# Clemens v. Local One, Service Employees International Union

> District Court, E.D. Missouri · October 29, 2019

URL: https://www.frixlaw.com/law-library/cases/10232027

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** October 29, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARTHUR J. CLEMENS, Jr., )
Plaintiff,
V. No. 4:17CV2381 RLW
LOCAL ONE, SERVICE EMPLOYEES
INTERNATIONAL UNION, et al., )
Defendants.
MEMORANDUM AND ORDER
This matter is before the Court on three separate motions for reconsideration filed by pro
se Plaintiff Arthur J. Clemens, Jr., related to the Court’s September 23, 2019 Judgment (ECF
Nos. 106, 107, & 108) and a memorandum brief in support thereof (ECF No. 109). Defendants
Local One, Service Employees International Union (“Local One”), Tom Balanoff, Laura Garza,
and Nancy Cross (collectively referred to as “Defendants”) oppose the motions. Plaintiff has
also filed a memorandum for clerk, which the Court construes as a motion to expedite ruling.
(ECF No. 113) After careful review, the Court grants Plaintiff's motion to expedite and denies
his three motions for reconsideration.
LEGAL STANDARD
A “motion to reconsider” is not explicitly contemplated by the Federal Rules of Civil
Procedure but can be addressed as arising under Rule 59(e) or 60(b). Elder-Keep v. Aksamit, 460
F.3d 979, 984 (8th Cir. 2006); Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999); see also
Harris y. United States, No. 4:18-CV-1546-JAR, 2018 WL 6305593, at *1 (E.D. Mo. Dec. 3,
2018) (motion to reconsider “can be considered the functional equivalent of a motion under
either Rule 59(e) or 60(b)”). Here, Plaintiff's three separate motions specifically invoke Rule 60

rather than 59(e).! Rule 60(b) allows a court to “relieve a party from a final judgment for, among
other reasons, mistake, inadvertence, surprise, or excusable neglect.” MIF Realty L.P. v.
Rochester Assocs., 92 F.3d 752, 755 (8th Cir. 1996). Rule 60(b) provides for “extraordinary
relief which may be granted only upon an adequate showing of exceptional circumstances.” U.S.
Xpress Enters., Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir. 2003).
DISCUSSION
As set forth in the Court’s Memorandum and Order of September 23, 2019 (ECF No.
104), Plaintiff Arthur J. Clemens, Jr., is employed by employers who are contracted to clean
Busch Stadium in Saint Louis, Missouri after events at the stadium. He is a dues-paying member
of Local One, which is a labor union representing approximately 46,000 members in the service
industry across six contiguous states. Defendants Tom Balanoff, Laura Garza, and Nancy Cross
are agents of Defendant Local One and serve as president, treasurer, and vice president
respectively. Plaintiff's Amended Complaint (ECF No. 46) asserted fifteen counts against
Defendants stemming from, among other things, grievances he had regarding allegedly improper
union elections and increases in membership dues. On September 23, 2019, the Court granted
Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment, which disposed of
all of Plaintiff's remaining claims.

' Rule 59(e) motions serve the limited function of correcting manifest errors of law or fact or to
present newly discovered evidence and allow a court to correct its own mistakes in the time
immediately following judgment. Harris v. United States, No. 4:18-CV-1546-JAR, 2018 WL
6305593, at *1 (E.D. Mo. Dec. 3, 2018) (citing Innovative Home Health Care, Inc. v. P.T.-O.T.
Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)). Rule 59(e) motions cannot be
used to relitigate old matters or to raise new arguments, tender new legal theories, or present
evidence that could have been offered or raised before the entry of judgment. Exxon Shipping
Co. v. Baker, 554 U.S. 471, 486 n.5 (2008). A Rule 59(e) motion “is not intended to routinely
give litigants a second bite at the apple, but to afford an opportunity for relief in extraordinary
circumstances.” Barnett v. Roper, 941 F. Supp. 2d 1099, 1104 (E.D. Mo. 2013) (internal
quotation marks and citation omitted) (emphasis in original).

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I. Count Il
In his first motion to reconsider (ECF No. 106), Plaintiff argues the Court “may have
overlooked or failed to consider evidence, statements, and documents that support” his third
cause of action. Count III of Plaintiff's Amended Complaint asserted that Local One raised
monthly membership dues from $39 to $41 for the calendar years 2009-2011 without a valid
vote. Specifically, Plaintiff claims evidence in the record establishes that Cross admitted a
clerical error caused the dues increase from $37 to $41. He claims that his letter appealing Vice
President Cross’s refusal to refund the difference went ignored by President Balanoff. Plaintiff
also claims he and another union member approached someone at the Office of Labor-
Management Standards (“OLMS”), but that person informed them that OLMS did not have
jurisdiction over the dispute. When defense counsel asked Plaintiff during his deposition
whether he had done anything further to exhaust his remedies concerning his complaint about the
increased union dues, Plaintiff responded “No, that’s it.” (Dep. of Arthur Clemens at 25:5-24,
ECF No. 66-4)
The Court did not overlook the evidence Plaintiff cites. Rather, such information does
not refute the Court’s conclusion that Defendants were entitled to summary judgment on Count
III because Plaintiff failed to exhaust internal union remedies before filing his private lawsuit as
required by Local One’s bylaws, Service Employees International Union’s constitution, and §
101(a)(4) of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 41
l(a)(4). As explained in the Memorandum and Order of September 23, 2019 (ECF No. 104),
Article XXII of Local One’s Constitution and Bylaws provides:
Section 1. Subject to the provisions of Section 2, the President shall be
empowered to decide disputes between members relating to their work or their
responsibilities to each other or to the Local Union and to decide the claim of
members concerning the adjustment of their grievances against employers or

