The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on defendant's motion to dismiss plaintiff's Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), Fed. R. Civ. P., and alternatively to dismiss for failure to name an indispensable party (her union) pursuant to Rule 12(b)(7), Fed. R. Civ. P. Defendant, The Training School at Vineland, asserts that plaintiff's Complaint, which seeks to enforce a favorable arbitration award rendered pursuant to the collective bargaining agreement between defendant and plaintiff's union, United Automobile Workers Local Union No. 2327 ("UAW Local 2327"), is untimely because the statute of limitations has run and, alternatively, that the Complaint must be dismissed because plaintiff failed to name UAW Local 2327, which defendant asserts is an indispensable party as defined in Rule 19(a), Fed. R. Civ. P. Defendant argues as a further alternative that this lawsuit is premature because there is insufficient evidence that the union has triggered a cause of action by refusing to pursue plaintiff's contractual remedy of enforcing the arbitration award on plaintiff's behalf. Plaintiff denies that the complaint is untimely or premature and avers that although UAW Local 2327 could have been named as a defendant, it is not an indispensable party. The Court must determine what the applicable statute of limitations period is in this case, whether and when the cause of action accrued and started the period running, and whether UAW Local 2327 is a necessary party.
The Court convened an evidentiary hearing on the statute of limitations issue, conducted on December 6 and 14, 2001. The Court received documentary exhibits into evidence from plaintiff *fn1 and from defendant. *fn2 Testimony was received from plaintiff Thomas-Still and from Francis Smith (Area Director, United Auto Workers) and from Jane Detweiller (Executive Director of the Training School at Vineland). The Court makes the following findings of fact and conclusions of law resolving the statute of limitations issue.
In September 1995, plaintiff, Cecilia Thomas-Still ("Thomas-Still"), began her employment as a group home counselor with defendant The Training School at Vineland ("Training School"). The Training School is a for-profit organization in the business of providing care, training and assisted living to emotionally and mentally challenged individuals. At all times relevant to this action, plaintiff was a union member of UAW Local #2327. From August 22, 1996 through June 30, 1999, and continuing through today, UAW Local #2327 was a party to a collective bargaining agreement with the Training School. While at the Training School, plaintiff was employed under the terms of the collective bargaining agreement.
On December 29, 1997, plaintiff was terminated from her employment at the Training School. Defendant justified the termination by asserting that Thomas-Still falsified payroll records by signing in ten minutes earlier than she actually arrived to work. Plaintiff pursued a grievance, which was handled by way of arbitration, pursuant to the terms of Articles XIII and XIV of the collective bargaining agreement. On April 23, 1999, Arbitrator Scott E. Burchheit issued an Opinion and Award sustaining plaintiff's grievance and ordering that Thomas-Still be reinstated with full seniority and be made whole for all wages and benefits lost as a result of her termination. (See Pl.'s Opp., Ex. C, Case No. 18 300 00240 98, American Arbitration Association Opinion and Award, hereinafter "Arbitration Award.")
On June 3, 1999, plaintiff returned to work as a group home counselor at the Training School. On May 24, 1999, counsel for the Training School requested mitigation of damages information for Ms. Thomas-Still from UAW Local 2327's counsel. (See Huggett Certif., ¶ 4, Ex. 1.) On June 2, 1999, plaintiff sent a letter to James A. Mallardi, Jr., the Human Resources Director at the Training School. (See Pl.'s Opp., Ex. D.) The letter followed up on an earlier telephone conversation between the two and asked for a written assurance from the Training School and the UAW Local 2327 that the "hostile and prejudice work environment would come to an immediate halt." (Id.) The letter also provided that "upon my return to work, you said all my time (vacation), benefits, raises, would be restored as if I never was terminated. I asked about my remedy for my lost wages and benefits per the arbitration award, your response was to see what was a fair remedy . . . and that could be resolved in a month to forty-five days." (Id.) The letter provided that earnings information for 1996 and 1997 was being supplied therewith. (Id.)
On June 23, 1999, the Training School provided its counsel with wage and past income rates, as well as a 1996 W-2 form for Thomas-Still. (Pl.'s Opp., Ex. F, Letter from Mallardi to Huggett, Jun. 23, 1999.) On June 25, 1999, the Training School's counsel forwarded Thomas-Still's wage and past income rates to counsel for UAW Local 2327. (Huggett Cert., Ex. 2, Letter from Huggett to Litvin, Jun. 25, 1999.) The Training School again requested information from the union about Thomas-Still's mitigation and unemployment compensation earnings and advised counsel for the Union (Litvin) that the Training School wanted to make payment on the arbitration award to Thomas-Still before the end of June 1999. (Id.)
