Respondents Brief — Todd Bowers, Petitioner v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO

No. 22-761

In the Supreme Court of the United States

_______________

Todd Bowers,

v.

Petitioner,

International Brotherhood of Boilermakers, Iron Ship

Builders, Blacksmiths, Forgers, and Helpers,

AFL-CIO

Respondent.

_______________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

_______________

BRIEF IN OPPOSITION

_______________

MICHAEL J. STAPP

Counsel of Record

BLAKE & UHLIG, P.A.

6803 West 64th Street,

Suite 300

Overland Park, KS 66202

(913) 321-8884

mjs@blake-uhlig.com

Counsel for Respondent

i

RULE 29.6 STATEMENT

Respondent International Brotherhood of

Boilermakers states that no publicly held company

owns 10% or more of any stock of the International

Brotherhood of Boilermakers. Respondent is not a

subsidiary or affiliate of a publicly traded corporation.

Respondent is a labor union.

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION ........................................................ 1

STATEMENT OF FACTS ........................................... 3

REASONS TO DENY THE PETITION ...................... 5

I.

The Petition Raises No Issues Warranting

the Court’s Review ..................................... 6

A. The Decision Below Properly Applies

Settled Law Concerning LMRA

Preemption ................................................. 7

B. Petitioner’s Jurisdictional Arguments Fail

to Justify Granting Review ...................... 12

C. Petitioner’s Due Process Argument is

Fundamentally Flawed, as Petitioner

Enjoys no Property Interest in a

Nonexistent Cause of Action.................... 16

II. The Petition Should Further be Denied

Because it Fails to Address the Lower

Courts’ Holdings With Respect to Fed.

R. Civ. P. 12(b)(6) and Raises Issues

Herein for the First Time......................... 22

A. The Petition Neglects to Refute That his

Complaint Fails to State a Claim for

Which Relief can be Granted, and

Accordingly, the Lower Courts’ Dismissal

Would Stand. ............................................ 22

iii

B. Petitioner Raised Arguments for the First

Time Before This Court That Should be

Ignored. ..................................................... 26

CONCLUSION .......................................................... 27

iv

TABLE OF AUTHORITIES

Cases

Allis-Chambers Corp. v. Lueck,

471 U.S. 202 (1985) .......................................... 1, 8, 9

Am. Chiropractic Ass’n v. Trigon Healthcare, Inc.,

367 F.3d 212 (4th Cir. 2004) .................................. 15

Arbaugh v. Bd. of Educ.,

591 S.E.2d 235 (W.Va. 2003) ................................. 21

Ashcroft v. Iqbal,

556 U.S. 662 (2009). ............................................... 23

Avco Corp. v. Aero Lodge No. 735,

490 U.S. 557 (1968) .................................................. 1

Avco Corp. v. Machinists,

390 U.S. 557 (1968) ................................................ 13

Bd. of Regents of State Colleges v. Roth,

408 U.S. 564 (1972). ............................................... 19

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ................................................ 23

Blankenship v. Manchin,

471 F.3d 523 (4th Cir. 2006); ................................. 15

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ........................................... 1, 13

Caterpillar, Inc. v. Lewis,

519 U.S. 61 (1996) .................................................. 16

v

Courtney v. Courtney,

413 S.E.2d 418 (W.Va. 1991) ................................. 25

Cunningham Energy, LLC v. Outman,

No. 2:13-cv-20748, 2013 WL 5274361

(S.D.W.V. Sept. 18, 2013) ....................................... 20

E.E.O.C. v. Fed. Labor Relations Auth.,

476 U.S. 19 (1986). ................................................. 26

Foy v. Giant Food, Inc.,

298 F.3d 284 (4th Cir. 2002) ............................ 10, 14

Franchise Tax Bd. v. Constr. Laborers Vacation

Trust,

463 U.S. 1 (1983). ................................................... 14

Hatfield v. Health Management Associates,

223 W.Va 259 (W. Va. 2008) .................................. 25

Horton v. Vinson,

No. 1:14-cv-192, 2015 WL 4774276, at *22

(N.D.W.V. Aug. 12, 2015) ................................. 20, 21

Izumi Seimitsu Kogyo Kabushiki Kaisha v.

U.S. Philips Corp., 510 U.S. 27 (1993) ............ 22, 23

Layne & Bowler Corp. v. W. Well Works,

261 U.S. 387 (1923). ................................................. 6

Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 (1988) .............................................. 8, 9

vi

Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982). ............................. 17, 18, 19, 20

McCormick v. AT&T Techs., Inc.,

934 F.2d 531 (4th Cir. 1991) .................................... 8

Met. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987) .................................................. 13

Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306 (1950) .......................................... 18, 19

Nat’l Collegiate Athletic Ass’n v. Smith,

525 U.S. 459 (1999) ................................................ 26

Oberkramer v. IBEW-NECA Serv. Ctr., Inc.,

151 F.3d 753 (8th Cir. 1998) .................................... 8

Phillips v. Pitt Cnty. Mem’l Hosp.,

572 F.3d 176 (4th Cir. 2009) .................................. 15

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998). ............................................... 13

