Opinion
Civil Action No. 08-12010-LTS.
August 13, 2009
MEMORANDUM AND ORDER ON PENDING MOTIONS
Pending before the Court are: (1) the Plaintiffs' Motion for Leave to File First Amended Complaint (Docket # 24); (2) Defendants Local 1301 and George Alcott's Motion to Dismiss (Docket # 13); and, (3) Defendants Idearc Media Corp., Kimberly Donahue, Ed Raad and Todd Sanislow's Motion for Judgment on the Pleadings (Docket # 32). To date, only Defendant Hewitt Associates, Inc. has not filed a dispositive motion (or otherwise appeared).
Subsequent to the filing of these motions, Defendant Idearc filed its Suggestion of Bankruptcy (Docket # 51) and this case is therefore stayed as to Idearc pursuant to 11 U.S.C. § 362(a). Accordingly, the Court will take no action concerning that portion of the Motion for Judgment on the Pleadings (Docket # 32) which addresses claims advanced against Idearc, or on the Motion to Amend (Docket #24) to the extent that it adds or amends claims against Idearc. Both of these motions will be terminated for administrative purposes as to defendant Idearc.
FACTUAL BACKGROUND
In keeping with the standard applicable to motions brought pursuant to Fed.R.Civ.P. 12, the Court will consider the pending dispositive motions in light of the facts alleged in the Complaint, drawing all reasonable inferences in the Plaintiffs' favor.
Record citations throughout are to the Court docket's pagination, rather than the internal pagination of the documents filed.
Idearc employed each of the five plaintiffs as sale representatives and had employed each for many years. Docket # 1 at ¶¶ 16, 21, 23, 28, 31. At all relevant times, each Plaintiff was over forty years of age and was a member of Defendant Local 1301 of the Communications Workers of America, AFL-CIO (the Union). Id. at ¶¶ 15, 16, 18, 22, 26, 30, 33. Defendant George Alcott is the President of the Union. Id. at ¶ 7. The Plaintiffs are participants in Idearc's pension plan (the Plan) and Defendant Hewitt Associates, Inc. is the Plan Administrator. Id. at ¶ 41.
On June 2, 2002, the Union and Idearc adopted a Collective Bargaining Agreement (CBA) governing the employment relationship between Idearc and members of the Union, including each of the Plaintiffs. Id. at ¶ 17. Article 43 of the CBA included a Minimum Standards Plan, which required performance at minimum set percentiles of a peer group. Docket #33-3 at 45-46. Under the CBA, Idearc could terminate an employee if the employee failed to meet the minimum level of performance for two out of three six-month measurement periods (depending upon the results of an examination of the four six-month periods immediately preceding the failed six month period). CBA, § 43.03(a), Docket #33-3 at 45-45. In the Spring of 2005, Idearc increased the peer performance percentile measure from thirty percent to seventy percent and made that change retroactive to January 1, 2005. Docket #1 at ¶ 34; Docket # 24-3 at ¶ 6. Defendant Alcott, then the Union President, told union members in April, 2005, that he did not support the increase in the peer performance percentile measure, and that Idearc wanted a percentile of one hundred percent, but would agree to no less than seventy. Docket #1 at ¶ 34; Docket # 24-3 at ¶ 7. Immediately following this union meeting, Defendant Alcott represented to Plaintiff Cameron and others that he had filed a grievance on the increase to the seventy percentile and would "work hard" to get it reversed. Docket #24-2 at ¶ 34; Docket # 24-3 at ¶ 7. When asked thereafter about the "fight" for reversal, Alcott "represented that he was `working on it.'" Id. Alcott discouraged the filing by Union members of grievances concerning the increase in the peer performance percentile measure. Id. at ¶ 35.
