LaSpina v. SEIU Pennsylvania State Council

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

BETHANY LASPINA, :

on behalf of herself and others

similarly situated, :

Plaintiffs, :

CIVIL ACTION NO. 3:18-2018

v. :

(JUDGE MANNION)

SEIU PENNSYLVANIA STATE :

COUNCIL, et al.,

:

Defendants :

MEMORANDUM

Pending before the court is the motion to dismiss the second amended

complaint (“SAC”), (Doc. 66), of plaintiff Bethany LaSpina filed by defendant

union SEIU1 Pennsylvania State Council (“State Council”), (Doc. 53), for

failure to state a claim upon which relief may be granted pursuant to

Fed.R.Civ.P. 12(b)(6) since she was not a member of this union and, for

failure to have Article III standing to pursue class action claims on behalf of

members and former members of this union pursuant to 12(b)(1). State

Council also contends that its affiliation with the union defendant to which she

paid fees is not sufficient to confer on plaintiff standing to sue it or to state a

claim against it. For the reasons that follow, State Council’s motion to dismiss

will be GRANTED and plaintiff’s federal claims against this defendant will be

DISMISSED WITH PREJUDICE.

1Service Employees International Union (“SEIU”).

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I. BACKGROUND?

Plaintiff claims that she was unconstitutionally required to pay union

dues and, in Counts 1, 2 and 3 of her SAC, she raises federal claims against

all defendants pursuant to 42 U.S.C. §1983.° In particular, plaintiff alleges that

her First Amendment rights were violated when Local 668 continued to take

dues from her paycheck after she resigned her membership in the union,

based on the Janus * decision, and after she told her employer (i.e., Scranton

Public Library) to “halt the payroll deduction of union-related fees.” With

respect to the union defendants other than Local 668, plaintiff alleges that

they “enforced unconstitutional agency shops before the Supreme Court's

ruling in Janus and violated the constitutional rights of the plaintiff class

members by tapping their paychecks against their will.”

Further, plaintiff seeks relief under the Declaratory Judgment Act, 22

U.S.C. §2201, requesting a permanent injunction enjoining defendants from

accepting dues or fees unless the employees have given their consent to join

the unions.

Since the court stated the background of this case in its August 29,

2019 Memorandum granting the motions to dismiss plaintiff's SAC, (Doc. 66),

of union defendants, SEIU Local 32BJ, (Doc. 46), the Pennsylvania Joint

Board of Workers United, (Doc. 52), and SEIU Healthcare PA, (Doc. 59), it

will not be fully repeated herein. (Doc. 98).

°The facts alleged in plaintiffs SAC must be accepted as true in

considering defendant State Council’s motion to dismiss. See Dieffenbach v.

Dept. of Revenue, 490 Fed.Appx. 433, 435 (3d Cir. 2012); Evancho v. Evans,

423 F.3d 347, 350 (3d Cir. 2005).

‘Janus _v. American Federation of State, County, and Municipal

Employees, Council 31, — U.S. —, 138 S. Ct. 2448 (2018).

Plaintiff also raises state law claims against all defendants for

conversion, trespass to chattels, replevin, restitution, and unjust enrichment.

In addition to SEIU Pennsylvania State Council, remaining defendants

in this case are Local 668, Lackawanna County Public Library System, and

Scranton Public Library.5

Plaintiff alleges that State Council “coordinates and unifies the collective

political, administrative, and communication structures of all SEIU locals and

districts throughout Pennsylvania.” Plaintiff also alleges that the other four

union defendants were “affiliated with” State Council. Additionally, plaintiff

purports to bring claims on behalf of public employee members and former

members of the defendant union affiliates of State Council alleging that they

were unconstitutionally required to pay union dues and fair share fees. She

seeks to raise First Amendment claims and state law claims on behalf of

public employees who were allegedly forced to pay dues and fair share fees

to the defendant union affiliates of State Council.

5Also pending in this case are the motions to dismiss filed by defendants

Local 668, (Doc. 70), and Scranton Public Library, (Doc. 88). The court will

address these other motions in separate decisions.

