efforts was reinstatement of Downey and recovery two-thirds back pay.
Downey does not dispute that a Settlement Agreement had been reached, but alleges the settlement was inadequate because Local 1262 relied on the misleading information provided to them by Vitale. Downey contends Local 1262 failed to conduct "the most rudimentary investigation concerning the events that led to Downey's discharge from Kearny Foodtown on 2 June 1995." Opposition Brief at 25-26. Downey contends a more thorough investigation would have revealed that the genesis of the criminal charges against Downey were lodged by Vitale. Downey argues a more thorough investigation would have shown that there were no formal company accounting procedures in place, the non-compliance of which would have justified a reduction in back pay. Downey also argues an investigation would have demonstrated that no other bookkeepers who were on duty on the days Cordero was stealing were questioned or sanctioned, that a manager was not needed to override a manually entered credit card and that Cordero could have obtained the three digit code of another cashier without the help of a bookkeeper. Finally, Downey argues that if Local 1262 had investigated the grievance more thoroughly, it would have uncovered evidence to show Downey was not the least senior employee warranting the reduction to part-time status. Opposition Brief at 26-30.
The Vitale CBA indicates "the employer agrees to supply the Union with the relevant information necessary to process the grievance." Vitale CBA, Article 14, Section 2. If the information was misleading or lacking, Downey could have presented his concerns to the Executive Board for review and reconsideration. The issues could have been addressed there first, and more quickly. Moreover, any opposition Downey had with respect to the reduction to part-time status, could have been addressed in an additional grievance instituted after his reinstatement to the Hoboken Foodtown.
Downey has not presented evidence sufficient from which a trier of fact could determine that Local 1262 had perfunctorily dismissed his grievance, discriminated against Downey or arbitrarily refused to investigate his grievance to warrant the failure to exhaust his intra-union remedies. See Hendricks v. Edgewater Steel Co., 898 F.2d 385 (3d Cir. 1990)(union member failed to show that union acted perfunctorily or arbitrarily in refusing to investigate grievance in order to invoke exception to requirement of exhaustion of union remedies). If Downey disagreed with the Settlement Agreement, he had the obligation to pursue an appeal to the Executive Board to review and reconsider the decision, before instituting a lawsuit. Indeed, the Local 1262 Bylaws indicate a grievance is deemed to have acquiesced in the disposition of the grievance if no appeal is filed. Local 1262 Bylaws, Article XV, Section F.
Under the Local 1262 Bylaws, Local 1262 had the exclusive discretion to submit grievances to arbitration, withdraw grievances and decline to invoke the grievance procedures. Local 1262 Bylaws, Article XV. An individual employee does not have the absolute right to have his or her grievance taken to arbitration. Vaca, 385 U.S. at 191. Nor does a union breach its duty of fair representation merely because it failed to take the grievance to arbitration. Id.
Viewed in a light most favorable to Downey, the facts fail to demonstrate how an appeal to the Executive Board would have be futile. As discussed, rather than instituting the instant suit, Downey should have made an appeal before the Executive Board. The Local 1262 Bylaws indicate the Executive Board is made up of the constitutional officers of the Local Union. Local 1262 Bylaws, Article VIII. There is no evidence to suggest the Executive Board would not have made a fair and independent assessment of Downey's claim.
The parties did not address the third Clayton consideration for excusing the failure to exhaust administrative remedies. That consideration excuses exhaustion of internal union appeals where the appeal would result in unreasonable delay of the opportunity of the employee to obtain a judicial hearing. Because this suit is still pending more than a year since the filing of the grievance, as compared to a few weeks in the internal union appeal procedures, a discussion of this consideration is not merited.
Downey did not exhaust his internal appeal procedures before bringing this suit. Downey presented no evidence from which a trier of fact could determine that the union had perfunctorily dismissed his suit to relieve him of the duty to exhaust the internal remedies by appealing to the Executive Board. Accordingly, the Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment are granted.
C. Dismissal of State Law Claims
Downey failed to exhaust his internal union appeal procedures prior to instituting this lawsuit. Downey failed to establish any reasons to excuse himself from the exhaustion requirement. Downey is therefore precluded from bringing a cause of action against Vitale and Local 1262 under § 301 of the LMRA, 29 U.S.C. § 185, which is the only basis for Federal subject matter jurisdiction in this action. See Wheeler, 985 F.2d at 112. Pursuant to 28 U.S.C. § 1367(c)(3), the remaining state law causes of action brought by Downey will be dismissed, without prejudice. See 28 U.S.C. § 1367(c)(3).
Section 1367(c)(3) of title 28 provides, in relevant part,
The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction.
28 U.S.C. § 1367(c)(3). Supplemental jurisdiction is a doctrine of discretion, not of plaintiff's right. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)(citing United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)). If the claim over which the district court has original jurisdiction is dismissed, the district court should decline to decide the pendent state claims, absent considerations of judicial economy, convenience, and fairness to the parties. Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277 (3d Cir. 1993); Lovell Mfg.,, a Div. of Patterson-Erie Corp. v. Export-Import Bank of the United States, 843 F.2d 725 (3d Cir. 1988).
