Mayo v. Board of Education of Prince George's County

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY C. MAYO; LESLIE CARROLL- 

WICKS; MARY MAYS-CARROLL;

AVERY MILLIGAN; SANDRA PONOSKI,

Plaintiffs-Appellants,

v.

BOARD OF EDUCATION OF PRINCE  No. 11-1816

GEORGE’S COUNTY; VERJEANA M.

JACOBS; ASSOCIATION OF CLASSIFIED

EMPLOYEES/AMERICAN

FEDERATION OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES,

Defendants-Appellees.



LARRY C. MAYO; LESLIE CARROLL- 

WICKS; MARY MAYS-CARROLL;

AVERY MILLIGAN; SANDRA PONOSKI,

Plaintiffs-Appellants,

v.

BOARD OF EDUCATION OF PRINCE  No. 11-2037

GEORGE’S COUNTY; VERJEANA M.

JACOBS; ASSOCIATION OF CLASSIFIED

EMPLOYEES/AMERICAN

FEDERATION OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES,

Defendants-Appellees.



2 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

Appeals from the United States District Court

for the District of Maryland, at Greenbelt.

J. Frederick Motz, Senior District Judge.

(8:11-cv-01052-JFM)

Argued: January 31, 2013

Decided: April 11, 2013

Before NIEMEYER, GREGORY, and DAVIS,

Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Gregory and Judge Davis joined.

COUNSEL

ARGUED: Richard Talbot Seymour, LAW OFFICES OF

RICHARD T. SEYMOUR, PLLC, Washington, D.C., for

Appellants. Abbey G. Hairston, THATCHER LAW FIRM,

Greenbelt, Maryland; Mark James Murphy, MOONEY,

GREEN, SAINDON, MURPHY & WELCH, PC, Washing-

ton, D.C., for Appellees. ON BRIEF: Nicholas W. Wood-

field, R. Scott Oswald, THE EMPLOYMENT LAW GROUP,

P.C., Washington, D.C.; Jay P. Holland, Timothy F. Maloney,

Brian J. Markovitz, JOSEPH, GREENWALD & LAAKE,

P.A., Greenbelt, Maryland, for Appellants. Natalie R. Bedard,

MOONEY, GREEN, SAINDON, MURPHY & WELCH, PC,

Washington, D.C., for Appellee Association of Classified

Employees/American Federation of State, County and Munic-

ipal Employees; Sarah M. Burton, THATCHER LAW FIRM,

Greenbelt, Maryland, for Appellees Board of Education of

Prince George’s County and Verjeana M. Jacobs.

MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 3

OPINION

NIEMEYER, Circuit Judge:

Five current or former temporary employees (the "Tempo-

rary Employees") of the Board of Education of Prince

George’s County, Maryland ("School Board") filed a class

action complaint in the Circuit Court for Prince George’s

County, asserting employee-compensation claims against the

School Board, its chair, and the Association of Classified

Employees/American Federation of State, County and Munic-

ipal Employees, AFL-CIO, Local 2250 (the "Union"). They

alleged that even though the collective bargaining agreement

("CBA") excluded "temporary employees" from the bargain-

ing unit, they were entitled to the benefits of an arbitration

award entered as the result of an arbitration between the

School Board and the Union, as well as benefits from the

underlying CBA.

The School Board and its chair filed a notice of removal to

federal court, which included a statement that the Union also

agreed to the removal, and all defendants thereafter filed

motions to dismiss for failure to state a claim. The Temporary

Employees not only opposed the motions to dismiss but also

filed a motion to remand, arguing that the removal was

invalid because the Union did not timely file its own notice

of removal or other paper giving its consent in writing. The

district court denied the Temporary Employees’ motion to

remand and entered an order under Federal Rule of Civil Pro-

cedure 12(b)(6), dismissing the complaint for failure to state

a claim. After filing a notice of appeal from the order of dis-

missal, the Temporary Employees also filed a motion in the

district court for reconsideration of its dismissal order. The

district court granted the defendants’ motion to strike the

motion for reconsideration. The Temporary Employees then

filed a second notice of appeal from that order.

