The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 23-11359-RGS
H. CARR & SONS, LLC
v.
NEW ENGLAND PAINTING, FINISHING &
GLAZING INDUSTRIES DC 35 JOINT TRADE BOARD
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS
July 13, 2023
STEARNS, D.J.
Plaintiff H. Carr & Sons (Carr) brought this lawsuit against defendant
New England Painting, Finishing & Glazing Industries DC 35 Joint Trade
Board (the Board) seeking declaratory judgment regarding an alleged
conflict of interest involving legal representation by the law firm Feinberg,
Dumont & Brennan (Feinberg). Feinberg represents both the Board and the
Painters and Allied Trades District Council No. 35 Trust Funds (Funds), the
entity which referred Carr to the Board for a disciplinary hearing. The
Complaint asserts one claim against the Board — that its legal representation
by Feinberg, who also represents the Funds, violates Rule 1.7 of the
Massachusetts Rules of Professional Conduct. The Board moves to dismiss
this lawsuit for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1) and for failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the court
grants the motion and dismisses this action for lack of subject matter
jurisdiction.
DISCUSSION
“When faced with motions to dismiss under both 12(b)(1) and 12(b)(6),
a district court, absent good reason to do otherwise, should ordinarily decide
the 12(b)(1) motion first.” Ne. Erectors Ass’n of BETA v. Sec’y of Labor,
Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 1995). Carr
bears the burden of asserting federal subject matter jurisdiction in this case.1
To determine whether Carr has met its burden, the court “take[s] as true all
well-pleaded facts in the plaintiffs’ complaint[ ], scrutinize[s] them in the
light most hospitable to the plaintiffs’ theory of liability, and draw[s] all
reasonable inferences therefrom in the plaintiffs’ favor.” Fothergill v. United
States, 566 F.3d 248, 251 (1st Cir. 2009).
Federal courts may exercise jurisdiction over civil actions arising under
federal laws, see 28 U.S.C. § 1331, and actions in which the parties have
1 When faced with a motion to dismiss for lack of subject matter
jurisdiction, “the party invoking the jurisdiction of a federal court carries the
burden of proving its existence.” Taber Partners, I v. Merit Builders, Inc.,
987 F.2d 57, 60 (1st Cir. 1993).
diverse citizenship and the amount in controversy exceeds $75,000, see 28
U.S.C. § 1332. Federal courts may also exercise jurisdiction over cases
“encompassed within a statutory grant of jurisdiction.” Ins. Corp. of Ir., Ltd.
v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). Absent §
1331 federal question jurisdiction, § 1332 diversity jurisdiction, or a statutory
grant of jurisdiction, the court lacks subject matter jurisdiction to hear the
case, and the action must be dismissed.
I. Rule 12(b)(1) Motion
Carr asserts that this court has jurisdiction over this lawsuit pursuant
to § 1331 pursuant to section 301 of the Labor Management Relations Act
(LMRA). Section 301 of the LMRA “completely preempts a state law claim if
the resolution of the claim necessitates analysis of, or substantially depends
on the meaning of, a collective bargaining agreement.” Quesnel v. Prudential
Ins. Co., 66 F.3d 8, 10 (1st Cir. 1995). The line is drawn between mere
consultation of the CBA, which does not require preemption, and active
interpretation, which does. Lydon v. Bos. Sand & Gravel Co., 175 F.3d 6, 10
(1st Cir. 1999).
The sole claim before the court is an alleged conflict of interest based
on Mass. R. Prof. Cond. 1.7. Compl. [Dkt # 1] ¶ 33. Carr argues that “the
CBA is necessarily implicated in the conflict issue,” requiring LMRA
preemption of the state-law claim. Pl.’s Opp’n to Def.’s Mot. to Dismiss [Dkt
# 24] at 6. He asserts that the alleged conflict of interest “threatens to
infringe on the duties or obligations of the parties to the CBA.” Id. at 7.
However, Carr points to nothing in the CBA that would purport to have any
bearing on this solely state-law matter, even as a matter of reference, much
less interpretation. The CBA is not implicated in Carr’s current claim.
ORDER
Because the state-law claim is not preempted by section 301 of the
LMRA, the court does not have subject matter jurisdiction to hear the case.
The court accordingly GRANTS the motion and DISMISSES the case for lack
of subject matter jurisdiction.2
SO ORDERED.
/s/ Richard G. Stearns __________
UNITED STATES DISTRICT JUDGE
2 Defendant also moves for attorney’s fees and costs for the filing of a
frivolous lawsuit. While the court finds the litigation questionable, it does
not rise to the level of frivolous, thus, the court declines to impose these costs.