Petition for Writ of Certiorari — Moore v. Local Union No. 58, International Brotherhood of Electrical Workers

im, Supreme Ceurt, US.

| FILE®

case QS 224 WN 242003

THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 2002

LAWRENCE MOORE,

Petitioner,

:' a

LOCAL UNION NO. 58, INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS; LOCAL 58 ANNUITY FUND;

LOCAL 58 PENSION TRUST; LOCAL 58 HEALTH WELFARE

TRUST; LOCAL 58 TRAINING TRUST; LABOR-

MANAGEMENT CO-OP FUND; LOCAL 58 SUB PAY FUND;

LOCAL 58 VACATION PAY FUND; JEFF RADJEWSKI;

ELECTRICAL WORKERS JOINT BOARD OF TRUSTEES;

THOMAS MITTELBRUN; NATIONAL ELECTRICAL BENEFIT

FUND; and NATIONAL ELECTRICAL ANNUITY FUND,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Lawrence Moore, Pro Se

Box 13543

La Jolla, CA 92039-3543

Ph. (858) 452-9537

QUESTION PRESENTED FOR REVIEW

1. May a biased, partial and overweening "judge" solicit, and

inflate an already-inflated, three-months-late motion for attorneys

fees by misrepresenting a bargaining unit employee - represented

by a Union certified as his "exclusive representative" under

Federal Law - is a "member" of a Union he sued (for wrongfully

taking both "union dues" and its special purpose funds’ "required

contributions" from his wages) and had "voluntarily" participated

in that Union’s "Voluntary Employee Beneficiary Funds" - which

must be approved by the Internal Revenue Service to exist before

receiving such tax-deferred wages - by striking his "Response" to

freely distort the purpose and intent of E.R.I.S.A. § 502(g)(1);

and should denial of his petition for writ of certiorari in the case-

in-chief be reconsidered in light of that judge’s now-assertion, in

the Order awarding fees, that the case had been dismissed on the

specious ground, "Plaintiff simply used this Court as a forum to

air his political position"?

LIST OF ALL PARTIES

Petitioner/Appellant/Plaintiff Lawrence Moore, and

Respondents/Appellees/Defendants: Local Union 58, International

Brotherhood of Electrical Workers; Local 58 Vacation Pay Fund;

Local 58 Health Welfare Trust; Local 58 Sub Pay Fund; Local

58 Annuity Fund; Local 58 Pension Trust; Local 58 Health

Welfare Trust; Local 58 Training Trust; Labor-Management

Coop Fund; Jeff Radjewski; National Electrical Benefit Fund;

National Electrical Annuity Fund; Thomas Mittelbrun; and

Electrical Workers Joint Board of Trustees. , -

TABLE OF CONTENTS

page

CITATIONS TO GPINIONS BELOW .....0556scssccesescseossens 1

STATEMENT OF JURISDICTION ............ aera, 1

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STATEAGRT OF THe CA ect ccstntsestesarisicoesnereeresiee 2

REASONS FOR GRANTING THE WRIT .................00068 7

I. The petition should be granted to review lower

court approvals of an award of attorneys’ fees to

Union Funds by abusing law, and facts in different

ways than it distorted them in Orders that underlie

Petition No. 02-920 to this Court from the case-in-

chief, and review approval of underlying "takings"

of non-members’ wages without any due process,

thereby overstepping the boundaries of accepted

procedure and departing from the usual course of

judicial proceedings and conflicted with applicable

decisions by this Court, all of which also require

an exercise of this Court’s powers of supervision.

RP EITIE ois viscexsnysntonxnevesstensesucierssanes eee 14

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TABLE OF AUTHORITIES page

Alyeska Pipeline Co. v. Wilderness Society,

421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1976) ......... 12

Armistead v. Vernitron Corp.,

ae GE CGE s FIP ED vs eesncsscccvsvccccsssscseveves 8, 11-12

Christenberg Garment Co. v. E.E.O.C.,

a racks bedidececasichwtesvasdcsunceceecescass 11

Communication Workers of America v. Beck,

487 U.S. 735, 108 S.Ct. 2641,

re a

Cowden v. Montgomery County Society for Cancer Control,

RD) ee 13

Firestone Tire & Rubber Co. v. Neusser,

ee ee UNE, SOE D vas svcncnsecvcsscccsdvecvescvasaceess 10

Folstice v. Guardian Products, Inc.

98 F.3d 933 (6th Cir. 1996), cert. denied,

520 U.S. 1143, 117 S.Ct. 1312, 137 L.Ed.2d 475 (1997) ..... 11

International Association of Machinists v. Street,

367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961) ........ 7

Landro v. Glendenning Motorways, Inc.,

ee Be CE BUMPED ccc csvnaeensecsswascsceseenssscssecees 13

Moore v. Fischbach & Moore, Inc., |

ee I MS, OPED cs cs cncusvenscsssnsdsveascensvecsenes 8

N.L.R.B. v. Amax Coal Co.,

es ckgoeesuaesvecunelausevebveseees 10

Smith v. CMTA-IAM Pension Trust,

pe | ee eee 11

lil

—

CITATIONS TO OPINIONS BELOW

No district or circuit court opinions were published in U.S.D.

C. No. 01-72222, or Appeal Nos. 02-1503 and 02-2073, but they

are reproduced verbatim, without typos, in the Appendix.

STATEMENT OF JURISDICTIONAL GROUNDS

Jurisdiction over the case was proper in district court under

28 U.S.C. §§ 1331, 1337, 1343, and 42 U.S.C. § 1483, and this

case arose under the Constitution’s First and Fifth Amendments,

Labor Management Relations Act ("L.M.R.A.") §§ 158(a)(3) (29

U.S.C. § 158), 301 and 302 (29 U.S.C. §§ 185, 186) after the

Union, certified by Federal Law as "exclusive representative" for

a “bargaining unit" including union nonmembers, and Funds took

non-member Plaintiff’s property (monies he had earned as wages

under a collective bargaining agreement). The circuit court’s

jurisdiction to review orders of the district court was proper

under 28 U.S.C. § 1291. This Court has jurisdiction to hear the

matter under 29 U.S.C. § 1254(1), and Supreme Court Rule 10.

TABLE OF STATUTES Page

United States Constitution, Amendments 1, 5.............. 2-3, 13

E.R.I.S.A. § 502(g)(1) (29 U.S.C. § 1132) ............ 5,7, 11-13

SRR Py oye. gi e Rede 5 t } +: eeereenereren 10

Labor Management Relations Act ("L.M.R.A.") § 158(a)(3)

(aka N.L.R.A. § 8(a)(3)) (29 U.S.C. § 158) .................. 2,3

Re PMS Fs 4k Ree | er errr y

EC DEA. SO Gee CAL... BBO a cvniccsnesessivnscnsecnccsss 6, 10

Labor-Management Reporting and Disclosure Act, § 2,

CD cckdscnnscuessenvucslpubbnimabiennssaaladkesnnbiawennth 6

Labor-Management Reporting and Disclosure Act, § 3(0),

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Peeeeernel Pe CR COD BFE avn viinisis vencccccccsvsestiacessacs 10, 13

STATEMENT OF THE CASE

A complaint was filed June 13, 2001, and the First Amended

Complaint was filed, and served on all Defendants on October 9,

2001. The first cause of action for violating the First and Fifth

Amendments by "taking" money fro:n a "non-member" Plaintiff’s

paychecks for Local Union No. 58 ("Union") dues and its special

purpose funds ("Funds") "required-contributions” and refusing to

return it or give him an option of paying "agency fees" to Union,

was against all the defendants, as were the second, third and fifth

causes of action, respectively, for fraud and deceit, breach of

contract, and intentional infliction of emotional distress.!

A fourth cause of action was against Union and Radjewski for

breaching L.M.R.A. duties to represent him fairly ("DFR").

A prayer for declaratory relief asked: for refund of "takings"

and affirmation such "takings" are illegal; to stop those "takings"

and abuse of dues deduction authorizations on forms nonmembers

must sign to get jobs in collective bargaining agreement ("CBA")

created hiring halls; for an order that the CBA parties (union and

contractor) must appoint a neutral third-party to administer that

hiring hall and the CBA job referral procedure; and for an order

declaring the fourth cause of action ("DFR") may be presented

to the jury instead as an L.M.R.A. "breach of contract" claim.

A prayer for injunctive relief also asked to enjoin Union and

its Funds: from continuing any conduct declared illegal; from all

takings of non-members’ wages including dues until it establishes

"agency fees" procedures; and to require the Union and its Funds

to notify non-members of a right "to be reimbursed for the years

of ill-gotten ’takings.’" Plaintiff also prayed for special damages,

punitive damages and such further relief deemed just and proper.

Union and Radjewski filed their Answer on October 29, 2001,

and Plaintiff served interrogatories and requests for production of

documents on them on December 3, 2001.

Funds Defendants, including their "administrator" Mittelbrun,

' Plaintiff also alleged that "takings" included kickbacks to contractors

(in amounts equal to Funds’ takings) from overtime pay for deducting

those "takings" from non-members wages for Union Defendants. Exact

amounts taken are still unknown because that Union will not let a non-

member see the CBA, and the courts would not allow any "discovery."

filed and served a "Motion for Dismissal for Failure to State a

Claim on Which Relief Can Be Granted, or in the Alternative,

Summary Judgment" October 29, 2001 supported by Mittelbrun’s

Affidavit and exhibits. Plaintiff responded November 26, 2001,

and included his Affidavit and exhibits, and his separate F.R.Civ.

P. 56(f) Affidavit. Union Funds’ December 4, 2001 Reply was

supported only by another self-serving Affidavit by Mittelbrun.

Union and Radjewski then filed a "Motion for Dismissal for

Failure to State a Claim on Which Relief Can Be Granted, or in

the Alternative Summary Judgment as to Counts I-V of Plaintiff’s

Complaint" November 19, 2001, supported by Radjewski’s "decl-

aration." The Plaintiff's December 14, 2001 Response included

another F.R.Civ.P. 56(f) Affidavit showing outstanding discovery

requests, and Union Defendants filed a late, unsupported Reply.

Union Defendants discovery responses were also late, they

moved for a "protective order" against all discovery (despite

filing their Answer, and their Motion for Summary Judgment).

The court held a telephone status conference, filed a January

7, 2002 Order permitting Union to avoid all discovery and Funds

then wrote that biased, partial judge for dismissal "to expedite...a

decision, that might help to minimize the continuing costs to

defendants ....". Please see the Appendix "Apx" at 16-22.

A March 18 Order granted dismissal, and summary judgment

(Apx 23-37) via a "Background" and "Analysis" misrepresenting:

Plaintiff’s "position is directly contrary to the purpose of [LMRA

§ 158(a)(3)] as explained by the Beck Court" (Apx 34); Constitut-

ional claims "are factually and legally without merit" (Apx 35);

and Union Defendants are "private parties" (34-36), to conclude,

"the limitation that [LMRA] § [15]8(a)(3) places on the use of

nonmember dues is simply not implicated here" (Apx 31- 33).?

The court’s attacks were for "insist[ing] ... Local 58 had ’no

? That Order is reproduced without typos, all the Plaintiff's affidavits

showed Defendants’ “political” and "organizing" (like Beck) spendings,

and that Order also lied that: he tried to "avoid the negotiated overtime

arrangements"; his claim "dues" were used for “political or other non-

core activities" is "unsubstantiated"; Funds’ "takings" from wages are

employers’ "contributions"; and "union dues" claims are unsustainable.

Bias also taints later "striking" of his "late" attorneys’ fees opposition.

right’ to deduct dues from his wages or other nonmembers of the

Local 58" (sic) (Apx 34), and his suing "out of retaliation" (36).

That lower court also argued allegations in his First Amended

Complaint, "that an unknown amount of benefits were taken from

him [are] directly contrary to the explanation that Radjewski gave

to him," and that his 1998 "benefits would have been sent to [a]

home fund if he had timely submitted the reciprocity form. ”

Plaintiff moved to vacate the Judgment (providing an affidavit

and evidence of National Electrical Benefit Fund’s multi-millions -

- in political-spendings), but it was summarily rejected.

On appeal Judgment was affirmed in a Not Recommended For

Full-Text Publication Order filed September 13, 2002 (mis-stating

the case was also filed "pursuant to" ERISA), summed up claims,

and rejected judicial bias and partiality arguments to conclude,

"Moore’s complaint lacked merit. Moore’s first

claim, in which he asserts that the defendants

violated his constitutional rights, is not actionable.

Generally, ‘the conduct of private parties lies

beyond the Constitution’s scope ....’"

Apx 57.

That court admitted Plaintiff is "not a member of Local 58,"

but misrepresented: the public hiring hall administering the CBA-

created job Referral Procedure was "Local 58’s hiring hall"; that

his "main complaint is that Local 58 supposedly tricked him into

signing the dues deduction authorization"; that his other "primary

allegations" are the Union denied him "a voice as a non-member"

(lumping in the true primary allegation that the CBA didn’t allow

any "takings" from non-members), and dues are used for political

contributions (ignoring "organizing" and other "allegations"); that

the "fourth" DFR claim preempted all "state law claims"; and

that all of Plaintiff’s claims were "time-barred." (Apx 56-58).

* In 1998 General Motors locked everyone out prior to a strike and the

Piaintiff was offered an alternate job by his employer, but Radjewski

would only allow contractors to transfer Union’s "members," promising

"non-members" preference in re-hiring after that lock-out, but reneged,

forcing Plaintiff to leave before he completed a "reciprocity" form.

Funds’ April 1, 2002 attorneys’ fees motion in district court

was devoid of "formal" or "substantive" merit and didn’t deserve

a response, but the court sua sponte wrote Funds’ counsel advice

on amending the motion on July 8, 2002, also "request[ing] that

Defendants Funds and Mittelbrun supplement their Motion

with the necessary information" (Apx 39). A "First Supplement

to Brief In Support of Defendants Funds and Mittelbrun’s Motion

For Attorneys Fees And Costs" and affidavit of Patricia Fabrizio

were filed three and one-half months after Funds Defendants’

original late-served motion was filed. Plaintiff timely filed both

a Response and Affidavit that did not prejudice a Funds Reply.