We affirm on both appeals, concluding (1) that the Union

adequately consented to the notice of removal; (2) that the

4 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

Temporary Employees’ complaint failed to state a claim for

relief; and (3) that the district court did not err in striking the

Temporary Employees’ motion for reconsideration.

I

The School Board and the Union were parties to a CBA

that covered "all employees of the Board who are contained

within the bargaining unit represented by the Union" for the

period July 1, 2007, through June 30, 2010. Article 2, § 1 of

the CBA defined the bargaining unit to include "all classified

employees of Prince George’s County Public Schools with the

exception[ ] of" certain employees, including "[t]emporary

employees." And to protect the work positions for members

of the bargaining unit, Article 7, § 17 of the CBA provided:

A substitute or temporary employee will not be used

to fill an authorized position in excess of sixty (60)

working days except (1) when a qualified individual

is not available to fill a position on a permanent basis

or (2) where necessary to hold a position for a person

on an approved leave of absence or (3) to preserve

a vacancy for an employee currently assigned to a

position scheduled to be eliminated (e.g., school

closings, budget reductions, reorganization).

During wage-related negotiations in July 2008, the School

Board provided the Union, at the Union’s request, with a list

identifying the substitute and temporary employees in the

School Board’s employ and giving information about them.

The list included 2,180 such employees, many of whom had

been employed by the School Board in the same position for

more than 60 days and were performing the same duties as

permanent classified employees who, as members of the bar-

gaining unit, received higher pay and benefits. After receiving

this information, the Union filed a grievance against the

School Board, contending that the School Board’s practice of

hiring substitute and temporary employees violated Article 7,

MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 5

§ 17 of the CBA. The grievance thereafter proceeded to arbi-

tration.

In a decision dated July 8, 2009, the arbitrator concluded

that the School Board had indeed violated the CBA by "em-

ploy[ing] substitute and temporary employees to fill what

would be permanent positions but for the failure of the Board

to establish those positions pursuant to the terms of the Agree-

ment, and to seek their funding as [full-time equivalent

employees] through the budgeting process." The arbitrator

found that Article 7, § 17 "specifically was negotiated as a

limitation on the ability of the Board to employ substitute and

temporary employees to perform bargaining unit work" and

that "the issue is the preservation of bargaining unit work for

bargaining unit personnel, not the identity of the specific sub-

stitute or temporary employee who may be filling a position

at any particular time." Although the arbitrator concluded that

the Board had violated Article 7, § 17, he acknowledged that

the scope of the violation was unclear. Accordingly, he

instructed the parties to identify "[t]hose positions filled for in

excess of 60 days by substitute and temporary employees that

comprise duties covered by existing bargaining unit classifi-

cations," clarifying that "those that amount to bargaining unit

positions are covered by this Award, and those that do not, are

not."

The arbitrator tailored relief to three relevant periods of

time. He determined that "[n]o remedy [was] warranted for

the period of the violation occurring prior to the filing of the

grievance," because "the Union’s long silence" would make

any remedy "grossly unfair and inequitable." For the period

going forward, however, the arbitrator directed that the

School Board cease its practice of "circumvent[ing] the terms

of the Agreement by using substitute or temporary employ-

ees" to do work that should have been performed by "classi-

fied position[s]," emphasizing that "this ruling is tied not to

the individual being employed on a substitute or temporary

basis, but rather is tied to the position that is being filled by

6 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

a substitute or temporary employee, whomever the individual

happens to be." Finally, for the period between the Union’s

filing of the grievance and the School Board’s compliance

with the award, the arbitrator concluded that "it would be

inappropriate to order the conversion to permanent status of

those substitute and temporary employees who ultimately are

found . . . to have filled what should have been permanent

classified positions." The arbitrator explained that there was

no evidence that the School Board and the Union had dis-

cussed the "automatic conversion of substitute and temporary

employees under such circumstances" and that, in the absence

of such evidence, ordering such a conversion would be inap-

propriate given "the numerous important questions, unan-

swered on this record, that normally are addressed upon the

hiring of an individual into a permanent position." Subject to

the "proviso that retroactive conversion of the incumbents . . .

is not warranted," the arbitrator "return[ed] to the parties for

settlement in the first instance, along with several other unre-

solved remedial questions, the question of appropriate remedy

for the period of time between the filing of the grievance and

the Board’s compliance with this Award."

