The opinion of the court was delivered by: Jerome B. Simandle U.S. District Court
HONORABLE JEROME B. SIMANDLE
SIMANDLE, District Judge:
This matter is before the court on the motion of defendant, Local 623, United Brotherhood of Carpenters and Joiners of America ("Local 623"), to dismiss plaintiff Henry DiPeppe's Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment, pursuant to Federal Rule of Civil Procedure 56(b). *fn1 Also before the court is DiPeppe's cross-motion for leave to amend his Complaint, pursuant to Federal Rule of Civil Procedure 15(a), which DiPeppe filed in lieu of opposition to Local 623's motion.
Because the court finds that Local 623 would be prejudiced by allowing DiPeppe to amend his Complaint at this late juncture, and because the court finds that the proposed Amended Complaint is futile in any event, the court denies DiPeppe's motion for leave to amend his Complaint. Additionally, because the court finds that DiPeppe has not pleaded a claim upon which relief can be granted against Local 623 in his Complaint, the court grants Local 623's motion for summary judgment and dismisses DiPeppe's Complaint with prejudice.
From March 14, 1988 through August 25, 1992, Henry DiPeppe was employed as a carpet layer by the Showboat Casino-Hotel of Atlantic City, New Jersey ("Showboat"). Throughout the period of DiPeppe's employment by Showboat, Local 623 was the recognized exclusive bargaining unit for certain Showboat employees, including DiPeppe, pursuant to a collective bargaining agreement between Showboat and Local 623. (Eggie Aff., Ex. A.)
On August 20, 1992, another carpet layer, Rob Brining, alleged that DiPeppe slashed him across the chest and abdomen with a carpet layers' tool while they were working on the 14th floor of the hotel with fellow carpet layers Frank Yanni and Scott Davenport. DiPeppe was suspended pending investigation of the incident. (Eggie Aff., Ex. B.) On August 25, 1992, Showboat discharged DiPeppe after an investigational meeting at which DiPeppe was given an opportunity to explain the August 20, 1992 incident. The notice of termination provided: "As a result of the investigation conducted regarding the incident that occurred on August 20, 1992 and after reviewing your previous work history, you are discharged from Showboat." (Eggie Aff., Ex. C.)
On August 27, 1992, DiPeppe filed a grievance challenging his termination. *fn2 By letter dated September 1, 1992 from Dominick J. Burzichelli, Showboat's Labor Relations and Administration Manager, to Eustace "Bud" Eggie, Local 623's business agent, Showboat denied the grievance and affirmed its decision to terminate DiPeppe's employment:
This letter is response to a grievance I received on August 27, 1992 regarding the termination of Mr. Henry DiPeppe (Carpet Layer).
As you are aware, we met on Tuesday, August 25, 1992 with Mr. DiPeppe, Arthur Donahue (Shop Steward), Rob Brining, Frank Yanni, Roger Ireland and Scott Davenport to discuss the incident that occurred on August 20, 1992. It was this incident that triggered Mr. DiPeppe's termination.
More specifically, on the 20th, Mr. DiPeppe, who was working on the 14th floor along with Brining, Yanni and Davenport, slashed Brining with his trough across the chest and abdomen. This unsafe act alone is a terminable offence. This incident along with Mr. DiPeppe's past working history prompted Management's decision to terminate.
At the above meeting, all concerned parties were given an opportunity to give their side of the story. Therefore a hearing is not necessary and Management's decision to terminate Mr. DiPeppe remains unchanged and the grievance is denied.
If you have any questions, please contact me. (Eggie Aff., Ex. D.)
By letter dated September 9, 1992 from Eggie to DiPeppe, Local 623 advised DiPeppe that it would take no further action concerning his termination:
After reviewing your grievance answer, and conferring with Local 623's attorney, we have concluded that your case does not merit going to arbitration. Therefore, we are closing your file. (Eggie Aff., Ex. E.)
On February 19, 1993, DiPeppe commenced this action by filing a Complaint under the Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA"). In the First Count of the Complaint, DiPeppe alleges that he "instituted a grievance" pursuant to the provisions of the collective bargaining agreement between Showboat and Local 623 because Showboat's termination of his employment was a "wrongful termination," that Local 623 was obligated to represent him in connection with his grievance pursuant to the terms of the collective bargaining agreement, and that Local 623 "negligently failed to prosecute said grievance through all available steps, with the result that plaintiff's termination of employment was sustained." (Complaint, First Count, ¶¶ 4, 5 and 7.) In the Second ...