The CBA provided that the minimum allowable level of performance for a Sales Representative will be the lower of: . . . (1) the sales channel's percent net gain target as determined by [Idearc] for the calendar year applied to each six-month measurement period; or (2) The percent net gain at the 30th percentile of performance in the peer group for the six-month measurement period." CBA § 43.02(1), Docket #33-3 at 45. The Court considers the CBA, without converting the Rule 12 motions into Rule 56 motions (See Fed.R.Civ.P. 12(d)), because the Complaint's factual allegations are expressly linked to, and admittedly dependent upon, the CBA (the authenticity of which is not challenged). Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008). Affidavits attached to a Complaint are properly part of that pleading. Id. The Court therefore also considers facts recited in the Proposed First Amended Complaint and declarations attached thereto, which are necessary to determination of the question of the futility of the proposed amendment.
While the Proposed Amended Complaint recites representations to this effect by Alcott, the attached declaration of Plaintiff Cameron refers merely to Cameron's "understanding" that Alcott filed a grievance in order to fight the increase.
Idearc terminated Plaintiff O'Keefe in January, 2007, citing his failure to meet the peer performance percentile measure under the CBA. Docket #1 at ¶ 33. The CBA expired on June 2, 2007. Id. at ¶ 17. Alcott stated that he would not support a strike because he did not want to lose his pension. Docket #24-2 at ¶ 37; Docket #24-3 at ¶ 11. On July 13, 2007, Idearc also terminated Plaintiffs Cameron, Ferris, Gleason and Rosenthal, citing the failure of each to meet the peer performance percentile measure under the CBA (which had expired approximately six months earlier). Id. at ¶¶ 20, 22, 26, 30. Pursuant to Article 46 of the CBA, each Plaintiff had the right to seek review of his termination before the Performance Plan Review Board consisting of four persons, two each from the Union and Idearc. CBA, § 46.01, Docket #33 at 60; Docket # 1 at ¶ 60. Subsequent to their terminations of Plaintiffs Cameron, Ferris, Gleason and Rosenthal, a Performance Plan Review Board was convened which failed to overturn any of the terminations.Id. at ¶ 40. O'Keefe's termination was also upheld by the Performance Plan Review Board prior to expiration of the CBA. Id. at ¶ 37.
In November, 2008, the Union and Idearc reached agreement on a new CBA which reduced the peer performance percentile measure from seventy to twenty percent. Docket #1 at ¶ 38. In addition, it provided for demotion rather than termination for the failure to meet the peer performance percentile measure. Id.
DISCUSSION
I. The Motion to Amend
The Plaintiffs move pursuant to Fed.R.Civ.P. 15(a)(2) to amend their Complaint in order to: (1) amend the allegations against Defendant Alcott to add allegations concerning (a) his misrepresentations to the membership that he had pursued a grievance to challenge the increase in the peer performance percentile measure; (b) that Alcott discouraged the filing of Union member grievances concerning the increase; and, (c) that Alcott stated that he would not support a strike because he did not want to lose his pension; (2) to add the factual allegation that the 2008 CBA does not provide for termination, but rather demotion, for failure to meet the peer performance percentile measure; (3) to add a claim on behalf of Plaintiff Gleason against Idearc for violation of state wage laws; and (4) to delete claims brought in Count II of the Original Complaint (Docket #1) against Defendants Raad and Donahue.Fed.R.Civ.P. 15 provides that a plaintiff seeking to amend a complaint following the filing of a responsive pleading may do so "only with the opposing party's written consent or the Court's leave." Fed.R.Civ.P. 15(a)(2). "The court should freely give leave when justice so requires." Id. Even so, district courts enjoy "significant latitude in deciding whether to grant leave to amend." U.S. ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009) (quoting ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008) (internal citation omitted)). Futility of the amendment is an adequate reason to deny a motion to amend. Todisco v. Verizon Communications, Inc., 497 F.3d 95, 98 (1st Cir. 2007) (citing Adorno v. Crowley Towing Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006)). "In assessing futility, the district court must apply the standard which applies to motions to dismiss under Fed.R.Civ.P. 12(b)(6)." Adorno, 443 F.3d at 126. A motion to amend may also be denied if the proffered amendment comes "too late," or if it "otherwise would serve no useful purpose." Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006).
