# Kokosing Construction Company, Inc. v. Local 860 Laborers' International Union of North America

> District Court, N.D. Ohio · August 14, 2019

URL: https://www.frixlaw.com/law-library/cases/10367355

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** August 14, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KOKOSING CONSTRUCTION ) CASE NO. 1:19CV467
COMPANY, INC., )
Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO
)
vs. ) OPINION AND ORDER
)
LABORERS’ INTERNATIONAL )
UNION OF NORTH AMERICA, )
LOCAL 860, )
Defendant. )
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Joint Motion (ECF DKT #16) to Proceed
as Proposed by the Parties. For the following reasons, the Joint Motion is denied. The above-
captioned case is dismissed without prejudice for want of jurisdiction.
I. BACKGROUND
Plaintiff Kokosing Construction Company, Inc. filed its Complaint for Declaratory
Judgment on March 1, 2019. Plaintiff alleges that it entered into an agreement with
Defendant Laborers’ International Union of North America, Local 860 to settle pending
grievances over hiring and assignment of employees for the I-271 Project. Plaintiff alleges
Defendant “has since attempted to impose additional requirements not included in the
Settlement Agreement upon [Plaintiff] and is threatening additional grievances and/or
litigation on [Plaintiff’s] current hiring methods.” (Complaint, ECF DKT #1 at ¶ 12).
(Emphasis added). Plaintiff contends it has no adequate remedy at law and asks the Court to

enforce the Settlement Agreement and order Defendant to comply with its terms.
Defendant answered on April 9, 2019, and asserts Counterclaims for Declaratory
Judgment; Breach of Labor Contract pursuant to Section 301 of the Labor Management
Relations Act (29 U.S.C. § 185); and Specific Performance. Defendant alleges that Plaintiff
has refused to abide by the terms of the Settlement Agreement and has initiated a frivolous
Declaratory Judgment lawsuit in order to thwart the intent of the parties’ contract and to cause
imminent injury to Local 860 and its members.
Following a Telephonic Case Management Conference on June 6, 2019, the Court
ordered Plaintiff to show cause “why its Complaint should not be dismissed for failing to set

forth a case or controversy justiciable in federal court . . . [and] to convince the Court that
Plaintiff is not simply asking for an improper advisory opinion.” (ECF DKT #13).
Plaintiff filed a timely response (ECF DKT #15). Plaintiff argues that a real and
immediate dispute exists between parties having adverse legal interests and that the genuine
and substantial controversy warrants the issuance of a declaratory judgment.
At a Telephone Status Conference on July 3, 2019, the Court committed to consider
Plaintiff’s contentions and ordered the parties to file a proposal as to how the case should
proceed.

The parties ask the Court to retain jurisdiction over the case; but if the Court were
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inclined to dismiss the Complaint, then maintain jurisdiction over Defendant’s Counterclaims.
II. LAW AND ANALYSIS
Federal jurisdiction
Federal District Courts are courts of limited jurisdiction. Bender v. Williamsport Area

School District, 475 U.S. 534, 541 (1986) (citing Marbury v. Madison, 1 Cranch 137, 5 U.S.
137 (1803)). “Subject matter jurisdiction is the unwaivable sine qua non for exercise of the
federal judicial power.” Crabtree v. Wal-Mart, 2006 WL 897210 at *1 (E.D.Ky. April 4,
2006), slip copy; Richmond v. International Business Machines Corporation, 919 F. Supp.
107 (E.D.N.Y. 1996) (citing Fed.R.Civ.P. 12(b)(1)). Want of subject matter jurisdiction may
be raised at any time by the parties or by the Court on its own initiative. Fed.R.Civ.P.
12(b)(1) and 12(h)(3); Clark v. Paul Gray, Inc., 306 U.S. 583 (1939). “[D]efects in subject
matter jurisdiction cannot be waived by the parties and may be addressed by a court on its

own motion at any stage of the proceedings.” Curry v. U.S. Bulk Transport, Inc., 462 F.3d
536, 540 (6th Cir. 2006), citing Owens v. Brock, 860 F.2d 1363, 1367 (6th Cir. 1988). The
burden rests upon the plaintiff to establish affirmatively that the Court possesses subject
matter jurisdiction over the case or controversy. See e.g., Thomson v. Gaiskill, 315 U.S. 442
(1942).
Federal Question
District courts have original jurisdiction over “actions arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331 (emphasis added). Original federal
question jurisdiction exists “only [in] those cases in which a well-pleaded Complaint

establishes either that federal law creates the cause of action or that the plaintiff[‘]s right to
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relief necessarily depends on resolution of a substantial question of federal law.” Eastman v.
Marine Mechanical Corp., 438 F.3d 544, 550 (6th Cir. 2006); Thornton v. Southwest Detroit
Hosp., 895 F. 2d 1131, 1133 (6th Cir. 1990) (quoting Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 27-28 (1983)). “[The well-pleaded complaint] rule provides that

