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LEONARDIS v. BURNS INTL. SEC. SERVS.

November 18, 1992

ALBERT LEONARDIS AND MARIO ZECCA, Plaintiffs,
v.
BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant.



The opinion of the court was delivered by: ALFRED J. LECHNER, JR.

LECHNER, District Judge

 Currently before the court is the motion of defendant Burns International Security Services ("Burns") for partial summary judgment pursuant to Fed R. Civ. P. 56(b) to dismiss the first, third and fourth counts of the complaint (the "Complaint"), filed 21 April 1992, by plaintiffs Albert Leonardis ("Leonardis") and Mario Zecca ("Zecca") (collectively, the "Plaintiffs"). *fn1"

 Jurisdiction appears to be appropriate pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 185(a). For the reasons that follow, the motion for partial summary judgment is granted in its entirety.

 Burns, a New Jersey corporation with its principal place of business in Edison, New Jersey, is in the business of providing private security guard services. Burns 12(G) Stmt., P 5; Complaint at 1. Plaintiffs are both residents of New Jersey. Complaint at 1. Plaintiffs were employed by Burns as security guards. Burns 12(G) Stmt., P 2; Zecca 12(G) Stmt., P 2; Leonardis 12(G) Stmt., P 2. As employees of Burns, the Plaintiffs were also members of the Guards and Securities Local 1412 of the Laborer's International Union of North America ("Local 1412"). Burns 12(G) Stmt., P 1; Zecca 12(G) Stmt., P 1; Leonardis 12(G) Stmt., P 1.

 A collective bargaining agreement (the "Collective Bargaining Agreement") is currently in effect between Burns and Local 1412. Burns 12(G) Stmt., P 3; Zecca 12(G) Stmt., P 1; Leonardis 12(G) Stmt., P 3. Pursuant to Article 17 ("Article 17") of the Collective Bargaining Agreement, Burns "agree[d] to assume all liability for suits brought against its employees resulting from acts committed within the scope of their employment." Burns 12(G) Stmt., P 4; Zecca 12(G) Stmt., P 4; Leonardis 12(G) Stmt., P 4.

 From 1986 until March 1991, Burns had an agreement with the New Jersey Sports and Exposition Authority (the "Sports Authority") to provide security guard services at the Meadowlands Sports complex (the "Meadowlands"), including the Brendan Byrne Arena, located in East Rutherford, New Jersey. Complaint at 1-2; Answer (the "Answer"), filed 29 June 1992, at 1. On 28 September 1989, the Plaintiffs were working for Burns as security guards at the Meadowlands, during a hockey game. Burns 12(G) Stmt., P 5; Zecca 12(G) Stmt., P 5; Leonardis 12(G) Stmt., P 5. During their employment, Plaintiffs and other security guards were involved in an altercation (the "Altercation") with two patrons of the Meadowlands. Burns 12(G) Stmt., P 6; Zecca 12(G) Stmt., P 6; Leonardis 12(G) Stmt., P 6. Charges against numerous Burns security guards, including the Plaintiffs, were filed by the patrons. Zecca Moving Brief at 3.

 On 14 October 1989, in an unrelated incident (the "14 Oct. 1989 Incident"), a Meadowlands patron was found dead following a Grateful Dead concert at the Meadowlands. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. Speculation apparently followed in the news media that a Burns security guard may have been involved in the incident. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. No one was ever arrested in connection with the 14 Oct. 1989 Incident. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. According to Plaintiffs, the Sports Authority commenced an investigation into the manner in which Burns provided security services to the Meadowlands and, as a result of the investigation, the contract between Burns and the Sports Authority was terminated. Zecca Opp. Brief. at 4; Leonardis Opp. Brief at 3.

 Plaintiffs allege that, as a "ripple effect" flowing from the 14 October 1989 Incident, the Bergen County Prosecutor's office decided to vigorously pursue criminal charges against the Burns security guards involved in the Altercation. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. In any event, in July 1990, Plaintiffs and several other guards were indicted on charges of aggravated assault and robbery under New Jersey State law. Burns 12(G) Stmt., P 7; Zecca 12(G) Stmt., P 7; Leonardis 12(G) Stmt., P 7.

 Meanwhile, on 17 November 1989, Burns issued a written memorandum (the "Burns Memo") to those employees assigned to work at the Meadowlands. Zecca 12(G) Stmt., P 14; Leonardis 12(G) Stmt., P 14; see Moving Brief, Ex. A (copy of Burns Memo). The Burns Memo recognized that "currently 10 part-time security officers are charged with aggravated assault." Moving Brief, Ex. A. It also set forth conditions for the reimbursement of attorneys' fees and related costs incurred in the defense of criminal assault charges arising out of activities in connection with employment. Zecca 12(G) Stmt., P 14; Leonardis 12(G) Stmt., P 14.