Romano v. Kazacos,

609 F.3d 512 (2d Cir. 2010). ................................... 15

Textile Workers v. Mills,

353 U.S. 448 (1957) ........................................ 1, 7, 14

Travis v. Alcon Labs., Inc.,

504 S.E.2d 419 (W.Va. 1998) ................................. 25

Tulsa Prof’l Collection Servs., Inc. v. Pope,

485 U.S. 478 (1988) .......................................... 18, 19

vii

Statutes

28 U.S.C. § 1331 ........................................................ 14

28 U.S.C. § 1441(b) .................................................... 14

29 U.S.C. § 185 .................................................. 1, 7, 12

West Virginia Criminal Code § 55-7-9 ................ 20, 21

West Virginia Criminal Code § 61-2-9a ... 4, 17-18, 20, 25

West Virginia Criminal Code § 61-2-13 .... 4, 17, 18, 20

West Virginia Criminal Code § 61-2-13a .................. 25

Rules

Fed. R. Civ. P. Rule 8(a)(2) ........................................ 23

Fed. R. Civ. P. Rule 12(b)(6) ...................... 5, 14, 22, 23

1

INTRODUCTION

Recognizing Section 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, (the

“LMRA”) not only provides federal jurisdiction over

controversies between parties to a collective

bargaining agreement, but also “authorizes federal

courts to fashion a body of federal law for the

enforcement” of such agreements, courts have long

held that state law claims that are “inextricably

intertwined” with a collective bargaining agreement,

are completely preempted by the LMRA. Textile

Workers v. Mills, 353 U.S. 448, 451 (1957); see also

Allis-Chambers Corp. v. Lueck, 471 U.S. 202, 213

(1985) (holding that state law claims are preempted

when they are “inextricably intertwined with

consideration of the terms of the [collective bargaining

agreement]”). Any such preempted claim, even if

couched solely in terms of a state law cause of action,

“is considered, from its inception, a federal claim, and

therefore arises under federal law.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 393-94 (1987); see also Avco

Corp. v. Aero Lodge No. 735, 490 U.S. 557, 560 (1968).

Petitioner, Todd Bowers (“Petitioner”), asserted

claims against the International Brotherhood of

Boilermakers (the “International”), arising out of and

relating to obligations under a collective bargaining

agreement (the “CBA”) between the parties.

Specifically,

Petitioner’s

claims

involve

the

International’s alleged actions after Petitioner

attempted to terminate the CBA, including alleged

actions taken to enforce Petitioner’s obligations

2

pursuant to the CBA’s terms, such as the exclusive

referral provisions and fringe benefit contribution

provisions.

The United States District Court for the

Northern District of West Virginia and the United

States Court of Appeals for the Fourth Circuit Court

applied well-established precedent and held that

Section 301 of the LMRA preempted each of

Petitioner’s claims, as the claims are inextricably

intertwined with the CBA, and resolving such claims

would require analyzing the CBA’s terms. Because

any claim brought under the LMRA’s statute of

limitations would further bar any claim, and because

the Petitioner failed to exhaust remedies the CBA’s

grievance and arbitration procedures, the lower courts

dismissed the Complaint with prejudice.

Significantly, the lower courts additionally

determined Petitioner pled insufficient facts to state a

claim for which relief may be granted and further held

that, in any event, the West Virginia criminal statutes

under which Petitioner sought to bring claims

provided no private right of action.

As explained herein, nothing justifies granting

review in this matter. Petitioner never provides a

single compelling reason to grant review. Rather,

contrary to Petitioner’s arguments, the Fourth Circuit

correctly applied well-established law in holding that

Petitioner’s claims were preempted by the LMRA, and

that dismissal was thus proper in that, even if

Petitioner alleged sufficient facts to properly state his

claims, such claims would be time-barred by the

3

applicable statute of limitations, and precluded by his

failure to exhaust remedies under the CBA.

Moreover, the Petition fails to assert any error

with respect to the lower courts’ holding concerning

Petitioner’s failure to allege sufficient facts to state a

claim. Review would accordingly be futile.

Finally, arguments concerning due process

which were raised for the first time in this Petition

should not be considered. Thus, for the foregoing

reasons, the Petition should be denied.

STATEMENT OF FACTS

Petitioner, Todd Bowers, is the sole owner of a

welding company, Elite Mechanical and Welding, LLC

(“the Company”). Pet. App. 2. The Company entered

into a collective bargaining agreement with the

International (the “CBA”). Pet. App. 2. Among other

obligations, the CBA provides for an exclusive hiring

hall, under which the Company agreed to employ

employees exclusively through the referral provisions

of the CBA, and remit contributions to fringe benefit

funds based on hours of covered work such employees

performed. Pet. App. 2.

In or around 2017, the Company allegedly

attempted to withdraw from the CBA. Pet. App. 3.

Thereafter, in 2020, third-party fringe benefit funds,

to which Petitioner was contractually obligated to

contribute, filed a lawsuit against the Company,

alleging it failed to properly remit contributions to the

4

funds for hours of covered work performed by its

employees. Pet. App. 2.

Petitioner filed this action in West Virginia

state court on February 19, 2021. Pet. App. 3. The

Complaint’s

sparse

allegations

assert

the

International tried to harass and intimidate the

Company’s employees, and put the Company out of

business by “filing meritless lawsuits” and “falsely

reporting” the Company to unnamed oversight

organizations. Pet. App. 3. Based on those allegations,

the Complaint included five (5) counts: tortious

interference of business, abuse of process, intentional

infliction of emotional distress, and two (2) counts for

violation of West Virginia criminal code, including

criminal extortion (W.VA. CODE § 61-2-13) and

criminal harassment (W.VA. CODE § 61-2-9a). Pet.