But district court struck Plaintiff's Response, and Affidavit

as "deemed not a part of the record of this case" on August 6,

2002 (Apx 40), and filed the "Order Granting In Part Defendants

Funds’ and Mittelbrun’s Motion For Attorneys’ Fees And Costs"

(Apx 41). The Order misrepresented that Plaintiff "failed to file

a timely response," and stated,

"For the reasons below the Court will GRANT an

award of attorneys fees to Defendants Funds and

MITTELBRUN without regard to Plaintiff's

ability to pay...."

Apx 41. Its "Background" misrepresented all of the Funds could

seek fees pursuant to Employee Retirement Income Security Act

("ERISA") § 502(g)(1) (29 USC § 1132(g)(1)) (Apx 42).

That court’s "Analysis, Bad faith" begged a question whether

Plaintiff's claims were "based in law" and projected its "personal

political agenda," and "belief" onto him, citing "per Defendants, "

made ad hominem attacks on him, citing its own Westlaw search,

to conclude he had brought "a frivolous claim" and was "culpable

where lawsuit filed despite strong adverse precedent” (Apx 44).

Its “Ability to Pay section misrepresented and maliciously

applied other courts’ opinions to beg questions that "plaintiff's

ERISA claims were frivolous," and despite Plaintiff’s affidavits

showing he cannot register for work at Defendants’ hiring hall in

that "murder capital" because of physical danger - for suing them

in federal court over their theft of his wages - held he "therefore

is well situated to pay the requested fees and costs" (Apx 45).

Its Deterrent effect, admitted to be "generally oaly considered

relevant when ... award[ing] fees to a prevailing ERISA plaintiff"

was used to again beg its "frivolous" and "unfounded" questions,

and an unsupported conclusion to add its own "retribution" factor

to the five King/Eaves factors.

A Common benefit section overrode other courts’ caution

("no apparent common consensus") to rule "if a fee award is

denied, the participants and beneficiaries will ultimately bear the

burden of the cost of this litigations."*

The Relative Merits section continued begging that "frivolous"

question, and the ad hominem attacks on Plaintiff. The court’s

"B. ANALYSIS" invalidly concluded,

"Balancing [sic] the above five factors favors an

award of fees to Defendants. Bad faith and ability

to pay ... weigh in favor of Defendants for the

reasons that Plaintiff's claims were based on

assertions of fact that were not supported. by the

record. It appears that Plaintiff acted without

regard for the merits of his claim."

(Apx 49). Fictional Bad faith "frivolous" nonsense was repeated

to state, "the facts of the case support an award," and the court

threw in nine pages of inapposite boilerplate and increased "fees"

by the amount of "costs" it pretextually denied the Defendants.

The appeal court misrepresented that: Plaintiff was an ERISA

participant; his response to a fees motion was late; his claims are

"frivolous," and will be deterred by a "common benefit" award.

* One reason PLAINTIFF doesn’t want his wages stolen by the Funds

is codified in the Declaration of Findings, Purposes, and Policy of the

Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA")

§ 2 (29 U.S.C. 401), citing to "instances of breach of trust, corruption,

disregard of the rights of individual employees, and other failures to

observe high standards of responsibility and ethical conduct ... as they

relate to the activities of labor organizations, employers, labor relations

consultants, and their officers and representatives .... which distort and

defeat the policies of the Labor Management Relations Act [§ 302, the

Paycheck Protection Law] ...." See LMRDA § 3(0) for "member."

REASONS FOR GRANTING THE WRIT

Certiorari should be granted to review the circuit’s affirmation

of a baseless district court attorney fees award, and because of its

new abuses of different law and facts to review its affirmation of

takings from union non-members’ wages in Petition No. 02-920.

The district court used a same format to distort the law and to

misrepresent facts that it used in the case-in-chief, and the result

is chaos, supported by its invalid reasoning patterns of question-

begging, ad hominem attacks, and non-sequiturs.

The "format" previously used to misrepresent the Plaintiff was

a "member" of the Defendant Union subject to "taking" of wages

for "union dues" (including its objectionable "political" and other

spendings) because it is not a "state actor" - in the face of this

Court’s contrary decisions® - is again used to misrepresent,

"Plaintiff's bad faith is evidenced by the fact that

.... [his] motive in filing this lawsuit seems to

have been for the purpose of furthering his

personal political agenda with unions generally

and Local 58 specuically."

Apx 44. The apolitical Plaintiff was never a Michigan resident.

It is impossible to ignore:

1) that Union Funds made no timely valid fees motion but district

and appeal courts distorted the facts to validate a three-months-

late "amendment," which they called a "Supplement";

2) that the ERISA fees award is to punish Plaintiff for a personal

political agenda that exists only in the district court’s mind;

3) that Plaintiff was never an "ERISA participant" or beneficiary;

4) and that the court misunderstood or distorted the "five factors"

necessary to consider such ERISA § 502(g)(1) fees awards.

FIRST, contrary to district court’s striking Plaintiff’s timely-

filed "Response" to Funds Defendants’ months-late, amended fees

> Of., Communications Workers of America v. Beck, 487 U.S. 736

(1988), citing Machinist v. Street, 367 U.S. 740 (1961).

motion, his Response necessarily examined the same case-law but

reached different conclusions than district court’s flawed Order

awarding fees. Cf., Armistead v. Vernitron Corp., 944 F.2d 1287

(6th Cir. 1991), which district court plagiarized and distorted for

its own political agenda (Apx 41-54).

The district court is clearly a product of "political patronage,"

rather than the Horatio Alger myths (of self-discipline and merit),

as shown by its "Conclusion" (sic) in the case-in-chief:

For the foregoing reasons, THE COURT

GRANTS the Funds and Mittelbrun filed a Motion

for Dismissal for Failure to State a Claim on

Which Relief Can Be Granted, or in the

Alternative, Summary Judgment [document 9] and

the Local 58 and Radjewski filed a Motion for

Dismissal for Failure to State a Claim on Which

Relief Can Be Granted, or in the Alternative

Summary Judgment as to Counts I-V of Plaintiff’s

Complaint [document 12].

Apx 37. The court’s bias and partiality is obvious in self-serving

nonsense about the Plaintiff’s "political agenda with ... [Detroit]

Local 58 specifically," where it acknowledged on the same page,

in its n.2, that he filed two "similar lawsuits against union locals

in California and Ohio" that stole his wages (Apx 43).°

SECOND, the district court struck Plaintiff’s July 29, 2002

"Response" to Defendants’ motion for fees, citing Local Rule 7.1

(d)(2)(B), which, as that court admitted in its order,

requires that a response to a nondispositive motion

be filed within 14 days after service of the motion.

(Emphasis added. )

* A reactionary Democrat appointee presiding over that California case

was recently picketed at the courthouse by jurors he abused for his own

agenda. Plaintiff exhausts all alternatives before resorting to courts that

now almost all resemble the ignoble judge Taney of Dred Scott infamy.

The Ninth Circuit observed that Plaintiff sues only over ethical issues

in Moore v. Fischbach & Moore, Inc., 53 F.3rd 1053 (9th Cir. 1995).

Apx 40. The appeals judge wrote he denied Plaintiff's appeal,

"Because Moore failed to timely respond to the

defendants’ motion ... he has waived any

objection ... to the district court’s award ...."

Apx 60.

However, that ruling depends on semantical sophistry because

the district court did not act on an April 1, 2002 fees motion

until it sent Defendants a July 8, 2002 helpful-hints letter stating,

"A fee applicant is required to include with such

a request background information for each billing

attorney and independent evidence of the market

rate .... Without this information the Court is

unable to assess the reasonableness of the rates

charged by Defendants’ counsel .... Therefore,

the Court requests that Defendants ... supplement

their Motion with the necessary information ...."

Apx 39.”

That ostensible "necessary information" was filed as a "First

Supplement” to that defective "Motion" on July 15, 2002 and the

Plaintiff filed a Response and supporting Affidavit July 29, 2002.

Aside from the two judges and Defendants’ semantical tricks, and

even aside from the fact that the controlling Rule the judge cited

stated the motion is nondispositive, it is not reasonable to strike

a timely Response to a defective supplemented motion, but hold

Plaintiff to an Orwellian "doublespeak" standard it could not

meet. That court admitted it was unable to assess the "necessary

information" that was "missing" from the April 1, 2002 motion.

THIRD, there is no basis for a fees award against Plaintiff

under ERISA because Plaintiff was not a "participant" and wasn’t

a "beneficiary" of the three Defendant Funds within the meaning

of ERISA, those Funds’ wrongful "takings" from his wages are

” Defendants’ then euphemistically named the three-months-late motion

a "Supplement" as the court’s improper ex parte letter had (Apx 39).

"upstream" from ERISA and illegal "takings" cannot legitimately

relate to the ERISA Funds. A state law, and therefore a cause

of action, is not preempted by ERISA unless it "relates to," and

"purports to regulate" that Fund within the meaning of ERISA §

1144(c). See Firestone Tire & Rubber Co. v. Neusser, 810 F.2d

at 552-53, n.1 (6th Cir. 1987).

The wrongs done here by abuses of judicial power also cannot

be made right by appealing tc "ERISA," which, not incidentally,

covered only three Pension, Annuity and Health Welfare Funds

as per LMRA § 302(c)(5)(A), but not other Funds Defendants.

See N.L.R.B. v. Amax Coal Co., 453 U.S. 321 (1981).

Further, the Funds exist only on monies negotiated with CBA

employers as "hourly wages," rather than as negotiated benefits,

and portions of wages are then "deferred" to the Funds only after

Union "members" collectively vote to do so in Union "closed-to-

non-members" meetings. But such intra-union voting may not be

used to "take" monies from the wages of "non-members" also in

a CBA "bargaining unit" Defendant Union is certified by Federal

law to exclusively "represent" fairly and nondiscriminatorily.®

Because those three ERISA Funds Defendants "take" deferred

(sic) "required contributions" (sic) from wages, they are required

by the Internal Revenue Service to meet qualifications to exist as

Voluntary Employees’ Beneficiary Funds under Internal Revenue

Code § 501 before receiving "voluntary," direct, tax-free deposits

from their earned wages to the workers’ individual accounts.

Plaintiff never "voluntarily" gave any of the Funds Defendants

any monies, and he never received any "benefit" from any Funds

for monies "taken" from his wages by Union Funds’ Defendants.

Even in actions other than one where ERISA fiduciaries sued

successfully to enforce employers’ obligations to make payments

to a multiemployer plan there is no presumption as to whether

® Funds take "required contributions" from non-members by the threats

of loss of their jobs and/or physical violence, and buy protection from

corrupt politicians, and judges with contributions to Political Action

Committees, and political candidates who have their "political" allies

appointed to government jobs, as here, where the district court dishon-

estly ruled the Union is not a “state actor" to protect its "takings" (and

cited two civil rights cases to legitimize abuses of the Constitution).

10

such attorney’s fees will be awarded. Folstice v. Guardian

Products, Inc., 98 F.3d 933 (6th Cir. 1996), cert. denied, 520

U.S. 1143, 117 S.Ct. 1312, 137 L.Ed.2d 475 (1997). ERISA §

502(g)(1) (29 U.S.C. § 1132(g)(1)).

Neither the American nor the English Rule governs attorney’s

fees questions in ERISA cases, other than where such a fiduciary

sues successfully to enforce an employer’s obligation to pay into

a multiemployer plan (and there such awards are mandatory

under ERISA § 502(g)(2) (29 U.S.C. § 1132(g)(2)).

In non-mandatory cases like the instant case, the Sixth Circuit

recognizes no presumption on whether fees will be awarded, and

in Folstice, where, like here, the plaintiff's case was dismissed,

the Sixth Circuit decided the defendant’s position to be "no more

devoid of merit than any other losing litigant." Jd. , at 938-39,

citing Armistead v. Vernitron Corp., 944 F.2d 1287 (6th Cir.

1991), ERISA § 502(g)(1), and the five King/Eaves factors.

In Christenberg Garment Co. v. E.E.O.C., 434 U.S. 412

(1978) the Supreme Court, when denying fees to a prevailing

defendant, underscored that under very few circumstances is a

defendant to be awarded attorney fees, while it acknowledged

that the court has discretion to assess fees when a plaintiff’s

action is frivolous, unreasonable, and without foundation:

"Congress has provided only limited exceptions

to this rule “under selected statutes granting or

protecting various federal rights.’"

Id., at 415, citing Alyeska Pipeline Co. v. Wilderness Society,

421 U.S. 240, 260, 95 S.Ct. 1612, 1623, 44 L.Ed.2d 141

(1976). |

The Sixth Circuit rejected a decision that fees ought to be

awarded as a rule even to prevailing plaintiffs under ERISA §

1132(g)(1), in Smith v. CMTA-IAM Pension Trust, 746 F.2d 587,

589 (9th Cir. 1984), and instead acknowledged the "American

Rule" limits the power of federal courts to shift fees in the

absence of a federal statute authorizing it. Armistead v.

Vernitron Corp., 944 F.2d 1287, 1301 (6th Cir. 1991) ("[T]he

courts have no ’roving authority ... to allow counsel fees as costs

or otherwise whenever the courts might deem them warranted’"),

11

| |

citing Alyeska Pipeline Co. v. Wilderness Society, at 259.

That Sixth Circuit court went on to decide,

"We conclude therefore that the district court

strayed from the mark when it asserted that the

purpose of fee-shifting under ERISA was primari-

ly punitive. The punishment of bad faith litigants

is a legitimate purpose under ERISA, but not the

only purpose. See New York Cent. Teamsters

Pension Fund, 506 F.Supp. 180, 182 (W.D.N.Y.