As directed by the arbitrator, the Union and the School

Board reached a settlement regarding the issues committed to

them and reduced the settlement to a memorandum of under-

standing dated May 13, 2010. Under the settlement, the

School Board agreed to pay the Union just over $1 million as

"backpay amounts." The School Board also agreed to hire a

minimum number of additional full-time bargaining unit

employees by specified targeted dates.

On March 11, 2011, five current or former temporary

employees of the School Board—Larry Mayo, Leslie Carroll-

Wicks, Mary Mays-Carroll, Sandra Ponoski, and Avery

Milligan—filed a class action complaint in the Circuit Court

for Prince George’s County, Maryland, naming as defendants

the School Board, Verjeana Jacobs (in her capacity as Chair

of the School Board), and the Union. They purported to repre-

MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 7

sent a class defined as "[a]ll present and former Temporary

Employees of the Board and its Chair performing duties cov-

ered by a CBA bargaining unit classification . . . for in excess

of 60 days." In Count I, the Temporary Employees sought a

declaratory judgment "that the Arbitration Award is valid and

enforceable" by members of the class; that they had become

permanent employees after 60 days of employment; and that

they were therefore entitled to damages. In Count II, they

alleged that the Union had "breached its duty of fair represen-

tation by fraudulently misleading the Plaintiffs and the Tem-

porary Employees about the July 8, 2009 arbitration decision

and award in their favor and instead accepting a payoff from

the Board to resolve the Plaintiffs’ and Temporary Employ-

ees’ rights." In Count III, they alleged a breach of contract by

the School Board, claiming that "Plaintiffs are third-party

beneficiaries under the CBA and were not paid the compensa-

tion and benefits of full time employees that the CBA man-

dates." And finally, in Count IV, they alleged a Takings

Clause violation against the School Board and its chair, under

42 U.S.C. § 1983.

The School Board and its chair filed a notice of removal,

pursuant to 28 U.S.C. § 1441, in which they stated that the

Union had been consulted and had "agree[d] with the removal

of this action to federal court." Three days later, counsel for

the Union entered his appearance in the district court, and yet

another three days later, on April 28, 2011, the Union filed a

motion to dismiss the complaint for failure to state a claim. In

its accompanying memorandum of law, the Union noted that

it had been served with process "[o]n or about March 26,

2011" and that it had consented to the notice of removal. The

School Board and its chair also filed a motion to dismiss. The

Temporary Employees opposed the motions to dismiss and

also filed a motion to remand the case on the ground that the

Union had not timely filed its own notice of removal or other

writing reflecting its consent to the removal.

In an order dated July 19, 2011, the district court denied the

Temporary Employees’ motion to remand and granted the

8 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

defendants’ motions to dismiss the complaint. On the remand

motion, the court said that it had determined that removal was

effective because of (1) Fourth Circuit precedent; (2) its

assumption that "generally attorneys will act professionally";

and (3) Rule 11, which, the court noted, "provides a fully sat-

isfactory deterrent to an attorney making a misrepresentation

to the court as to whether a co-defendant has consented to

removal." On the motions to dismiss, the court concluded that

Count I appeared to be requesting an advisory opinion and

that, in any event, the requested declaratory judgment was

"absolutely inconsistent" with the arbitration decision. As to

Count II, the court concluded that the Union did not owe the

Temporary Employees a duty of fair representation; that the

claim was in any event untimely; and that the plaintiffs did

not exhaust their state administrative remedies. With respect

to Count III, the court again concluded that, to the extent that

the Temporary Employees could claim to be third-party bene-

ficiaries of the CBA, their remedy was to seek state adminis-

trative relief. Finally, as to Count IV, the court concluded that

state agencies, such as the School Board, are not "persons"

within the meaning of 42 U.S.C. § 1983 and that the Eleventh

Amendment bars damage claims against state agencies and

officials.