App. 3.

The International removed the case to the

United States District Court for the Northern District

of West Virginia (the “District Court”), asserting the

LMRA preempted Petitioner’s claims. Pet. App. 3. The

International thereafter moved to dismiss, arguing:

(1) the LMRA preempts the Petitioner’s claims;

(2) LMRA’s statute of limitations barred the claims;

(3) Petitioner never exhausted contractual remedies;

(4) no civil cause of action exists under the West

Virginia criminal statutes cited by Petitioner; and

(5) the Complaint lacked sufficient factual allegations

to state a claim. Pet. App. 4.

The District Court concluded “every asserted

basis” in the International’s Motion to Dismiss

5

“warranted dismissal,” noting that “nothing . . . came

close to alleging a factual basis to support a lawsuit,”

and that, even if such factual basis were asserted, the

LMRA preempted Petitioner’s claims. Pet. App. 12-19.

Petitioner appealed to the United States Court

of Appeals for the Fourth Circuit (the “Fourth

Circuit”). In an unpublished per curiam opinion, the

Fourth Circuit affirmed the District Court’s decision,

holding Petitioner’s claims were preempted, and

dismissal was proper because Petitioner failed to

exhaust his contractual remedies, and any properly

stated claim was time-barred. Pet. App. 8. Despite the

Fourth Circuit’s sound decision, Petitioner filed the

instant Petition for Writ of Certiorari.

REASONS TO DENY THE PETITION

Petitioner’s arguments present no compelling

justification for granting review. Rather, the issues

before this Court, even as framed by the Petitioner,

amount only to whether the Fourth Circuit properly

applied well-established rules in affirming the

Complaint’s dismissal with prejudice.

This is

something that only rarely warrants review.

Moreover, Petitioner omits any question relating to

the lower courts’ dismissal with prejudice based on

Fed. R. Civ. P. 12(b)(6), rendering any review futile.

For all these reasons—individually and collectively—

review should be denied.

6

I.

The

Petition

Raises

No

Issues

Warranting the Court’s Review

The Petitioner failed to identify any issues

warranting this Court’s review. As the Court is well

aware, Rule 10 emphasizes that “[r]eview on a writ of

certiorari is not a matter of right, but of judicial

discretion.” Sup. Ct. R. 10. Rule 10 then outlines three

(3) compelling reasons that warrant review: (1) a

circuit split; (2) a split on an important federal issue

between a state court of last resort and either another

state court of last resort or a federal court of appeals;

and (3) a state court of last resort or federal court

decided an important federal question that either has

not been settled by this Court or conflicts with the

relevant decisions of this Court. Id.

More notably, the Rule admonishes that “[a]

petition for a writ of certiorari is rarely granted when

the asserted error consists of . . . the misapplication of

a properly stated rule of law.” Id. In fact, Chief

Justice Taft stated nearly a century ago that “[i]t is

very important that we be consistent in not granting

the writ of certiorari except in cases involving

principles the settlement of which is of importance to

the public, as distinguished from that of the parties . .

. .” Layne & Bowler Corp. v. W. Well Works, 261 U.S.

387, 393 (1923).

Here, no split of authority exists on any of the

questions at issue, nor does Petitioner assert that one

exists. Further, the Petitioner never asks this Court to

decide an important federal. Thus, as explained

herein, Petitioner’s arguments each amount to

7

nothing more than an assertion that the lower court

misapplied a properly stated and well-settled rule of

law. As such, the Petition fails to raise any issues

justifying this Court’s review, and it should be denied.

A. The Decision Below Properly

Applies Settled Law Concerning

LMRA Preemption

Contrary to Petitioner’s assertions, the Fourth

Circuit’s Decision properly applies settled law and

well-established LMRA preemption precedent.

Section 301 of the LMRA, 29 U.S.C. § 185(a),

provides

[s]uits for violation of contracts between

an employer and a labor organization

representing employees in an industry

affecting commerce . . . , or between any

such labor organizations, may be brought

in any district court of the United States

having jurisdiction of the parties,

without respect to the amount in

controversy or without regard to the

citizenship of the parties.

Over six (6) decades ago, this Court held Section

301 not only provides federal jurisdiction over

controversies

involving

collective

bargaining

agreements, but also “authorizes federal courts to

fashion a body of federal law for the enforcement of . .

. collective bargaining agreements.” Mills, 353 U.S. at

451.

8

Accordingly, pursuant to Section 301 of the

LMRA, this Court has long preempted state-law

claims which “depend upon” interpreting a collective

bargaining agreement. Lingle v. Norge Div. of Magic

Chef, Inc., 486 U.S. 399, 405-06 (1988) (citing Lueck,

471 U.S. 202). Thus, it has long been recognized that

when resolution of a state-law claim is

substantially dependent upon analysis of

the terms of an agreement made between

the parties in a labor contract, that claim

must either be treated as a § 301

claim . . . or dismissed as pre-empted by

federal labor-contract law.

Lueck, 471 U.S. at 220.