1980) (purpose of fee shifting under ERISA is to

“enable pension claimants to obtain competent

counsel and to distribute the economic burden of

litigation in a fair manner"). (Citations omitted.)

Armistead v. Vernitron Corp., 944 F.2d 1287, at 1304.

Broad wording in ERISA’s fee-shifting provision permits the

courts to award attorney fees, and to consider "five factors," but

the Union Funds Defendants showed no valid finding in an Order

dismissing this action that the action is "more devoid of merit

than that of any other losing litigant." It is not devoid at all.

FOURTH, the district court constantly cited "Per Defendants"

for its invalid factual findings related to the five King/Eaves

factors to be considered as guidelines for discretionary awards of

fees under ERISA § 502(g)(1), and Defendants’ "assert[ions]" for

question-beggings related to case-law misrepresentations, and the

relevance of its "findings" (see pp. 5-6, supra, and Apx 43-49).

However, the court’s consideration of the five factors found,

“bad faith and ability to pay, the first and fifth

factors, weigh in favor of Defendants for the reas-

on that Plaintiff’s claims were based on assertions

of facts that were not supported by the record."?

No specifics are given and it is ironic that the court stayed all

Plaintiff’s timely-filed interrogatories, and requests for production

” The fifth factor is "the relative merits of the parties positions."

12

of documents to support the "facts," in the face of his Affidavits.

The court said it did not "have sufficient information to decide

the second factor -- whether Plaintiff has the ability to pay an

award of fees" but then "simply proceed{ed] with an award with-

out considering th[at] second factor ...." “but see Cowden, infra).

It acknowledged the third factor is ‘ly "considered relevant

when deciding whether to award fees io a prevailing ERISA

plaintiff," but stated, "an award of fees against Plaintiff could

deter other [sic] plan participants from filing frivolous claims."

The fourth factor, "whether Defendants [sic] sought to confer

a common benefit on all participants and beneficiaries of their

ERISA plans or resolve significant legal questions" was applied

by ruling "There were no significant legal questions at issue,"

and ruled, "Based on the foregoing, the facts of this case support

an award of attorney fees to Defendants [sic]" (Apx 47-48).

The district court then denied "costs" to the Funds Defendants

but inflated that attorneys’ fees award by an amount that awarded

costs it salutarily denied, and after rambling on gratuitously for

another eight pages finally concluded its "format" again.

Because the court misrepresented in the case-in-chief: that the

Union‘and its "special purpose funds" were not "state actors” (in

the face of this Court’s decision in Communication Workers of

America v. Beck, 487 U.S. 735, 106 S.Ct. 2641, 101 L.Ed.2d

634 (1988)); that Plaintiff was a "member" of Defendant Union

to deny him relief from takings of his property (the appeal court

held he isn’t a member); and now, that he is a "participant" in

Union Funds’ ERISA and/or IRS regulated Voluntary Employees’

Beneficiary [special purpose funds] (see Beck, at 487 U.S. 735,

752, n.7) to again deny him constitutional relief, the court abused

its discretion by awarding Funds punitive, inflated unreasonable

post-judgment attorneys’ fees under ERISA § 502 (g)(1), despite

its, and the Union Funds’ bad faith. See Cowden v. Montgomery

County Society for Cancer Control, 653 F.Supp. 1052 (S.D.OH.

1986) - which the court misrepresented as authority for a decision

to "simply" award fees - (fees denied even where plaintiff and his

lawyer were put on notice claims had no merit, and are frivolous

to the extreme), citing Landro v. Glendenning Motorways, Inc.,

625 F.2d 1344, 1355-56 (explicitly declining to even discuss

whether an ERISA defendant may get a fees award).

13

ee ee ee ee, a eee ee eT Re Ree is

Bes)

APPENDIX page

Employees’ Retirement Income Security Act,

EE re 16

Labor Management Relations Act, § 158(a)(3)

is cs vacavuvavnkenderseesvesseosetnucesscnvecesvs 16

Labor-Management Reporting and Disclosure Act,

i sinh oho deindskbyeuscdesssvenuucnssntvessvevseveess 17

Labor-Management Reporting and Disclosure Act,

EE 17

Labor-Management Reporting and Disclosure Act,

EE eS) ) ee 17

Order Setting Date for Status Conference, etc.,

acs b chy rodsueyuilas edie avagdewseasssoerneeeess 18

Order prohibiting discovery until summary judgment

is granted and case is dismissed, filed JAN 7, 2002 ............ 19

Plaintiff’s first "demand" letter dated DEC 12, 2000

(all letters were filed in U.S.D.C. No. 01-72222) ............... 20

Plaintiff’s letter extending discovery deadline two weeks,

ea aincicetedyGstbevetedievsensssabeareetenecsses 21

Funds Defendants’ Letter asking judge to dismiss case,

srk sk vs viv ceners seinbibeveerseraudeseevisessiens 22

Order Granting Dismissal and Summary Judgment

to Defendants, filed MAR 18, 2002 ...............sccsecscssessseses 23

Judgment on Granting Dismissal and Summary Judgment,

Ean da sasen shes sencesXenesreversessdedevee’ 38

Court’s letter to Funds Defendants re defective Motion

for Attorneys Fees and Costs, dated JULY 8, 2002 ............. 39

14

Order Striking Plaintiff's Response to Defendants

Funds and Mittelbrun’s Motion for Attorneys’ Fees

I See HIG SII fein Sokcnndacnsdicwcsneasaecnsadeucnce 40

Order Granting In Part and Denying In Part

Defendants Funds and Mittelbrun’s Motion for

Attorneys’ Fees and Costs, filed AUG 13, 2002 ................. 41 ;

Judgment for Attorneys’ Fees and Costs, )

SEE a Basics chan cneceubensenasbeuduacxsheoukssnensnes 55

Order Denying Appeal of Dismissal to the Sixth Circuit,

SE Sts Ss dieccenconieacesucnstessiaissenantnnaacihersenents 56

Order Denying Appeal of Attorneys Fees Award, f,

PN: AUN odes sina eomstdnncacnarapiscvancesnonacaieuvaveden 59

biter atic

Employees’ Retirement Income Security Act

Sec. 502(g)(1). (29 U.S.C. § 1132) In any action under this sub-

chapter by a participant, beneficiary, or fiduciary [as authorized

generally by § 1132], the court in its discretion may allow a

reasonable attorney’s fee and costs of action to either party.

Labor Management Relations Act

Unfair Labor Practices

Sec. 158(a)(3). (29 U.S.C. § 158) It shall be an unfair labor

practice for an employer - by discrimination in regard to hire or

tenure or any term or condition of employment to encourage or

discourage membership in any labor organization: Provided, That

nothing in this subchapter, or in any other statute of the United

States, shall preclude an employer from making an agreement

with a labor organization (not established, maintained, or assisted

by any action defined in this subsection as an unfair labor

practice) to require as a condition of employment membership

therein on or after the thirtieth day following the beginning of

such employment or the effective date of such agreement,

whichever is the later, (i) if such labor organization is the

representative of the employees as provided in section 159(a) of

this title, in the appropriate collective-bargaining unit covered by

such agreement when made, and (ii) unless following an election

held as provided in section 159(e) of this title within one year

preceding the effective date of such agreement, the Board shall

have certified that at least a majority of the employees eligible to

vote in such election have voted to rescind the authority of such

labor organization to make such an agreement: Provided Surther,

That no employer shall justify any discrimination against an

employee for nonmembership in a labor organization (A) if he

has reasonable grounds for believing that such membership was

not available to the employee on the same terms and conditions

generally applicable to other members, or (B) if he has

reasonable grounds for believing that membership was denied or

terminated for reasons other than the failure of the employee to

tender the periodic dues and the initiation fees uniformly required

as a condition of acquiring or retaining membership;

16

Labor-Management Reporting and Disclosure Act

Declarations of Findings, Purposes, and Policy:

Sec. 2(b). (29 U.S.C. 401) The Congress further finds, from

recent investigations in the labor and management fields, that

there have been a number of instances of breach of trust,

corruption, disregard of the rights of individual employees, and

other failures to observe high standards of responsibility and

ethical conduct which require further and supplemental legislation

that will afford necessary protection of the rights and interests of

employees and the public generally as they relate to the activities

of labor organizations, employers, labor relations consultants,

and their officers and representatives.

(c) The Congress, therefore, further finds and declares that

the enactment of this Act is necessary to eliminate or prevent

improper practices on the part of labor organizations, employers,

labor relations consultants, and their officers and representatives

which distort and defeat the policies of the Labor Management

Relations Act, 1947, as amended, and the Railway Labor Act, as

amended, and have the tendency or necessary effect of burdening

or obstructing commerce ....

Definitions: Sec. 3(0). (29 U.S.C. 402)

For the purposes of titles I, II, III, IV, V (except § 505), and VI

of this Act - "Member" or "member in good standing" when used

in reference to a labor organization, includes any person who has

fulfilled the requirements for membership in such organization,

and who neither has voluntarily withdrawn from membership nor

has been expelled or suspended from membership ....

Title I - Bill of Rights of Members (29 U.S.C. 411):

Sec. 101(a)(1). Every member of a labor organization shall

have equal rights and privileges within such organization to

nominate candidates, to vote in elections ..., to attend

membership meetings and to participate in the deliberations and

voting ... subject to reasonable rules and regulations ....

17

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Lawrence Moore ) Case No. 01-72222

)

Plaintiff, )

) Order Setting Status

) Conference And For

Int. B’hood of Elect. ) Response To Motions

Wkrs. Local 58, et al,) To Dismiss, And For

: ) Summary Judgment

Defendants.)

Vv.

IT IS ORDERED that plaintiff file a response to Defendants’

IBEW Local 58 and Jeffrey Radjewski’s Motion for Dismissal for

Failure to State a Claim on Which Relief Can Be Granted, or in

the Alternative Summary Judgment as to Counts I-V of Plaintiff’s

Complaint, filed November 19, 2001, by Friday, December 14,

2001.

IT IS FURTHER ORDERED that a Status Conference will be

held by telephone on Friday, January 4, 2002 at 11:00 a.m. The

Court will initiate the conference call.

IT IS SO ORDERED.

Filed: NOV 29, 2001 Victoria A. Roberts

U.S. District Judge

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Lawrence Moore ) Case No. 01-72222

)

Plaintiff, )

Vv. Order

)

)

Int. B’‘hood of Elect. )

Wkrs. Local 58, et al,)

)

Defendants.)

Defendants The International Brotherhood of Electrical

Workers, Local 58 ("Local 58") and Jeffrey Radjewski filed a

Motion For Protective Order (Doc #24). Based on a telephone

conference held on January 4, 2002 and attended by Lawrence

Moore representing himself, Patricia Fabrizio representing the

IBEW Local 58 Funds and Thomas Mittelbrun, and John Adams

representing Local 58 and Jeffrey Radjewski, this motion is

deemed WITHDRAWN. Mr. Moore agrees that discovery

should be held in abeyance pending the outcome of dispositive

motions which are pending.

IT IS SO ORDERED.

Filed: JAN 7, 2002 Victoria A. Roberts

U.S. District Judge

mi ck

ee ee ee ee ee ee

December 12, 2000

Jeff Radjewski, Business Manager IBEW Local 58

1358 Abbott Street

Detroit, MI 48226-2460

Re: Moore v. IBEW Local 58, U.S.D.C. No. 01-72222.

Dear Sir:

I wrote to you on October 15, 2000 rescinding a "Payroll

Deduction Authorization" you had me sign when I accepted a job

with Triangle Electric Inc. on 9-15-00 (I also asked you to

inform that employer) and requested names of all Sub-pay Fund

trustees and administrators and all documents describing the legal

makeup and operation of that entity, including all of the bases for

participation, qualification and for receiving benefits. I also

referred to my October 5, 2000 letter to an administrator of all

Local 58’s "Trusts," "Funds," and "Committees" funded by

deductions from gross wages I earned when I worked under your

collective bargaining agreement (enclosing a copy of that letter

to your administrator). You did not reply.

Triangle Electric continued to deduct 3% of my gross wages.

Please refund all "Union Working Dues" deducted from

paychecks by Triangle Electric, and by Hall Engineering. I am

not a member of Local 58.

Please consider this to be a request for your direct re-payment

to me of any and all monies deducted from my wages to fund any

of the joint trusts and/or committees identified in collective

bargaining agreement(s), Byiaws, and constitutions, which Local

58 is a party to (including that Sub-pay fund), and I also want all

my monies which you have sent to Washington, D.C. based

International Brotherhood of Electrical Workers refunded,

including specifically, deductions for a Labor-Management Coop

Committee(s) (including all the monies deducted from my wages

when I worked for Hall Engineering in 1998).

Thank you for your cooperation. ~

Sincerely,

Lawrence Moore

January 2, 2002

To: Duane F. Ice

Martens, Ice, Glass, etc.

17117 West Nine Mile Road, # 1400

Southfield, MI 48075

Ph. (248) 559-2110

Re: Moore v. IBEW Local 58, U.S.D.C. No. 01-72222.

Dear Sir:

Your letter dated December 28, 2001 requesting agreement to

extend the time period for responses to my First Set(s) Of

Interrogatories and First Request(s) For Production of Documents

to Defendants Jeff Radjewski and Local Union 58 until January

18, 2002 on grounds this case may be dismissed on January 4,

2002 has been received. All of the responses to discovery

requests are due on January 5, 2002. It seems that you decided

to dedicate Local 58’s resources to requests for "protective"

orders (complete with ad hominem attacks you first began in your

motions to dismiss) rather than answers and responses to the

discovery requests. I note for the record that your letter, and

your motion for protective order emanated from your offices on

the same date.

In the future I will not agree to any such extensions of time

based on personal attacks, however, other than the caveat of any

contrary ruling by the presiding judge on January 4, 2002 I will

tentatively agree to your current request for extension of time to

January 18, 2002. Please send a proposed stipulation in the

future.

The agreement to extend time was telephoned to Ms. Debra

Krell of your office this morning, after I was informed that you

were "with a client," and John Adams was not available.