The court notes that plaintiff has failed to serve Lackawanna County

Public Library System with her SAC. Although plaintiff stated in her March 27,

2019 status report regarding service, (Doc. 84), that if Lackawanna County

Public Library System failed to return the waiver of service form or failed to

appear in the case by April 12, 2019, she would hire a process server to serve

this defendant, to date, no waiver of service has been filed with respect to this

defendant and no counsel entered an appearance for this defendant. As such,

the court puts plaintiff on notice that if she fails to serve Lackawanna County

Public Library System with her SAC within 14 days of the date of the Order

accompanying this Memorandum, this defendant will be dismissed from this

case pursuant to Fed.R.Civ.P. 4(m).

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Plaintiff further purports to bring claims on behalf of all employees in

bargaining units represented by affiliates of State Council who were subjected

to union-related payroll deductions to which they did not knowingly consent.

As relief, plaintiff seeks a refund of all of the dues she paid to Local 668.

Plaintiff also seeks to require the defendant unions to refund all dues and fees

they received from her. Additionally, plaintiff seeks punitive damages for

herself and for members of all defendant unions who resigned from the unions

or requested that the unions stop taking dues or fees after the Janus decision

and who continued to have dues or fees withdrawn from their pay. Further,

plaintiff is seeking injunctive relief on her own behalf and behalf of class

members who were subjected to union-related payroll deductions without their

consent, and she requests the court to enjoin “[State Council] and its affiliates

from taking money from any public employee until the union obtains a freely

given and fully informed waiver of the employee’s constitutional rights under

Janus.”

Plaintiff is proceeding on her SAC filed January 28, 2019. (Doc. 66). On

January 14, 2019, State Council filed its original motion to dismiss.6 (Doc. 53).

The motion to dismiss of State Council has been briefed. (Docs. 55, 74

& 78).

The court has jurisdiction over this case pursuant to 28 U.S.C. §1331

6Although the defendant unions, including State Council, filed their

motions to dismiss pertaining to plaintiff’s amended complaint, the court

converted all of the pending motions to dismiss plaintiff’s amended complaint

into motions to dismiss her SAC. (Doc. 67).

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and 28 U.S.C. §1343(a) because plaintiff avers violations of his rights under

the U.S. Constitution. The court can exercise supplemental jurisdiction over

plaintiff’s state law claims under 28 U.S.C. §1337. Venue is appropriate in this

court since the alleged constitutional violations occurred in this district. See

28 U.S.C. §1391.

II. DISCUSSION7

State Council argues that plaintiff’s allegations against it fail to state a

cognizable claim since plaintiff only alleges that she was a member of Local

668 and not that she was ever a member of State Council. State Council also

states that all of the plaintiff’s allegations regarding her constitutional claims

concern Local 668 and do not relate to it. State Council contends that plaintiff

fails to allege any facts related to any of the union defendants other than

Local 668, and that she only allege that these other unions were affiliated with

State Council. State Council further states that plaintiff fails to allege that it

took any dues/fees from her or caused her any harm. As such, State Council

contends that plaintiff does not state any facts that show it had any

participation in the unlawful activities alleged in her SAC. It points out that

“[plaintiff] neither alleges paying any dues or other money to [State] Council

or its ever having represented her in any respect at her job”, and that she fails

7Since the standards of review applicable to State Council’s motion to

dismiss are stated in the briefs of the parties and noted in the court’s August

29, 2019 Memorandum, the court does not repeat them herein.

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to describe how State Council's alleged role as coordinating and unifying “the

collective political, administrative, and communication structures of all SEIU

locals and districts throughout Pennsylvania” “bears any relationship to the

membership and dues issues she raises in this action.”

Thus, State Council states that since plaintiff fails to allege any facts

showing that she was injured or caused any harm by it, her SAC against it

should be dismissed for lack of jurisdiction since plaintiff lacks standing to sue

it under Article Ill and, for failure to state a cognizable claim against it.

To state a claim under §1983, a plaintiff must meet two threshold

requirements. She must allege: 1) that the alleged misconduct was committed

by a person acting under color of state law; and 2) that as a result, she was

deprived of rights, privileges, or immunities secured by the Constitution or

laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt_v.

Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels

v. Williams, 474 U.S. 327, 330-331 (1986). See also Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996) (To state an actionable claim under §1983,

plaintiff must prove that someone deprived her of a constitutional right while

acting under the color of state law). Liability in a civil rights action under

§1983 cannot be predicated solely on the operation of respondeat superior.

Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003). Rather, liability under

section 1983 is personal in nature and can only follow personal involvement

by each defendant in the alleged wrongful conduct shown through specific

allegations of personal direction or actual knowledge and acquiescence. See

Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) (overturned on

other grounds) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988)). Acquiescence exists where “a supervisor with authority over a

subordinate knows that the subordinate is violating someone's rights but fails

to act to stop the subordinate from doing so.” Festa v. Jordan, 803 F. Supp.

2d 319, 325 (M.D. Pa. 2011) (citation omitted). Further, “[a]llegations of

participation or actual knowledge and acquiescence, however, must be made

with appropriate particularity.” Rode, 845 F.2d at 1207.

Plaintiff has failed to allege that State Council was personally involved

in the violation of her constitutional rights. Plaintiff does not allege that she

was ever a member of State Council, that State Council took any dues/fees

from her or that State Council failed to advise her of her right not to join Local

668. Further, plaintiff does not allege that State Council participated in or

acquiesced in the alleged unlawful activities of Local 668. Specifically, plaintiff

alleges that she was essentially forced to join Local 668 since she was not

advised of her right not to join the union and forced to pay this union dues,

and that even though she resigned her membership with Local 668, it

continued to take dues from her pay. However, plaintiff does not allege any

facts to show that State Council played any role or had any involvement with

the alleged unlawful conduct of Local 668 with respect to membership and

dues. Nor can plaintiff attempt to hold this State Council or any defendant

vicariously liable for the alleged unconstitutional conduct of Local 668.

Plaintiff argues that she can proceed with her claims against State

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Council since she alleged that her union, Local 668, is affiliated with State

Council. In particular, plaintiff states that she has individual standing to seek

injunctive relief against State Council since she has alleged that it

“coordinates and unifies the collective political, administrative, and

communication structures of all SEIU locals and districts throughout

Pennsylvania.” Plaintiff indicates that her allegation is directly derived from

State Council’s website, http://seiupa.org/about/. Plaintiff contends that since

State Council “coordinates and supervises the behavior of its locals, including

Local 668,” she “may seek injunctive relief against the Council to ensure that

Local 668 stops tapping her paycheck and honors her instructions to halt the

payroll deduction of membership dues.” Plaintiff further states that she “has

suffered injury from the Council’s failure to ensure that its locals promptly

accept and implement the resignations of unwilling union members”, and that

“[this] injury will be redressed by an injunction directing the Council to instruct

its locals to immediately honor an employee’s resignation from membership

and to promptly halt payroll deductions upon resignation.”

Additionally, plaintiff contends that she has individual standing to sue

State Council for “a refund of money that was unconstitutionally taken from

[her] and transferred to the Council.” (citing SAC, Doc. 66 at ¶32) (“SEIU

Pennsylvania is liable to return any money that was unconstitutionally seized

from [plaintiff] or her fellow class members and transferred to SEIU

Pennsylvania.”). As such, plaintiff states that she has alleged sufficient facts

at this stage of this case to move forward with her claims against State

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Council and, that through discovery the parties can determine if there is

evidence to show that State Council influenced the behavior of Local 668, and

to determine if State Council received “any money from Local 668 while it was

operating agency shops in violation of the Constitution.”