Courts have consistently applied these rules to

preempt state law claims when such claims are

“inextricably intertwined” with analyzing the

collective bargaining agreement’s terms.

Stated

differently, if resolving such state law claims depends

upon interpreting the meaning of a collective

bargaining agreement, then Section 301 preempts the

claims. Id.; see also Lingle, 486 U.S. 399 (1988); see

also McCormick v. AT&T Techs., Inc., 934 F.2d 531,

534 (4th Cir. 1991) (holding that the question in

preemption analysis is not “whether the source of a

cause of action is state law, but whether the resolution

of the cause of action requires interpretation of a

collective

bargaining

agreement”);

see

also

Oberkramer v. IBEW-NECA Serv. Ctr., Inc., 151 F.3d

753, 756 (8th Cir. 1998) (“state law claims that are

‘substantially dependent’ upon an analysis of the

9

terms or provisions of a collective bargaining

agreement or are ‘inextricably intertwined’ with

consideration of the terms or provisions of a collective

bargaining agreement . . . are preempted by § 301”). 1

The Fourth Circuit, applying these well-settled

standards, appropriately found Petitioner’s claims are

“inextricably intertwined” with the CBA, as each

requires analyzing the CBA’s provisions.

For

example, Petitioner’s “abuse of process” and

“interference with business” claims, stemming from

Petitioner’s allegations concerning the International

bringing so-called “meritless” lawsuits via the thirdparty fringe benefit funds, depend upon analyzing the

CBA’s fringe benefit contribution provisions and

covered work provisions. This is because if Petitioner

was obligated to remit contributions on behalf of

employees pursuant to such provisions, such lawsuits

would have merit. Thus, these allegations are

“inextricably intertwined” with the CBA and

consequently preempted.

Similarly, Petitioner’s interference with

business claim apparently stems from the

International allegedly attempting to convince

Petitioner’s employees to quit. Such a claim depends

on evaluating the CBA’s exclusive referral and jobsite

access provisions, as interpretation of such provisions

would be necessary to determine whether the

Petitioner cites Lingle and Lueck for the proposition that a

cause of action is only preempted if a court must “construe

disputed terms” of an agreement. However, this misstates the

law. In fact, the term “construe” never appears in Lingle, Lueck,

or in any other case cited by Petitioner.

1

10

International was within its rights to discuss such

matters with Petitioner’s employees.

Furthermore, Petitioner’s intentional infliction

of emotional distress claim similarly relies on

analyzing the above provisions of the CBA, as

analyzing this claim requires reviewing whether the

International was legally entitled to take actions

against the Petitioner for breaching such provisions.

See Foy v. Giant Food, Inc., 298 F.3d 284 (4th Cir.

2002) (finding a state law cause of action was

preempted because resolving the claim required an

inquiry into whether the defendant was legally

entitled to act as it did under the terms of the relevant

collective bargaining agreement.).

Finally, assuming, arguendo, a private right of

action existed under the two (2) criminal statutes cited

in the Complaint, federal law would nevertheless

preempt such actions.

Contrary to Petitioner’s

argument, the allegations asserted for criminal

harassment and criminal extortion implicate various

CBA’s provisions, such as: (1) whether the CBA

obligated Petitioner to comply with its terms

regarding applicant referral and fringe benefit

contributions; (2) the International’s or the Funds’

rights to pursue delinquent contributions; and (3)

whether Petitioner effectively terminated the CBA.

Because resolving these counts requires interpreting

and construing these CBA provisions, such claims are

preempted. As such, review should be denied.

In addition to the above provisions, in resolving

Petitioner’s claims, the Court would be required, as a

11

threshold matter, to interpret the terms of the CBA’s

termination and withdrawal provisions, as it would be

necessary to determine whether the Petitioner

remained bound by the terms of the CBA following his

attempted termination.

The fact that Petitioner’s claims are

inextricably intertwined with the analysis of the above

CBA provisions is further demonstrated by the

Complaint’s factual allegations. Despite the

Complaint’s sparse factual allegations, it contains

several specific references to the CBA and specific

provisions thereof. Pet. App. 2; Pet. App. 12.

Petitioner supposedly argues the Court need

not analyze the CBA’s terms because he already

offered his interpretation of the CBA’s relevant

portions. Pet. 9. Petitioner further asserts no dispute

concerning the provisions’ meanings exists, and as

such, his claims should not be preempted. Pet. 9.

As a practical matter, it is unclear the basis on

which Petitioner asserts no dispute exists regarding

any of the above provisions, as this matter was

dismissed prior to the International filing an answer.

Nonetheless, this misstates the law. The relevant test

is not whether any portions of the CBA are “disputed;”

rather, the test is whether the claims are inextricably

intertwined with analyzing the CBA’s provisions.

Petitioner’s various purported interpretations of the

CBA riddled throughout his Petition demonstrate

analyzing these terms is necessary in resolving his

claims. As such, the claims are preempted.

12

Ultimately, the Fourth Circuit properly applied

long-standing legal precedent in finding that each of

the above claims are intrinsically intertwined with

analyzing the CBA’s terms. 2 As such, the Fourth

Circuit appropriately held such claims are preempted.

