                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
_________________________________
                                    )
ROBERT T. BUTLER,                   )
                                    )
                    Plaintiff,      )
                                    )
              v.                    )    Civil Action No. 12-0437 (EGS)
                                    )
FORT MYER CONSTRUCTION CO. et al, )
                                    )
                    Defendants.     )
_________________________________   )


                                   MEMORANDUM OPINION

       In this action brought pro se against multiple defendants, defendants Teamsters Local

Union No. 639 (“Local 639 or Union”) and Local 639 Secretary-Treasurer John Gibson removed

this action from the Superior Court of the District of Columbia pursuant to “28 U.S.C. §

1441(b).” 1   Notice of Removal [Dkt. # 1] ¶ 9.    The complaint arises out of defendants’ alleged

behavior after plaintiff “suffered an occupational injury, causing severe physical damage” while

working with Fort Myer Construction Company.          Am. Compl. [Dkt. # 1-2] at 2-4.



       1
         Although defendants repeatedly cite subsection (b) of the removal statute, which
authorizes removal “based on diversity of citizenship,” it asserts that “the Complaint implicates
the Union’s duty of fair representation and[,] therefore, this action raises a federal question” under
Section 9(a) of the National Labor Relations Act, codified at 29 U.S.C. § 159(a). Removal Not. ¶¶
7, 9. The removal of actions from a state court based on this Court’s federal question jurisdiction
conferred by 28 U.S.C. § 1331 is authorized by § 28 U.S.C. § 1441(a). This distinction is
important here because the Union’s removal under § 1441(b) would be erroneous since “[a] civil
action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if
any of the parties in interest . . . is a citizen of the State in which such action is brought,” 28
U.S.C. § 1441(b)(2), which, from the address listed in the complaint, would include the Union
defendants.



                                                  1
         Plaintiff alleges that the Union defendants “failed/refused to represent him and cause or

attempt to cause relevant defendants to provide plaintiff and other local 639 members rights under

the D.C. sick leave act of 2008.” Id. at 7.      Plaintiff alleges that he discussed the Act’s

provisions “with defendant [] Gibson as early as 2009 and several times thereafter . . . .” to no

avail.   Id.

         Local 639 and Gibson move to dismiss the complaint on the grounds that (1) Gibson may

not be sued in his individual capacity, (2) plaintiff’s claim, reasonably construed as asserting that

the Union defendants breached their duty of fair representation, is untimely, 2 (3) plaintiff failed to

exhaust the Union’s internal remedies, and (4) the complaint fails to state a breach of duty claim.

Mot. to Dismiss of Defs. Local Union 639 and John Gibson [Dkt. # 2] ¶ 2. Plaintiff argues

adamantly in his opposition and in a separate motion to remand the case that he has not brought a

breach of duty claim and, thus, has effectively conceded defendants’ arguments for dismissal.

See Mem. of Points in Support of Pl.’s Opp’n to Defs. Teamsters Local Union 639 and John

Gibson’s Mot. to Dismiss [Dkt. # 11] at 5-6.       Specifically, in response to each of defendants’

four asserted grounds for dismissal, plaintiff counters in relevant part as follows:

               •   Ground One: “[W]hether or not defendant Gibson can be sued in his

                   individual capacity for damages is a matter of equity under [District of

                   Columbia law], not within the duty of fair representation.” Pl.’s Mem. at

                   5 ¶ 1.

               •   Ground Two: “Defendants claim that Plaintiff’s claim is untimely is

2
    See Delcostello v. Int’l Broth. of Teamsters, 462 U.S. 151, 170 (1983) (listing “fair
representation claims [to] include allegations of discrimination based on membership status or
dissident views . . ., allegations of unfair, arbitrary, or discriminatory treatment of workers by
unions-as are virtually all unfair labor practice charges made by workers against unions . . . . [and]
alleged violations by an employer of a collective bargaining agreement . . . .”) (citations omitted).

                                                     2
               without merit, as Plaintiff’s claim against defendants does not implicate a

               duty of fair representation and is thus not limited to the [National Labor

               Relations Act’s] six months filing requirement . . . .” Id. ¶ 2.

           •   Ground Three: “Plaintiff did not exhaust internal Union remedies and knew

               not that he was required to do so.” Id. at 6, ¶ 3.

           •   Ground Four: “The allegations set forth in the Complaint does [sic] not

               seek to state a viable claim for a breach of the duty of fair representation.”

               Id. ¶ 4.

       Since (1) plaintiff “cannot bring a claim against an individual union officer,” Hollie v.

Smith, 813 F. Supp. 2d 214, 221 (D.D.C. 2011); (2) plaintiff has conceded that his federal claim is

untimely, which the case law supports, see Slovinec v. Communications Workers of America, 860 F.

Supp. 2d 25, 31 (D.D.C. 2012) (NLRA requires duty of fair representation claims to be filed within

six months) (examining cases); and (3) plaintiff contends that he never intended to bring a breach of

duty of fair representation claim and dismisses outright defendant’s reasonable construction of the

claim, the Court will grant defendants’ motion to dismiss and will dismiss the federal claim against

the Union defendants with prejudice. The Court declines to exercise supplemental jurisdiction

over plaintiff’s local law claims and, therefore, will grant plaintiff’s motion to remand what remains

of this case to Superior Court and will deny all other pending motions without prejudice. A

separate Order accompanies this Memorandum Opinion.



DATE: March 1, 2013                           SIGNED:    EMMET G. SULLIVAN
                                              UNITED STATES DISTRICT JUDGE




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