 Since aggravated assault charges grow out of the possible use of excessive force, your legal expenses will be paid directly by Burns up to the indictment by the Grand Jury. Upon indictment, you can retain the lawyer of your choice, and will be responsible for your legal expenses. If you are acquitted (found innocent) Burns will pay for all legal expenses incurred, unless Burns' own investigation indicates that you have violated Burns' policies and procedures. . . . The possible use of excessive, unnecessary and/or unreasonable force by any member of the security force cannot be tolerated

 Id. (emphasis deleted).

 On 2 July 1990, Leonardis was notified by David Burton Brady ("Brady") that, because an indictment was forthcoming, Brady could no longer represent Leonardis in the Criminal Action. *fn2" Leonardis Opp. Brief, Ex. 1 (letter from Brady to Leonardis, dated 2 July 1992). Specifically, Brady stated:

 I am notifying the Criminal Case Management Office that I am no longer representing you. As I indicated during our conversation, the policy on this matter is that Burns had retained me to represent you prior to the indictment. Once an indictment has been handed down, the policy is that the guard charged must retain his own counsel. That counsel will be reimbursed for all reasonable attorneys' fees at the conclusion of the case if there is an acquittal. If not, the responsibility for payment of the fees remains with yourself. I am sure this policy has been previously explained to you by representatives of Burns.

 Id.

 On 18 April 1991, following a jury trial in Bergen County Superior Court (the "Criminal Action"), Plaintiffs were acquitted of the indicted charges but, nevertheless, were convicted of the lesser included offense of simple assault. Zecca 12(G) Stmt., P 8; Leonardis 12(G) Stmt., P 8; Complaint at 2. Plaintiffs appealed their convictions. Burns 12(G) Stmt., P 9. The appeal by Leonardis was denied. Zecca 12(G) Stmt., P 9; Leonardis 12(G) Stmt., P 9. The appeal by Zecca is pending. Zecca 12(G) Stmt., P 9; Leonardis 12(G) Stmt., P 9.

 Plaintiffs allege that, in reliance on communications and representations by Burns, they did not consider a plea bargain or accept entry into New Jersey's Pre-Trial Intervention Program (the "PTI Program") and instead chose to go to trial. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. Certain representations do appear to have been made by Burns' representatives.

 For instance, on 25 July 1990, Claude E. White ("White"), the "Vice President--Law" for Burns, notified Thomas M. Kaczka ("Kaczka"), attorney for Leonardis, that "Burns will . . . reimburse Mr. Leonardis for reasonable legal fees if he is acquitted of the charges concerning the above-referenced indictment." Leonardis Opp. Brief, Ex. 3 (letter from White to Kaczka, dated 25 July 1990). Moreover, on 20 September 1990, White notified Kaczka as follows:

 [Please be advised that Burns' Policy is to reimburse Mr. Leonardis if he is acquitted. Mr. Leonardis's plea bargaining would not be an acquittal and accordingly not entitle him to reimbursement of his reasonable legal expenses.

 Should Mr. Leonardis enter a . . . PTI Program there would be no adjudication on the merits of the charges. Therefore legal fees would not be reimbursed by Burns.

 Id., Ex. 2 (Letter from White to Kaczka, dated 20 September 1990).

 Subsequent to their conviction, Plaintiffs requested Burns to reimburse their legal expenses incurred in the Criminal Action. *fn3" Burns 12(G) Stmt., P 10; Zecca 12(G) Stmt.; P 10; Leonardis 12(G) Stmt., P 10. Burns refused to reimburse the Plaintiffs. Burns 12(G) Stmt., P 10; Zecca 12(G) Stmt., P 10; Leonardis 12(G) Stmt., P 10.

 On 16 September 1991 and 23 September 1991, Zecca and Leonardis respectively filed "step two" grievances (the "Step Two Grievances") under the Collective Bargaining Agreement, again seeking reimbursement of the Legal Expenses. Burns 12(G) Stmt., P 11; Zecca 12(G) Stmt., P 11; Leonardis 12(G) Stmt., P 11; Complaint at 3. Burns denied the Step Two Grievances approximately one week later. Burns 12(G) Stmt., P 12; Zecca 12(G) Stmt., P 12; Leonardis 12(G) Stmt., P 12; complaint at 3. Local 1412 then refused Plaintiffs' requests to proceed to the next step of the grievance procedure. Burns 12(G) Stmt., P 13, Zecca 12(G) Stmt., P 13; Leonardis 12(G) Stmt., P 13.