Thank you for your cooperation.

Sincerely,

Lawrence Moore

21

February 19, 2002

Sachs Waldman

1000 Farmer Street

Detroit, MI 48226-2899

Ph. (313) 965-3464

Hon. Victoria Roberts

United States District Court

231 W. Lafayette Boulevard

Detroit, MI 48226

Re: Moore v. IBEW Local 58, U.S.D.C. No. 01-72222

Your Honor:

On behalf of these Defendants, we filed a Motion For

Dismissal For Failure to Statea Claim on Which Relief Can Be

Granted, or in the Alternative, Summary Judgment on October

29, 2001. The hearing was held January 4, 2002 on this Motion

and on the Motion of the other defendants for summary

judgment. Your Honor indicated at that hearing (held

telephonically) that a decision would be promptly rendered.

Since that time, plaintiff has filed a motion to transfer this and

two unrelated matters to the Multidistrict Litigation Panel, to

which defendants have responded at considerable cost. That

motion has now been scheduled for hearing in Tucson, Arizona

on March 21, 2002, which will involve additional considerable

costs.

I write to inquire as to the status of the Motions pending

before the Court and to respectfully request that your Honor, if

possible, expedite the rendering of a decision, which might help

to minimize the continuing costs to defendants in defending what

is undoubtably a meritless and frivolous action.

Sincerely,

Patricia J. Fabrizio

22

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Lawrence Moore ) Case No. 01-72222

Plaintiff, )

wT. ) Order Granting Dis-

Int. B’hood of Elect. ) missal and Summary

Wkrs. Local 58, et al,) Judgment In Favor

Defendants.) of Defendants

I. Introduction

On June 13, 2001 Plaintiff filed his lawsuit against the

International Brotherhood of Electrical Workers Local 58 ("Local

58"), Jeff Radjewski, Thomas Mittelbrun, and several fringe

benefit funds ("the Funds"). The Funds and Mittelbrun filed a

Motion for Dismissal for Failure to State a Claim on Which

Relief Can Be Granted, or in the Alternative, Summary Judgment

on October 29, 2001, and the Local 58 and Radjewski filed a

Motion for Dismissal for Failure to State a Claim on Which

Relief Can Be Granted, or in the Alternative Summary Judgment

as to Counts I-V of Plaintiff’s Complaint on November 19, 2001.

For the reasons that follow, the Court will grant the Motions.

II. Background

During the relevant time period, Plaintiff was a member of

the International Brotherhood of Electrical Workers ("IBEW")

Local No. 8 in Rossford, Ohio (Local 58 Br. at Ex A). Perhaps

' According to Defendants the proper legal names for the Funds are

IBEW Local 58 Annuity Fund, Electrical Workers’ Pension Trust Fund

of Local Union # 58, I.B.E.W., Detroit, Michigan; Electrical Workers

Insurance Fund; Apprentice and Journeyman Training Trust of the

Electrical Industry, Detroit, Michigan; Southeastern Michigan Electrical

Industry Labor Management Cooperation Trust Fund; Supplemental

Unemployment Benefit Plan of the Electrical Industry, Detroit,

Michigan; Electrical Workers Joint Board of Trustees Vacation Fund.

The Funds further state that there is no legal entity known as the

Electrical Workers’ Joint Board of Trustees. Rather, that term is used

to collectively describe the fringe benefit funds established by Local

58’s collective bargaining agreement, the International Brotherhood of

Electrical Workers, and the Southeastern Michigan Chapter of the

National Electrical Contractors Association.

23

because of that membership, he was able to obtain "job referrals

from an electrical contractors’ Hiring Hall created by the

collective bargaining agreement (’CBA’) between Defendant

LOCAL 58 and Detroit area electrical contractors" (Complaint at

{ 3). Like Local 8, "LOCAL 58 ... is affiliated with Intern’!

B’hood of Elect. Wkrs ...." (Complaint at 4).

Perhaps because of Local 58’s affiliation with IBEW, Plaintiff

was allowed to sign‘a Pension Reciprocity form that would allow

contributions made to the benefit funds on Plaintiff’s behalf to be

sent to his Local 8 funds. (See Local 58 Br. at Ex A). But,

when Plaintiff worked under Local 58’s jurisdiction in July 1998,

he did not complete the reciprocity form. He did not realize this

error until 2000. On July 14, 2000 Plaintiff wrote a letter to the

business manager of Local 58 explaining that he had previously

"forgotten to come back and fill out reciprocity forms," and

asking that the contributions now be sent to the Local 8 funds.

(/d.) That request was denied by the Board of Trustees of the

Electrical Workers’ Pension Trust Fund. Thomas Mittelbrun III,

the administrator of the fund, explained in a September 13, 2000

letter to Plaintiff that his "request was denied due to it being

made outside the time limit of one year allowed by the Plan."

(Local 58 Br. at B).

Two days later, on September 15, 2002 Plaintiff received a

referral from Local 58 to performance work for Triangle Electric

Company. At the bottom of the relevant referral card there is a

section that states in bold and relatively large type, "PAYROLL

DEDUCTION AUTHORIZATION." Underneath the card states:

I authorize the above Employer to deduct from my

paycheck, the Union Working Dues, as stated and

required in the amount fixed in the Bylaws of the

Local Union 58, IBEW, and remit same to said

Local Union in accordance with the terms set forth

in the Bargaining Agreement between the NECA

Chapter Southeastern Michigan and Local Union

58, IBEW.

(Local 58 Br. at Ex. C). Plaintiff signed the referral card on the

line directly below that paragraph. (/d.)

24

It appears likely that Plaintiff signed the referral card before

he received the September 13 denial letter from Middleton

because, in a letter dated September 15, 2000 he angrily

attempted to rescind the payroll deduction authorization. (Local

58 Br. at Ex. D). That September 15 letter was sent to Jeff

Radjewski, the Local 58’s business manager. Plaintiff began the

letter by accusing Radjewski of "illegally screwing" him out of

his job in July 1998 when he was laid off. (/d.) He continued

the letter by stating that, in response to his request to have his

1998 pension fund "deductions" sent to his home funds,

Radjewski "blew [him] off with an abusive, intrusive letter from —

your Pension Trust administrator who attached a pretentious

suffix to this name ...." (Id.) Plaintiff stated to Radjewski:

I have no idea why you are so chicken-hit in

stealing my 80 Pension credit-hour deductions ...,

but whatever caused it is also causing my

following reactions.

I am hereby rescinding that "dues check-off

authorization" I signed when I accepted a job-offer

from Triangle Electric Co. on 9/15/00. Please

inform my employer immediately and please also

send me names of all "Sub-pay" Fund trustees and

administrators and all documents describing the

legal make-up and operation of that entity ....

(Id.)

What is important to note from the above letter is that

Plaintiff did not indicate to Radjewski that he mistakenly or

unknowingly signed the dues deduction authorization. He does

not state that he was tricked. Rather, he stated that he wanted to

rescind that authorization in response to the decision to deny his

request to have his 1998 pension benefits transferred to his home

fund.

? As will be explained infra., Radjewski maintained that there were no

pension deductions from Plaintiff's paycheck. Rather, the employer

had made pension contributions over and above Plaintiff’s pay.

25

A more friendly letter dated September 15, 2000 was sent

from Plaintiff to Frank Demers of Local 58. (Local 58 Br. at Ex.

E). He explained that his recent review of his records revealed

that he had forgotten to fill out and return a reciprocity form for

the 80 hours he worked under Local 58’s jurisdiction in 1998.

Plaintiff asked Demers for help. -(/d.)

On December 12, 2000 Plaintiff wrote another letter to

Radjewski complaining that Radjewski had never responded to

his earlier letter and that the dues were still being deducted from

his wages. Plaintiff asked Radjewski to refund all the dues that

had been deducted. (Local 58 Br. at Ex. F).

Radjewski responded on January 2, 2001, acknowledging that

he had not responded to Plaintiff’s earlier letter. He reasoned,

“If you want a civil reply write a civil letter." (Local 58 Br. at

G). Radjewski further stated that Plaintiff would need to notify

his employer if he wanted to cancel his payroll deduction

authorization. He informed Plaintiff that Local 58 could not start

or terminate a payroll deduction on its own. Moreover,

Radjewski stated, since Plaintiff was a member of the IBEW he

was not entitled to a refund of all dues and benefit fund

contributions. "On the contrary, you are required to meet all

member obligations, includes those obligations imposed by Local

58’s collective bargaining agreement with its employers under

which you worked and got paid." (Jd.) In the interest of the

entire IBEW membership, it was Radjewski’s duty to uphold the

obligations imposed by the Local 58 collective bargaining

agreement “under which you worked and got paid." (/d.)

Radjewski additionally explained, "Benefit contributions are not

deductions from your wages. They are separate obligations, in

addition to wages, that the employers must meet pursuant to the

collective bargaining agreement." (Jd.)

In response to Radjewski’s January 2 letter Plaintiff for the

first time accused the managers of the hiring hall of tricking him

into signing the payroll deduction authorization. (Local 58 Br. at

H). In his January 19, 2001 letter Plaintiff stated that his

membership with the IBEW was unrelated to the Local 58’s

request to take money from his wages and that he had no

obligation to pay the dues, and accused Local 58 of having

~ engaged in theft. (/d.) Plaintiff demanded that all deductions

26

from his 1998 and 2000 wages be returned to him. (/d.)

Radjewski wrote back to Plaintiff on March 5, 2001 and

denied that Plaintiff had been tricked. (Local 58 Br. at I). The

referral card had the authorization on it in plain sight and

Plaintiff signed it. Further, "[pJaying working dues is a

member’s obligation and, as I understand it, you are still an

IBEW member with Card No. D295652." And, the benefit

contributions that were paid by the employer were owed pursuant

to the collective bargaining agreement - the same collective

bargaining agreement that entitled Plaintiff to wages from his

employer. (Jd.) Moreover, Radjewski explained:

Our arrangement on these issues are the same as

other locals around the country. You an? all

IBEW members receive the advantages of these

arrangements. As I told you previously, I am

required to uphold the IBEW constitution and our

collective bargaining agreement. [hese monies

are not "stolen by minority votes at union

meetings" as you claim.

Even if there were to be a refund of benefit

contributions, any such refund would go back to

the employer who paid them, not you. The reason

is that benefit contributions are not deductions or

"theft," as you call it, from your gross wages.

The wages are entirely separate from the benefit

contributions paid by employers.

(Id.) |

Plaintiffs April 5, 2001 letter revealed that he was undeter-

red. He continued to seek the 80 credit-hours of pension contrib-

utions that he insisted were stolen from his paycheck. And, he

continued to insist that he owed no dues to the Local 58 because

he was not a member of that organization. The deduction of dues

was according to Plaintiff taxation without representation because

he had no voice or vote in Local 58. (Local 58 Br. at Ex. K).

This lawsuit followed. As described below the Court finds

that Plaintiff's allegations either fail to state a claim or are not

supportable by the evidence.

27

Ill. ANALYSIS

A. Standards of Review

Defendants’ Motion is partially filed pursuant to Fed.R.Civ.P

12(b)(6). When reviewing a Rule 12)b)(6) Motion the trial court

"must construe the complaint liberally in the plaintiff’s favor and

accept as true all factual allegations and permissible inferences

therein." Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th

Cir. 1994); see also Miller v. Currie, 50 F.3d 373, 377 (6th Cir.

1995). Because a Rule 12(b)(6) motion rests upon the pleadings

rather than the evidence, "[iJt is not the function of the court [in

ruling on such a motion] to weigh evidence or evaluate the

credibility of the witnesses." Miller, 50 F.3d at 377. The court

Should deny a Rule 12(b)(6) motion "unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

[her] claim which would entitle [her] to relief." Gazette, 41 F.3d

at 1064; see also Miller, 50 F.3d at 377; Vemco, Inc. v.

Camardela, 23 F.3d 129, 132 (6th Cir. 1994). While this

Standard is decidedly liberal, it requires more than the bare

assertion of legal conclusions. Jn re DeLorean Motor Co., 991

F.2d 1236, 1249 (6th Cir. 1993). Rather, the complaint must

contain either direct or inferential allegations respecting all the

material elements to sustain a recovery under some viable legal

theory. DeLorean, 991 F.2d at 1240.

Defendants also rely upon Fed.R.Civ.P. 56(c). Under Rule

56(c) summary judgment may be granted "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Copeland v. Machulis, 57 F.3d

476, 478 (6th Cir. 1995). A fact is "material" and precludes a

grant of summary judgment if "proof of that fact would have

[the] effect of establishing or refuting one of the essential

elements of the cause of action or defense asserted by the parties,

and would necessarily affect application of appropriate

principle[s] of law to the rights and obligations of the parties."

Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). The

court must view the evidence in the light most favorable to the

nonmoving party and it must also draw all reasonable inferences

in the nonmoving party’s favor. Cox v. Kentucky Dept. of

28

Transp., 53 F.3d 146, 150 (6th Cir. 1995).

The moving party bears the initial burden of showing that

there is no genuine issue of material fact. Snyder v. AG Trucking

Co., 57 F.3d 484, 488 (6th Cir. 1995). To meet this burden the

movant may rely on any of the evidentiary sources listed in Rule

56(c). Cox, 53 F.3d at 149. Alternatively, the movant may

meet this burden by pointing out to the court that the nonmoving

party, having had sufficient opportunity for discovery, has no

evidence to support an essential element of his or her case, and

on which that party will bear the burden of proof at trial. Tolton

v. American Biodyne, Inc., 48 F.3d 937 (6th Cir. 1995); Street

v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989). Thus,

a motion for summary judgment is a means by which to

challenge the opposing party to "put up or shut up." Cox, 53

F.3d at 149; Street, 886 F.2d at 1478. The moving party does

not, however, have to support its motion for summary judgment

with evidence negating its opponents claims. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1985).