The Motion to Amend (Docket # 24) is DENIED. Even considering the additional facts alleged under the standard applicable to motions brought pursuant to Fed.R.Civ.P. 12(b)(6), the dispositive motions pending are meritorious (See, infra), making the proposed amendment futile. Moreover, in light of the fact that the case is stayed as to Idearc, the Court cannot adjudicate the motion as it pertains to Idearc.
II. Defendants Local 1301 and George Alcott's Motion to Dismiss (Docket #13)
The Plaintiffs direct two counts against the Union and/or Alcott: for Breach of the Duty of Fair Representation (Count V, against both the Union and Alcott) and for Misrepresentation (Count VIII, against Alcott). Alcott and the Union seek dismissal pursuant to Fed.R.Civ.P. 12(b)(6), asserting that the claim for breach of the duty of fair representation is time-barred and that the misrepresentation claim is barred by an immunity. Docket #s 13, 14.
The Proposed Amended Complaint advances the same causes of action against these defendants, albeit with different numbering of the counts. Docket #24-2.
A. Motion to Dismiss Standard
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court "must accept all well-pleaded facts alleged in the Complaint as true and draw all reasonable inferences in favor of the plaintiff." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). This "highly deferential" standard of review "does not mean, however, that a court must (or should) accept every allegation made by the complainant, no matter how conclusory or generalized." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). Dismissal for failure to state a claim is appropriate when the pleadings fail to set forth "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988) (internal quotation marks omitted). The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Iqbal, 129 S.Ct. at 1949. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id.
B. Count V
Count V's claim for Breach of the Duty of Fair Representation claim arises out of the alleged failure on the part of the Union and Alcott to protect the Union membership from an "invalidly instituted" increase in the peer performance percentile measure, specifically Defendant Alcott's failure to pursue a grievance regarding the increase (Docket #1 at ¶ 63; Docket #24-2 at ¶¶ 66-68). The claim also arises from Alcott's failure to prevent the "unauthorized participation" of Defendant Donahue on the Performance Plan Review Boards which reviewed the terminations of the Plaintiffs (Docket #1. at ¶ 64; Docket #24-2 at ¶ 70). The Complaint was filed in December, 2008. Docket #1.
A claim for breach of the duty of fair representation has a six months limitation period. DelCostello v. Int'l Bhd of Teamsters, 462 U.S. 151, 172 (1983); Adorno, 443 F.3d at 126. The limitations period begins to run when the prospective plaintiffs knew, or reasonably should have known, of the alleged wrongful acts. Adorno, 443 F.3d at 126 (citing Arriaga-Zayas v. Int'l Ladies' Garment Workers' Union, 835 F.2d 11, 13 (1st Cir. 1987)).
Idearc imposed the increase in the peer performance percentile measure at an unspecified date "in or around April, 2005." Docket #24-2 at ¶ 33. The Plaintiffs contend that Alcott misled them (by means of his statements at an April, 2005, Union meeting) into believing that he was filing and pursing a grievance against Idearc concerning the increase, and that this fact tolls the limitations period. Even assuming that these facts support tolling the limitations period beginning in April, 2005, later events plainly put the Plaintiffs on notice that Alcott was not pursuing a grievance. Specifically, Idearc terminated one Plaintiff in January, 2007, and four others on July 13, 2007, for failing to meet the seventy percent peer performance percentile measure threshold. These dismissals occurred well over a year prior to the filing of the Complaint. Moreover, doctrines of equitable tolling suspend the running of the statute of limitations only if a plaintiff, in the exercise of reasonable diligence, could not have discovered information essential to the suit. Gonzalez v. U.S., 284 F.3d 281, 291 (1st Cir. 2002). The doctrine of fraudulent concealment tolls the statute of limitations "where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part."Id. at 292 (quoting Salois v. Dime Sav. Bank, FSB, 128 F.3d 20, 25 (1st Cir. 1997)). "Irrespective of the extent of the effort to conceal, the fraudulent concealment doctrine will not save a charging party who fails to exercise due diligence, and is thus charged with notice of a potential claim." Id. (quoting Truck Drivers Helpers Union, Local No. 170 v. NLRB, 993 F.2d 990, 998 (1st Cir. 1993)).