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Union Representatives. The decision of the President shall be final and binding in
such matters, except that a member who is not satisfied with such decision shall
have the right to appeal as provided in Section 2 hereof. Jt is expressly
understood that, as a condition of membership, each member agrees to be bound
by the provisions of Sections I and 2 of this Article and to exhaust all procedures
and remedies provided therein and to refrain from the institution or prosecution
of any action in any court, tribunal or other agency until the procedures and
remedies therein are fully exhausted. Any member who brings any action in
violation of this provision may, in addition to other penalties, be required to
reimburse the Local Union or its officers for the costs’ and attorneys [sic] fees
incurred in defending such action.
Section 2. Any member who has a dispute as defined in Section 1 shall, within
ten (10) days from the date such dispute arises, appeal in writing to the President
by certified mail. Jf such member is not satisfied with the decision of the
President, or if the President has not rendered a decision within fifteen (15) days
following receipt of the appeal, the member may appeal his or her case to the
Appeals Committee of the Executive Board. The Appeals Committee shall consist
of five (5) Executive Board Members assigned by the President. Any such appeal
to the Appeals Committee of the Executive Board shall be filed in writing by
certified mail with the Secretary-Treasurer. The decision of the Appeals
Committee shall be due or rendered not later than thirty (30) days after receipt of
the appeal. The decision of the Appeals Committee of the Executive Board shall
be subject only to such further appeal as may be permissible under the
Constitution and Bylaw of the International Union.
(ECF No. 66-1, at 13) (emphasis added)
As explained in the Memorandum and Order of September 23, 2019, Plaintiff admitted in
his deposition that he did not follow the prescribed appeal process after President Balanoff failed
to respond. Accordingly, the Court finds that Plaintiff has failed to demonstrate any mistake in
the Memorandum and Order of September 23, 2019 to warrant the extraordinary relief afforded
by Rule 60(b). Plaintiffs first motion for reconsideration (ECF No. 106) is denied.
II. Motion to Enjoin Use of Treasury Money to Pay Legal Fees
In his second motion for reconsideration (ECF No. 107), Plaintiff again moves to enjoin
Defendants from using treasury money to pay legal fees to defense counsel. Plaintiff does not
offer any argument that the Court erroneously denied his previous two motions seeking to enjoin

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payments to defense counsel (ECF Nos. 18 & 94). Rather, he offers additional purported records
of legal fee billing and accuses defense counsel of bill padding, double billing, and conflicts of
interest. The Court finds that these allegations are without merit. Plaintiffs second motion for
reconsideration (ECF No. 107) is denied. To the extent Plaintiff's second motion attempts to
reopen the case to file a new motion to enjoin Defendants from using treasury money to pay
defense counsel, the motion is also denied.
III. Plaintiff’s Constitutional Challenge to
In his third motion for reconsideration, Plaintiff argues Rule 5.1 requires the Court to
certify to the Attorney General of the United States that his Amended Complaint questions the
constitutional validity of a federal statute. Fed. R. Civ. P. 5.1(b). The Advisory Committee
Notes for Rule 5.1, however, make clear that
[t]he court may reject a constitutional challenge to a statute at any time... This
rule does not displace any of the statutory or rule procedures that permit dismissal
of all or part of an action -- including a constitutional challenge -- at any time,
even before service of process.
Id. advisory committee’s notes (2006).
As explained in the Memorandum and Order of September 23, 2019, Plaintiffs
constitutional challenge to 29 U.S.C. § 481(c) is without merit and, thus, does not require
certification to the Attorney General. Plaintiff essentially makes a policy argument that modern
technological advancements justify the Court declaring § 481(c) unconstitutional. Such a policy
argument is outside the scope of the Court's jurisdiction and is more properly suited for
Congress. Plaintiffs third motion for reconsideration (ECF No. 108) is denied.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiff Arthur J. Clemens, Jr.,’s October 23, 2019
memorandum for clerk, which the Court construes as a motion to expedite ruling, is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff's three separate motions for reconsideration
related to the Court’s September 23, 2019 Judgment (ECF Nos. 106, 107, & 108) are DENIED.
Dated this”? day of October, 2019.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10232027. Public record. Not legal advice.