Once the moving party has met its burden, the burden shifts

to the nonmoving party to produce evidence of a genuine issue of

material fact. Rule 56(e); Cox, 53 F.3d at 150. The nonmoving

party cannot rest on its pleadings, but must present significant

evidence in support of its complaint. Copeland, 57 F.3d at 479.

The mere existence of a scintilla of evidence to support the

nonmoving party position will be insufficient; there must be

evidence on which a jury could reasonably find for the non-

moving party. Snyder, 57 F.3d at 488; Tolton, 48 F.3d at 941.

B. Count I

Plaintiff's first count alleges, against all Defendants, a

violation of his First Amendment Rights of Free Speech and

Association and a Fifth Amendment taking without due process.

This Count includes a litany of allegations, including that the

Local 58 refuses to allow non-members any voice or vote on the

collective bargaining agreement; has no right to deduct dues from

non-members under the CBA; and requires electricians who

accept jobs at the hiring hall to sign a job acceptance form which

includes a payroll deduction authorization in fine print. Plaintiff

contends that he was not told that the payroll deduction

authorization was on the job acceptance form, but that Local 58

nonetheless took three percent of his wages; that Plaintiff was

given no vote on participating in the Funds, but that Defendants

took monies from Plaintiff for nonexistent, unavailable benefits;

that Defendants also took monies from Plaintiff by agreeing that

he receive reduced rates of pay for overtime work; and that the

Local 58 refused to honor Plaintiff’s rescission of his dues

deduction authorization. Further, Plaintiff alleged:

37. At least some of the monies deducted from

the PLAINTIFF’s wages by Defendants TRUST

and FUNDS are expended for political or for

lobbying activities not directly related to work

conditions, or community services, union

organizing, foreign affairs, publicity or public

affairs, given to Political Action Committees, or

to support political candidates, parties, causes, and

TRUST Deicndant NATIONAL ELECTRICAL

BENEFIT FUND illegally funnelled millions of

dollars to political parties and politicians, causing

one Trustee to resign.

38. Defendant UNION similarly expended funds

for political or for lobbying activities not directly

related to work conditions and gave to community

services, union organizing or foreign affairs and

publicity or public affairs, and to Political Action

Committees and to support political candidates,

parties, and causes.

(First Amended Complaint at 4-6).

Apparently Plaintiff included the allegations set forth in

paragraphs 37 and 38 in order to have his Complaint fall within

Communications Workers of America v. Beck, 487 U.S. 735

(1988). Plaintiff cited that case in correspondence to Radjewski

and deems that the most relevant authority for this Court to

review. Having reviewed Beck, the Court finds that Beck does

not support Plaintiff's claim. To the contrary, it highlights

30

congressional efforts to discourage what Plaintiff is attempting to

accomplish here, which is to reap the benefits that Local 58 has

negotiated with employers but to escape contributing financially.

In Beck the Court framed the issue before it as follows:

Section 8(a)(3) of the National Labor Relations

Act of 1935 (NLRA), 49 Stat. 452, as amended,

29 U.S.C. § 158(a)(3), permits an employer and

an exclusive bargaining representative to enter into

an agreement requiring all employees in the

bargaining unit to pay periodic union dues and

initiation fees as a condition of continued

employment, whether or not the employees

otherwise wish to become union members. Today

we must decide whether this provision also

permits a union, over the objections of dues-

paying nonmember employees, to expend funds so

collected on activities unrelated to collective

bargaining, contract administration, or grievance

adjustment, and, if so, whether such expenditures

violate the union’s duty of fair representation or

the objecting employees’ First Amendment rights.

Id. at 738.

The plaintiffs in Beck were employees of AT&T who chose

not to become union members. They challenged the union’s

collection of "agency fees" from them to the extent that the fees

were used for purposes other than collective bargaining, contract

administration, or grievance adjustment, which the Beck Court

denoted "’collective- bargaining’ or ‘’‘representational"

activities."" Jd. at 739-740. The plaintiffs specifically

challenged their fees being used for the “organizing the

employees of other employers, lobbying for labor legislation, and

participating in social, charitable, and political events ...." Jd. at

740. They claimed that the use of their fees for such purposes

violated their rights under § 8(a)(3 of the NLRA and the First

Amendment. /d.

To determine whether the use of the plaintiffs’ fees for the

challenged activities violated § 8(a)(3) the Court reviewed the

31

structure and purpose of § 8(a)(3). Its examination revealed that

the drafters of that section had two aims in mind. One aim was

to eliminate the barrier created by closed union shop agreements,

i.e., agreements that required an employer to hire only persons

who were already union members. Jd. at 748. An equally

significant goal was to prevent nonunion members from getting

a free ride. Jd.

As Senator Taft, one of the authors of the 1947

legislation, explained, ’the argument ... against

abolishing the closed shop ... is that if there is not

a Closed shop those not in the union will get a free

ride, that the union does the work, gets the wages

raised, then the man who does not pay dues rides

along freely without any expenses to himself.’ 93

Cong.Rec. 4887 (1947), Leg.Hist. 1422. Thus

the Taft-Hartley Act was ’intended to accomplish

twin purposes. On the one hand, the most serious

abuses of compulsory unionism were eliminated

by abolishing the closed shop. On the other hand,

congress recognized that in the absence of a

union-security provision "many employees sharing

the benefits of what unions are able to accomplish

by collective bargaining will refuse to pay their

share of the cost. NLRB v. General Motors

Corp., 373 U.S., at 740-741, 83 S.Ct., at 1458

(quoting S.Rep., at 6, Leg.Hist.412).

Id. at 748-749.

Thus, in enacting § (8)(a)(3), "’Congress recognized the

validity of unions’ concerns about "free riders," i.e., employees

who receive the benefits of union representation but are unwilling

to contribute their fair share of financial support to such union,

and gave unions the power to contract to meet thet problem while

withholding from unions the power to cause the discharge of

employees for any other reason.’" Jd. at 749, (quoting Radio

Officers v. NLRB, 347 U.S. 17, 41 (1954))(emphasis added in

Beck).

The Beck Court concluded:

Taken as a whole, § 8(a)(3) permits an employer

and a union to enter into an agreement requiring

all employees to become union members as a

condition of continued employment, but the

’membership’ that may be so required has been

*whittled down to its financial core.’ NLRB v.

General Motors Corp., 373 U.S. 734, 742, 82

S.Ct. 1453, 1459, 10 L.Ed.2d 670 (1963). The

statutory question presented in this case, then, is

whether this ‘financia! core’ includes the

obligation to support union activities beyond those

germane to collective bargaining, contract

administration, and grievance adjustment. We

think it does not.

id. at 745.

In this case Plaintiff stands in much different shoes than the

plaintiffs in Beck. Unlike the Beck plaintiffs, Plaintiff is an

IBEW member. Plaintiff highlights the fact that he is not

specifically a member of Local 58, but he also admits that Local

58 "is affiliated with Intern’! B’hood of Elect. Wkrs." (Amended

Complaint at { 4). Indeed, Plaintiff emphasizes that he has a

contractual relationship with Local 58, and sites the IBEW

Constitution at Article XX in support,

Sec. 3. The acceptance of an application for

membership, and the admission of the applicant

into any L.U. of the I.B.E.W., constitutes a

contract between the member, the L.U. and the

I.B.E.W., and between such member and all other

members of the I.B.E.W.

Thus, unlike the Beck plaintiffs, Plaintiff is not being forced to

pay dues by virtue of § 8(a)(3). Plaintiff elected to become a

member of the IBEW. Accordingly, the limitation that § 8(a)(3)

places on use of nonmember dues is simply not implicated here.

Of equal significance, the Beck plaintiffs did not attempt to

reap the benefits of the CBA but, at the same time, avoid making

any financial contributions to the union. They objected only to

33

Se es ee, |

the use of their dues for expenditures outside of the union’s

collective bargaining and representational activities. In contrast

Plaintiff here acknowledges that he "worked as an electrician via

job referrals from an electrical contractors’ Hiring Hall created

by the collective bargaining agreement ("CBA") between

Defendant Local 58 and Detroit area electrical contractors," and

that he was "a ‘third party beneficiary’ to a CBA between

UNION and employers which contains a job Referral Procedure

and an ‘out-of-work list." (Amended Complaint at 44 3 & 15).

Despite reaping those benefits Plaintiff insists that the Local 58

had "no right" to deduct dues from his wages or other non-

members of the Local 58. (Amenued Complaint at § 19).

Plaintiff's position is directly contrary to the purpose of §

8(a)(3) as explained by the Beck Court. One of the twin aims of

§ 8(a)(3) was to prevent those who choose not to join a union

from getting a free ride. Employees who enjoy the benefits of

the collective bargaining agreement and other core activities of

the union must pay their fair share. Since § 8(a)(3) requires even

nonunion members to contribute to the costs of the CBA

Plaintiff's protestation that he does not have to pay dues because

he does not have a voice or vote in the CBA is unavailing. And

his desire to gain employment and earn wages as a beneficiary of

the CBA, but to avoid the negotiated Overtime arrangements

cannot withstand scrutiny.

Plaintiff argues that his dues are used for political and other

non-core union activities. That claim is unsubstantiated.

Piaintiff’s only evidence is a November 1992 /.B.E. W. Local 58

Newsletter, in which Local 58 opined that then presidential

candidate Bill Clinton’s track record was on track with that of the

union’s, and a October/November 2001 JBEW Journal in which

it was reported that Local 58 contributed $21,500 of the

$341,500 that the IBEW contributed toward an election in

Oklahoma. (Plaintiff’s December 14, 200] Affidavit at Ex A &

B). These letters do not evidence that the dues paid went to

anything other than collective bargaining activities. The

November 1992 newsletter did not report any financial

contributions to political activity, and neither newsletter

corresponded to the timing of Plaintiff’s dues deductions.

Furthermore, Plaintiff’s claims of constitutional violations are

34

both factually and legally without merit. Although the Beck

plaintiffs claim rested in part upon the First Instead, the Court

found that it "need not decide whether the exercise of rights

permitted, though not compelled, by § 8(a)(3) involves state

action." Jd. at 761. This is important because "the conduct of

private parties lies beyond the Constitution’s scope in most

instances ....". Edmonson v. Leesville Concrete Co., Inc., 500

U.S. 614, 620 (1991). So Beck is really no support of Plaintiff's

constitutional claim.

Plaintiff also cites Abood v. Detroit Bd. of Ed., 431 U.S. 209

(1977). In that case the Court held that the employees’ First _

Amendment rights were violated when they were required to

contribute toward political causes that those employees opposed.

"(T]he Constitution requires [] that [political] expenditures be

financed from charges, dues, or assessments paid by employees

who do not object to advancing those ideas and who are not

coerced into doing so against their will by the threat of loss of

governmental employment." Jd. at 235-236. But Abood has

important distinctions from this case. First, the Abood case

involved governmental employees, as the above quote indicates.

Secondly, in Abood, the Court found the case to implicate the

constitution because Michigan law sanctioned the use of nonunion

members fees for purposes other than collective bargaining. Id.

at 232. Hence, Abood involved both state actors and state action.

Neither is present here.

Moreover, even though the Abood case involved state actions

and state actors the court did not hold that the union was

forbidden from participating in political activity. To the contrary

the Court stated, "We do not hold that a union cannot constitut-

ionally spend funds for the expression of political views, on

behalf of political candidates, or toward the advancement of other

ideological causes not germane to its duties as collective-bargain-

_ ing representative." Abood at 235. Rather, the Court held that

those activities could not be funded with the dues of objecting

employees. Thus, even if this case involved state action, Plaint-

iff’s evidence that the Local 58 has been involved politically

would have been insufficient to sustain his First Amendment

claim. Plaintiff has not shown that his dues were used to fund

political activities, much less any activities that he opposed.

35

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The Court additionally notes factual allegations of Plaintiff’s

Count 1 that are unsustainable. Contrary to Plaintiff’s claim

otherwise, the dues deduction authorization was not submitted to

Plaintiff in fine print. The phrase "PAYROLL DEDUCTION

AUTHORIZATION" is the most prominent writing on the

referral card that Plaintiff signed. (Local 58 Br. at Ex. C). Of

further significance is the fact that Plaintiff did not initially claim

that he was seeking a refund of his dues or to rescind his

authorization because he was tricked into signing it. Rather, he

specifically indicated that he wanted to rescind his authorization

because his reciprocity form for his 1998 benefits was not

honored; he wanted to rescind his authorization out of retaliation.

Furthermore, Plaintiff alleges that an unknown amount of

benefits was taken from him. To the extent that Plaintiff means

that Defendants deducted benefit payments from his salary, that

allegation is directly contrary to the explanation that Radjewski

gave to him. Radjewski repeatedly explained that benefits

contributions are made from employers over and above the ~

employees’ wages. Moreover, to the extent that Plaintiff means

that Defendants refused to send his 1998 benefits to his home

fund, the record is clear that Plaintiff forgot to sign the

reciprocity form until 2000. Thus, the benefits were not

"nonexistent" or "unavailable," as Plaintiff contends. (Amended

Complaint at (22). The benefits would have been sent to Plaint-

iff’s home fund if he had timely submitted the reciprocity form.

At any rate, even if Plaintiff were able to sustain his factual

allegations, they cannot support his First Amendment or Fifth

Amendment claims because of the lack of state action.

C. Counts II through V

Plaintiff’s additional counts are: Count II, for fraud and

deceit; Count/III, for breach of contract; Count IV, for breach of

duty of fair representation; and Count V, for intentional infliction

of emotional distress. The factual allegations described in Count

I that have already been rejected form the basis of these latter

counts, and Defendants are therefore entitled to summary

judgment on Counts II through V.

Furthermore, the Court finds that the claims against the Funds

in Counts II, III and V are preempted by ERISA, see, Lion’s

36

Volunteer Blind Ind., Inc. v. Automated Group Admin., Inc. , 195

F.3d 803, 807 (6th Cir. 1999), and that Plaintiff’s allegations

against the Funds does not state a claim under ERISA. Plaintiff

has not shown that ERISA prohibits fringe benefits funds from

collecting contributions for employment arising out of a CBA

from employers with which the union has negotiated the CBA.