Upon being terminated on the basis of the increase in the peer performance percentile, a reasonably diligent person would conclude that whatever Alcott's representations two years earlier that he was making efforts to reverse the increase, they had not been successful — and such a person would make further inquiry. The Plaintiffs were not in exercise of due diligence, and are therefore not entitled to an equitable tolling of the six-month limitations period.
Accordingly, the applicable statute of limitations bars the claim against both the Union and Alcott, and the Motion to Dismiss Count Five is ALLOWED.
Count Five is subject to dismissal against Alcott for the same reasons as Count Eight. See infra.
D. Count Eight
All five Plaintiffs assert a misrepresentation claim against Alcott in Count Eight. Specifically, they contend that Alcott represented in April, 2005, that he would pursue a grievance regarding Idearc's increase in the peer performance percentile measure and that from that time until the expiration of the CBA on June 2, 2007, Alcott continued to misrepresent that he was "working on it." The Plaintiffs further contend that they relied upon these misrepresentations to their detriment and that Alcott "may never have filed or pursued such a grievance."
Alcott is immune from this claim for damages. Title 29 U.S.C. § 185(b) provides, in relevant part, "Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." The Supreme Court has held that "the union as an entity, like a corporation, should in the absence of agreement be the sole source of recovery for injury inflicted by it . . . This policy cannot be evaded or truncated by the simple device of suing union agents or members, whether in contract or tort, or both, in a separate count or in a separate action for damages for violation of a collective bargaining contract for which damages the union itself is liable." Atkinson v. Sinclair Refining Co, 370 U.S. 238, 249 (1962) (citations omitted). "The First Circuit has emphasized Atkinson `s broad sweep, observing that `[w]ith monotonous regularity, court after court has cited Atkinson to foreclose state-law claims, however inventively cloaked, against individuals acting as union representatives within the ambit of the collective bargaining process.'" Wolfson v. American Airlines, 170 F.Supp.2d 87 (D.Mass. 2001) (Saris, J.) (quoting Montplaisir, 875 F.2d, 1 4 (1st Cir. 1989)). The Plaintiffs cite no authority for their assertion that Alcott's alleged actions are not within the provisions of § 185 or Atkinson.
The Motion to Dismiss Count Eight is ALLOWED.
C. Count VII of the Proposed Amended Complaint
In the Proposed Amended Complaint, Plaintiff O'Keefe, brings Count Seven against the Union alleging a breach of the duty of fair representation for a failure to arbitrate his termination. He alleges that the Union represented to him that an arbitration would occur in March, 2007, and that he was told that it was postponed to December, 2007, due to negotiations over the new CBA, but that he received no information thereafter. Docket #24-2 at ¶¶ 73-74. This proposed amendment is futile. First, there is no allegation that the CBA entitled O'Keefe to an arbitration of his termination. Second, with reasonable diligence, O'Keefe would have been aware by December, 2007, at the latest, that the union was failing to pursue an arbitration. Thus, his proposed claim is outside the six-month statute of limitations (See supra at 7-8).
III. Idearc, Donahue, Raad and Sanislow's Motion for Judgment on the Pleadings (Docket # 32)
As noted earlier, that portion of this Motion concerning claims brought against Idearc is stayed. See supra at 1.
Donahue, Raad and Sanislow move pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings with respect to Counts II-IV, asserting that they advance state-law claims which are pre-empted by federal labor law.
A. Standard Applicable to Rule 12(c) Motions
Fed.R.Civ.P. 12(c) permits either party; "[a]fter the pleadings are closed but within such time as not to delay the trial, [to] move for judgment on the pleadings." Judgment on the pleadings may not be entered unless it appears beyond any doubt that the non-moving party can prove no set of facts in support of his claim which would entitle him to relief. Fed.R.Civ.P. 12(c). See also Int'l Paper Co. v. Town of Jay, 928 F.2d 480, 482-83 (1st Cir. 1991);Santiago de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991).