Because any properly stated claim would additionally

fall outside LMRA’s the six-month statute of

limitations, and because Petitioner failed to exhaust

contractual remedies, dismissal with prejudice was

proper. Thus, the lower courts never misapplied this

well-settled law, so nothing herein merits review, and

the Petition should accordingly be denied.

B. Petitioner’s Jurisdictional

Arguments Fail to Justify Granting

Review

Petitioner argues the Fourth Circuit “erred in

affirming the District Court’s assumption of

jurisdiction in this matter based on [the

International’s] assertion of federal question authority

under 29 U.S.C. § 185(a).” (Petition p. 8). In

supporting this argument, Petitioner argues the wellpleaded complaint rule allows the plaintiff to be the

Notably, Petitioner, when addressing LMRA preemption,

ignores stated law in favor of his own imaginary precedent. In

the Petition, he alleges the International attempted to use a less

stringent standard—the inextricably intertwined standard—as

opposed to the purportedly current substantially dependent

standard. Pet. 18. But, as the Fourth Circuit noted in affirming

the dismissal with prejudice, “[c]ourts use [the inextricably

intertwined] term interchangeably with

‘substantially

dependent’ in the context of Section 301 preemption.” Pet. App.

18. Thus, Petitioner again misstated the law in attempt to cobble

together a claim. As such, the Petition should be denied review.

2

13

“master” of his complaint, and may plead only statelaw claims, even if a federal claim is available, to avoid

federal jurisdiction. Id. Again, Petitioner apparently

argues review should be granted because the lower

courts purportedly misapplied the law. Again, this

Court rarely grants review for errors of this nature,

and more notably, no misapplication occurred.

In fact, Petitioner ignores the corollary to the

well-pleaded complaint rule; a plaintiff “may not

defeat removal by omitting to plead necessary factual

questions.” Rivet v. Regions Bank of La., 522 U.S. 470,

475 (1998). Under this “artful pleading” rule, removal

may be appropriate where “federal law completely

preempts a plaintiff’s state-law claim,” even if no

federal question appears on the face of a plaintiff’s

complaint. Id. (citing Metro. Life Ins. Co. v. Taylor, 481

U.S. 58, 65-66 (1987)). This is because Congress may

“so completely pre-empt a particular area that any

civil complaint raising this select group of claims is

necessarily federal in character.” Taylor, 481 U.S. at

63-64 (emphasis added).

This Court has consistently “singled out claims

preempted by § 301 of the LMRA for such special

treatment.” Id. (citing Avco Corp., 390 U.S. 557

(1968)). Ultimately, where Section 301 of the LMRA

completely preempts an area of state law, “any claim

purportedly based on that preempted state law claim

is considered, from its inception, a federal claim, and

therefore arises under federal law.” Caterpillar Inc.,

482 U.S. at 393-94.

14

Under these long-established rules, claims that

require analyzing a CBA’s provisions cannot escape

Section 301’s preemptive

force

by

simply

masquerading as state law claims. Foy, 298 F.3d at

287 (citing Franchise Tax Bd. v. Constr. Laborers

Vacation Trust, 463 U.S. 1, 23 (1983)).

As discussed above, Section 301 of the LMRA

completely preempts state law when state law claims

are inextricably intertwined with analyzing a

collective bargaining agreement’s terms. See Mills,

353 U.S. at 451. Furthermore, as explained above,

Section 301 completely preempts Petitioner’s claims

because they each is “inextricably intertwined” with

analyzing the Collective Bargaining Agreement. As

such, the Fourth Circuit appropriately exercised

subject matter jurisdiction over the matter, regardless

of how the claims were described on the face of the

Complaint. See 28 U.S.C. § 1441(b) (federal courts

have jurisdiction over a removed case if such court

would have had original jurisdiction over the case); see

also 28 U.S.C. § 1331 (federal courts have original

jurisdiction over all civil actions arising under the

laws of the United States).

Petitioner further argues that the Fourth

Circuit and District Court erred in in reviewing the

CBA’s terms to determine whether it had subject

matter jurisdiction with respect to deciding his Motion

to Remand, as the CBA purportedly fell outside the

pleadings. Pet. 11-12. In doing so, Petitioner argues

that while a court may look to outside documents that

are “integral to the complaint and authentic” for the

purposes of Fed. R. Civ. P. 12(b)(6) motions, courts

15

must only review a complaint’s allegations in ruling

upon a motion to remand. As in other areas of his

Petition, this misstates the law.

Contrary to

Petitioner’s assertions, courts have held that, in

determining

issues

concerning

subject-matter

jurisdiction, “courts are permitted to look to materials

outside the pleadings” such as “documents appended

to a notice of removal or a motion to remand that

convey information essential to the court's

jurisdictional analysis.” Romano v. Kazacos, 609 F.3d

512, 520 (2d Cir. 2010).

Furthermore, Petitioner’s argument is moot;

the District Court was entitled to review matters

outside of the pleadings, such as the CBA, in ruling on

the Motion to Dismiss. In reviewing a motion to

dismiss, a court may properly consider documents that

are either attached to the complaint or attached to the

motion to dismiss, “so long as they are integral to the

complaint and authentic.” Phillips v. Pitt Cnty. Mem’l

Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing

Blankenship v. Manchin, 471 F.3d 523, 526 n. 1 (4th

Cir. 2006); see also Am. Chiropractic Ass’n v. Trigon

Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)

(holding a court may consider a document attached to

a motion to dismiss “when determining whether to

dismiss the complaint if it was integral to and

explicitly relied on in the complaint and if the

plaintiffs do not challenge its authenticity.”) (internal

citations removed).

