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`16-3566-cv
`Lane v. 1199 SEIU Healthcare Workers Labor Union
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`SUMMARY ORDER
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`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
`SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
`BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
`WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
`MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
`NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
`COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
`
`
`At a stated term of the United States Court of Appeals for the Second Circuit, held
`at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
`York, on the 18th day of May, two thousand seventeen.
`
`
`PRESENT: REENA RAGGI,
`DENNY CHIN,
`SUSAN L. CARNEY,
`Circuit Judges.
`
`
`----------------------------------------------------------------------
`DAWN CHERISE LANE,
` Plaintiff-Appellant,
`
`
`
`
`
`No. 16-3566-cv
`
`
`v.
`
`1199 SEIU HEALTHCARE WORKERS LABOR
`UNION,
`
` Defendant-Appellee,
`
`MONTEFIORE WAKEFIELD,
` Defendant.
`
`----------------------------------------------------------------------
`APPEARING FOR APPELLANT:
`COLLEEN NI CHAIRMHAIC, The Law
`Office of Gerald Gardner Wright, Freeport,
`New York.
`
`
`APPEARING FOR APPELLEE:
`
`
`
`
`
`
`RICHARD L. DORN, Levy Ratner, P.C.,
`New York, New York.
`
`1
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`

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`Appeal from a judgment of the United States District Court for the Southern
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`District of New York (Jesse M. Furman, Judge).
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`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
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`AND DECREED that the March 6, 2017 judgment1 of the district court is AFFIRMED.
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`Plaintiff Dawn Cherise Lane appeals from the Fed. R. Civ. P. 12(b)(6) dismissal
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`with prejudice of her claims against the 1199 SEIU Healthcare Workers Labor Union (the
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`“Union”) stemming from her termination as a registered nurse by Montefiore Wakefield
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`Hospital (“Montefiore”). We review de novo a district court’s dismissal of a complaint
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`pursuant to Fed. R. Civ. P. 12(b)(6), accepting the complaint’s factual allegations as true
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`and drawing all reasonable inferences in the plaintiff’s favor. See Trustees of Upstate
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`N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To
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`survive dismissal, a complaint must plead “enough facts to state a claim to relief that is
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`plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and we will
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`not accept as true allegations stating only “legal conclusions,” Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009). We assume the parties’ familiarity with the facts and record of prior
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`proceedings, which we reference only as necessary to explain our decision to affirm for
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`1 The district court entered the opinion and order at issue in this appeal on September 20,
`2016, and Lane voluntarily dismissed her claims against the remaining defendant on
`October 5, 2016. No separate document setting out judgment was issued; accordingly,
`pursuant to Fed. R. Civ. P. 58(c)(2)(B), judgment is deemed entered 150 days from the
`October 5, 2016 final resolution of her claims, which, excluding the terminal Sunday
`pursuant to Fed. R. Civ. P. 6(a)(1)(c), is March 6, 2017. Despite the lack of a judgment,
`this Court has jurisdiction to hear the appeal noticed on October 18, 2016, as the opinion
`and dismissal order constituted a “final decision” within the meaning of 28 U.S.C. §
`1291. See, e.g., Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 66 (2d
`Cir. 2011).
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`
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`2
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`

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`substantially the reasons stated by the district court in its thorough and well-reasoned
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`opinion. See Lane v. Wakefield, No. 16-CV-1817 (JMF), 2016 WL 5118301 (S.D.N.Y.