B. Count II
The Proposed Amended Complaint advances Count II (originally advanced pursuant to M.G.L. c. 151B for age discrimination against Raad, Donahue and Idearc) against Idearc only. Accordingly, the Court deems that count to have been voluntarily dismissed as to Raad and Donahue.
C. Preemption
In Teamsters v. Lucas Flour Co., 369 U.S. 95, 103 (1962), the United States Supreme Court stated that the "dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute [so that] issues raised in suits of a kind covered by § 301 [are] to be decided according to the precepts of federal labor policy."Id. at 104. Thus, "questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). "When resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as pre-empted by federal labor-contract law. Id. at 220 (internal citations omitted). If in passing upon a state law claim, the Court would be required to interpret a CBA, that claim is preempted by § 301. Flibotte v. Pennsylvania Truck Lines, Inc., 131 F.3d 21, 26 (1st Cir. 1997).
Each of the tortious interference claims advanced by the Plaintiffs (in both the Complaint and the proposed Amended Complaint) depends upon interpretation of the CBA. For example, Counts III and IV of the Complaint alleges that Plaintiffs had an employment relationship governed by contract (i.e., by the CBA), that the Defendants knew or should have known that the Plaintiffs' performance exceeded "Idearc's expectations," and that the Defendants knew or should have known that their conduct was likely to interfere with the relationship governed by the CBA. Docket #1 at ¶¶ 50-52, 55-57. The Court could not pass upon these allegations without determining whether the Plaintiffs' employment relationship was in fact governed by the CBA and whether the Defendants' alleged conduct interfered with relationships or duties thereby created.
Plaintiffs first contend that no preemption applies to Cameron, Ferris, Gleason and Rosenthal's claims because they were all terminated on July 13, 2007, after the expiration of the CBA on June 2, 2007. They assert that state law claims are not preempted in the absence of a currently-effective CBA. This argument does not apply to Plaintiff O'Keefe, as he was terminated prior to the expiration of the CBA. Thus, his claims are preempted by § 301.
The fact that the terminations of the remaining four Plaintiffs occurred subsequent to the expiration of the CBA precludes preemption by operation of § 301 with regard to those plaintiffs. Although upon their expiration most terms and conditions of the CBA are not subject to unilateral change, in order to protect the statutory right to bargain, those terms and conditions no longer have force by virtue of the contract itself. See Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 206 (1991); Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 25-27 (2nd Cir. 1988);International Union, United Auto., Aerospace Agr. Implement Workers of America, Local 899, UAW v. Atlas Tack Corp., 590 F.2d 384 (1st Cir. 1979) (finding a lack of jurisdiction under § 301 where union sued to prevent employer from terminating a pension plan and distributing the plan's assets to the beneficiaries after the CBA expired).
Although this argument rebuts any preemptive effect arising from § 301, it does not mean that there is no preemption at all. Federal preemption doctrine (the so-called Machinists doctrine, in reference to Lodge 76, Int'l Ass'n of Machinists Aerospace Workers v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976)) also protects against state interference with policies implicated by the structure of National Labor Relations Act.Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 749 (1985). The CBA expired on June 2, 2007. Federal law requires the parties to maintain the status quo until they negotiated to impasse. An employer's unilateral change to the terms and conditions of employment is an unfair labor practice. Bath v. Marine Draftsmen's Ass'n v. NLRB, 475 F.3d 14, 20 (1st Cir. 2007). Thus, the terms of the CBA continued to govern in July, 2007, when the Plaintiffs (other than O'Keefe) were terminated. The Plaintiffs' own allegations make this point as they allege that each worked for Idearc pursuant to a contract. Docket #1 at ¶¶ 50-52, 55-57.
