                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0216n.06
                              Filed: March 23, 2007

                                                  06-5520

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


BETTY CUNNINGHAM, LINDA JONES,                         )
ROSE MARY KELLER, and WILMA                            )
STANDAFER, on behalf of themselves                     )
and all others similarly situated,                     )
                                                       )
        Plaintiffs-Appellees,                          )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR THE
v.                                                     )    EASTERN DISTRICT OF KENTUCKY
                                                       )
OSRAM SYLVANIA, INC.,                                  )
                                                       )
        Defendant-Appellee.                            )




        Before: DAUGHTREY and COOK, Circuit Judges, and WEBER,* District Judge.


        PER CURIAM. The plaintiffs in this putative class action suit appeal from the district

court’s order of dismissal, which was ostensibly based on Federal Rule of Civil Procedure

12(b)(6), for failure to state a claim on which relief could be granted, in an action alleging

violation of section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185.

Both the plaintiffs and the defendant, Osram Sylvania Products, Inc. (Sylvania), agreed

below and continue to concede that the order of dismissal was more properly treated as

a motion for summary judgment under Federal Rule of Civil Procedure 56, given that the



        *
         The Hon. Herm an J. W eber, United States District Judge for the Southern District of Ohio, sitting by
designation.
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Cunningham v. Osram Sylvania, Inc.

decision was based on “matters outside of the pleadings . . . presented to and not excluded

by the [district] court.” F.R.Civ.P. 12(c). The dispositive question on appeal has both

procedural and substantive aspects: whether the complaint was properly subject to

dismissal despite the district court’s denial of the plaintiffs’ motion to defer a response to

the motion to dismiss pending “necessary discovery.” The defendant argued below and

contends on appeal that further discovery was not necessary – indeed, Sylvania suggested

in briefing in the district court that the plaintiffs’ interrogatories and their request for

production of documents amounted to no more than a “fishing expedition,” because all the

documents necessary to a decision in the defendant’s favor were contained in the record

and because the plaintiffs had failed to repudiate any of them. The district court apparently

agreed and dismissed the action with prejudice. Under the circumstances of this case, we

conclude that dismissal prior to discovery was justified and affirm.


       The plaintiffs are former Sylvania employees who retired in 1998 and 2002. They

brought this action on the theory that Sylvania’s announcement in 2003 that its contribution

to their medical insurance premiums would henceforth be “capped” at scheduled amounts

constituted a unilateral modification of non-modifiable lifetime benefits granted to retirees

under union contracts between their union, UAW Local 1608, and Sylvania.                 The

company’s action came in the wake of provisions in collective bargaining agreements

dating back to 1993, the year that Sylvania purchased the Kentucky facility where the

plaintiffs were employed. After Sylvania took over the plant, the health insurance benefits

for retirees fell into two categories, based on age and length of service. The first category

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Cunningham v. Osram Sylvania, Inc.

covered those employees who were under the age of 45 on the date of purchase and who

were eligible to receive a percentage of the premium at company expense, based on their

years of employment and capped at a certain amount set out in a separate schedule.

Those over the age of 45 on the purchase date were subject to the same eligibility

formulas, but the amounts to which they were entitled were not capped. As medical

insurance costs began to rise precipitously in the decade following Sylvania’s takeover of

the plant, however, the company negotiated minor changes in the collective bargaining

agreements with the UAW and, outside the contract, made certain other changes in the

retirees’ health insurance coverage. Finally, in 2003, after failing to secure a change in the

most recent contract, the company notified retirees that the distinction between the capped

and uncapped premiums had been removed from the plan and that, henceforth, all health

insurance premiums would be subject to a cap on amounts paid by the company. In

response, the plaintiffs brought suit, alleging that this unilateral change in benefits was in

violation of the LMRA.


       Although the complaint filed in the district court contained virtually all of the facts

outlined above, and more, it omitted any facts to support the bald conclusions that “[t]he

insurance benefits conferred on all retirees by the Agreements are lifetime benefits to

which plaintiffs and other retirees from the Winchester, Kentucky plant are entitled for the

remainder of their lives” and that those benefits “cannot be unilaterally modified or

terminated by the defendant without the consent of the retirees.” Because this proposition

was pleaded without factual support of any kind, in our judgment the district court could

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Cunningham v. Osram Sylvania, Inc.

have entered an order of dismissal for failure to state a claim under Rule 12(b)(6). Instead,

the court based its order on extrinsic materials submitted by the defendant in response to

the allegation that the benefits in question were unmodifiable, lifetime entitlements.


       Those materials consisted, first, of copies of the 1994-98 and 2001-03 contracts

between Sylvania and the UAW that were in force when the plaintiffs retired. None of the

provisions regarding medical insurance benefits for retirees included language that could

be interpreted to vest those benefits for life. Second, the defendant produced written

proposals put forward by the union during negotiations for both contracts that called for

vested benefits, accompanied by an affidavit from a company negotiator who said that the

defendant had rejected the proposals on both occasions and that the union had withdrawn

them. Hence, instead of a guarantee, as proposed by the UAW, that “[a]ll current and

future retirees will have their present health insurance continue for life and for the lives of

their dependents with Osram [Sylvania] paying the full premium cost of such insurance,”

the contracts promise benefits as described only “during the term of th[e] Agreement.”


