           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 20, 2007

                                     No. 07-20384                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MILTON J RANDLE; LEE A SIMMONS; A J WILLIAMS; JACK NEFF;
PHILLIP H HEDDEN; LARRY TOWNSEND; LARRY D SMITH; HOLLIS
EDWARDS; LENNOX BORRIS; ROBERT SEQUNDO; HUBERT M LANG;
ALURICK N JASPER; WILLIAM MOORE; JOE BIANCARDI; DERECK
GUNTER; GABRIEL ZARA; NICHOLAS PHOLGENE

                                                  Plaintiffs - Appellants
v.

LOCAL 28 INTERNATIONAL LONGSHOREMENS ASSOCIATION/AFL-
CIO; LARRY W SOPCHAK, President; B R WILLIAMS, SR, Executive Vice
President; TIMOTHY HARRIS, Business Agent/Financial Secretary

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                    for the Southern District of Texas, Houston
                                 No. 4:07-CV-103


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       On March 28, 2007, the district court granted Defendants’ motion to
dismiss, and entered final judgment. On April 17, 2007, the district court denied


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 07-20384

Plaintiffs’ motion for a new trial. Plaintiffs now appeal the order denying the
motion for a new trial. For the reasons set forth below, we affirm the district
court’s order.
                I. FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiffs are members of Local 28, International Longshoremens
Association/AFL-CIO (“Local 28"), which is located in Pasadena, Texas.1
Defendants are Local 28 and certain officers thereof. At some point in the past,
Local 28 members received an hourly wage increase termed a “container
royalty.” The container royalties are distributed to members annually, in
December of each year, although Local 28 withholds a portion of them as
membership dues. Members never voted to authorize Local 28 to retain a
percentage of the royalties. To the contrary, on October 30, 2000, members voted
at a specially called meeting to prohibit Local 28 from withholding any monies.
      On January 9, 2007, Plaintiffs filed a complaint alleging that Defendants
violated the Labor-Management Reporting Disclosure Act (“LMRDA”), 29 U.S.C.
§ 411(a)(3)(A), by failing to hold a secret-ballot vote before collecting dues from
the container royalties. On January 20, 2007, Defendants filed a motion to
dismiss the action as time barred, arguing that the most generous Texas statute
of limitations that could possibly govern, in the absence of a specific LMRDA
rule, only provided four years to file suit. They asserted that Plaintiffs’ action
accrued on or before October 30, 2000–the day of the specially called meeting–six
years before Plaintiffs filed their case. Defendants also argued that Plaintiffs
failed to state a cause of action because the complaint did not allege that Local
28 increased membership rates.
      Plaintiffs did not file a response, and, on March 28, 2007, the district court
dismissed the case as time barred. On April 6, 2007, Plaintiffs filed a motion for


      1
          The facts stated herein are taken from Plaintiffs’ complaint.

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new trial under Rule 59 of the Federal Rules of Civil Procedure. Plaintiffs
“apologize[d]” to the district court for failing to respond to the motion to dismiss,
and stated that Plaintiffs’ lawyer confused federal with state motion practice.
Plaintiffs agreed that Texas’ four-year statute of limitations applied to
§ 411(a)(3)(A) claims. However, they argued that the action was not barred
because there were continuing violations of the LMRDA every time Local 28
withheld dues from the container royalties.
      In response, Defendants asserted that there was only one discrete refusal
to “rescind the status quo,” which occurred immediately after the October 30,
2000 vote. Defendants also renewed their argument that Plaintiffs failed to
state a claim for relief because they did not allege an increase in union rates. On
April 17, 2007, the district court denied Plaintiffs’ motion for a new trial. It
assumed, arguendo, that the theory of continuing violations is applicable to more
than discrimination claims. But it found that Plaintiffs failed to establish a
continuing violation under the three-part test set forth in Berry v. Board of
Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), because: (1) there was
no discriminatory act; (2) the single annual violation was not frequent enough;
and (3) Plaintiffs should have realized they were injured by Defendants in
December of 2000.
      On May 17, 2007, Plaintiffs filed this timely appeal.
                          II. STANDARD OF REVIEW
      We review a dismissal for failure to comply with a statute of limitations
under Rule 12(b)(6). Triplett v. Heckler, 767 F.2d 210, 211-12 (5th Cir. 1985).
The “court accepts ‘all well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.’” Martin K. Eby Constr. Co. v. Dallas Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999)). To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must plead “enough facts to state a claim to relief that is plausible on