 On 15 May 1992, Plaintiffs served the Complaint upon Burns. Notice of Removal ("Removal Notice"), filed 8 June 1992, P 3. The Complaint alleges four counts for recovery. Count One (the "Independent Contract Claim") essentially alleges that, pursuant to the Burns Memo, Burns entered into a contract with the Burns guards at the Meadowlands, including Plaintiffs, which was independent of the Collective Bargaining Agreement. Complaint at 2. Pursuant to this alleged independent contract, Plaintiffs allege Burns was obligated to pay for the legal expenses incurred by Plaintiffs in the Criminal Action. Id.

 Count Two alleges a claim under section 301 ("Section 301") of the Labor Management Relations Act (the "LMRA"), 29 U.S.C. § 185. *fn4" In Count Two, Plaintiffs claim Local 1412 breached its duty of fair representation owed to the Plaintiffs by "arbitrarily, capriciously, wrongfully and without just or reasonable cause, refusing to proceed to the next step of the grievance procedure." Complaint at 3.

 Count Three is a claim for promissory estoppel (the "Promissory Estoppel Claim") based upon both the Burns Memo and upon the representations made by White to Plaintiffs during their trial (the "White Representations"). Plaintiffs allege the Burns Memo was "an offer to reassure its work force during a time of crisis, and [Burns] should reasonably have expected [its employees], including Plaintiffs, to rely in a substantial nature on the offer." *fn5" Complaint at 4. Plaintiffs claim that, in pursuing their defense and in rejecting offers to plea bargain or enter into a PTI program, they reasonably and detrimentally relied upon the promise of reimbursement made by Burns pursuant to the Burns Memo and the White Representations. Complaint at 4.

 Count Four of the Complaint (the "Rule 4 Claim") is based on Rule 4:42-9 ("N.J. Rule 4:42-9") of the Rules Governing the Courts of the State of New Jersey (the "New Jersey Court Rules"). Complaint at 5. Plaintiffs claim that Burns' obligations, as stated in Counts One to Three, are "tantamount to an agreement for indemnification." Id. Thus, Plaintiffs claim, N.J. Rule 4:42-9 entitles them to reimbursement of their legal expenses incurred in the Criminal Action. Id.

 On Counts One, Two and Three, Plaintiffs seek compensatory and consequential damages, interest and the costs of their lawsuits. Complaint at 2-4. Plaintiffs also seek declaratory relief "setting forth [Burns'] liability for all subsequent legal expenses relating to defense, appeal and post-conviction relief" in the Criminal Action. Complaint at 3-4. Count Four seeks only attorneys' fees and costs. Id. at 5.

 As mentioned, on 8 June 1992, Burns removed the case to this court from the Superior Court of New Jersey, Law Division, Middlesex County, pursuant to 28 U.S.C. § 1441(a). Removal Notice, PP 1-2.

 Discussion

 A. Summary Judgment Standard of Review

 To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). While the task on a summary judgment motion is to determine whether disputed issues of fact exist, a district court may not resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Desvi, Inc. v. Continental Ins. Co., 968 F.2d 307, 308 (3d Cir. 1992) (threshold inquiry is whether "there are 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" (citations omitted); Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) ("summary judgment is inappropriate when a conflict on a material fact is present in the record"); Nathanson v. Medical College of Pa., 926 F.2d 1368, 1380 (3d Cir. 1991) (summary judgment not proper "if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed").

 All evidence submitted must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Williams v. New Castle County, 970 F.2d 1260, 1264 (3d Cir. 1992); Boyle v. Governor's Veterans Outreach & Assistance Center, 925 F.2d 71, 75 (3d Cir. 1991); Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989). "'Any 'unexplained gaps' in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment.'" Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990) (quoting 0' Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 1989)).

 Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the court the absence of a genuine issue of material fact,

 its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.' Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'

 Matsushita, 475 U.S. at 586-87 (emphasis in original, citations and footnotes omitted). In other words, the inquiry involves determining "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" *fn6" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52), cert. denied,, 115 L. Ed. 2d 997, 111 S. Ct. 2827 (1991).