The Fourth Circuit properly determined the

CBA was integral to the Complaint because: (1) the

Complaint explicitly references the CBA; (2) the

16

Complaint specifically references the parties’ specific

obligations pursuant to the CBA; and (3) resolving

Petitioner’s claims requires analyzing the parties’

rights and obligations under various provisions of the

CBA. As such, the lower courts properly considered

matters outside of the pleadings, namely the CBA.

Lastly, this Court has held that failing to

remand an improvidently removed case “is not fatal to

the ensuing adjudication if federal jurisdictional

requirements are met at the time judgment is

entered.” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64

(1996). Here, because federal question jurisdiction

existed at the time that the District Court dismissed

the Complaint with prejudice, even if, assuming

arguendo, remand was appropriate, the District

Court’s failure to do so is moot, and does not justify

review. Accordingly, since no misapplication of law

occurred, this argument does not justify review, and

the Petition should consequently be denied.

C. Petitioner’s Due Process Argument

is

Fundamentally

Flawed,

as

Petitioner Enjoys no Property

Interest in a Nonexistent Cause of

Action.

Petitioner’s third argument once again merely

asserts a misapplication of settled law as the basis for

requesting review. In his Petition, he states “[t]he

District Court’s Order of dismissal ran afoul of the

express West Virginia statutory law . . . .” Pet. 24.

This is in reference to the two (2) counts of Petitioner’s

Complaint, rooted in alleged violations of West

17

Virginia criminal statutes, specifically statutes

outlawing harassment (W. VA. CODE § 61-2-9a) and

extortion (W. VA. CODE § 61-2-13).

Petitioner purportedly suggests that because

the District Court, and subsequently the Fourth

Circuit, determined no private right of action existed

under the two cited criminal statutes, that the lower

courts deprived him of due process. Thus, Petitioner

effectively cries foul because he allegedly maintains a

constitutionally-protected property interest in

nonexistent causes of action.

Petitioner essentially argues the lower courts

improperly applied relevant state statutes, and as

such, his argument can only be characterized as

objecting to an alleged misapplication of a rule of law,

something this Court rarely finds worthy of review.

Regardless,

Petitioner’s

argument

contains

fundamental flaws because the lower courts properly

determined he asserted no recognized cause of action

via the West Virginia criminal statutes. As a result,

the Court should exercise discretion and deny the

Petition.

The Court, in determining whether a due

process violation occurred is “faced with . . . a familiar

two-part inquiry. . . .” Logan v. Zimmerman Brush

Co., 455 U.S. 422, 429 (1982). First, the Court

evaluates whether the Petitioner “was deprived of a

protected interest. . . .” Id. If the Court answers the

first question affirmatively, it then considers what

process is due. Id.

18

The lower courts, in properly applying settled

law, determined that two cited West Virginia criminal

statutes—harassment and extortion—created no civil

causes of action. Pet. App. 7. (“the plain language of

these statutes—and other statutes in the same

chapter—provide only for criminal penalties; neither

the statutory text or nor scheme suggests any intent

to create a private cause of action”); Pet. App. 15.

(“[t]he Plaintiff cannot state a claim for criminal

extortion in this civil action. Similarly, the Plaintiff

cannot state a claim for criminal harassment”). As a

result, Petitioner claims the lower courts deprived him

of a protected property interest. Pet. 24 (“Petitioner

maintains a statutory property interest in recovering

damages . . . for any injuries he suffers as a result of

any violations of § 61-2-13 and § 61-2-9A”).

Accordingly, the first question is whether Petitioner

enjoyed a protected interest in these purported causes

of action. Based on this Court’s precedent, it is

apparent that no protected interest exists, and this

argument presents no justification for review.

It is well-settled that causes of action constitute

property interests that cannot be deprived without

due process of law. Mullane v. Cent. Hanover Bank &

Trust Co., 339 U.S. 306, 313 (1950); Logan, 455 U.S.

at 430 (“a cause of action is a species of property

protected by the Fourteenth Amendment’s Due

Process Clause”); and Tulsa Prof’l Collection Servs.,

Inc. v. Pope, 485 U.S. 478, 486 (1988) (“Appellant’s

interest is . . . a cause of action against the estate for

an unpaid bill. Little doubt remains that such an

intangible interest is property protected by the

Fourteenth Amendment”). However, that property

19

interest is not all-encompassing, but instead must

constitute something more than “an abstract need or

desire for it . . . .” Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972).

Notably, all the cited cases address causes of

action that actually exist. For instance, Mullane

addressed judicial settlements of accounts by the

trustee of a common trust fund. 339 U.S. at 307.

Logan similarly addressed a claimant’s discrimination

charge pursuant to Illinois Fair Employment

Practices Act. 455 U.S. at 426-27. Finally, Pope

addressed recovering unpaid debts from an estate.

485 U.S. at 479.

Here, the District Court and the Fourth Circuit

both determined the West Virginia criminal statutes

Petitioner cited created no private rights of action.

