15-4082-cv
Bryant v. Am. Fed’n of Musicians


                                   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
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of November, two thousand sixteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
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ANNE BRYANT,
                                 Plaintiff-Appellant,

                               v.                                               No. 15-4082-cv

AMERICAN FEDERATION OF MUSICIANS OF THE
UNITED STATES AND CANADA, SCREEN ACTORS
GUILD-AMERICAN FEDERATION OF TELEVISION
AND RADIO ARTISTS (SAG),
                                 Defendants-Appellees.
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APPEARING FOR APPELLANT:                                           ANNE BRYANT, pro se, Stony
                                                                   Point, New York.

APPELLEE AMERICAN FEDERATION                                         Jennifer P. Garner, American
OF MUSICIANS OF THE UNITED                                           Federation of Musicians, New
STATES AND CANADA:                                                   York, New York; Harvey S.
                                                                     Mars, Law Office of Harvey S.
                                                                     Mars, New York, New York.



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APPEARING FOR APPELLEE                                 JOSEPH VITALE, Cohen, Weiss
SCREEN ACTORS GUILD-AMERICAN                           and Simon LLP, New York,
FEDERATION OF TELEVISION AND                           New York.
RADIO ARTISTS (SAG):


       Appeal from a judgment of the United States District Court for the Southern District

of New York (Paul A. Crotty, Judge; Michael H. Dolinger, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on November 19, 2015 is AFFIRMED.

       Plaintiff Anne Bryant appeals pro se from (1) the denial of her motion for pre-suit

discovery from her union representatives, the American Federation of Musicians of the

United States and Canada (“AFM”) and the Screen Actors Guild-American Federation of

Television and Radio Artists (“SAG”), see Fed. R. Civ. P. 27; and (2) the dismissal of her

breach-of-fiduciary-duty claim against AFM and SAG—which the district court construed

as claiming a breach of the duty of fair representation—for failure to state a claim or to

comply with the applicable statute of limitations, see Fed. R. Civ. P. 12(b)(6). We assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

1.     Pre-Suit Discovery

       Bryant’s argument that her pre-suit discovery motion should have been evaluated

under N.Y. C.P.L.R. § 3102(c)—not Fed. R. Civ. P. 27—fails for the reason stated by the

district court: federal rules of procedure apply to actions in federal court. See, e.g.,

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 111–12 (2d Cir. 2013).

       We review the denial of a Fed. R. Civ. P. 27 application for pre-suit discovery for


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abuse of discretion. See Mosseller v. United States, 158 F.2d 380, 382 (2d Cir. 1946);

accord Application of Deiulemar Compagnia Di Navigazione S.p.A. v. M/V Allegra

(“Deiulemar Compagnia”), 198 F.3d 473, 479 (4th Cir. 1999). We identify no such abuse

here because, as the opinions of the district judge and magistrate judge demonstrate, Bryant

failed to satisfy Rule 27’s requirements. See Mosseller v. United States, 158 F.2d at 382;

accord Deiulemar Compagnia, 198 F.3d at 484–89; In re Petition of Allegretti, 229 F.R.D.

93, 95–98 (S.D.N.Y. 2005) (stating that petitioners seeking discovery under Rule 27 must

(1) “furnish a focused explanation of what they anticipate any testimony would

demonstrate”; (2) “establish in good faith that they expect to bring an action cognizable in

federal court, but are presently unable to bring it or cause it to be brought”; and (3) “make

an objective showing that without a Rule 27 hearing, known testimony would otherwise be

lost, concealed, or destroyed”).

       Bryant failed to demonstrate the requisite need to “perpetuate” documents or

inability “presently [to] bring” a federal action to which the documents pertain. See Fed.

R. Civ. P. 27(a)(1); In re Petition of Allegretti, 229 F.R.D. at 96 (observing that Rule 27(a)

“cannot be used to discover evidence for the purpose of filing a complaint”). Nor did she

show that, absent pre-suit discovery, the contracts she seeks to obtain would be “lost,

concealed or destroyed.” In re Petition of Allegretti, 229 F.R.D. at 96. Indeed, Bryant’s

contention is not that defendants have the recording contracts and may destroy them, but

that defendants assert they no longer possess such documents at all. Further, Bryant has


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filed other actions relating to her royalty payments in which she could have sought

discovery of the contracts at issue through non-party subpoenas or other conventional

means. Accordingly, her pre-trial discovery challenge fails.

2.     Breach of Duty of Fair Representation Claim

       We review the dismissal of Bryant’s complaint de novo, liberally construing her pro

se pleadings as true and drawing all reasonable inferences in her favor. See Warren v.

Colvin, 744 F.3d 841, 843 (2d Cir. 2014); Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

The district court reasonably interpreted Bryant’s claim as alleging a breach of defendants’

“duty of fair representation” under the National Labor Relations Act (“NLRA”), 29 U.S.C.

§§ 151 et seq., to serve the interests of all members “without hostility or discrimination

toward any, to exercise its discretion with complete good faith and honesty, and to avoid

arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967); see Fowlkes v. Ironworkers

Local 40, 790 F.3d 378, 387–89 (2d Cir. 2015). The district court concluded that Bryant

failed to file within six months of learning of the alleged breach of duty, as required by the

Act. See Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742

F.3d 42, 46 (2d Cir. 2014) (“[T]he limitations period for filing [a duty of fair

representation] claim in the district court is borrowed from section 10(b) of the NLRA, 29

U.S.C. § 160(b), which provides for a six-month limitations period.”). Because we agree

that Bryant’s claim is untimely, we need not decide if it also fails to state a federal claim.

       In challenging the untimeliness conclusion, Bryant asserts that the district court


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should have construed her claim as one arising under state law. See generally IDT Corp.

v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 139, 879 N.Y.S.2d 355, 359 (2009)

(noting that New York state-law claims for breach of fiduciary duty are subject to a

three-year limitations period if the relief is monetary, and six years if equitable). Bryant,

however, pleaded no facts to support a state-law claim that defendants had a fiduciary duty

to retain her contracts. Indeed, before the district court, Bryant described her claim as one

implicating federal collective-bargaining standards and invoked the “duty of fair

representation.” See Pl.’s Opp’n to Defs.’ Mots. to Dismiss, D. Ct. Dkt. No. 23, at 6–11.

       Accordingly, the district court did not err in construing Bryant’s claim as one

asserting a federal unfair-representation claim barred by the six-month statute of

limitations, and in concluding that amendment of the complaint was therefore futile. See

Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000).

       We have considered all of Bryant’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




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