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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14194
Non-Argument Calendar
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D.C. Docket No. 0:19-cv-60242-RKA
DARYL BROWN,
Plaintiff-Appellant,
versus
AIR LINE PILOTS ASSOCIATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 6, 2020)
Before JORDAN, NEWSOM and MARCUS, Circuit Judges.
PER CURIAM:
Daryl Brown, an airline pilot proceeding pro se, appeals the district court’s
dismissal of his complaint that raised claims brought under the Railway Labor Act
(“RLA”), 45 U.S.C. § 152, and Florida law. Brown’s claims arose out of a collective
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bargaining agreement entered into between JetBlue Airways and a union, the Air
Line Pilots Association, which contained an agency shop agreement that gave
JetBlue authority to fire any pilots who were not members of the union and who
failed to pay service charges for the union’s representation. On appeal, Brown
argues that the district court abused its discretion in dismissing his complaint as a
shotgun pleading and also erred in dismissing his claims on the merits, for failure to
state a claim for which relief could be granted. After thorough review, we affirm.
We review de novo the district court’s grant of a motion to dismiss under Rule
12(b)(6) for failure to state a viable claim. Hill v. White,
321 F.3d 1334, 1335 (11th
Cir. 2003). A plaintiff abandons a claim on appeal if he does not include it in his
brief. Access Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004).
Rule 12(b)(6) provides for dismissal of a complaint that fails to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a
motion to dismiss, the district court generally must limit “its consideration to the
pleadings and exhibits attached thereto.” Grossman v. Nationsbank, N.A.,
225 F.3d
1228, 1231 (11th Cir. 2000) (quotations omitted).
Rule 8(a)(2) provides that a pleading that states a claim for relief must contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the
defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
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Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quotations and alterations
omitted). The complaint must contain more than “labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.”
Id. While the
factual allegations in the complaint need not be detailed, they must state a claim to
relief that is plausible on its face.
Id. at 555, 570. Pro se pleadings are liberally
construed and held to less stringent standards than those drafted by attorneys, but
they still must suggest some factual basis for a claim. Jones v. Fla. Parole Comm’n,
787 F.3d 1105, 1107 (11th Cir. 2015).
So-called “shotgun” pleadings do not provide a short and plain statement of a
claim as required by Rule 8. Jackson v. Bank of Am., N.A.,
898 F.3d 1348, 1358
(11th Cir. 2018). Shotgun pleadings include complaints that: (1) contain multiple
counts where each adopts the allegations of all preceding counts; (2) are filled with
“conclusory, vague, and immaterial facts not obviously connected to any particular
cause of action”; (3) do not separate each cause of action or claim into separate
counts; or (4) assert multiple claims against multiple defendants but do not specify
which defendant is responsible for which acts or omissions. Weiland v. Palm Beach
Cty. Sheriff’s Office,
792 F.3d 1313, 1321-23 (11th Cir. 2015). Shotgun pleadings
are characterized by their failure “to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests.”
Id. at 1323.
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“When a more carefully drafted complaint might state a claim, a plaintiff must
be given at least one chance to amend the complaint before the district court
dismisses the action with prejudice.” Evans v. Ga. Reg’l Hosp.,
850 F.3d 1248, 1254
(11th Cir. 2017) (quotations omitted). However, a district court need not allow for
amendment: “(1) where there has been undue delay, bad faith, dilatory motive, or
repeated failure to cure deficiencies by amendments previously allowed; (2) where
allowing amendment would cause undue prejudice to the opposing party; or (3)
where amendment would be futile.” Bryant v. Dupree,
252 F.3d 1161, 1163 (11th
Cir. 2001). An amendment would be futile if “the complaint as amended would still
be properly dismissed or be immediately subject to summary judgment for the
defendant.”
Evans, 850 F.3d at 1254 (quotations omitted).
The RLA allows employees of carriers to “organize and bargain collectively
through representatives of their own choosing.” 45 U.S.C. § 152, Fourth. Once a
union is formed, that union becomes the exclusive bargaining representative for a
class of employees and, thus, owes a duty “fairly and equitably to represent all
employees of the craft or class, union and nonunion.” Int’l Ass’n of Machinists v.
Street,
367 U.S. 740, 761 (1961); see also Steele v. Louisville & N.R. Co.,
323 U.S.
192, 200 (1944) (holding that a labor organization must represent all members of a
“craft or class of employees . . . regardless of their union affiliations or want of
them”). That duty of representation requires the negotiation and administration of
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collective bargaining agreements, which are expensive endeavors.
Street, 367 U.S.
at 761-62. To help offset that cost and prevent “free riders,” the RLA allows unions
to collect fees from non-members of the collective class by way of an agency shop
agreement.
Id. (quotations omitted); see also 45 U.S.C. § 152, Eleventh. An agency
shop agreement is an agreement requiring all employees to join a union and pay
union dues. Harris v. Quinn,
573 U.S. 616, 628 (2014). The union must use non-
member fees to pay for “negotiating and administering collective agreements, and
the costs of the adjustment and settlement of disputes.”
Street, 367 U.S. at 764.
The union may not, however, use those fees collected from non-members to
force “employees, over their objection, to support political causes which they
oppose.”
Id. But even if a union improperly spends non-member fees, it is not an
appropriate remedy to suspend the agency shop agreement or prevent the union from
collecting fees from an objecting non‑member.
Id. at 771-74.