‘federal jurisdiction exists only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.” Eastman, 438 F.3d at 550; Loftis v. United Parcel
Serv., Inc., 342 F.3d 509, 514 (6th Cir. 2003) (quoting Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987)).
As the United States Supreme Court declared in Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994):
Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, see Willy v. Coastal Corp., 503
U.S. 131, 136-137, 112 S.Ct. 1076, 1080, 117 L.Ed.2d 280 (1992); Bender v.
Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89
L.Ed.2d 501 (1986), which is not to be expanded by judicial decree, American
Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed.702 (1951). It
is to be presumed that a cause lies outside this limited jurisdiction, Turner v.
Bank of North America, 4 U.S. (4 Dall.) 8, 11, 1 L.Ed. 718 (1799), and the
burden of establishing the contrary rests upon the party asserting jurisdiction,
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-183, 56 S.Ct.
780, 782, 80 L.Ed. 1135 (1936).

Even if a party does not bring the issue to a court’s attention, “Article III courts have
an independent obligation to determine whether subject matter jurisdiction exists.” Airline
Professionals Association of Intern. Broth. of Teamsters, Local Union No. 1224, AFL-CIO v.
Airborne, Inc., 332 F.3d 983, 986 (6th Cir. 2003) (citing FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 231 (1990)).
Parties invoking federal jurisdiction are required by Article III of the United States
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Constitution to allege an actual case or controversy. Airborne, 332 F. 3d at 986-987 (citing
O’Shea v. Littleton, 414 U.S. 488, 493-94 (1974)). Satisfying the ripeness doctrine is an
important element of the “case” or “controversy.” Reno v. Catholic Soc. Servs., Inc., 509 U.S.
43, 57 n.18 (1993). “Requiring that plaintiffs bring only ripe claims helps courts ‘avoid[] . . .

premature adjudication.’” Airborne, 332 F. 3d at 987 (quoting Abbott Labs. v. Gardner, 387
U.S. 136, 148-49 (1967)). “Determining whether a claim is ripe involves evaluating ‘both
the fitness of the issues for judicial decision and the hardship to the parties of withholding
court consideration.’” Airborne, 332 F. 3d at 988 (quoting Abbott Labs., 387 U.S. at 149)).
“Ripeness is more than a mere procedural question; it is determinative of jurisdiction.
If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be
dismissed.” River City Capital, L.P. v. Board of County Commissioners, Clermont County,
Ohio, 491 F. 3d 301, 309 (6th Cir. 2007) (quoting Southern Pac. Transp. Co. v. City of Los
Angeles, 922 F. 2d 498, 502 (9th Cir. 1990)).

Declaratory Judgment
It is well-settled that federal courts may only adjudicate actual cases or controversies.
U.S. Const., Art. III, Section 2. In fact, that principle is reiterated in the Declaratory
Judgment Act, which states, “[i]n a case of actual controversy within its jurisdiction . . . any
court of the United States . . . may declare the rights and other legal relations of any interested
party seeking such declaration.” 28 U.S.C. § 2201. Nonetheless, the Supreme Court has
emphasized the discretionary nature of the Act. In Public Affairs Associates, Inc. v. Rickover,
369 U.S. 111, 112 (1962), the highest court opined: “‘The Declaratory Judgment Act was an

authorization, not a command. It gave the federal courts competence to make a declaration of
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rights; it did not impose a duty to do so.’ Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 499
[62 S.Ct. 1173, 1177-78, 86 L.Ed. 1620 (1942)].” Put another way, the declaratory judgment
statute “is an enabling Act, which confers a discretion on the courts rather than an absolute
right upon the litigant.” Green v. Mansour, 474 U.S. 64, 72 (1985). In exercising its

discretion, a federal court must only pass judgment upon real, not uncertain nor hypothetical,
disputes. As the Supreme Court noted in Golden v. Zwickler, 394 U.S. 103, 108 (1969),
quoting earlier decisions:
[T]he federal courts established pursuant to Article III of the Constitution do
not render advisory opinions. For adjudication of constitutional issues
‘concrete legal issues, presented in actual cases, no abstractions’ are requisite.
This is as true of declaratory judgments as any other field. United Public
Workers of American (C.I.O.) v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564,
91 L.Ed. 754 (1947). The difference between an abstract question and a
‘controversy’ contemplated by the Declaratory Judgment Act is necessarily
one of degree, and it would be difficult, if it would be possible, to fashion a
precise test for determining in every case whether there is such a controversy.
Basically, the question in each case is whether the facts alleged, under all the
circumstances, show that there is a substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment. Maryland Casualty Co. v. Pacific
Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

