Max O. Cogburn, Jr., U.S.M.J.
THIS MATTER is before the court upon defendant APWU's Motion to Dismiss and plaintiff's Motion for Leave to Amend Complaint. As to APWU's motion, plaintiff filed a timely response and APWU did not file a reply. In addition, APWU did not respond to plaintiff's Motion to Amend, which is related to the problems APWU raised in its dispositive motion.
The facts underlying APWU's Motion to Dismiss under Rules 12(b)(2) and (5), Federal Rules of Civil Procedure, may be quickly summarized. In attempting to sue the "American Postal Workers Union, AFL-CIO" ("national union"), plaintiff named and attempted to serve "APWU" through service of the president of "Local 1808 American Postal Workers Union, AFL-CIO" ("Morganton local"). APWU argues that the service obtained by plaintiff is insufficient and does not give this court personal jurisdiction over the national union. Service of process upon a postal union is, uniquely, governed by 39, United States Code, Section 1208(e), which provides for service of the union through service of an officer or agent of the organization. Where, as here, the bylaws of the national do not make local officers agents of the national, service on the president of a local does not effectuate service on the national. Ross v. Runyon, 156 F.R.D. 150, 153 (S.D.Tex. 1994). In addition, APWU takes issue with the nomenclature sued by plaintiff in using the abbreviation "APWU," instead of the union's official name.
Rule 12(b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832 (1989);Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41 (1957). As the Court discussed in Neitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory . . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."
Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of the APWU's motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint and viewed them in a light most favorable to plaintiff.
As a practical matter, the naming of "APWU" and service of the local president leads to confusion. The Court of Appeals for the Fourth Circuit has long held that failure to properly name a corporate defendant is a fatal defect, because a corporation has the right "to be accurately named in process and pleadings of the court .. . ." United States v. A. H. Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947). The undersigned believes such logic would extend to federally recognized labor organizations. In this case, the national does not know whether plaintiff intended to sue it or the local. As shown in plaintiff's proposed amended complaint, plaintiff apparently intends to sue both the local and the national.
Finding that service of the local president is insufficient to effectuate service on the national and that the national has not been properly named, the undersigned will recommend that defendant APWU's Motion to Dismiss be allowed. The undersigned will further recommend that plaintiff's Motion for Leave to Amend Complaint be allowed and that such amendment relate back to the original filing, inasmuch as such proposed amendment was promptly tendered, the respective unions had actual knowledge that plaintiff was more likely than not attempting to bring claims against them, and that neither union would be unduly prejudiced. Unless counsel for putative defendants agrees to accept service, the undersigned would further recommend that plaintiff be required to effectuate service of the Amended Complaint in a manner consistent with Title 39.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) defendant APWU's Motion to Dismiss be
ALLOWED, and that "APWU" be
DISMISSED from this action in accordance with Rules 12(b)(2) and (5); and
(2) plaintiff's Motion to For Leave to Amend Complaint be
ALLOWED, such amendment relate back to the original filing, and plaintiff be granted leave to effectuate service in accordance with the requirements of Title 39.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to defendant APWU's Motion to Dismiss (#3) and plaintiff's Motion for Leave to Amend Complaint (#5).
This 8th day of May, 2000.