackson, 898 F.3d at 1359. We need not decide whether the district court
properly dismissed the amended complaint as a shotgun pleading, however, because, as we’ll
discuss, it properly dismissed it on futility grounds. See Evans, 850 F.3d at 1254.
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not briefing the issue on appeal. See Access Now, 385 F.3d at 1330. Indeed, Brown

admitted in district court that he did not timely challenge that ratification.

      As for Brown’s claim that the union infringed his rights by prohibiting his

participation in voting, Brown failed to state a claim for which relief could be

granted. See Fed. R. Civ. P. 12(b)(6). The union is not required to allow non-

members to vote or participate in its union affairs. Allis Chalmers Mfg. Co., 388

U.S. at 191. Further, the union may collect union fees from non-members to help

offset the costs of collective bargaining and prevent free riders -- those employees

who take advantage of union benefits but do not contribute to the cost of those

benefits. See Street, 367 U.S. at 761-64. Brown failed to allege that he could meet

any of the exceptions to non‑member fee collection, since he did not allege that: (1)

he could not obtain membership in the same manner as all other class members; (2)

the union’s non-member fees were atypical; or (3) he was expelled from the union.

See 45 U.S.C. § 152, Eleventh. Thus, Brown’s claim that the union violated his

rights by denying him access to voting on union affairs did not state a claim for

which relief could be granted.

      As for the union’s use of non-member fees to pay for political activities, the

only relevant claim Brown made in his amended complaint was that he was barred

from voting because he objected to the union’s use of his fees for political activities.

But, under Supreme Court precedent, a claim may be viable if a union, “over the


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employee’s objection, [uses] his money to support political causes which he

opposes,” Smith, 367 U.S. at 768, not if a union bars an employee from voting, Allis

Chalmers Mfg. Co., 388 U.S. at 191. Brown, notably, never alleged that the union

actually used his fees for political activities, nor did the exhibits to his complaint

suggest that it did. Rather, in his prayer for relief, he sought to require the union to

reveal whether it had made political contributions, further undermining any

suggestion that the union had done so. Moreover, the primary relief Brown sought

-- declaring the agency shop agreement invalid -- is not available for a claim of

misappropriation of non-member fees. See Street, 367 U.S. at 771-74. Thus, Brown

failed to state a plausible claim for relief for any of his claims concerning the RLA

or his inability to vote in union affairs. See Twombly, 550 U.S. at 555.

      Finally, as for Brown’s intentional-infliction-of-emotional-distress claim, he

alleged no facts indicating that any harassment had occurred. Instead, Brown alleged

only that he sent a letter to the union suggesting that harassment could occur as a

result of the publication of the list of non-members. That allegation of attenuated

harm is not enough to state a claim for which relief could be granted. See Kim, 249

So. 3d at 1305 (providing that, to state a claim for intentional infliction of emotional

distress, the actions must be outrageous); see also Twombly, 550 U.S. at 555 (noting

that a complaint must state a plausible claim to relief). But even if Brown had pled

facts to show he had been harassed as a result of the newsletter, publishing a list of


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non-member names to encourage union membership is allowed so long as the

information is factual, and he did not allege that the union’s list of non-members was

inaccurate or misleading. See Austin, 418 U.S. at 283. Thus, the district court did

not err in dismissing Brown’s intentional-infliction-of-emotional-distress claim.

      In short, because Brown’s amended complaint did not state a claim for which

relief could be granted, amendment of the shotgun nature of that complaint would

have been futile. See Evans, 850 F.3d at 1254. Accordingly, we affirm the dismissal

with prejudice of Brown’s amended complaint.

      AFFIRMED.




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