A party seeking a declaratory judgment must establish that jurisdiction “existed at the
time the claim for declaratory relief was filed and that it has continued since.” Benitec Austl.,
Ltd. v. Nucleonics, Inc., 495 F.3d 1340, 1344 (Fed.Cir. 2007). In MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 127 (2007), the Supreme Court held that, while there is no
bright-line test for deciding whether a declaratory judgment action constitutes an actual
controversy, what is required is:
that the dispute be definite and concrete, touching the legal relations of parties
having adverse legal interests; and that it be real and substantial and admit of
specific relief through a decree of a conclusive character, as distinguished from
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an opinion advising what the law would be upon a hypothetical state of facts.
In evaluating declaratory judgment jurisdiction, courts traditionally use the five
factors articulated in Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th
Cir. 1984). Federal courts examine whether (1) the declaratory judgment would settle the

controversy; (2) the declaratory judgment would serve a useful purpose in clarifying the legal
relations at issue; (3) the declaratory judgment vehicle is being used merely for “procedural
fencing” or to “provide an arena for a race for res judicata;” (4) the declaratory judgment
would increase friction between state and federal courts or encroach on state jurisdiction; and
(5) whether there is a more effective, alternative remedy. Id.
In the instant matter, Plaintiff accuses Defendant of attempting to impose additional
requirements not included in their Settlement Agreement and of threatening additional labor
grievances. Plaintiff’s prayer for relief seeks a declaration of Plaintiff’s “non-breach” of the
Agreement.

Upon analysis of the factual allegations, the Court cannot determine whether the
ultimate conflict between the parties will be resolved since the claims are so vague. There is
a very real possibility that further litigation before the NLRB will occur during the course of
the I-271 Project.
Also, it is questionable whether a declaratory judgment ruling on the Complaint would
end the dispute between the parties, particularly in light of Defendant’s Counterclaim.
The Court will not go so far as to say that Plaintiff is engaging in procedural fencing
or is acting upon some strategic motivation; but Defendant believes that to be so and charges

Plaintiff with filing a frivolous lawsuit. (Counterclaim, ECF DKT #7 at ¶ 12).
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The Grand Trunk factor concerning federal-state friction is not relevant here.
Lastly, although Plaintiff expresses that there is no adequate remedy at law, a breach
of contract cause of action authorized under Section 301 of the Labor Management Relations
Act is potentially available to Plaintiff to enforce Defendant’s obligations under the

Settlement Agreement.
The Court finds that the Grand Trunk factors weigh against exercising federal
jurisdiction over this case.
Moreover, Plaintiff’s Complaint is not sufficiently real, immediate or ripe. The Court,
in its discretion, declines Plaintiff’s invitation to provide “an opinion advising what the law
would be upon a hypothetical state of facts.” Medimmune.
Defendant’s Counterclaim
As noted above, Defendant asserts a three Counterclaims: Declaratory Judgment;

Breach of Labor Contract pursuant to Section 301 of the Labor Management Relations Act
(29 U.S.C. § 185); and Specific Performance.
It is well-settled that federal jurisdiction cannot be predicated upon an anticipated
defense nor upon an actual or anticipated counterclaim. Vaden v. Discover Bank, 556 U.S.
49, 60 (2009). See also, Bank of America, N.A. v. Marshall, No. 1:13-cv-280, 2014 WL
12676234 , *2 (E.D. Tenn. Feb. 18, 2014); Fannie Mae v. Yousif, No. 12-13087, 2012 WL
13013367, *1 (E.D. Mich. Oct. 10, 2012).
In Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 832
(2002), the Supreme Court observed that a counterclaim asserted in a responsive pleading

cannot provide the basis for “arising under” jurisdiction consistent with the well-pleaded
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complaint rule. Further, the Holmes court opined that it “would undermine the clarity and
simplicity”of the well-pleaded complaint rule to require federal courts to consider “not only
the complaint but also the responsive pleadings” to determine whether the case “arises under”
federal law. Id.

The Court has decided that it will not exercise jurisdiction over a claim for
Declaratory Judgment. Moreover, specific performance is an equitable remedy and not a
legal cause of action. Even though Defendant seeks relief in the Counterclaim for Breach of
Contract under 29 U.S.C. § 185, that is legally insufficient to justify the exercise of federal
jurisdiction when the “arising under” basis resides in the Counterclaim only.
III. CONCLUSION
For these reasons, the Joint Motion (ECF DKT #16) to Proceed as Proposed by the
Parties is denied and the above-captioned case is dismissed without prejudice for want of

jurisdiction.
IT IS SO ORDERED.
DATE: August 14, 2019
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10367355. Public record. Not legal advice.