“When determining the vicarious liability of an international union for the

[unlawful] actions of its local union affiliates and their officers, common law

agency principles apply.” Scott v. Graphic Commc’ns Int’l Union, Local 97-B,

92 Fed.Appx. 896, 904 (3d Cir. 2004) (citations omitted). Importantly, “[a]

principal-agent relationship may not be inferred solely from affiliation between

an international union and a local union.” Id. (citations omitted). See also

Shimman v. Frank, 625 F.2d 80, 97 (6th Cir. 1980) (“The International Union

is a separate body from the local. The acts of the local and its agents cannot

automatically be imputed to the International.”). Under the common law

principles of agency “if the local engages in illegal conduct in furtherance of

its role as an agent of the international, the international will be liable for the

local’s actions.” Laughon v. Int’l Alliance of Theatrical Stage Employees,

Moving Picture Technicians, Artists & Allied Crafts of the United States and

Canada, 248 F.3d 931, 935 (9th Cir. 2001) (citing Carbon Fuel Co. v. United

Mine Workers of Am., 444 U.S. 212, 217 (1979)). “However, if the local

exercises considerable autonomy in conducting its affairs, it cannot be

regarded as an agent of the international, and the international accordingly

cannot be held liable under an agency theory for the local’s actions.” Id. Thus,

“without evidence that [the International] instigated, supported, ratified or

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encouraged the Local’s activities or the Local acted pursuant to its agreement

with the International, there [is] no agency relationship as a matter of law.”

Carr v. Local Union 1593, Intern. Broth. of Elec. Workers, 371 F.Supp.2d

1097, 1105 (D.N.D. 2005) (citations omitted).

“The test to determine whether an agency relationship exists [between

an International union and a Local affiliate] is essentially one of balancing the

character of the business affairs subject to the International’s control and

supervision against those left to the discretion of the local.” Scott, 92

Fed.Appx. at 905 (citations omitted). Thus, plaintiff can hold State Council

responsible, as the state-wide union, for the alleged unlawful conduct of its

local union, Local 668, if an agency relationship existed between them.

No doubt that the Supreme Court and the Third Circuit have held that

international unions may be held liable for the activities of their local affiliates

when they “instigate, support, ratify, or encourage” any of the local union’s

unlawful activities. Brenner v. Local 514, United Bhd. of Carpenters & Joiners

of Am., 927 F.2d 1283, 1288 (3d Cir. 1991) (quoting Carbon Fuel Co. v.

United Mine Workers of Am., 444 U.S. 212, 218 (1979)). See also Wentz v.

Int'l Bhd. of Electrical Workers, 578 F.2d 1271, 1273 (8" Cir.1978) (“Under

ordinary rules of agency, International is not liable for acts of Local 1525

which it has not authorized or ratified.”). Here, there are no such factual

allegations contained in plaintiff's SAC regarding State Council and Local 668.

Nor are there any allegations that State Council participated in the alleged

unlawful conduct of Local 668. Plaintiff simply alleges that State Council is the

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labor union that “coordinates and unifies the collective political, administrative,

and communication structures of all SEIU locals and districts throughout

Pennsylvania.” This conclusory allegation details no facts to support a

cognizable claim against State Council and it does not allege that State

Council was personally involved in the alleged violation of her constitutional

rights. Rather, plaintiff’s allegations relate to her County employer and Local

668, the union to which she belonged, not to State Council. As stated, plaintiff

only alleges that the actions of Local 668 violated her rights since it improperly

took dues from her and failed to obtain her consent to take dues out of her

pay. Plaintiff also alleges that after the Janus decision she told Local 668 to

stop taking dues from her paycheck but it continued to do so.

State Council states that plaintiff’s allegations fail to show that it

committed any unlawful actions against her, or directed the unlawful conduct

of Local 668, and that she fails to allege that it caused her any injury. State

Council states that plaintiff’s “conclusory allegations are far too vague and

undefined to establish a relationship sufficient to confer standing on [plaintiff]

to advance her claims [against it]”,and that “[s]he identifies only misdeeds by

her own Local [union, 668].” Moreover, State Council contends that plaintiff

lacks standing under Article III to sue it since she has not alleged that it

caused her any injury as a result of its alleged unlawful conduct sufficient to

meet the case or controversy requirement.