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`Sept. 20, 2016).2
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`Lane’s complaint named both Montefiore and the Union as defendants and alleged
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`two state-law causes of action: wage theft and constructive dismissal. Lane voluntarily
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`dismissed her claims against Montefiore because she failed to effect service and does not
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`dispute the dismissal of the wage theft and constructive dismissal claims as against the
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`Union. Instead, she appeals from the district court’s conclusion that, even construing
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`her complaint liberally to include a hybrid claim against the Union for breach of the duty
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`of fair representation pursuant to Section 301 of the Labor Management Relations Act
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`(“LMRA”), see 29 U.S.C. § 185, Lane failed to plead facts sufficient to state such a
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`claim, see Lane v. Wakefield, 2016 WL 5118301, at *2. To plead such a claim, Lane
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`had to allege facts demonstrating both that (1) her employer breached its collective
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`bargaining agreement and (2) her union breached its duty of fair representation. See
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`Domnister v. Exclusive Ambulette, Inc., 607 F.3d 84, 87 (2d Cir. 2010). Assuming that
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`Lane could plead the first breach, the district court correctly concluded that she failed to
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`allege facts sufficient to show that the Union took “arbitrary, discriminatory, or . . . bad
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`faith” actions that bore a “causal connection . . . [to] [her] injuries,” as required to show a
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`breach of the duty of fair representation. Vaughn v. Air Line Pilots Ass’n, Int’l, 604
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`2 Despite acknowledging diversity jurisdiction below, Lane now argues that the district
`court erred in concluding that it had diversity jurisdiction in addition to federal-question
`jurisdiction. See Lane v. Wakefield, 2016 WL 5118301, at *1 n.1. Because Lane does
`not dispute the court’s independent federal-question jurisdiction, we need not address the
`issue of diversity jurisdiction.
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`
`
`3
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`F.3d 703, 709 (2d Cir. 2010) (internal quotation marks omitted); see Lane v. Wakefield,
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`2016 WL 5118301, at *2.
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`Lane argues that even if the district court was correct in that conclusion, it erred in
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`dismissing her complaint against the Union with prejudice because an LMRA hybrid
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`claim was not the “only possible claim” she could bring against that defendant.
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`Appellant’s Reply Br. 12. Lane maintains that the facts alleged could “support a breach
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`of contract action against [t]he Union.” Id. at 13. That argument fails, however,
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`because the powerful “preemptive force” of Section 301, Franchise Tax Bd. v. Constr.
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`Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 23 (1983), displaces all claims
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`“substantially dependent on analysis of a collective-bargaining agreement,” which would
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`be the case with a breach-of-contract claim predicated on the Union’s failure to represent
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`Lane against Montefiore, Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (1987) (internal
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`quotation marks omitted).
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`Insofar as Lane argues that she should have been afforded leave to amend her
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`hybrid claim, the district court sua sponte granted Lane leave to amend her complaint
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`after the Union’s motion to dismiss, but she declined to do so and never thereafter sought
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`leave to amend. “While leave to amend . . . is freely granted, . . . no court can be said to
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`have erred in failing to grant a request that was not made.” Gallop v. Cheney, 642 F.3d
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`364, 369 (2d Cir. 2011) (internal quotation marks omitted). In any event, the district
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`court correctly determined that the factual assertions made in Lane’s briefing below, even
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`if properly pleaded, would not sustain her claim. See Lane v. Wakefield, 2016 WL
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`5118301, at *2. The additional facts to which she points on appeal—complaint
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`4
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`allegations that she is “of multi-cultural origin” and “over forty (40) years of age,” Pl.
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`App’x 8; similar statements in an affidavit supporting her preliminary injunction motion;
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`and records of her Union dues payments—neither state nor fairly suggest any connection
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`between her race or age and the Union’s alleged breach of the duty to represent her.3
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`Therefore, the district court did not err in dismissing the complaint with prejudice. See
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`Gallop v. Cheney, 642 F.3d at 369 (holding that district court did not err in dismissal with
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`prejudice “[i]n the absence of any indication that [plaintiff] could—or would—provide
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`additional allegations that might lead to a different result”).
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`We have considered Lane’s remaining arguments and conclude that they are
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`without merit. Accordingly, the March 6, 2017 judgment of the district court is
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`AFFIRMED.
`
`FOR THE COURT:
`CATHERINE O’HAGAN WOLFE, Clerk of Court
`
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`3 Lane also points to positive employment evaluations to suggest that she was terminated
`by Montefiore for impermissible reasons. Those evaluations, however, have no bearing
`on whether the Union breached its duty for those reasons.
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`5
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`