 Once a case has been made in support of summary judgment, the party opposing the motion has the affirmative burden of coming forward with specific facts evidencing a need for trial. see Fed. R. Civ. P. 56(e); see also Gray, 957 F.2d at 1078 ("there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party"); Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 413 (3d Cir. 1990) ("nonmoving party must adduce more than a mere scintilla of evidence in its favor"); Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 72 (3d Cir. 1990) (non-moving party may not rest upon mere allegations); Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (neither unsupported allegations in pleadings and memoranda of law nor conclusory allegations in affidavits will establish genuine issue of material fact); Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1165 (3d Cir. 1990) (issue of fact not created by merely questioning credibility of movant's witnesses; circumstantial evidence may raise issue of fact); Aronow Roofing Co. v. Gilbane Bldg. Co., 902 F.2d 1127, 1128 (3d Cir. 1990) ("summary judgment will be granted where the nonmoving party fails to 'establish the existence' of an element essential to the case").

 In this case, the parties concede that no material issues of fact exist with regard to the facts which underlie this litigation. Leonardis Opp. Brief at 2; Zecca Opp. Brief at 2; Moving Brief at 1. Rather, the dispute between the parties rests entirely upon questions of law. First, the parties dispute whether, on the facts alleged in the Complaint and argued by Plaintiffs in the motion papers, Plaintiffs' Independent Contract Claim and Promissory Estoppel Claim are preempted by Section 301 of the LMRA. The parties also dispute whether the Rule 4 Claim, which arises from the New Jersey Court Rules, is (1) a claim cognizable in federal court and (2) a provision creating substantive rights or simply a rule of procedure.

 Because these disputes center on purely legal rather than factual interpretations, the case is a particularly appropriate candidate for summary judgment analysis. Continental Ins. Co. v. Bodie, 682 F.2d 436, 439 (3d Cir. 1982); Peterson v. Lehigh Valley Dist. Council, etc., 676 F.2d 81, 84 (3d Cir. 1982); United States v. 294 Various Gambling Devices, 718 F.Supp. 1236, 1242 (W.D.Pa. 1989); see also Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.) ("summary judgment proper where facts are undisputed"), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985); McKinney v. Board of Trustees of Mayland Commun. College, 955 F.2d 924, 928 (4th Cir. 1992) ("summary judgment should be granted in those cases where it is perfectly clear that no issue of fact is involved and inquiry into facts is not necessary to clarify the application of the law"); Sheline v. Dun & Bradstreet Corp., 948 F.2d 174, 176 (5th Cir. 1991) ("summary judgment is appropriate where only issue before court is a pure question of law"); Crain v. Board of Police Comm'rs of Metro. Police Dep't, 920 F.2d 1402, 1405-06 (8th Cir. 1990) (when "unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate").

 Indeed, not only are questions of Section 301 preemption frequently resolved on motions for summary judgment but, when such preemption exists, it is appropriate to grant summary judgment. See Smith v. Colgate-Palmolive, Co., 943 F.2d 764 (7th Cir. 1991); Jones v. General Motors Corp., 939 F.2d 380 (6th Cir. 1991); Stikes v. Chevron USA, Inc., 914 F.2d 1265 (9th Cir. 1990), cert. denied, 114 L. Ed. 2d 101, 111 S. Ct. 2015 (1991); Berda v. CBS, Inc., 881 F.2d 20 (3d Cir. 1989), cert. denied, 493 U.S. 1062, 110 S. Ct. 879, 107 L. Ed. 2d 962 (1990); Vacca v. Viacom Broadcasting of Missouri, Inc., 875 F.2d 1337 (8th Cir. 1989); Bache v. American Tel. & Tel., 840 F.2d 283 (5th Cir.), cert. denied sub nom., Bankston v. American Tel. & Tel. Co., 488 U.S. 888, 102 L. Ed. 2d 210, 109 S. Ct. 219 (1988); White v. National Steel Corp., 742 F.Supp. 312 (N.D.W.Va. 1989), aff'd in part & rev'd in part, 938 F.2d 474 (4th Cir.), cert. denied, 112 S. Ct. 454 (1991); Cole v. Pathmark of Fairlawn, 672 F.Supp. 796 (D.N.J. 1987); Kern v. United Steelworkers of America, Local 1688, 669 F.Supp. 701 (M.D.Pa. 1987); see also Barton v. Creasey Co. of Clarksburg, 718 F.Supp. 1284 (N.D.W.Va. 1989) (resolving Section 301 preemption question on motion to dismiss), aff'd, 900 F.2d 249 (4th Cir.), cert. denied, 112 L. Ed. 2d 104, 111 S. Ct. 137 (1990).

 B. Preemption Under Section 301 of the Labor Management Relations Act

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

 Suits for violation of a contract between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to ...


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