As such, State Council contends that since plaintiff raises no inference

that it has “legal responsibility for any violations of the law that may have

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caused [plaintiff] any harm”, she cannot simply rest on her allegation that

Local 668 is affiliated with State Council. State Council argues that plaintiff

cannot impose liability on it for the alleged wrongful conduct of the local union

to which she belonged, Local 668, since “[her] barebones pleading []

describes no action at all taken, authorized, or ratified by the Council that

caused her injury.” Further, it is clear that “bald assertions of control are

insufficient to set forth an agency relationship.” Ponton v. U.S. Department of

Justice/U.S. EEOC, 2009 WL 10697638, *4 (E.D.Pa. July 29, 2009) (citation

omitted).

The court finds that plaintiff has not alleged any facts to show that State

Council “controlled, was involved in, or had knowledge of the [alleged

unlawful] activities of the Local Union [668]”, nor does plaintiff allege that

State Council controlled, authorized or ratified the alleged improper conduct

of Local 668. Thus, plaintiff has failed to plausibly state that there was an

agency relationship between State Council and Local 668. See Scott, 92 Fed.

Appx. at 905.

Although plaintiff contends that it is premature until after discovery to

determine if State Council influenced or controlled the alleged unlawful

conduct of Local 668, plaintiff is now proceeding on her third pleading and she

has had more than ample opportunity to plausibly state with sufficient

particularity her claims against State Council. As discussed, plaintiff’s

allegations do not establish a common law agency between Local 668 and

State Council. Nor has plaintiff alleged that she paid any money to State

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Council (or to any of the other union defendants). And she has not alleged

that State Council received any of her money from Local 668 or that Local 668

sent State Council any money it received from its membership dues. In fact,

plaintiff specifically alleges in her SAC, Doc. 66 at ¶12, that “she was forced

to pay money to [] Local 668 as a condition of her employment.” Also, it is

significant that plaintiff has not alleged that State Council participated in or

supervised any unlawful conduct Local 668 directed at her. She has not even

alleged that State Council had any knowledge of the alleged unlawful activity

of Local 668. Regardless, “[m]ere constructive knowledge of possible illegal

activity on the local level is not sufficient to impose a legal duty to intervene

on the International Union” Scott, 92 Fed. Appx. at 905 (citation omitted). As

the Third Circuit explained in Brenner, 927 F.2d at 1289, “[i]mposing upon an

international union the legal obligation to protect local union members from

allegedly abusive tactics by local officers could alter the delicate balance

between local unions and their internationals, to the sacrifice of local union

independence.”

Insofar as plaintiff attempts to hold State Council liable for the actions

of Local 668, the court finds that instant case similar to Pursell v. Dianne

Spence-Brown, 2013 WL 5936634 (D.N.J. Nov. 1, 2013). In Pursell, id. at *4,

the court dismissed the claims against IBT, the parent union for Teamsters

115, stating that “the Complaint alleges a myriad of wrongful conduct against

Teamsters 115, the local union which represented Plaintiffs”, but “there are

no allegations that IBT instigated, supported, ratified or encouraged the

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particular activities alleged or that IBT had any control over Teamsters 115’s

actions.” The court also held that it was not sufficient to hold IBT liable for the

alleged unlawful actions of Teamsters 115 simply because plaintiffs allegedly

sent IBT a letter complaining and seeking assistance because this “did not

establish that IBT ‘authorize[d] and ratif[ied] allegedly improper conduct by

failing to intervene’ despite having knowledge of the matters.” Id. (citing Scott,

92 Fed.Appx. at 905-06). The court further pointed out that “Plaintiffs d[id] not

make any specific allegations that IBT had influence or control over the

decisions of Teamsters 115”, and it found that the pleading was insufficient

since it “contain[ed] nothing more than ‘labels and conclusions.’” Id. (citing

Ashcroft, 556 U.S. at 678). Thus, the court found that since plaintiffs failed to

“adequately pled facts establishing” an agency relationship between IBT and

Teamsters 115, the claims against IBT were subject to dismissal under Rule

12(b)(6). Id. See also Boyd v. International Ass’n of Machinists and

Aerospace Workers, 2012 WL 78250, *4 (D.N.J. Jan. 9, 2012) (court

dismissed plaintiff’s complaint since it only alleged specific facts relating to the

unlawful actions of local union officials “for which the international union is

neither directly nor vicariously liable”, and since plaintiff did not allege any

basis for vicarious liability attributable the international union as she did not

state any facts regarding the action, inaction, or ratification by the

international union of the local union’s unlawful conduct). The court in Boyd,

id., stated that the complaint “[did] not allege facts sufficient to state a

plausible right to relief on the grounds that IAM [international union] instigated,

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supported, ratified or encouraged activities in relation to the alleged

discrimination and retaliation [by the local union] against Plaintiff [].”