The Temporary Employees promptly filed a notice of

appeal from the district court’s July 19, 2011 order. And sev-

eral weeks later, on August 19, 2011, the Temporary Employ-

ees filed a motion in the district court, requesting

reconsideration of the order dismissing their complaint. The

School Board and its chair filed a motion to strike the Tempo-

rary Employees’ motion for reconsideration, arguing that the

motion was untimely and that, in any event, the court had

been divested of jurisdiction by the Temporary Employees’

earlier appeal. By order dated September 12, 2011, the district

court granted the motion to strike, and the Temporary

Employees filed a second notice of appeal from that order.

On appeal, the Temporary Employees contend (1) that the

Union’s consent to removal was inadequate to effect a

MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 9

removal on its behalf; (2) that the district court erred in con-

cluding that the Union did not owe the Temporary Employees

a duty of fair representation and that they were not entitled to

the benefits of the arbitration award; (3) that the district court

erred in dismissing their claim for breach of the CBA based

on a third-party beneficiary theory; and (4) that the district

court abused its discretion in striking their motion for recon-

sideration of the dismissal order.

II

In removing this case from state court to federal court

under 28 U.S.C. § 1441(a), the School Board and its chair

stated in the notice of removal that they had consulted with

the Union and that the Union had consented to the removal.

The Union, however, did not sign the notice of removal, nor

did it timely file its own notice or a written consent to the

School Board’s notice. The Temporary Employees contend

that the removal was defective and that the district court erred

in refusing to remand this case to state court. They argue that

all defendants must "join" in the notice of removal and that

"joining" means to "support [it] in writing." Because the

Union did not sign the notice of removal or timely sign a

paper giving its own notice of removal or consent, they con-

tend that the case was not properly removed.

The text of 28 U.S.C. § 1446 provides that to remove a case

to federal court, "[a] defendant or defendants" (1) must file a

notice of removal that includes a "short and plain statement

of the grounds for removal, together with a copy of all [previ-

ously served] process, pleadings, and orders"; (2) must sign

the removal pursuant to Federal Rule of Civil Procedure 11,

which in turn provides that the notice must be "signed by at

least one attorney of record in the attorney’s name—or by a

party personally if the party is unrepresented"; and (3) must

file the notice within 30 days after receipt of the complaint

through service of process. The applicable version of the stat-

ute does not address how a case involving multiple defendants

10 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

is to be removed or how the defendants must coordinate

removal, if coordination is required.1 Nonetheless, the

Supreme Court has construed the statute to include a "una-

nimity requirement," such that all defendants must consent to

removal. See Lapides v. Bd. of Regents of Univ. Sys. of Ga.,

535 U.S. 613, 620 (2002) (citing Chicago, R.I. & P.R. Co. v.

Martin, 178 U.S. 245, 248 (1900), for the proposition that "re-

moval requires the consent of all defendants"); Wis. Dep’t of

Corrections v. Schacht, 524 U.S. 381, 393 (1998) (Kennedy,

J., concurring) ("Removal requires the consent of all of the

defendants"). But neither the statute nor the Supreme Court’s

decisions have specified how defendants are to give their

"consent" to removal.

Adopting a formal approach, the Seventh Circuit has stated

that "[a] petition for removal is deficient if not all defendants

join in it" and that, to do so, "all served defendants . . . have

to support the petition in writing, i.e., sign it." Gossmeyer v.

McDonald, 128 F.3d 481, 489 (7th Cir. 1997). Approving a

less formal process—the procedure used by the defendants in

this case—the Sixth Circuit has held that a notice of removal

filed by three defendants which stated that the fourth defen-

dant concurred in the removal satisfied the rule of unanimity.

See Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 201-02

(6th Cir. 2004). The Ninth Circuit has adopted the Sixth Cir-

cuit rule. See Proctor v. Vishay Intertechnology Inc., 584 F.3d

1208, 1225 (9th Cir. 2009) (concluding that "[o]ne defen-

dant’s timely removal notice containing an averment of the

other defendants’ consent and signed by an attorney of record

is sufficient"). And other courts of appeals have taken hybrid

1

The current version of 28 U.S.C. § 1446, not applicable to the case at

hand, provides, "When a civil action is removed solely under section

1441(a), all defendants who have been properly joined and served must

join in or consent to the removal of the action." 28 U.S.C.