Plaintiff asserts that she had repeated conversations with Mallardi until he left the position of Human Resources Director and also that he advised her that he was trying to work out a deal for her. (See Thomas-Still Aff., ¶ 6.) Plaintiff advised Mallardi that she was unemployed from December 29, 1997 through June 3, 1999 because employers were wary of the negative reference from the Training School. (Id., ¶¶ 5-6.) Plaintiff also asserts that Sandy Cheeks, the Union Shop Steward, advised her that the Training School had made an offer of $50,000.00 to settle her claim. (Id., ¶ 6.) When Patricia Mack took over as the Training School's Human Resources Manager, plaintiff alleges that she received no further responses to her questions about her back pay award. (Id., ¶ 7.) Plaintiff's assertions by affidavit, cited here, were confirmed by her testimony.
On October 25, 1999, UAW Local 2327 President Archie Hepler wrote to Jane Detweiller, the Training School's Chief Executive Officer, and inquired into the status of back pay for Ms. Thomas-Still. (Huggett Certification, ¶ 6.) In or about November or December 1999, Fran Smith, New Jersey Area Director of UAW, AFL-CIO, Region 9, spoke to plaintiff regarding the payment of her back pay award. (Smith Aff., ¶ 3.) Smith advised plaintiff that she was required to provide information on benefits and income she earned while terminated, so that her back pay award could be calculated and paid. (Id.) Smith advised plaintiff that because she refused to provide such mitigation information to UAW Local 2327, the Union could not require the payment of her back pay. (Id.) Smith affirmed that he has not spoken to Ms. Thomas-Still since that conversation in late 1999 and that he never spoke with her in December 2000. (Id., ¶ 4.) Smith likewise repeated these assertions in his testimony.
On the other hand, plaintiff testified that Smith advised her to get an attorney in December 2000. I find that plaintiff has established that her union continually indicated to her that it was undertaking efforts on her behalf to enforce the back pay award throughout 1999 and 2000, until December 18, 2000, when Smith told her, in response to her dissatisfaction about her local union's lethargic efforts, that she should get her own attorney if she was not satisfied since the union could do no more for her.
The events leading to Smith's December 18, 2000 statement are summarized as follows. On November 3, 1999, defendant's attorney, Mr. Huggett, corresponded with Archie Hepler and requested mitigation employment information from him, so that plaintiff's back pay award could be calculated and paid. (See Huggett Certification, ¶ 7, Ex. 3.) Huggett noted that plaintiff and her union had failed to provide the necessary employment and mitigation information, and that no payment could be made by defendant until such information was received. (Id.) In March of 2000, plaintiff attended a union members meeting at the Ramada Inn in Vineland, where she heard Fran Smith speak about her situation as a "win" by the union for one of its sisters. (Thomas-Still Testimony, Dec. 6, 2001; Pl.'s Supp. Exs. 3-4.) A former co-worker of plaintiff's, Michael E. Liles, confirmed that he attended the meeting with plaintiff in March 2000 and that Smith spoke about her situation, although he did not use her name. (Pl.'s Supp. Ex. 3.) Smith appeared to be unaware in March, 2000 that plaintiff had not received payment upon her successful award.
On April 29, 2000, plaintiff was again terminated from her employment at the Training School. *fn3 Plaintiff claims that she telephoned Detweiller in August 2000 and advised her that she would be taking legal action because she had not received her back pay award. Plaintiff contends that Detweiller advised her that a lawsuit was not necessary and that the Training School's attorneys would work out a figure for her award in order to bring closure to the matter. On August 11, 2000, Patricia Mack, the Training School's Human Resources Director, wrote a letter to plaintiff, confirming their recent conversation and advising her that "[d]iscovery of the facts are vital to your arbitration award. We will inform you of our progress accordingly." (Pl. Supp. Ex. 5.) On December 4, 2000, Archie Hepler, President of UAW Local 2327, wrote to plaintiff regarding the topic of "award follow-up." (Pl. Supp. Ex. 7.) Hepler confirmed their recent telephone conversation and advised Ms. Thomas-Still that "[a]s discussed, [the Union] has scheduled an appointment to meet with you on December 12, 2000 at the Union Headquarters . . . to submit your affidavit of the facts surrounding the delay in acquiring your award." (Id.) Hepler added that "it is [the Union's] goal to bring closure to these proceedings." (Id.) This letter confirms plaintiff's testimony that as of early December 2000, the Union still communicated with her about resolving her claim. Shortly thereafter, plaintiff recognized that the local union was not really pursuing her claim and she complained to the area level, to Mr. Smith's office, in Trenton. Her telephone records reflect that she placed three calls to Mr. Smith's Trenton office on December 18, 2000, of the duration of 8 minutes, 5 minutes, and 2 minutes. (Pl.'s Supp., Ex. 6.) These records likewise confirm her testimony that she had also called Smith's office in November, 1999 and May, 2000.
Mr. Smith testified that he was promoted in September or October of 2000, becoming regional director of Region 9, supervising the new representative Sandy Urban, whose jurisdiction included Local 2327, among others. He testified that if plaintiff had called his office in December 2000 as she maintains, her call would have been forwarded to Sandy Urban and not to him. He testified that when a call came from a Local, his secretary would tell him and he would direct ...