As a matter of comity, decisions of state law by the Federal courts should be avoided. If Federal claims are dismissed before trial, then the state law claims should be dismissed as well. Borough of West Mifflin, 45 F.3d at 788; Stokes v. Local 116 of Int'l Union of Electronic, Elec., Salaried, Mach. and Furniture Workers, 1993 U.S. Dist. LEXIS 1009, No. Civ. A. 92-3131, 1993 WL 23895, at *1 (E.D.Pa., Feb 02, 1993); Nicandro v. Berkeley Farms, Inc., 1994 U.S. Dist. LEXIS 20347, No. C 93-2317 SBA, 1994 WL 705267, at *1 (N.D.Cal. 1991); Herbert v. Post Machinery Co., 495 F. Supp. 285 (D.N.H. 1980).
Accordingly, Downey's state law claims are dismissed without prejudice. A determination of whether any of the state law claims brought by Downey are preempted under the LMRA is reserved for the state tribunal.
D. Vitale Request for Rule 11 Sanctions
In addition to the Motion for Summary Judgment, the Vitale Defendants submitted the Vitale Motion for Sanctions against counsel for Downey pursuant to Fed. R. Civ. P. 11 ("Rule 11"). The Vitale Defendants submitted the application within their Motion for Summary Judgment. Rule 11 requires that "[a] motion for sanctions ... shall be made separately from other motions or requests...." Rule 11; Omega Sports, Inc. v. Sunkyong Am., Inc., 872 F. Supp. 201, 203 (E.D.Pa. 1995). The Vitale Defendants admit they violated Rule 11 by submitting the Vitale Motion for Sanctions with the Vitale Motion for Summary Judgment.
By way of explanation, the Vitale Defendants cite Rule 12L of the General Rules for the District of New Jersey ("Rule 12L"). Rule 12L states:
All applications for sanctions pursuant to Rule 11 or 37 of the Federal Rules of Civil Procedure shall be filed with the Clerk prior to any entry of final judgment notwithstanding the provisions of any other Rule of this Court.
Rule 12L. The Vitale Defendants are seeking final judgment in their Motion for Summary Judgment. They contend that if they did not submit the Vitale Motion for Sanctions with the Vitale Motion for Summary Judgment, they would risk forfeiting their right to move for sanctions. While this contention may be accurate, the Vitale Defendants themselves were responsible for setting the timing and pace of this motion. Indeed, with a little foresight, the Vitale Defendants could have submitted a Motion for Rule 11 Sanctions and then filed the Motion for Summary Judgment.
Notwithstanding the requirement of a separate motion, it is not clear sanctions are warranted in this action. The Vitale Defendants contend Rule 11 sanctions in the form of attorney's fees and cost of suit are appropriate because of the frivolous nature of Downey's action. Vitale Moving Brief at 28-29. The Vitale Defendants argue there is no fact upon which Downey can rely "beyond bare allegations" to prove Local 1262 breached its duty of fair representation. Id. at 30. The Vitale Defendants argue a reasonable inquiry into the facts and law of the action would have revealed that an LMRA claim would not succeed. The Vitale Defendants contend, therefore, that Rule 11 sanctions are proper.
The standard for imposing Rule 11 sanctions is one based upon objective reasonableness under the circumstances. Bad faith on the part of the plaintiff is not required. Martin v. Brown, 63 F.3d 1252, 1264 (3d Cir. 1995)(citations omitted). Sanctions are appropriate only if "the filing of the complaint constituted abusive litigation or misuse of the court's process." Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir. 1994)(citing Teamsters Local Union No. 430 v. Cement Express, Inc., 841 F.2d 66, 68 (3d Cir.), cert. denied sub nom., Herman Bros., Inc. v. Teamsters Local Union No. 430, 488 U.S. 848, 102 L. Ed. 2d 101, 109 S. Ct. 128 (1988)). "The mere failure of a complaint to withstand a motion for summary judgment or a motion to dismiss should not be thought to establish a rule violation." Simmerman, 27 F.3d at 62; see also Arab African Int'l Bank v. Epstein, 10 F.3d 168, 175 (3d Cir. 1993).
The Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment were granted based upon a procedural defect, not on the substantive merits of Downey's claims. Rule 11 sanctions are reserved only for claims that are patently unmeritorious or frivolous. Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988). The claims of Downey do not fall within that classification. The Vitale Motion for Sanctions is denied.
For the reasons stated, the Vitale Motion for Summary Judgment and the Local 1262 Motion for Summary Judgment are granted. The state law claims-brought by Downey are dismissed without prejudice. The Vitale Motion for Sanctions is denied. An order accompanies this opinion.
ALFRED J. LECHNER, JR., U.S.D.J.