§ 1446(b)(2)(A). Although the statute now explicitly requires consent, it

still does not indicate the form of that consent, and our analysis in this

opinion would be unchanged were we to have before us the current ver-

sion of the statute.

MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 11

positions. See Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d

1254, 1262 n.11 (5th Cir. 1988) (concluding that while each

defendant need not sign the notice of removal, there must be

at least "some timely filed written indication from each served

defendant . . . that it has actually consented to such action");

Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008)

(applying the Fifth Circuit’s rule in Getty Oil).

We have not addressed this precise question. In Darcan-

gelo v. Verizon Communications, Inc., 292 F.3d 181, 187 n.2

(4th Cir. 2002), we noted that a defendant’s notice of removal

"was filed with [the other defendant’s] consent," but we did

not state how the other defendant expressed its consent.

The relevant procedure for removal, set forth in § 1446,

requires rather simply that "[a] defendant or defendants desir-

ing to remove any civil action . . . shall file . . . a notice of

removal signed pursuant to Rule 11." 28 U.S.C. § 1446(a).

And Rule 11 in turn provides, "Every . . . paper must be

signed by at least one attorney of record . . . ." These texts do

not make clear how a case involving multiple defendants is to

be removed in light of the requirement that all defendants

must consent to the removal. While § 1446 does include the

plural "defendants" in the subject, it requires only "a notice"

of removal. The plural use of "defendants" is apparently

included to accommodate the situation where more than one

defendant "desire" to remove, without recognizing the

required interplay among defendants in light of the originally

court-made rule that all defendants must consent to removal.

To be sure, § 1446 requires at least one notice of removal

signed by at least one attorney, in accordance with Rule 11,

thus mandating that at least one attorney for the removing

defendant or defendants be accountable to the court by repre-

senting, as provided in Rule 11, that removal is warranted by

law and is not pursued for an improper purpose and that the

facts alleged are justified or supported. See Fed. R. Civ. P.

11(b). Thus, the texts do indeed require the formality of filing

12 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

a paper that is signed and that represents the bona fides of the

removal. They do not, however, require that in a case involv-

ing multiple defendants where all defendants must consent to

removal that each of the defendants sign the notice of removal

or file a separate notice of removal complying with § 1446(b).

Moreover, we can see no policy reason why removal in a

multiple-defendant case cannot be accomplished by the filing

of one paper signed by at least one attorney, representing that

all defendants have consented to the removal. It is true that

such a procedure does not include the signature of an attorney

representing each defendant. But that does not suggest that the

nonsigning attorneys for the defendants lack accountability to

the court when they will be before the court within days of the

removal, signing papers and otherwise performing as officers

of the court. Indeed, in this case, the Union did file papers

early on, signed by its attorney, indicating that it had con-

sented to the removal.2 The practice of having one attorney

represent to the court the position of other parties in the case,

with the intent that the court act on such representation, is

quite common. The courts often receive motions representing

that the opposing party consents to the motion, and courts

have not traditionally required the other party to file a sepa-

rate paper confirming that consent. Were there to be a misrep-

resentation by an attorney signing a paper, falsely stating that

another defendant consented to removal, the other defendant

"would [no doubt] have brought this misrepresentation to the

court’s attention and it would have been within the district

court’s power to impose appropriate sanctions, including a

remand to state court." Harper, 392 F.3d at 202. And those

"appropriate sanctions" would surely include the sanctions

authorized by Rule 11, which are explicitly available when an

attorney misrepresents the evidentiary basis for a "factual

contention." See Fed. R. Civ. P. 11(b)-(c).

2

Because the Union’s written indication of consent was filed more than

30 days after its receipt of the complaint by process, that written indica-

tion, the Temporary Employees say, cannot be advanced to satisfy the

time requirement for removal.

MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 13

Accordingly, we conclude that a notice of removal signed

and filed by an attorney for one defendant representing unam-

biguously that the other defendants consent to the removal

satisfies the requirement of unanimous consent for purposes

of removal. Because the Union adequately consented to the

removal filed by the School Board and its chair, we conclude

that the removal was effective in this case and that the district

court did not err in declining to remand the case to state court.