Pet. App. 7; 17. In essence, the District Court

dismissed the extortion and harassment counts

because the Complaint asserted nonexistent torts.

Unlike Mullane, Logan, or Pope, which all plainly

involved recognized causes of action, the lower courts

determined Petitioner’s Complaint did not plead a

recognized civil claim. Pet. App. 7. 14-15.

Accordingly, because Petitioner never asserted

a recognized cause of action, he never asserted a

property interest capable of deprivation. Rather,

Petitioner simply pled a desire for a private right of

action. Roth, 408 U.S. at 577. Overall, the Fourth

Circuit never violated the Fourteenth Amendment

because Petitioner never asserted a constitutionally-

20

protected property interest, and the inquiry ends here.

Logan, 455 U.S. at 429.

Even assuming, arguendo, Petitioner had a

recognizable property interest in his claims based on

West Virginia criminal code, the International is

compelled to highlight the misstatements of law relied

upon by Petitioner. For instance, Petitioner goes

against stated precedent and common sense to argue

a West Virginia statue allows any criminal statute to

imply a private right of action unless expressly

disavowed.

The Court should not allow such

misstatements to falsely color the Petition’s merits.

The District Court, and subsequently the

Fourth Circuit, held W.VA. CODE §§ 61-2-9a and 61-213 provide no private right of action. (Appx. 6; 14-15).

In determining this, the District Court relied on its

previous decision in Horton v. Vinson, No. 1:14-cv-192,

2015 WL 4774276, at *22 (N.D.W.V. Aug. 12, 2015), in

which it concluded that nothing in W.VA. CODE § 61-213 even hinted that a private right of action exists. See

also Cunningham Energy, LLC v. Outman, No. 2:13cv-20748, 2013 WL 5274361, at *5 (S.D.W.V. Sept. 18,

2013). The District Court extended Horton’s reasoning

in finding W.VA. CODE § 61-2-9a created no private

right of action. Pet. App. 14-15.

Despite this clear precedent, Petitioner

continues arguing W.VA. CODE § 55-7-9 allows a

plaintiff to assert a claim under any West Virginia

criminal statute. Simply stated, this argument

misstates the statute’s meaning. Instead, W.VA. CODE

§ 55-7-9 creates a presumption of negligence, not an

21

implied intentional tort. Arbaugh v. Bd. of Educ., 591

S.E.2d 235, 238-39 (W.Va. 2003) (in construing W.VA.

CODE § 55-7-9 the West Virginia Supreme Court has

“consistently held that a violation of a statute is prima

facie evidence of negligence, providing that such

violation is the proximate cause of the injury.”).

Contrary to Petitioner’s argument, the West Virginia

Supreme Court has noted that “whether a private

cause of action exists under a particular statute is

determined by applying the four-part test set forth in

Hurley . . . .” Id., at 239 (emphasis added). Thus,

Plaintiff’s assertion that W.VA. CODE § 55-7-9 creates

a private cause of action under any West Virginia

criminal statute by default is incorrect.

The lower courts appropriately applied the

Hurley factors, and, relying on precedent in Horton,

supra, determined that no private cause of action

existed under either criminal extortion or criminal

harassment statutes. Petitioner’s reliance on W.VA.

CODE § 55-7-9 is wholly unfounded, and accepting

Petitioner’s arguments would only create the illogical

situation in which any West Virginia criminal statute

could create a private right of action, rendering the

Hurley analysis entirely superfluous. Because the

statutory scheme and above decisions clearly did not

intend that result, Petitioner’s arguments should be

rejected because no misapplication of law occurred,

and the Petition should be denied.

22

II.

The Petition Should Further be Denied

Because it Fails to Address the Lower

Courts’ Holdings With Respect to Fed.

R. Civ. P. 12(b)(6) and Raises Issues

Herein for the First Time.

Beyond failing to provide a compelling

justification for granting review, the Petition omits

any discussion relating to the lower courts’ dismissal

with prejudice based on Fed. R. Civ. P. 12(b)(6), so any

review by this Court would prove futile. Moreover,

Petitioner raised his due process argument for the

first time before this Court such that it should be

ignored. Consequently, the Petition should be denied.

A. The Petition Neglects to Refute That

his Complaint Fails to State a Claim

for Which Relief can be Granted, and

Accordingly, the Lower Courts’

Dismissal Would Stand.

Even if, assuming arguendo, Petitioner

provided sufficient justification to warrant review,

Petitioner failed to allege any error concerning the

lower courts’ holdings with respect to dismissing his

Complaint with prejudice pursuant to Fed. R. Civ. P.

12(b)(6). As such, the dismissal with prejudice on this

ground would remain unchanged.

The Petition

consequently does not rise to a level worthy of review.

This Court’s rules state “[o]nly questions set out

in the petition, or fairly included therein, will be

considered by the Court.” Sup. Ct. R. 14.1(a). Thus,

where a petition for writ of certiorari fails to raise an

issue decided by the lower courts, this Court rarely

reviews such issue.

See Izumi Seimitsu Kogyo

23

Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27,

31-32 (1993) (refusing to address an intervention issue

that was “neither presented as a question in the

petition for certiorari nor fairly included therein”).