Thus, the Plaintiffs' state law claims are necessarily premised either upon enforcement of the CBA (which would trigger § 301 preemption) or upon an implied contract, the enforcement of which would seek to hold the Defendants liable under state law for adhering to the provisions of the CBA during the post-expiration period, when it was required to do so by federal law. The latter type of claim is also preempted under the Machinists preemption doctrine. See Levy v. Verizon Information Services, Inc., 498 F.Supp.2d 586, 600 (E.D.N.Y. 2007) (citing NLRB v. Katz, 369 U.S. 736 (1962)) ("[h]olding Verizon liable under New York law for maintaining its incentive compensation plan during the post-expiration period, when it was federally mandated to do so, would create `friction' with federal law. Indeed, finding liability would upset the purpose of the post-expiration status quo: to accomplish `industrial peace by fostering a non-coercive atmosphere that is conducive to serious negotiations on a new contract.'").
Next, the Plaintiffs contend in opposing the motion that no preemption can arise from an illegitimate and bad faith CBA tainted by collusion. See Docket #41 at 11-12. Neither the Complaint nor the proposed Amended Complaint advance any claim whatsoever that the CBA is invalid. Thus, this argument is without merit.
Moreover, the Plaintiffs' pleadings rest upon the assertion that their rights under the CBA were violated. They may not sue to enforce the CBA and then oppose dismissal on the grounds that the CBA is a legal nullity.
Finally, the Plaintiffs contend that the Union and Idearc negotiated a change to the CBA which altered the terms and conditions of employment such that the Plaintiffs (other than O'Keefe) could not be terminated pursuant to the peer performance percentile measure. The allegations or evidence in support of this argument appear only in the Plaintiffs' Opposition to the Motion for Judgment on the Pleadings. See Docket # 41 at 13 ff. The Plaintiffs themselves concede that the settlement offer document on which they rely is unsigned. Id. at 14. Nothing before the Court indicates that the parties agreed to the proposal, thus no further consideration of it is necessary. To the extent these allegations are intended as evidence of § 301 claims, they are nevertheless barred because in a hybrid suit, a plaintiff must prove not only the employer violated its obligations under the CBA, but also that the Union breached its duty of fair representation. Del Costello v. Int'l Brotherhood of Teamsters, 462 U.S. 151, 164-65 (1983). The Court has already determined (See supra at 7-8) that such claims against the union are time-barred.
The Motion for Judgment on the Pleadings is ALLOWED as to Counts III and IV.
IV. Defendant Hewitt
The Plaintiffs bring Count Ten against Hewitt Associates, Inc., claiming that it was the Plan Administrator on November 11, 2007, and failed to provide the Plaintiffs documents in response to written requests from them. Docket #1 at ¶¶ 86-87. At the Rule 16 scheduling conference, counsel for Hewitt stated that it was not the plan administrator at that time, nor did it otherwise have any responsibility to provide documents. In an effort to efficiently resolve this question, the Court suggested that counsel confer. Hewitt's counsel has written to Plaintiffs' counsel explaining its position in detail and contends that to date, the Plaintiffs have failed to respond despite the Court's directive to confer.
It is ORDERED that within ten days of this Order, the Plaintiffs shall make a brief filing stating their position with regard to their intent to pursue their claims against Hewitt.
CONCLUSION
The Plaintiffs' Motion for Leave to File First Amended Complaint (Docket # 24) is DENIED as to defendants other than Idearc. Action on the motion as to amendment of claims asserted against Idearc is STAYED in light of the Suggestion orf Bankruptcy, and for administrative purposes only, the Clerk shall terminate the motion as to Idearc.
Defendants Local 1301 and George Alcott's Motion to Dismiss (Docket # 13) is ALLOWED.
Count II is VOLUNTARILY DISMISSED as to Defendants Raad and Donahue.
Defendants Idearc's Donahue, Raad and Sanislow's Motion for Judgment on the Pleadings (Docket # 32) is ALLOWED IN PART, and otherwise STAYED. Donahue, Raad and Sansislow's motion is ALLOWED with respect to Counts III and IV. Action on Idearc's motion concerning Counts I, II, VI and VII is STAYED in light of the Suggestion of Bankruptcy. For administrative purposes only the Clerk shall terminate the motion as to defendant Idearc.
It is further ORDERED that within ten days of this Order, the Plaintiffs shall make a brief filing stating their position with regard to their intent to pursue their claims against Hewitt.