Judd v. Service Employees International Union Local 32bj ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DALE JUDD,
Plaintiff,
v.
Civil Action No. 19-2925 (RDM)
SERVICE EMPLOYEES
INTERNATIONAL UNION, Local 32BJ
et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Dale Judd, proceeding pro se, brought this lawsuit against his former employer,
Melwood Horticultural Training Center, Inc. (“Melwood”), and his union, Service Employees
International Union, Local 32BJ (“the Union”), to challenge the loss of his job as a general house
cleaner at the headquarters of the Department of Justice. Dkt. 1. In an earlier opinion, the Court
granted Defendants’ motions to dismiss, Dkt. 8; Dkt. 11, and accordingly dismissed Plaintiff’s
complaint. Judd v. Serv. Emps. Int’l Union, Loc. 32BJ, No. 19-cv-2925, 2020 WL 5702088, at
*8 (D.D.C. Sept. 23, 2020). Specifically, the Court held that Plaintiff’s “hybrid § 301/fair
representation” claim was barred by the six-month limitations period in § 10(b) of the National
Labor Relations Act (“NLRA”), id. at *3–6, and that Plaintiff’s Title VII claims were time-
barred as well, id. at *6. The Court also held that the decision by the General Counsel of the
National Labor Relations Board (“NLRB”) not to issue an administrative complaint based on
Plaintiff’s charges against Defendants was not subject to judicial review. Id. Finally, the Court
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held that Plaintiff had failed to state a claim for defamation or intentional infliction of emotional
distress. Id. at *7.
In opposing the motions to dismiss, Plaintiff had mentioned the possibility of amending
his complaint. Dkt. 15 at 13; Dkt. 18 at 3. Based on the wording of his briefs, however, “it
[was] unclear whether [Plaintiff] was seeking leave to amend his complaint or just indicating that
he might seek leave at some time in the future.” Judd, 2020 WL 5702088, at *7. As the Court
explained, under Rule 15(a), Plaintiff could have amended his complaint once as a matter of
course within 21 days of service of the motions to dismiss. Id. (citing Fed. R. Civ. P.
15(a)(1)(b)). After that 21-day deadline had passed, Plaintiff could have amended “only with the
opposing party’s written consent or the court’s leave.” Id. (citing Fed. R. Civ. P. 15(a)(2)). But
“because Plaintiff is proceeding pro se and given his apparent confusion about his right to amend
the complaint within 21 days of Defendants’ motions to dismiss,” the Court permitted “Plaintiff
to file a motion seeking leave to file an amended complaint within 30 days” of the Court’s
opinion. Id. at *8. The Court cautioned, however, that “amendment to Plaintiff’s complaint
would likely be futile,” given that “no more nuanced or better crafted pleading will change the
fact that Plaintiff did not file his suit within the limitations period” for his “hybrid § 301/fair
representation claim.” Id. The Court also instructed Plaintiff that his motion to amend must be
accompanied by “a redlined version of the proposed, amended complaint showing where he has
made changes from his original complaint.” Id.
On October 22, 2020, Plaintiff filed a motion to amend his complaint. Dkt. 20. Instead
of attempting to rectify the specific flaws identified in the Court’s prior opinion, however,
Plaintiff added unresponsive detail regarding his claims against the existing Defendants and,
most significantly, sought to add the NLRB as a defendant “concerning their deceitfulness not to
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uphold the rules of labor laws, unlawful actions, failures to cure the disputes between the parties,
errors and deficiencies brought to their attention during the administrative processing of his
complaint that were never resolved.” Id. at 1. The Union and Melwood each oppose Plaintiff’s
motion to amend with respect to his claims against them, but they take no position on his request
to add the NLRB as a defendant. Dkt. 21; Dkt. 22.
Under Rule 15, the Court “should freely give leave” to amend “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). But “leave to amend should be denied when amendment would be
futile,” Sai v. Dep’t of Homeland Sec., 149 F. Supp. 3d 99, 126 (D.D.C. 2015), including when
“the proposed claim would not survive a motion to dismiss,” James Madison Ltd. by Hecht v.
Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). Under Rule 21, the Court “may at any time, on
just terms, add or drop a party.” Fed. R. Civ. P. 21. The standard for adding or dropping a party
is “permissive” but committed to the Court’s “discretion.” Democratic Party of Wis. v. Vos, 966
F.3d 581, 587 (7th Cir. 2020); Cabrera v. Mun. of Bayamon, 622 F.2d 4, 6 (1st Cir. 1980).
The Court begins with the claims against the existing Defendants. The Union argues that
the motion to amend should be denied because Plaintiff failed to attach a proper redline of the
proposed complaint and because his proposed amendments fail “to add anything new” to his
claims against the Union. Dkt. 21 at 2. Melwood opposes the motion on substantially the same
grounds. Dkt. 22 at 2–3. With respect to the redline, Plaintiff did attach to his motion a version
of his proposed amended complaint that appears to show the new text in red. Dkt. 20-3. The
formatting of his document may not be perfect, but in light of his pro se status, the Court will
excuse any technical deficiencies in his filing. The Court agrees with Defendants, however, that
Plaintiff’s proposed amendments neither cure the deficiencies that the Court previously
identified, nor do they add any new claims against Melwood or the Union. Indeed, upon
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reviewing Plaintiff’s lengthy proposed amended complaint, the Court cannot discern any
material change to Plaintiff’s claims against Melwood and the Union. Plaintiff’s motion to
amend will therefore be denied with respect to any claims against the existing Defendants.
Plaintiff’s motion primarily seeks to add claims against the NLRB. Defendants take no
position on this request. Plaintiff’s proposed amended complaint contains several additional
pages of grievances against the NLRB, but the nature of his new legal claims, if any, is not clear.
It appears that Plaintiff, at least in part, seeks to challenge the General Counsel’s decision not to
issue an administrative complaint against Defendants. See, e.g., Dkt. 20-3 at 12 (Am.
Compl. ¶ 35). That effort fails as a matter of law. As the Court explained in its prior opinion,
“the General Counsel’s decision not to file a complaint in a given case is an unreviewable
‘prosecutorial determination.’” Judd, 2020 WL 5702088, at *6 (alteration and additional internal
quotation marks omitted) (quoting N.L.R.B. v. United Food & Com. Workers Union, Local 23,
484 U.S. 112, 130 (1987)); see also Beverly Health & Rehab. Servs., Inc. v. Feinstein, 103 F.3d
151, 156 (D.C. Cir. 1996) (holding that the NLRA “does not permit the district court to exercise
jurisdiction over the decision of the General Counsel of the NLRB to issue an unfair labor
practice complaint”). Plaintiff’s effort to challenge the General Counsel’s failure to act is
therefore futile.
Because the General Counsel did not file an administrative complaint, the NLRB did not
issue a decision in Plaintiff’s case. But even if Plaintiff’s amended complaint could be construed
as challenging some final action of the NLRB, judicial review of the NLRB’s orders is vested
exclusively in the courts of appeals. See 29 U.S.C. § 160(f) (“Any person aggrieved by a final
order of the Board granting or denying in whole or in part the relief sought may obtain a review
of such order in any United States court of appeals in the circuit wherein the unfair labor practice
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in question was alleged to have been engaged in or wherein such person resides or transacts
business, or in the United States Court of Appeals for the District of Columbia.”). Insofar as
Plaintiff’s proposed amended complaint could be read as challenging some action of the NLRB,
therefore, this Court would lack jurisdiction over that claim. Because any claims that Plaintiff
might assert against the NLRB or its General Counsel would be futile, Plaintiff’s motion to add
the NLRB as a defendant will be denied.
CONCLUSION
For the foregoing reasons, the Court will DENY Plaintiff’s motion to amend his
complaint and to add the NLRB as a defendant, Dkt. 20, and will now enter final judgment
dismissing the case.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: April 14, 2021
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