Thus, because Petitioner failed to raise any issue with

respect to the lower courts’ Fed. R. Civ. P. 12(b)(6)

holdings, these issues are not properly before the

Court. As such, regardless of how the Court would

determine the issues Petitioner actually raised, the

lower courts’ dismissal based on Rule 12(b)(6) would

stand; therefore, review would be futile.

Even so, properly stated complaints must

contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). To meet this standard, a complaint

should state “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Facts are facially

plausible when they “allow[] the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

While the pleading standard “does not require

detailed factual allegations,” the Supreme Court has

noted that it “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Id. A

complaint is insufficient when it offers “labels and

conclusions or a formulaic recitation of the elements of

a cause of action,” or tenders only “naked assertion[s]

devoid of further factual enhancement.” Id. (internal

quotations omitted).

24

The Complaint contains ten (10) vague

paragraphs, introducing the parties and providing

limited details. The facts the Complaint does include

simply establish that the parties were signatory to a

collective bargaining agreement, that Petitioner

attempted at some point to terminate the agreement,

and that thereafter, Petitioner ceased honoring the

agreement, resulting in a lawsuit between Petitioner

and fringe benefit funds to which Petitioner was

contractually obligated to contribute.

The Complaint generally contains claims in a

formulaic

“the-defendant-unlawfully-harmed-me”

manner. Count I, for instance, is for a “tortious

interference of business,” and contains only two (2)

paragraphs, each including only the elements of the

cause of action with no factual allegations whatsoever.

As such, the pleadings are insufficient to state a claim

under Count I.

Petitioner’s next count (abuse of process)

contains only two (2) paragraphs, each consisting of

only legal conclusions and conclusory statements

related to the elements of the cause of action. Beyond

facially conclusory and illogical allegations that the

International filed the suit “through” the funds, no

facts plead in the Complaint show the International

filed any lawsuit to coerce or intimidate Petitioner. As

such, the lower courts properly determined these

conclusory and vague statements failed to state a

claim for which relief may be granted.

Petitioner’s third count asserts a claim for

intentional infliction of emotional distress, and

contains only three (3) paragraphs, each alleging

25

conclusory statements. Under West Virginia law, a

plaintiff can only recover for intentional infliction of

emotional distress if he proves: (1) extreme and

outrageous conduct; (2) an intent to inflict emotional

harm; (3) the actions caused emotional distress; and

(4) the distress was so severe that no reasonable

person could endure it. Hatfield v. Health Mgmt.

Assocs., 672 S.E.2d 395, 404 (W. Va. 2008).

Under West Virginia law, intentional infliction

of emotional distress requires outrageous conduct—

i.e., conduct that defies societal norms. Travis v. Alcon

Labs., Inc., 504 S.E.2d 419, 425 (W.Va. 1998).

However, “conduct that is merely annoying, harmful

of one's rights or expectations, uncivil, mean-spirited,

or negligent does not constitute outrageous conduct.”

Courtney v. Courtney, 413 S.E.2d 418, 423 (W.Va.

1991) (reversed on other grounds).

Here, the alleged conduct falls far short of that

standard. None of the conduct alleged is remotely

improper, much less defies social norms. As such, the

Complaint fails to state a claim for relief under this

count.

The next two counts are for actions under West

Virginia Criminal Code §§ 61-2-13a and 61-2-9a. As

previously explained, neither statute provides for a

civil cause of action. However, even if such civil actions

did exist, the Complaint fails to state a claim for relief

under each statute, as it contains nothing more than

a barebones recitation of the elements of each claim,

in a conclusory “the-defendant-unlawfully-harmedme” manner. As such, the Complaint fails to state a

claim for relief under each count.

26

Ultimately, as the lower courts properly

observed, once stripped of legal conclusions, the

allegations set forth in the Complaint lack factual

support required to state a claim for which relief may

be granted. Thus, the District Court properly

dismissed the Complaint, and the Fourth Circuit

properly affirmed. Because this holding would remain

unchanged, the Petition does not justify granting

review.

B. Petitioner Raised Arguments for the

First Time Before This Court That

Should be Ignored.

This Court previously stated it does “not decide

in the first instance issues not decided below.” Nat’l

Collegiate Athletic Ass’n v. Smith, 525 U.S. 459, 470

(1999). In other words, the Court will normally

“refrain from addressing issues not raised in the Court

of Appeals.” E.E.O.C. v. Fed. Labor Relations Auth.,

476 U.S. 19, 24 (1986).

Notably here, Petitioner’s appeal to the Fourth

Circuit lacked any mention of the Fourteenth

Amendment, much less a deprivation of the

Petitioner’s due process rights. In fact, the Fourth

Circuit succinctly outlined Petitioner’s arguments on

appeal, and no argument even hinted that dismissing

the extortion and harassment counts deprived

Petitioner of his due process protections. Pet. App. 18. As a result, this argument constitutes an issue

raised for the first instance before this Court. Thus,

on this point alone, the Petition should be denied.

27

CONCLUSION

For the reasons stated herein, the Court should

deny the Petition for Writ of Certiorari, and grant all

other relief the Court deems just and proper.

Respectfully submitted,

MICHAEL J. STAPP

Counsel of Record

BLAKE & UHLIG, P.A.

6803 West 64th Street,

Suite 300

Overland Park, KS 66202

(913) 321-8884

mjs@blake-uhlig.com

Counsel for Respondent