III

In Count II of their complaint, the Temporary Employees

purported to allege that the Union breached a duty of fair rep-

resentation owed to them. They alleged that the Union did so

"by fraudulently misleading [them] about the July 8, 2009

arbitration decision and award in their favor and instead

accepting a payoff from the Board to resolve [their] rights."

More fully, they asserted that the Union mislead them by

"failing to inform [them] . . . [1] that the Union had secured

an arbitration award against the Board declaring them to be

permanent employees under the CBA and [2] that they were

entitled to an award of retroactive compensation and benefits

consistent with their rights under the CBA." (Emphasis

added). And they asserted that instead of informing them and

looking after their interests, "[t]he Board and the Union sur-

reptitiously agreed to disregard the rights and interests of the

Plaintiffs . . . in exchange for the payment of monies paid by

the Board . . . to the Union."

The district court dismissed this count under Rule 12(b)(6)

for failure to state a claim, and we review that order de novo

to determine whether the claim they purport to assert was

"plausible on its face." Francis v. Giacomelli, 588 F.3d 186,

190 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombley, 550

U.S. 544, 570 (2007)).

It is well to note at the outset that the Temporary Employ-

ees were not members of the Union and were expressly

14 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

excluded from the bargaining unit under the CBA. Moreover,

the Temporary Employees were not parties to the arbitration

action between the Union and the School Board. Nonetheless,

the Temporary Employees allege that they were owed a duty

of fair representation under Maryland law, citing Md. Code

Ann., Educ. § 6-501(d), (g)(1). We do not need to reach

whether the Union owed the Temporary Employees this duty

because their theory of how the Union breached this duty is

based on isolated statements in the arbitrator’s decision,

which were taken out of context. As a consequence, their

claim is based on a complete misreading of the arbitrator’s

decision.

Contrary to the Temporary Employees’ assertion, the arbi-

trator did not declare them to be permanent employees. He

stated explicitly that "based on the record as a whole, the arbi-

trator concludes that it would be inappropriate to order the

conversion to permanent status of those substitute and tempo-

rary employees who are ultimately found . . . to have filled

what should have been permanent classified positions." The

arbitrator repeatedly explained that "the issue is the preserva-

tion of bargaining unit work for bargaining unit personnel,

not the identity of the specific substitute or temporary

employee who may be filling a position at any particular

time." Thus, the arbitrator grounded his ruling on the purpose

of preserving work provided by specific positions for mem-

bers of the bargaining unit. There is simply no support for the

Temporary Employees’ assertion that the arbitrator declared

them to be permanent employees.

Similarly, the arbitrator did not conclude that the Tempo-

rary Employees were entitled to retroactive compensation and

benefits, as they claim. In granting relief, the arbitrator made

three relevant rulings. First, he concluded that "[n]o remedy

is warranted for the period of the violation occurring prior to

the filing of the grievance." Second, he concluded that for the

period after the award, the School Board must cease using

substitute or temporary employees to do work that should

MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 15

have been done by bargaining unit personnel, emphasizing

that "this ruling is tied not to the individual being employed

on a substitute or temporary basis, but rather is tied to the

position that is being filled by a substitute or temporary

employee, whomever the individual happens to be." (Empha-

sis added). And third, he concluded that for the period

between the Union’s filing of the grievance and the School

Board’s compliance with the award, "the best course is to

return to the parties for settlement in the first instance . . . sub-

ject to the foregoing proviso that retroactive conversion of the

incumbents of such positions is not warranted." (Emphasis

added). There is simply no language that can be read to pro-

vide relief to the Temporary Employees.

Accordingly, we affirm the district court’s order dismissing

Count II because the Temporary Employees’ theory of breach

is based on fundamental misreading of the arbitrator’s deci-

sion and therefore is implausible.

IV

In Count III, the Temporary Employees purport to allege a

breach of contract claim against the School Board, asserting

that they were "third party beneficiaries under the CBA and

were not paid the compensation and benefits of full time

employees that the CBA mandates, and thus they suffered

damages."