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its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 1965 (quotation marks, citations, and footnote omitted).
      Although Plaintiffs never reached trial, they appeal the district court’s
denial of their motion for new trial, and Defendants agree that review of the
legal rulings are de novo. See Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.
2005).   Defendants do not argue, as they seemingly could, that Plaintiffs’
arguments should be subjected to a higher standard of review because Plaintiffs
raised new arguments. See id. Nor do they argue that Plaintiffs’ motion was
actually a motion for reconsideration under Rule 60 of the Federal Rules of Civil
Procedure. See Barrs v. Sullivan, 906 F.2d 120, 120 (5th Cir. 1990) (holding that
the standard of review under Rule 60 is abuse of discretion). Since the district
court seemingly reviewed Plaintiffs’ arguments de novo, and it is not dispositive
to the outcome of the case, we shall too.
                               III. DISCUSSION
      Plaintiffs argue that their LMRDA action is not time barred because the
court should apply a continuing violation theory to whatever statute of
limitations applies. They assert that a long standing violation of the LMRDA
cannot escape review because the LMRDA protects union workers against more
than mere injuries like personal injury or breach of contract; it protects union
workers from leaders abusing their powers. Yet under the district court’s
analysis of the case, they assert, Defendants are “immune from any enforcement
of the law simply because [they] got away with it [for] too long.”
      It is unclear if Plaintiffs still agree, as they did below, that a four-year
Texas statute of limitation governs. Plaintiffs state that: “[t]o be sure, to apply
a two year statute of limitations to the rights protected under this Act because
it is analogous to a personal injury or a four year statute because it sounds in

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contract totally misses the mark.” On the other hand, Plaintiffs do not suggest
that any other statute of limitations applies. In either event, Plaintiffs believe
that they can collect damages going back as far as December of 2000 because
Local 28 withheld dues from the container royalties in December of 2006.
         Defendants respond that Plaintiffs’ claim was properly dismissed as
untimely.     First, they observe that courts must apply a state statute of
limitations to a federal claim if there is no federal statute of limitations, and
argue that the only options were a two-year Texas limitation on personal injury
claims or a four-year limitation on contract and other residual claims. Second,
they contend that the district court properly determined that Plaintiffs’ cause of
action accrued on October 30, 2000, the day members voted to prohibit Local 28
from withholding dues from the container royalties. Third, they assert that
Plaintiffs cannot create new injuries to evade the statute of limitations because
the discrete act that caused their injuries occurred in 2000. Finally, they
continue to argue that Plaintiffs failed to allege that Local 28 raised membership
rates.
         We find that Plaintiffs’ action is time barred. The LMRDA bars unions
from increasing the “the rates of dues and initiation fees payable by members,”
unless a majority of members in good standing vote by secret ballot to do so. 29
U.S.C. § 411(a)(3)(A). Section 411 does not contain an internal statute of
limitations, so we look to the statute of limitations of the most analogous state
claim to determine when union members may sue. Dantagnan v. I.L.A. Local
1418, AFL-CIO, 496 F.2d 400, 401-03 (5th Cir. 1974). In Dantagnan, the court
looked to the law of Louisiana and determined that the most analogous
Louisiana claim was a claim for quasi-contract because the union would be
unjustly enriched if allowed to retain dues unlawfully collected. Id. at 403. As
such, Louisiana’s ten-year statute of limitations for contracts governed. Id.



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      Similarly, in Reed v. United Transporting Union, 488 U.S. 319, 332 (1989),
the Supreme Court applied a state personal injury limitations period to an
LMRDA claim under 29 U.S.C. § 411(a)(2), which protects union members’ rights
to meet and assemble freely with other members. The Court rejected the union
member’s argument that federal policy so strongly supported his right to speak
that his claim was not governed by a state statute of limitations. Id. at 326.
According to the Court, federal policy favored strict application of state statutes
of limitations because “[t]ime-consuming litigation as to the collateral question
of the appropriate statute of limitations” would obstruct the prompt resolution
of labor disputes. Id. at 326; see also DelCostello v. Int’l Bhd. of Teamsters, 462
U.S. 151, 168 (1983) (stating that federal policy favors relatively quick resolution
of labor disputes); Wood v. Houston Belt & Terminal Ry., 958 F.2d 95, 98 (5th
Cir. 1992) (same).
      Defendants suggest that our opinion in Dantagnan, 496 F.2d at 401-03,
applying Louisiana’s statute of limitations for contracts to an LMRDA action,
has been undermined by Reed, 488 U.S. at 332, which applied a state personal
injury statute. We need not decide that question, although we note that the two
cases involved different sections of the LMRDA and different state claims. The
outcome of this case is not determined by which Texas period of limitations
governs. The Texas statute applied by the district court provides a four year
period for breach of contract cases and every other action “for which there is no
express limitations . . . .” Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon
2001), while the personal injury statue Defendants prefer provides a two-year
period, id. § 16.003(a). Both statutes bar Plaintiffs’ suit unless we find that
either Plaintiffs’ injury accrued on or after January 8, 2005, or that Plaintiffs are
suing for a continuing violation. We find neither.
      First, Plaintiffs’ claim accrued sometime in December of 2000. Ordinarily,
a statute of limitations begins to run upon the discovery of the injury in