       In addition, the defendant produced the applications for retiree health insurance

submitted and signed by each of the plaintiffs at the time of their retirement. Those forms

contain a provision just above the signature lines that reads as follows: “I understand that

. . . [r]ates and coverage are subject to change [and that] OSRAM SYLVANIA INC. plans

to continue offering the Retiree Health Insurance Plan[;] however, it reserves the right to

modify or terminate benefits.” The same sort of disclaimer was also included in an annual


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Cunningham v. Osram Sylvania, Inc.

letter to retirees that explained changes in their benefits for the upcoming year, and in re-

applications that the retirees submitted from time to time – for example, designating a new

HMO.


       The district court interpreted these provisions, taken collectively, as evidence of the

absence of intent to vest the retiree health insurance benefits in the two contracts at issue

and held that the subsequent unilateral capping of those benefits could not constitute a

breach of the Sylvania-UAW 1994-1998 and 2001-2003 collective bargaining agreements.

On appeal, the plaintiffs have striven mightily to demonstrate that the language in the

contract should be interpreted to provide vested medical insurance benefits. We have

studied each of the arguments put forward and find them too strained and unpersuasive

to create a dispute of fact concerning the legal import of the agreements. Moreover, our

examination of the nature of the discovery sought by the plaintiffs in the trial court

convinces us that the defendant’s description of the information requested as immaterial

to a proper interpretation of the contracts is correct. We conclude that discovery would not

have produced evidence sufficient to create a material dispute of fact in this case and that

summary judgment was therefore properly entered in favor of the defendant.


       Finally, we note what is perhaps the most conclusive factor in our determination: the

failure of the plaintiffs to make any effort to refute the extrinsic evidence offered by the




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Cunningham v. Osram Sylvania, Inc.

defendant in support of its motion to dismiss.1 We concede the obvious, of course, which

is that a period of discovery prior to a ruling on a motion for summary judgment will be

appropriate in ordinary cases. See Vega v. First Federal Savings & Loan Ass’n of Detroit,

622 F.2d 918, 926 (6th Cir. 1980). But, while Rule 56(f) assumes that a request for

discovery in response to such a motion ordinarily will be granted, it does not require

deferral by a district court, especially where, in the words of the rule, it does not “appear

from the affidavits of a party opposing the motion that the party cannot for reasons stated

present by affidavit facts essential to justify the party’s opposition.” Thus, Rule 56(f)

presupposes that affidavits will be filed by a non-moving party seeking discovery prior to

a ruling on a motion for summary judgment, as required by Rule 56(c), and we have held

that such affidavits should include a description of the information needed and an

affirmative demonstration of how the requested discovery will permit the non-moving party

to rebut the grounds alleged for summary judgment. See Abercrombie & Fitch Stores, Inc.

v. American Eagle Outfitters, Inc., 280 F.3d 619, 627 (6th Cir. 2002).


        In this case, however, there were no affidavits submitted to justify the plaintiffs’

“motion to defer responding . . . until after completing necessary discovery.” This omission

is especially remarkable given the fact that one of the plaintiffs was a member of the


        1
          As previously noted, because the m otion included as attachm ents certain extrinsic evidence
consisting of relevant docum ents and an affidavit from a Sylvania official who had participated in negotiations
with the union, it was m ore properly designated a m otion for sum m ary judgm ent under Rule 56 than a m otion
to dism iss under Rule 12(b)(6). The plaintiffs secured an extension of tim e to file their m em orandum in
response to the m otion to dism iss but filed instead – on the last day of the extension – a “m otion to defer
responding to defendant’s m otion to dism iss until after com pleting necessary discovery.” That m otion was
not accom panied by affidavits of any kind but, instead, by a “declaration” from counsel for the plaintiffs.

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Cunningham v. Osram Sylvania, Inc.

union’s bargaining committee during relevant time periods and could have spoken

personally to the documents and affidavits submitted by the defendant to establish that the

proposal to vest the health insurance benefits had been rejected by the company and

withdrawn by the union.        That kind of specific information is not contained in the

“declaration” of plaintiffs’ counsel that was attached to the motion in response in this case.


       The record in this case reflects a technical error by the district court in failing to treat

the motion to dismiss as a motion for summary judgment explicitly, based on the court’s

reliance on extrinsic evidence. The resulting order, although designated as a grant of the

defendant’s motion to dismiss under the standard appropriate for determination of a Rule

12(b)(6) motion, was the functional equivalent of a grant of summary judgment. Moreover,

because both parties had conceded that a decision under Rule 56 was appropriate, the

ruling was not a sua sponte order of summary judgment, and the cases cited by the

plaintiffs requiring notice under Rule 56(c) ten days prior to the entry of a sua sponte order

are, therefore, not applicable in this case.


       Under the unique circumstances of this case, we conclude that dismissal of the

complaint was appropriate for the substantive reasons cited by the district court, even if the

procedural posture of the order of dismissal was technically incorrect. For this reason, we

AFFIRM the judgment of the district court.




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