An employee class member may be exempted from the non‑member service
charge if he is denied membership, required to pay fees that are atypical, or is
expelled from the union. 45 U.S.C. § 152, Eleventh. However, where a class
member has an equal choice to join a union, but chooses not to exercise that choice,
he has “no voice in the affairs of the union.” N.L.R.B. v. Allis Chalmers Mfg. Co.,
388 U.S. 175, 191 (1967).
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To maintain a claim in Florida for intentional infliction of emotional distress,
a plaintiff must allege conduct so “outrageous” in character and so extreme in degree
as to go “beyond all bounds of decency,” and to be regarded as “utterly intolerable
in a civilized community.” Kim v. Chang,
249 So. 3d 1300, 1305 (Fla. Dist. Ct.
App. 2018) (quotations omitted). A union may publish a list of non-members in a
newsletter. See Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers, AFL-
CIO v. Austin,
418 U.S. 264, 283 (1974). In Austin, a union published in its
newsletter a list of the names of non-members titled “List of Scabs.”
Id. at 267
(quotations omitted). The Supreme Court held that the plaintiff -- a non-member
“scab” -- could not succeed on a libel suit against the union because the information
published “was literally and factually true.”
Id. at 283 (quotations omitted).
Here, Brown’s complaint failed to state a claim for which relief could be
granted, so allowing for the amendment of the shotgun nature of his complaint would
have been futile. See
Evans, 850 F.3d at 1254 (noting that an amendment is futile if
a complaint would be subject to immediate dismissal even after amendment). 1 For
starters, Brown abandoned any claim concerning the union’s initial ratification by
1
When the district court informed Brown that his earlier complaint had failed to incorporate any
factual allegations into his claims, it is not clear from the record that Brown was put on notice
that, when he amended his complaint, he could not have each count adopt the allegations of all
preceding counts. See
Jackson, 898 F.3d at 1359. We need not decide whether the district court
properly dismissed the amended complaint as a shotgun pleading, however, because, as we’ll
discuss, it properly dismissed it on futility grounds. See
Evans, 850 F.3d at 1254.
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not briefing the issue on appeal. See Access
Now, 385 F.3d at 1330. Indeed, Brown
admitted in district court that he did not timely challenge that ratification.
As for Brown’s claim that the union infringed his rights by prohibiting his
participation in voting, Brown failed to state a claim for which relief could be
granted. See Fed. R. Civ. P. 12(b)(6). The union is not required to allow non-
members to vote or participate in its union affairs. Allis Chalmers Mfg.
Co., 388
U.S. at 191. Further, the union may collect union fees from non-members to help
offset the costs of collective bargaining and prevent free riders -- those employees
who take advantage of union benefits but do not contribute to the cost of those
benefits. See
Street, 367 U.S. at 761-64. Brown failed to allege that he could meet
any of the exceptions to non‑member fee collection, since he did not allege that: (1)
he could not obtain membership in the same manner as all other class members; (2)
the union’s non-member fees were atypical; or (3) he was expelled from the union.
See 45 U.S.C. § 152, Eleventh. Thus, Brown’s claim that the union violated his
rights by denying him access to voting on union affairs did not state a claim for
which relief could be granted.
As for the union’s use of non-member fees to pay for political activities, the
only relevant claim Brown made in his amended complaint was that he was barred
from voting because he objected to the union’s use of his fees for political activities.
But, under Supreme Court precedent, a claim may be viable if a union, “over the
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employee’s objection, [uses] his money to support political causes which he
opposes,”
Smith, 367 U.S. at 768, not if a union bars an employee from voting, Allis
Chalmers Mfg.
Co., 388 U.S. at 191. Brown, notably, never alleged that the union
actually used his fees for political activities, nor did the exhibits to his complaint
suggest that it did. Rather, in his prayer for relief, he sought to require the union to
reveal whether it had made political contributions, further undermining any
suggestion that the union had done so. Moreover, the primary relief Brown sought
-- declaring the agency shop agreement invalid -- is not available for a claim of
misappropriation of non-member fees. See
Street, 367 U.S. at 771-74. Thus, Brown
failed to state a plausible claim for relief for any of his claims concerning the RLA
or his inability to vote in union affairs. See
Twombly, 550 U.S. at 555.
Finally, as for Brown’s intentional-infliction-of-emotional-distress claim, he
alleged no facts indicating that any harassment had occurred. Instead, Brown alleged
only that he sent a letter to the union suggesting that harassment could occur as a
result of the publication of the list of non-members. That allegation of attenuated
harm is not enough to state a claim for which relief could be granted. See
Kim, 249
So. 3d at 1305 (providing that, to state a claim for intentional infliction of emotional
distress, the actions must be outrageous); see also
Twombly, 550 U.S. at 555 (noting
that a complaint must state a plausible claim to relief). But even if Brown had pled
facts to show he had been harassed as a result of the newsletter, publishing a list of
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non-member names to encourage union membership is allowed so long as the
information is factual, and he did not allege that the union’s list of non-members was
inaccurate or misleading. See
Austin, 418 U.S. at 283. Thus, the district court did
not err in dismissing Brown’s intentional-infliction-of-emotional-distress claim.
In short, because Brown’s amended complaint did not state a claim for which
relief could be granted, amendment of the shotgun nature of that complaint would
have been futile. See
Evans, 850 F.3d at 1254. Accordingly, we affirm the dismissal
with prejudice of Brown’s amended complaint.
AFFIRMED.
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