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question, or when the plaintiff should have discovered the injury. See Rotella
v. Wood, 528 U.S. 549, 555 (2000); Ramming v. United States, 281 F.3d 158, 162
(5th Cir. 2001); Love v. Nat’l Med. Enters., 230 F.3d 765, 776-77 (5th Cir. 2000).
A plaintiff need not discover every element of the claim, only the injury, for the
clock to start. Rotella, 528 U.S. at 555. The purpose behind the discovery-
accrual rule is to ensure “repose, elimination of stale claims, and certainty about
a plaintiff’s opportunity for recovery and a defendant’s potential liabilities.” Id.
at 555. “A limitations period that would have begun to run only eight years after
a claim became ripe would bar repose, prove a godsend to stale claims, and doom
any hope of certainty in identifying potential liability.” Id. at 559. We note,
moreover, that the discovery-accrual rule has been applied to labor disputes.
See, e.g., Wood, 958 F.2d at 97; Barret v. Ebasco Constructors, Inc., 868 F.2d
170, 171 (5th Cir. 1989).
      In the instant case, it is clear from the complaint that Plaintiffs’ injury
accrued in December of 2000. The complaint makes two allegations that compel
this conclusion: (1) members voted to prohibit collection of union dues from the
container royalties on October 30, 2000; and (2) membership dues were collected
from the container royalties every December. Accepting both allegations as true,
we find that dues were taken from the container royalties in December of 2000,
despite the fact that members never authorized Local 28 to do so. When
Plaintiffs received container royalties in December of 2000, minus membership
dues, they discovered that Defendants injured them and the statute of
limitations began to run.
      Second, Plaintiffs cannot establish a continuing violation of § 411(a)(3)(A).
In Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982), the Court held
that a plaintiff was not barred from bringing a Fair Housing Act claim to
challenge allegedly discriminatory acts, even though some of the discriminatory
acts were outside the statute of limitations, because the plaintiffs challenged an

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unlawful practice that was continuing in nature. The challenged practice was
continuous in nature because the defendant landlords refused to rent to the
minority applicants on multiple occasions, including once during the statute of
limitations period. Id. at 382.
       The continuing violation doctrine has since been applied in other
discrimination cases. For example, in Abrams v. Baylor College of Medicine, 805
F.2d 528, 533 (5th Cir. 1986) (citation omitted), the court had “no difficulty in
upholding a finding of continuing violation [in a Title VII case] when . . . the
employer’s ambiguous acts serve[d] to obscure the existence of an unlawful
policy and fail[ed] to alert ‘the average lay person to act to protect his rights.’”
In Berry, 715 F.2d at 981, the court discussed three non-exhaustive factors that
help determine whether an action was continuous in a Title VII case: (1)
whether the various acts “involve the same type of discrimination, tending to
connect them”; (2) whether the acts are frequent and recurring, or more isolated
in nature; and, “most importantly,” (3) whether the act is permanent in nature,
such that it “should trigger an employee’s awareness of a duty to assert his or
her rights . . . .”
       The continuing violation doctrine does not mean that every past act that
has effects in the future are continuing violations. In Ledbetter v. Goodyear Tire
& Rubber Co., 127 S. Ct. 2162, 2165-66 (2007), the Court refused to allow the
plaintiff to sue for past discrimination, reflected in paychecks received during
the statutory filing period, because the lawsuit violated the policy of repose
behind every limitations period. The plaintiff alleged that a past discriminatory
act, the setting of her pay below the amount that similarly situated men
received, continued to have consequences in the future. Id. Specifically, the
plaintiff’s pay was still less than similarly situated men years later because her
starting base pay was too low. Id. But the Court held that “[b]ecause a pay-
setting decision is a ‘discrete act,’ it follows that the period for filing an EEOC

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charge begins when the act occurs.” Id. at 2165. And it observed that it is
“‘unjust to fail to put [an] adversary on notice to defend within a specified period
of time.’” Id. at 2166 (quoting United States v. Kubrick, 444 U.S. 111, 117
(1979)).
      In the instant case, we are convinced that Plaintiffs failed to allege a
continuing violation. Plaintiffs complain of one discrete act: Local 28's decision
in 2000 to retain membership dues from container royalties. As in Ledbetter,
although this one discreet act continues to have repercussions to this day, it is
not a continuing violation because it involved a single membership-rate setting
decision.   Local 28's decision was permanent in nature and should have
“trigger[ed a member’s] awareness of a duty to assert his or her rights . . . .”
Berry, 715 F.2d at 981. This is not a situation where an ambiguous act obscured
the existence of a violation. Abrams, 805 F.2d at 533; see also Ledbetter, 127 S.
Ct. at 2181 (Ginsburg. J., dissenting) (arguing that a past discriminatory pay
decision was a continuing violation because the plaintiff did not learn until later
that similarly situated male employees were being paid higher salaries). The
members of Local 28 were fully aware in October 30, 2000, that Local 28 might
assess union dues from the container royalties. When Local 28 did so in
December 2000, Plaintiffs were in a position to timely challenge that decision.
Finally, while we do not decide whether any plaintiff could allege a continuing
violation of the LMRDA, our decision is fortified by the strong federal preference
for the prompt resolution of labor disputes.        See Reed, 488 U.S. at 326;
DelCostello, 462 U.S. at 168; Wood, 958 F.2d at 98.
                               III. CONCLUSION
      In conclusion, we AFFIRM the district court’s order denying Plaintiffs’
motion for a new trial.




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