Again, we note that the Temporary Employees were not

members of the bargaining unit under the CBA, nor were they

parties to the CBA. And to be third-party beneficiaries of the

CBA, they would have to demonstrate that the School Board

and the Union intended them to be entitled to a benefit under

the CBA. See Astra USA, Inc. v. Santa Clara Cnty., Cal., 131

S. Ct. 1342, 1347 (2011) ("A nonparty becomes legally enti-

tled to a benefit promised in a contract . . . only if the con-

tracting parties so intend").

16 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

But far from evincing such an intent, the CBA explicitly

excludes the Temporary Employees from its coverage. The

agreement states that it is between the School Board and the

Union and that "[t]he term ‘employees,’ when used in this

agreement, shall hereinafter refer to all employees of the

Board who are contained within the bargaining unit repre-

sented by the Union." The bargaining unit is then defined as

"all classified employees of Prince George’s County Public

Schools with the exception[ ] of . . . [t]emporary employees."

(Emphasis added). It is true that the agreement does limit the

use of substitute or temporary employees to fill authorized

positions, but it does so to protect those positions for mem-

bers of the bargaining unit. We find no textual indication or

suggestion that the Temporary Employees were intended ben-

eficiaries of the CBA.

Perhaps recognizing the lack of textual support for their

third-party beneficiary claim, the Temporary Employees

argue further that the "facts support their claims that they are

intended third-party beneficiaries." But the only facts they

rely on are (1) that the Union’s grievance was intended to

benefit Temporary Employees and (2) that "the Arbitrator’s

Award clearly finds that employees who fill an ‘authorized

position’ are working in bargaining unit positions and were

intended to benefit from the arbitration award." These facts,

however, were not established, and the Union’s grievance was

not a part of the record. In his decision, the arbitrator summa-

rized the Union’s grievance as "seek[ing] a ruling that the

Board has employed substitute or temporary employees in

violation of . . . the [CBA] . . . by allowing non-bargaining

unit employees to perform work reserved to bargaining unit

employees." (Emphasis added). And the Temporary Employ-

ees’ argument that the arbitrator’s award independently shows

that they are intended beneficiaries of the CBA is also not

supported. The arbitrator emphasized that his ruling was

based on the CBA’s protection of work for the bargaining

unit, concluding that the provision on the use of Temporary

Employees "was negotiated as a limitation on the ability of

MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 17

the Board to employ substitute and temporary employees to

perform bargaining unit work in lieu of establishing and fill-

ing permanent classified positions with bargaining unit

employees."

Because we find no support for the Temporary Employees’

claim that they were third-party beneficiaries of the CBA, we

likewise affirm the district court’s order dismissing Count III

for failure to state a plausible claim for relief.

V

Finally, the Temporary Employees contend that the District

Court abused its discretion in striking their motion for recon-

sideration of the court’s order dismissing the complaint.

In their motion for reconsideration, the Temporary Employ-

ees recognized that their motion was untimely but requested

that the court "waive the 14-day time period [as provided by

local rules] under the circumstances." Relying on a new fact,

they also reargued a position that they originally took in oppo-

sition to the motion to dismiss and that the district court had

previously addressed. The defendants filed a motion to strike

the Temporary Employees’ motion, arguing that the Tempo-

rary Employees’ motion was untimely and that the district

court lacked subject matter jurisdiction in view of the fact that

the Temporary Employees had already appealed the dismissal

order. The district court granted the motion to strike without

explanation.

In these circumstances we conclude that the district court

did not abuse its discretion. To be sure, if the Temporary

Employees’ motion was to be taken as a Rule 59(e) motion,

it was filed beyond the 28-day period given for the filing of

Rule 59(e) motions. But more importantly, they advanced no

new argument that would require the district court to alter or

amend its judgment under Rule 59(e), or even under Rule

60(b). In the end, the position they took was considered by the

18 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY

district court and preserved for appeal, although we did not

find it necessary to address the point because we concluded

that the Temporary Employees’ complaint failed to state plau-

sible claims.

***

In sum, we conclude that the School Board properly

removed this case to federal court; that neither substantive

claim asserted by the Temporary Employees stated a plausible

claim for which relief could be granted; and that the district

court did not err in striking the Temporary Employees’

motion for reconsideration. The judgment is accordingly

AFFIRMED.