Moreover, Plaintiff's breach of duty of fair representation

claim against Local 58 and Radjewski is barred by the NLRA’s

six month limitation period, which began when Plaintiff knew or

should have known of Local 58’s alleged breach of its duty of

fair representation. Schoonover v. Consolidated Freightways

Corp. of Delaware, 49 F.3d 219, 221 (6th Cir. 1995). Plaintiff

alleges that, inter alia, Local 58 and Radjewski deducted union

dues without Plaintiff’s authorization and without legal authority.

(Amended Complaint at 77). Plaintiff attempted to rescind his

dues deduction authorization as early as September 15, 2000.

Thus, Plaintiff knew about the alleged wrongful due deductions

over six months before filing his June 13, 2001 Complaint.

Further, Plaintiff’s allegations of fraud and deceit, breach of

contract and intentional infliction of emotional distress arise out

of the same alleged wrongful conduct that underlies the breach of

duty of fair representation claim, and are therefore also barred by

the six month limitation period. Maynard v. Revere Copper

Products, Inc., 773 F.2d 733, 735 (6th Cir. 1985).

IV. Conclusion

For the foregoing reasons, THE COURT GRANTS The

Funds and Mittelbrun filed a Motion for Dismissal for Failure to

State a Claim on Which Relief Can Be Granted, or in the

Alternative, Summary Judgment [document 9] and the Local 58

and Radjewski filed a Motion for Dismissal for Failure to State

a Claim on Which Relief Can Be Granted, or in the Alternative

Summary Judgment as to Counts I-IV of Plaintiff's Complaint

{document 12].

Dated:MAR 18, 2002 Victoria A. Roberts

U.S. District Judge

37

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Lawrence Moore Case No. 01-72222

Vv. JUDGMENT

Int. B’hood of Elect.

Wkrs. Local 58, et al,)

)

Defendants.)

)

)

Plaintiff, )

)

)

In accordance with the Order entered on MAR 18 2002, IT

IS ORDERED that Judgment is entered in favor of Defendants.

Dated at Detroit, Michigan on MAR 18. 2002.

DAVID J. WEAVER Victoria A. Roberts

CLERK OF THE COURT U.S. District Judge

38

UNITED STATES DISTRICT COURT

For The Eastern District Of Michigan

Chambers of

VICTORIA A. ROBERTS

United States District Judge

July &, 2002

Ms. Patricia J. Fabrizio

1000 Farmer Street

Detroit, Michigan 48226

RE: Defendants Funds and Mittelbrun’s Motion for Attorney

Fees and Costs

Case No. 01-72222

Dear Ms. Fabrizio:

Defendants Funds and Mittelbrun have filed the above Motion

requesting an award of fees based upon the hourly rates charged

by the individual attorneys who billed time in this case. A fee

applicant is required to include with such a request background

information for each billing attorney and independent evidence of

the market rate in the community for "similar services by lawyers

with reasonably comparable skill, experience and reputation."

Blum v. Stevenson, 465 US 886, 895 n.11 (1984); See also

Northcross v Board of Education Memphis City Schools, 611

F2d 624, 638 (6th Cir 1980). Without this information, the court

is unable to assess the reasonableness of the rates charged by

Defendants’ counsel.

Defendants’ Motion does not include any background

information or evidence regarding the rates charged in the

\ community. Therefore, the Court requests that Defendants Funds

and Mittelbrun supplement their Motion with the necessary

information, no later than July 15, 2002.

Very truly yours,

Chanille B. Carswell, Law Clerk

39

— ae a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Lawrence Moore Case No. 01-72222

Vv. PLAINTIFF’S RESPONSE

Int. B’hood of Elect. TO DEFENDANTS FUNDS

Wkrs. Local 58, et al,) AND MITTLEBRUN’S

) MOTION FOR ATTORNEY’S

Defendants.) FEES AND COSTS

)

)

Plaintiff, ) ORDER STRIKING

)

)

On April 1, 2002, Defendants Funds and Mittelbrun filed with

the Court a Motion for Attorneys’ Fees and Costs. Defendants’

Proof of Service avers that a copy of the Motion was also served

upon Plaintiff on April 1, 2002 by depositing the same in the

United States mail, postage prepaid, to the same address on file

with the court.

Local Rule 7.1(d)(2)(B) requires that a response to a

nondispositive motion be filed within 14 days after service of the

motion. Plaintiff, however, failed to file a response with the

Court until July 29, 2002. The court rejects Plaintiff’s tardy

filing.

THEREFORE IT IS ORDERED, that Plaintiff’s Brief in

Response to Motion for Attorney’s Fees accepted for filing on

July 29, 2002 be stamped "STRICKEN" and deemed not a part

of the record of this case.

Filed: AUG 06, 2002 Victoria A. Roberts

U.S. District Judge

40

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Lawrence Moore ) Case No. 01-72222

Plaintiff, ) ORDER GRANTING IN

Vv ) PART AND DENYING IN

Int. B’hood of Elect. ) PART DEFENDANTS’

Wkrs. Local 58, et al,) MOTION FOR ATTORNEYS

Defendants.) FEES AND COSTS

I. INTRODUCTION

This matter is before the Court on Defendants’ Funds and

Mittelbrun’s Motion for Attorneys’ Fees and Costs. Defendants

request fees in the amount of $16,975.00 and costs in the amount

of $546.09. Plaintiff failed to file a timely response. For the

reasons stated below, the Court will GRANT an award of

attorneys’ fees to Defendants Funds and Mittelbrun without

regard to Plaintiff’s ability to pay (due to his failure to provide

this information). The Court will DENY Defendants’ request for

costs.

II. BACKGROUND

Plaintiff filed his lawsuit against the International Brotherhood

of Electrical Workers Local 58 ("Local 58"), Jeff Radjewski,

Thomas Mittelbrun, and several fringe benefit funds ("the

Funds"). ! The Funds and Mittelbrun filed a Motion for

dismissal for Failure to State a Ciaim on Which Relief Can Be

Granted, or in the Alternative Summary Judgment on October 29,

' According to Defendants, the proper legal names for the Funds are

IBEW Local 58 Annuity Fund; Electrical Workers’ Pension Trust Fund

of Local Union # 58, I.B.E.W., Detroit, Michigan; Electrical Workers’

Insurance Fund; Apprentice and Journeyman Training Trust of the

Electrical Industry, Detroit, Michigan; Southeastern Michigan Electrical

Industry Labor Management Cooperation Trust Fund; Supplemental

Unemployment Benefit Plan of the Electrical Industry, Detroit,

Michigan; Electrical Workers Joint Board of Trustees Vacation Fund.

Note, however, Defendants Jeff Radjewski and International

Brotherhood of Electrical Workers Local 58 have not joined in this

Motion or otherwise submitted a request for fees and costs. Therefore,

the Court’s reference to the Defendants collectively, for purposes of

this Order, excludes Defendants Jeff Radjewski and International

Brotherhood of Electrical Workers Local 58.

41

2001, and the Local 58 and Radjewski filed a Motion for

Dismissal for Failure to Stat a Claim on Which Relief Can Be

Granted, or in the Alternative Summary Judgment as to Counts

I-V of Plaintiff's Complaint on November 19, 2001. In an

Opinion and Order dated March 18, 2002 the Court granted

Defendants’ Motions. The Court also entered a judgment for

Defendants against Plaintiff. Defendants now seek fees and costs

pursuant to Employee Retirement Income Security Act,

("ERISA") Section 502(g)(1), 29 USC § 1132(g)(1).

III. ANALYSIS-WHETHER TO AWARD FEES AND COSTS

A. APPLICABLE.LAW AND ARGUMENT

29 USC § 1132(g)(1) states in relevant part:

In any action under this subchapter ... by a

participant, beneficiary, or fiduciary, the court in

its discretion may allow a reasonable attorney’s

fee and costs of action to either party.

"There is no presumption that attorneys’ fees will be awarded."

Maurer v Joy Technologies, Inc., 212 F3d 907, 919 (6th Cir

2000). The trial court has broad discretion regarding whether or

not to award attorneys’ fees and costs. Folstice v Guardsman

Products, Inc, 98 F.3d 933, 936 (6th Cir 1996), cert den, 520

US 1143 (1997); Secretary of Department of Labor v King, 775

F2d 666, 669 (6th Cir 1985); Firestone Tire & Rubber Company

v Neusser, 810 F2d 550, 557 (6th Cir 1987).

In deciding whether to award fees in an ERISA action, the

trial court must consider five (5) factors:

(1) the degree of the opposing party’s culpability

or bad faith; (2) the opposing party’s ability to

Satisfy an award of attorney’s fees; (3) the

deterrent effect of an award on other persons

under similar circumstances;(4) whether the party

requesting fees sought to confer a common benefit

on all participants and beneficiaries *937 of an

ERISA plan or resolve significant legal questions

regarding ERISA; and (5) the relative merits of

the parties’ positions.

42

_

King, 775 F2d at 669; Firestone, 810 F2d at 556; Folstice, 98

F3d at 936-937. The Sixth Circuit has repeatedly advised that

these factors are to be utilized only as guidelines for the court’s

exercise of discretion. "Not all of the factors will be relevant in

a given case, and no single factor is necessarily dispositive."

Firestone, 810 F2d at 558; See also Folstice, 98 F3d at 937.

Because no single factor is necessarily dispositive, however, the

trial court must consider each factor before exercising its

discretion. Schwartz v. Gregori, 160 F3d 1116, 1119 (6th Cir

1998), cert den, 526 US 1112 (1999); Wells v United States

Steel, 76 F3d 731, 736 (6th Cir 1996)(aft rem). Defendants

argue that each factor favors an award of fees and costs.

1. Bad faith

Defendants assert that Plaintiff’s bad faith is evidenced by the

fact that his claims had no basis in fact or law. Rather, per

Defendants, Plaintiff’s motive in filing this lawsuit seems to have

been for the purposes of furthering his personal political agenda

with unions generally and Local 58 specifically. Defendants’

argue that plaintiff’s pleadings reveal a personal belief that unions

should not be able to negotiate and enforce contracts that provide

for fringe benefits for those working under the contracts. Per

Defendants, at great expense to Defendants, Plaintiff simply used

this Court as a forum to air his political position.

Lastly, Defendants assert that Plaintiff’s bad faith is evidenced

by his litigious behavior. Per Defendants, Plaintiff was

adjudicated a "vexatious litigator" in the Superior Court of

California for San Diego County, California, Case No. 709757.

He has also initiated litigation in the Eastern District of

Michigan, the Northern District of Ohio (Case No. 3:01 -7556)

and the Northern District of California (Case No. 3:01-3733). .

? The-Court could not find the district court cases to which Defendants

refer. However, a Westlaw search using the name Lawrence Moore

resulted in a list of numerous cases involving similar lawsuits against

union locals in California by an electrician of the same name. The

Court is not certain whether one or more of these cases involve the

same Lawrence Moore who is a party to this case. However, given the

similar nature of the cases, it seems very likely. In one case, ERISA

43

Defendants assert that Plaintiff is unlikely to be deterred from

continuing this litigious pattern unless he is made to pay the costs

of bringing unfounded claims against ERISA funds.

Defendants cite several cases in which courts have found bad

faith or culpability on similar facts: Griffeth v Sheet Metal

Workers’ Local Unions and Councils Pension Plan, 34 F Supp 2d

1170, 1172-1173 (D AZ 1998)(bringing a frivolous claim

constitutes "bad faith" or "culpability"); Devine v American

Benefit Corporation, 27 F Supp 2d 669, 678 (SD W.VA 1998)

(bad faith found where court found plaintiff’s claims to be

without support and unjustified); Vintilla v United States Steel

Corporation Plan for Employee Pension Benefits, 642 F Supp

295, 297 (WD PA 1986), aff'd, 815 F2d 697 (3rd Cir 1987), cert

den, 484 US 847 (1987)(plaintiffs found to be culpable where

lawsuit filed despite strong adverse precedent, filing in improper

venue, improperly naming one Defendant as a party and

attempting "by extraordinary appellate procedures" to thwart

removal to the proper venue).

2. Ability to Pay

This factor alone is not dispositive when an examination of all

of the other factors favors an award or denial of fees. Folstice,

98 F3d at 937; Firestone, 810 F2d at 557-558. The Sixth Circuit

has not set forth a clear rule regarding how an award is to be

handled when the facts favor an award but the Plaintiff does not

have the ability to pay. The court’s ruling in Cowden v

Montgomery County Society for Cancer Control, 653 F Supp

1072 (SDOH 1986), however, is instructive.

In Cowden, the court found that the plaintiff's ERISA claim

was completely devoid of merit. 653 F Supp at 1073. The court

stated that plaintiff and his attorney were put on notice at many

intervals that plaintiff's claims were frivolous. Id at 1074-1077.

sanctions were awarded for the reason that Moore’s complaints against

the Trust Funds included “vague and conclusory allegations lacking

adequate foundations in either fact or law." Moore v. Local Union

569, 28 F3d 107, *2 (9th Cir 1994)(unpublished opinion). The Court

further found that Moore had "unreasonably and vexatiously multiplied

the proceedings ...." Id.

Yet, plaintiff continued to pursue the claims until mid-way

through trial. Id at 1078. For these reasons, the court found

that all of the relevant factors strongly favored an award of fees,

except that plaintiff had not provided the court with sufficient

information regarding his ability to satisfy an award of fees. The

court rejected the defendant’s suggestion that plaintiff’s pleadings

and conduct indicated his ability to pay. Id at 1077. Instead, the

court determined that, in order to properly exercise its discretion,

it would be necessary for the court to hold a hearing to assess

plaintiff’s ability to pay. Id. The court indicated that it would

then award fees "in an amount commensurate with [plaintiff’s] -

ability to pay." Id at 1079.