Nor does the court find plaintiff’s reliance on State Council’s website

persuasive. See Brenner, 927 F.3d at 1291-92 (Third Circuit held that even

though the International union’s constitution gave it the power to supervise

and intervene in the affairs of the Local union, as well as the power to rectify

violations and to protect the interests and rights of the Local’s members, this

provision did not impose an obligation on the International union to intervene,

rather it only gave it a discretionary right to do so). Clearly, since the

constitutional provision which the Third Circuit considered in Brenner was not

sufficient to impose liability on the parent union for the alleged wrongful

conduct of the local union, the broader language in State Council’s website

does not show, under the principles of common law agency, that State

Council “participated in, ratified, encouraged, or affirmed” any alleged

wrongful conduct of Local 668. See id. See also Pursell, supra.

As such, the motion to dismiss of State Council will be granted.

Plaintiff’s federal claims against this defendant will be dismissed with

prejudice since plaintiff has already filed three complaints and, it would be

futile and unduly prejudicial to State Council to allow her to file a fourth

pleading against it.

Finally, considering judicial economy, convenience and fairness to the

litigants, the district court in its discretion is permitted to decline the exercise

of supplemental jurisdiction over state law claims if the court has dismissed

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all of the claims over which it had original jurisdiction. Kach v. Hose, 589 F.3d

626, 650 (3d Cir. 2009) (citations omitted). See Patel v. Meridian Health

System, Inc., 666 Fed.Appx. 133, 136 (3d Cir. 2016) (“A district court ‘may

decline to exercise supplemental jurisdiction’ over state law claims if it ‘has

dismissed all claims over which it has original jurisdiction[,]’ unless

considerations of judicial economy, convenience, or fairness to the parties

provide an affirmative justification for exercising supplemental jurisdiction.”)

(citing Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000). The court has

made the appropriate considerations and finds no_ extraordinary

circumstances exist in this case to exercise supplemental jurisdiction over

plaintiffs remaining Pennsylvania state law claims against State Council.

Since plaintiff's federal claims over which this court had original jurisdiction

shall not be permitted to proceed to trial against State Council, the court, in

its discretion, declines to exercise supplemental jurisdiction over plaintiff's

state law claims against union defendants. /d.; see also 28 U.S.C.

§1367(c)(3); Verdecchia v. Prozan, 274 F.Supp.2d 712, 728 (W.D. Pa. 2003).

Additionally, since plaintiff lacks standing to assert federal claims

against State Council, the absence of federal jurisdiction over her federal

claims deprives the court from exercising supplemental jurisdiction over her

state law claims against this defendant. Storino v. Borough of Point Pleasant

Beach, 322 F.3d 293, 299-300 (3d Cir. 2003) (citations omitted).

As such, plaintiffs state law claims against State Council shall be

dismissed without prejudice. Kach, 589 F.3d at 650 (“If a district court decides

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not to exercise supplemental jurisdiction and therefore dismisses state-law

claims, it should do so without prejudice, as there has been no adjudication

on the merits.”) (citation omitted).

III. CONCLUSION

Based on the foregoing reasons, the court will GRANT the motion to

dismiss plaintiff’s SAC, (Doc. 66), of State Council, (Doc. 53), with respect to

her federal claims against it, and plaintiff’s federal claims against State

Council shall be DISMISSED WITH PREJUDICE. Plaintiff’s state laws claims

against State Council shall be DISMISSED WITHOUT PREJUDICE. An

appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: September 11, 2019

18-2018-02.wpd

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