Defendant suggests that this Court follow Evans v Blue Cross

and Blue Shield of South Carolina, 834 F Supp 887, 895 (D SC

1993) where the court awarded fees against the plaintiff, because

four of the five factors favored an award against plaintiff. The

court stated it did not weigh the second factor in its analysis,

because neither party submitted any evidence regarding plaintiff’s

financial position. Id.

The court in Devine, supra, likewise treated this factor as

neutral where the Plaintiff claimed to have no ability to award

fees. 27 F Supp 2d at 678. The court did so, however, with

apparent reluctance, because of the "significant and needless

expense" imposed upon the defendants and its finding that there

was an apparent lack of merit in bringing the suit at all. Id.

In this case, Plaintiff did not respond and Defendants do not

offer any evidence regarding Plaintiff’s finances. Defendants

simply assert that Plaintiff is a highly skilled tradesman in a field

with high demand and, therefore, is well situated to pay the

requested fees and costs.

3. Deterrent effect

This factor is generally only considered relevant when

deciding whether to award fees to a prevailing ERISA plaintiff.

Folstice, 98 F3d at 937; Firestone, 810 F2d at 557; Cowden, 653

F Supp at 1078. Defendants assert, nevertheless, that other

courts have found this factor to weigh in favor of a prevailing

defendant where the plaintiff's claim was frivolous. Cowden,

653 F Supp at 1078 (award of fees should deter ERISA plaintiffs

45

ee ee ee a ee ey |

from delaying the dismissal of frivolous and unfounded lawsuits);

Griffeth, 34 F Supp 2d at 1173 (award of fees would deter other

plan participants from bringing similarly frivolous claims);

Devine, 27 F Supp 2d at 678 (award of fees will have a

significant deterrent effect on those acting under similar

circumstances).

4. Common benefit

There is no apparent common consensus among the courts

regarding this factor. Defendants assert that their attempt to

recoup attorney fees in this matter will confer a common benefit

on all participants and beneficiaries. Per Defendants, if a fee

award is denied, the participants and beneficiaries will ultimately

bear the burden of the cost of this litigation through increased

administrative fees and the fact that there will be proportionately

less money available for benefits.

5. Relative Merits

Where the claim is found to be frivolous, the merits

necessarily weigh in favor of the prevailing defendant. See

Devine, 27 F.Supp at 678; Griffeth, 34 F Supp 2d at 1173;

Vintilla, 642 F Supp at 297. The Cowden court, which found

plaintiff’s claim to be frivolous, considered this factor in tandem

with the first factor (bad faith). 653 F Supp at 1074.

In the instant case, Defendants assert that a cursory review of

the ERISA statute should have put Plaintiff on notice that he

could not sustain his claims. Further, although Plaintiff is acting

in pro per, Defendants assert that he has over 15 years of labor

and ERISA litigation experience at the state and federal district

and appellate court levels. Defendants do not provide any

documentation to support this assertion.

B. ANALYSIS

Balancing the above five factors favors an award of fees to

Defendants. Bad faith and ability to pay, the first and fifth

factors, weigh if favor of Defendants for the reason that

Plaintiff's claims were based on assertions of fact that were not

supported by the record. It appears that Plaintiff acted without

regard for the merits of his claim. See Griffeth v Sheet Metal

46

Workers’ Local Unions and Councils Pension Plan, 34 F Supp 2d

1170, 1172-1173 (D AZ 1998)(bringing a frivolous claim

constitutes "bad faith" or "culpability"); Devine v American

Benefit Corporation, 27 F Supp 2d 669, 678 (SD W.VA

1998)(bad faith found where court found plaintiff’s claims to be

without support and unjustified); Vintilla v. United States Steel

Corporation Plan for Employee Pension Benefits, 642 F Supp

295, 297 (WD PA 1986)(plaintiffs found to be culpable where

lawsuit filed despite strong adverse precedent, filing in improper

venue, improperly naming one Defendant as a party and

attempting "by extraordinary appellate procedures" to thwart

removal to the proper venue).

The Court does not have sufficient information to decide the

second factor--whether Plaintiff has the ability to pay an award

of fees and costs. However, because this factor is not

dispositive, and Plaintiff failed to respond, the Court can simply

proceed with an award without considering the second factor, as

did the courts in Evans v Blue Cross and Blue Shield of South

Carolina, 834 F Supp 887, 895 (D SC 1993) and Devine, 27 F

Supp at 678.

The third factor, deterrent effect, weighs in favor of

Defendants. This factor is generally only considered when

deciding whether to award fees to a prevailing ERISA plaintiff-

- Folstice v. Guardsman Products, Inc, 98 F3d 933, 937 (6th Cir

1996); Firestone Tire & Rubber Company v Neusser, 810 F2d

550, 557 (6th Cir 1987); Cowden v Montgomery County Society

for Cancer Control, 653 F Supp 1072, 1078 (SD OH 1986).

However, as Defendants assert, an award of fees against Plaintiff

could deter other plan participants from filing frivoicus claims.

The “fourth factor, whether Defendants sought to confer a

common benefit on all participants and beneficiaries of their

ERISA plans or resolve significant legal questions regarding

ERISA, favors Defendants as well. There were no significant

legal questions at issue. However, Defendants will likely pass

the costs of such litigations onto plan participants and

beneficiaries either directly by increasing administrative costs or

indirectly by redirecting funds otherwise available to participants

and beneficiaries to cover the costs of litigation. Defendants’

pursuit of fee awards against frivolous claimants may act as an

47

effective deterrent.

Based on the foregoing, the facts of this case support an

award of attorney fees to Defendants.

IV. ANALYSIS-AMOUNT OF AWARD

A. FEES

1. Applicable Law

The Court must apply the "lodestar" approach to determine

the amounts of reasonable attorneys’ fees. Building Service

Local 47 Cleaning Contractors Pension Plan v Grandview

Raceway, 46 F3d 1392, 1401 (6th Cir 1995); Trustees of Detroit

Carpenters Fringe Benefit Funds, __ F Supp 2d __, 1995 WL

871160 (ED MICH 1995)(mem). The lodestar is calculated by

multiplying the number of hours reasonably expended on the

litigation by a reasonable hourly rate. Id; Hensley v. Eckerhart,

461 U.S. 424, 433 (1983)(Brennan, J., Marshall, J., Blackmun

and J., Stevens, J., concurring in part and dissenting in part).

This lodestar figure is strongly presumed to represent a

reasonable fee. Grandview Raceway, 46 F3d at 1401 (citing

Pennsylvania v. Delaware Valley Citizens Council for Clean Air,

478 US 546, 565 (1985).

The party seeking an award of fees should submit evidence

Suppor‘ing the hours worked and rates claimed." Hensley, 461

US at 433; Grandview, 46 F3d at 1402. Whereas a fee applicant

is not required to submit extremely detailed records, the applicant

Should "identify the general subject matter" of the work

performed. Hensley, 461 US at 437. A fee applicant is further

expected to exercise "billing judgment" with respect to claimed

hours worked:

Counsel for the prevailing party should make a

good faith effort to exclude from a fee request

hours that are excessive, redundant or otherwise

unnecessary, just as a lawyer in private practice is

ethically obligated to exclude such hours from his

fee submission .... Hours that are not properiy

billed to one’s client also are not properly billed to

one’s adversary pursuant to statutory authority.

(citations omitted)

48

ii iia Mi

Id at 434. Where the documentation of hours is inadequate or

the court finds that the hours were not "reasonably expended,"

the district court may reduce the award accordingly. Hensley,

461 US at 433-434.

The court’s inquiry does not end with its calculation of the

lodestar. Grandview Raceway, 46 F3d at 1402. Other

considerations, such as the "results obtained" by the prevailing

party, may lead the district court to further adjust the fee upward

or downward. Id (citing Hensley, 461 U.S. at 434).

The Sixth Circuit has advised district courts to state clearly

the reasons for the ultimate fee award and the reasons for any

adjustments:

In order to facilitate appellate review of a fee

award, a district court must "provide a concise but

clear explanation of its reasons for the award.

[The] district court should state with some

particularity which of the claimed hours the court

is rejecting, which it is accepting, and why."

- Failure to provide such an explanation requires us

to remand the case for further consideration.

(citations omitted)

US Structures, Inc v. JP Structures, Inc, 130 F3d 1185, 1193

(6th Cir 1997); Northcross v Board of Education Memphis City

Schools, 611 F2d 624, 636 (6th Cir 1980), cert den, 447 US 911

(1980). See also Hensley, 461 US at 437.

A reasonable rate is the prevailing rate, in the relevant

market, for "similar services by lawyers of reasonably

comparable skill, experience and reputation." Blum v. Stevenson,

465 US 886, 895 n.11 (1984); Northcross, 611 F2d at 638.

"[T]he burden is on the fee applicant to produce satisfactory

evidence-in addition to the attorney’s own affidavits-that the

requested rates are in line with those prevailing in the community

for similar services ....". Blum, 465 US at 896 n.11. The Court

in Blum acknowledged the difficulty in determining the prevailing

market rate. Id. However, the Court suggested that the "rates

charged in private representations may afford relevant

competence." Id; See In re Olsen, 884 F2d 1415, 1423-1424

49

(DC Cir 1989)(applicant submitted affidavit of competent local

counsel’s fee schedule).° In Grandview Raceway, supra, the

Sixth Circuit reviewed the District Court’s decision regarding a

fee application and noted with favor that the District Court

"reviewed affidavits attesting to the prevailing market rates of

compensation in the relevant legal market for similar work." 46

F3d at 1402.

2. Defendants’ Request

In their brief, Defendants request a fee award totaling

$16,114.00. In support, Defendants provide the affidavit of

Attorney Patricia J. Fabrizio attesting to the accuracy of the

attached billing statements for all attorneys billing time. (Def’s

br, Exh A). The affidavit further attests to additional time billed

by several attorneys, including Ms. Fabrizio, in the preparation

of this motion. Id. However, in their Affidavit Regarding Fees

and Costs, the amount of time billed by individual attorneys

actually totals $17,227.00, when the additional time billed for

work on this motion and additional matters are added (({ 3-5).

Presumably, the latter figure is the correct amount of fees that

Defendants seek.

To establish that the hourly rates charged by Defense counsel

are reasonable, Defendants have submitted an economic survey

published by the Michigan Bar Journal regarding average

attorney hourly rates in the year 2000, the affidavit of two local

employees benefits practitioners and a summary of the

background and experience of each billing attorney.

3. Analysis

Defendants’ billing statement clearly lists the date, hours

expended and nature of work done. Defendants Clearly identified

all attorneys billing time. Defendants do not request fees for

work done by paralegals or clerks. It appears that the hours

were reasonably expended in furtherance of the within litigation.

The billing rate of Defendants’ counsel ranged from $100-180

> The court in Olson declined to only rely upon the affidavits of

attorneys retained in the case, stating the fee applicant was obligated to

establish the reasonable rate through “independent evidence." Jn re

Olson, 884 F2d at 1424 n.14.

50

per hour.* Based upon Defendants’ submissions, the Court is

satisfied that Defendants have provided sufficient evidence that

the hourly rates charged by the billing attorneys in this case are

in accord with the rate charged in the relevant market for

"’similar services by lawyers of reasonably comparable skill,

experience and reputation.’" Blum v Stevenson, 465 US 886, 895

n. 11 (1984); Northcross, 611 F2d at 638.

Based upon the foregoing, the Court finds that the appropriate

lodestar figure is accurately set forth in Defendants’ fee

submission, without the need for further reduction. Therefore,

the Court will grant Defendants’ request for attorneys’ fees in the

amount of $17,227.00.

B. COSTS

1. Applicable Law

Costs in the instant case may be awarded per Federal Rule of

Civil Procedure ("FRCP") 54 (d)(1)° and 28 USC § 1920.

Section 1920 permits taxation of the following costs:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the

stenographic transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily

obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of

interpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 of this title.

"In seeking costs under Rule 54(d), the prevailing party has the

burden of establishing that the expenses it seeks to have taxed as

* Rolland R. O’Hare-$180/hr; Ann E.Neydon-$155-165/hr; Patricia J.

Fabrizio-$155-165/hr; Hope L. Calati-$120/hr, and Frances Yturri-

$100/hr.

> FRCP 54(d)(1) states, in relevant part: "Except when express

provision therefor is made either in a statute of the United States or in

these rules, costs other than attorneys’ fees shall be allowed as of

course to the prevailing party unless the court otherwise directs...."

51

costs are authorized by applicable federal law, including proof of

necessity and reasonableness under 28 U.S.C. § 1920." Hall v.

Ohio Education Association, 984 F Supp 1144, 1146 (SD OH

1997). When seeking costs under Rule 54(d)(1), the " prevailing

party is prima facie entitled to costs and it is incumbent upon the

unsuccessful party to show circumstances sufficient to overcome

the presumption.’" Id (citing Lichter Found, Inc v Welch, 269

F2d 142, 146 (6th Cir 1959)). The presumption can be overcome

if the court finds that the requested costs were unnecessary or

unreasonably large. Id (citing Lewis v. Pennington, 400 F2d

806, 819 (6th cir 1968), appeal aft rem, 421 F2d 1380 (6th Cir

1970), cert den, 398 US 960 (1970)). "Therefore, if Defendants

establish that the expenses are both necessary and reasonable, the

Court will presume that Defendants should be awarded those

costs." Id.

2. Defendants’ Request

Defendants request a total of $546.09 for the following costs:

facsimile expense ($3.45); courier ($30.00); photocopies

($42.00); computer-assisted research (Lexis-Nexis)(401.51), and

Airborne Express ($68.73). Defendants assert that these costs

were necessarily incurred in this litigation.

3. Analysis

The cost of "exemplification and copies of papers" are

recoverable if the moving party provides evidence that the copies

were “necessarily obtained for use in the case." 29 USC § 1920

(4); See Hall, 984 F Supp at 1146 (duplication expenses not

allowed where defendants did not provide information regarding

what was copied, how the copies were used or the necessity of

the copies). Defendants claim $42.00 in photocopying expenses.

however, as in Hall, Defendants have not provided any

information regarding what was copied or the purpose of said

copies. Therefore, the Court is unable to determine whether the

copies were "necessarily obtained for use in this case."

Defendant requests a total of $102.18 for facsimile, courier

and Airborne Express costs. These costs are not expressly

allowed under § 1920 and have typically been disallowed by the

courts. See Hall, 984 F Supp at 1146 ("the overwhelming

weight of authority have declined to award costs for courier

services, postage, telephone or fax charges"); Jn re Penn Central

52

|

Transportation Co., 630 F2d 183, 191-192 (3rd Cir 1980)

(postage and courier fees disallowed); Wahl v Carrier Mfg, 511

F2d 209, 217 (7th Cir 1975)(charges for postage not ordinarily

allowed); Nugget Distributors Cooperative of America, Inc. v Mr.

Nugget, Inc, 145 FRD 54, 58 (ED PA 1992)("Nothing in § 1920

even remotely authorizes plaintiff's claims for ... fax, telex,

postage [and] delivery service ... expenses.").

With regard to computer assisted research, § 1920 does not

provide for reimbursement of this expense and there is a split of

authority among the circuits regarding whether such a cost should

be reimbursed. The sixth circuit has not yet weighed in on the

debate but the split leans heavily against awarding this cost. The

general consensus of the courts which have disallowed

reimbursement is that such expenditures are more properly

considered firm overhead and are not a separately taxable cost: i

The Court assumes that the actual time of a

lawyer utilizing the research computer facility is,

in fact, booked at his normal hourly rate. The

Court thinks it inappropriate and unreasonable to

permit an overhead item of this type to be

recovered in addition to recovery for the time of

the lawyer who used the research facility.

Weinberger v Great Northern Nekoosa Corp, 801 F Supp 804,

827 (D. Me 1992), aff'd, 47 F3d 463 (ist Cir 1995); Yankee

Candle v Bridgewater Candle Co, 140 F Supp 2d 111, 126 (D

Mass 2001), aff’d, 259 F3d 25 (1st Cir 2001); Tri-Star Pictures,

Inc v. Unger, 42 F Supp 2d 296, 306 (SD NY 1990; United

States v Merrit Meridian Constr Corp, 95 F3d 153, 173 (2d Cir

1996).

Conversely, several circuits view computer research fees as

attorney fees because the attorney’s research time is greatly

reduced by the use of computer research:

The added cost of computerized research is

normally matched with a corresponding reduction

in the amount of time an attorney must spend

researching. Therefore, we see no difference

53

between a situation where an attorney researches

manually and bills only for the time spent and a

situation where the attorney does the research on

a computer and bills for both the time and the

computer fee.

Cairns v. Franklin Mint Co, 115 F Supp 2d 1185, 1189 (CD Cal

2000), aff'd, 292 3d 1139 (9th Cir 2002)(citing Haroco, Inc v

American Nat’l Bank and Trust Co of Chicago, 38 F3d 1429,

1440-1441 (7th Cir 1994); Cleveland Area Board of Realtors v

City of Euclid, 965 F Supp 1017, 1023 (ND Ohio 1997); Aloha

Tower Associates Piers 7, 8 and 9 Ltd Partnership v Millenium

Aloha, Inc, 938 F Supp 646, 549 (D. Hawaii 1996).°

The court will disallow all of Defendants’ requested costs.

For the requested copying expenses, Defendants failed to provide

sufficient evidence regarding what was copied, how they were

used or the necessity for the same. Hall, 984 F Supp at 1146.

For the balance of requested costs for fax, Airborne Express,

courier fees and computer research, the court adopts the

reasoning of other courts that have refused to allow such

expenses that are not expressly allowed under § 1920.

V. CONCLUSION

For the foregoing reasons, THE COURT GRANTS IN PART

AND DENIES IN PART Defendants’ Funds and Mittelbrun’s

Motion for Attorneys’ Fees and Costs. Specifically, the Court

GRANTS Defendants’ request for attorney’s fees in the amount

of $17,227.00 but DENIES Defendants’ request for costs.

IT IS SO ORDERED.

Dated: AUG 13, 2002 Victoria A. Roberts

U.S. District Judge

° Note, however, in Cairns, the court went on to reduce the requested

computer research fees by twenty-five percent to reflect the fact that

“Westlaw charges are not an exact substitute for an attorney’s hourly

rate.... [and] some part of Westlaw’s charges must be considered

overhead, if for no other reason than the fact that law firms do not

charge clients for law books." Cairns, 115 F Supp at 1185.

54

-

iii piuiiiicinet ae

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Lawrence Moore Case No. 01-72222

ee DEFENDANTS FUNDS AND

* Int. B’hood of Elect. TO DEFENDANTS FUNDS

Wkrs. Local 58, et al,) AND MITTLEBRUN

)

Defendants.)

)

)

Plaintiff, ) JUDGMENT IN FAVOR OF

)

)

This matter came before the Court on Defendants’ Funds and

Mittelbrun’s Motion for Attorneys’ Fees and costs, which was

granted in an Order Granting in Part and Denying in Part

Defendants’ Funds and Mittelbrun’s motion for Attorneys’ Fees

and costs entered on AUG 13, 2002. Therefore,

IT IS ORDERED AND ADJUDGED that the Court hereby

Grants Defendants’ Funds and Mittelbrun a Judgment in their

favor and against Plaintiff, in the amount of $17,227.00.

IT IS SO ORDERED.

Dated: AUG 13, 2002 Victoria A. Roberts

U.S. District Judge

55

APPEAL NO. 02-1503

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Lawrence Moore )

) U.S.D.C. No. 01-72222

Plaintiff/Appellant, )

Vv. )

Int. B’hood of Elect. ) ORDER

Wkrs. Local 58, et al,)

)

Defendants/Appellees)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Sixth Circuit Rule 28(g) limits citation to specific situations.

Please see Rule 28(g) before citing in a proceeding in a

court in the Sixth Circuit. If cited, a copy must be served

on the other parties and the Court.

This notice is to be prominently displayed in this decision if

reproduced.

Before SILER, DAUGHTREY, and GILMAN, Circuit Judges.

Lawrence Moore, proceeding pro se, appeals a district court

order dismissing his labor action filed pursuant to the Labor

Management Relations Act, 29 U.S.C. § 185; the National Labor

Relations Act, 29 U.S.C. § 158; the Employees Retirement

Income Security Act, 29 U.S.C. § 1001 et seq.; and 42 U.S.C.

§ 1983. This case has been referred to a panel of the court

pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon

examination, this panel unanimously agrees that oral argument is

not needed. Fed.R.App.P. 34(a).

On June 13, 2001 Moore filed suit against the International

Brotherhood of Electrical Workers Local 58 ("Local 58"), Jeff

Radjewski, Thomas Mittelbrun, and several fringe benefit funds

for monetary and equitable relief. Moore asserted in his

complaint that: 1) the defendants violated his rights under the

Free Speech Clause and the Takings Clause; 2) the defendants

committed fraud and deceit; 3) the defendants breached the

Collective Bargaining Agreement ("CBA"); 4) Local 58 and

Radjewski breached their duty of fair representation; and 5) the

56

OO

defendants intentionally inflicted emotional distress. Upon

consideration of the pleadings the district court granted the

defendants’ motions to dismiss, or, in the alternative, for

summary judgment.

In his timely appeal Moore essentially reasserts his claims and

argues that the district judge should have recused herself.

Upon de novo review we conclude that the district court’s

judgment must be affirmed. See Fed.R.Civ.P. 12(b)(6) and

56(c); Harrow Prods., Inc. v. Liberty Mut. Ins. Co., 64 F.3d

1015, 1019 (6th Cir. 1995); Wright v. MetroHealth Med. Crtr.,

58 F.3d 1130, 1138 (6th Cir. 1995).

Moore’s five claims substantially overlap and are based on

virtually identical allegations. Moore, who was not a member of

Local 58 but was a member of an affiliated union, received job

referrals through Local 58’s hiring hall to perform electrical

work in July, 1998 and from the week ending September 16,

2000, through the week ending November 4, 2000. Moore’s

main complaint is that Local 58 supposedly tricked him into

signing the union dues deduction form and would not refund the

money or stop the withdrawals after he rescinded his

authorization in a letter dated September 15, 2000. His other

primary allegations were that Local 58 deducted the money while

denying him a voice as a non-member, that the CBA did not

permit deductions from the wages of non-members for union

dues, that the defendants reduced his overtime pay rate, and that

the defendants used the money deducted to make political

contributions.

Moore’s complaint lacked merit. Moore’s first claim, in

which he asserts that the defendants violated his constitutional

rights, is not actionable. Generally, "the conduct of private

parties lies beyond the Constitution’s scope ....". Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 620 (1991).

Moore’s other federal claim, breach of a duty of fair

representation, is time-barred by the six-months statute of

limitations for unfair representation claims. Adkins v. Int’l Union

of Elec., Radio & Mach. Workers, 769 F.2d 330, 335 (6th Cir.

1985) (citations omitted). "[T]he statute of limitations begins to

run when the claimant knows or should have known of the

union’s alleged breach of its duty of fair representation."

57

ss ainabiiaiatalianiaisiaiaiisiiiiiasdiiiliaiaal

Schoonover v. Consol. Freightways Corp. , 49 F.3d 219, 221 (6th

Cir. 1995); see also Adkins, 769 F.2d at 335. Moore should

have known of any alleged breach of the duty of fair represent-

ation well before he completed the second job during the week

ending November 4, 2000. Moore, however, did not file his

complaint within six months, but waited seven months, until June

13, 2001.

Moore’s state law claims are based upon the same allegations

as his federal claim of a breach of the duty of fair representation

and thus are preempted by federal labor law and are also time-

barred. "The duty of fair representation relates to an area of

labor law which has been so fully occupied by Congress so as to

foreclose state regulation." Maynard v. Revere Copper Prods.,

Inc. 773 F.2d 733, 735 (6th Cir. 1985); see also In re Glass,

Molders, Pottery, Plastics & Allied Workers Int’l Union, Local

No. 173, 983 F.2d 725, 728-29 (6th Cir. 1993). Moreover,

when a federal claim of a breach of the duty of fair

representation is barred by the six-month statute of limitations,

"it would be anomalous to hold that the same claim survived the

defense of limitations because it was stated in terms of state

law." Maynard, 773 F.2d at 735.

Finally, the district judge did not abuse her discretion by

failing to recuse herself. Moore was not entitled to recusal under

28 U.S.C. § 144 because he did not file an affidavit alleging

judicial bias in the district court. See United States v. Sammons,

918 F.2d 592, 598-99 (6th Cir. 1990). Furthermore, the judge

was not obligated to recuse herself pursuant to 28 U.S.C. §

455(a). A judge must only recuse herself where a reasonable

person would be convinced that personal or extrajudicial bias

exists. Jd. at 599. No reasonable person would be convinced

that the judge was biased against Moore. All of Moore’s

allegations referred to the judge’s participation in the proceedings

and do not support recusal. See Id.

Accordingly, the district court’s judgment is affirmed. Rule

34(j)(2)(C), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT.

Filed: SEP 13, 2002 Leonard Green

Clerk

58

SMR" cam meena cemanmmamvee: mene rmaremmmarscoemnsatagtll

APPEAL NO. 02-2073

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Lawrence Moore )

) U.8.D.C. No. 01-72222

Plaintiff/Appellant, )

Vv. )

Int. B’hood of Elect. ) ORDER

Wkre. Local 58, et al,)

)

Defendants/Appellees)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Sixth Circuit Rule 28(g) limits citation to specific situations.

Please see Rule 28(g) before citing in a proceeding in a

court in the Sixth Circuit. If cited, a copy must be served

on the other parties and the Court.

This notice is to be prominently displayed in this decision if

reproduced.

Before: DAUGHTREY and GIBBONS, Circuit Judges; MILLS,

District Judge.*

Lawrence Moore, proceeding pro se, appeals a district court

order awarding attorneys’ fees to the defendants pursuant to 29

U.S.C. § 1132(g)(1) of the Employees Retirement Income ~

Security Act ("ERISA").

Moore filed suit against the International Brotherhood of

Electrical Workers Local 58, Jeff Radjewski, Thomas Mittelbrun,

and several fringe benefit funds ("Funds") pursuant to ERISA

and other statutes. Upon consideration of the pleadings, the

district court granted the defendants’ motions to dismiss, or, in

the alternative, for summary judgment, and this court affirmed

the district court’s judgment on September 13, 2002, in Case No.

02-1503.

After the district court issued its judgment, the Funds and

Mittelbrun filed a motion for attorneys’ fees and costs on April

* The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

59

il BA ASAE NN A, Sl RN RT

1, 2002, arguing in part that Moore was a vexatious litigant who

had pursued frivolous labor claims for fifteen years in various

jurisdictions. Because Moore did not file a response within 14

days as required by court rules, the district court ordered

Moore’s response to be stricken from the record. On August 13,

2002, the district court awarded attorneys’ fees to the Funds and

Mittelbrun in the amount of $17,227.00, but denied the request

for costs. The district court reasoned that a fee award was

merited because Moore had brought his claims in bad faith, an

award would deter other plan participants from filing frivolous

actions, and an award would confer a common benefit on plan

participants and beneficiaries who would otherwise bear the cost

of defending frivolous litigation.

In his appeal, Moore raises numerous challenges to the award.

Upon review, we conclude that the district court’s judgment

must be affirmed. Because Moore failed to timely respond to the

defendants’ motion for attorneys’ fees in the district court, he has

waived any objection he had to the defendants’ application for

and the district court’s award of attorneys’ fees. See Federal

Deposit Ins. Corp. v. Binion, 953 F.2d 1013, 1018 (6th Cir.

1991).

Accordingly, the district court’s judgment is affirmed. Rule

34(j)(2)(C), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT.

Filed: MAR 28, 2003 Leonard Green

Clerk