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Cummings v. International Union, Security

United States District Court, D. Maryland

November 18, 2016

ANNETTE CUMMINGS, Plaintiff,
v.
INTERNATIONAL UNION, SECURITY, POLICE, AND FIRE PROFESSIONALS OF AMERICA, LOCAL 555, et al., Defendants. ANNETTE CUMMINGS, Plaintiff,
v.
MVM, INC., et al., Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge

         Plaintiff Annette Cummings (“plaintiff” or “Cummings”) has filed a pro se Complaint alleging breach of her employment contract by defendant MVM, Inc. (“MVM”), her former employer, and International Union, Security, Police and Fire Professionals of America and its Local No. 555 (“SPFPA”), her union representative, and certain named agents of these entities. (ECF No. 1.) Originally filed as two separate Complaints, the cases were consolidated on June 13, 2016. (ECF No. 4.)

         Now pending before this Court are two Motions to Dismiss. SPFPA and Gordon Gregory have filed a Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (“SPFPA's Motion”). (ECF No. 12.) MVM and Dario Marquez have filed a Motion to Dismiss pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6) of the Federal Rules (“MVM's Motion”). (ECF No. 31.)[1] The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, SPFPA's Motion (ECF No. 12) is GRANTED, and MVM's Motion (ECF No. 31) is also GRANTED.

         BACKGROUND

         This Court accepts as true the facts alleged in the plaintiff's complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). The facts giving rise to plaintiff's Complaint were previously set forth in this Court's Memorandum Opinion dated June 28, 2016 (RDB-16-216, ECF No. 36) and are repeated in part below:

“At some point prior to July 7, 2015, Plaintiff Annette Cummings was terminated from her employment at MVM, Inc., a private security contractor, after an allegedly unintentional discharge of her firearm. Cummings subsequently filed an unfair labor practice charge with her local chapter of Defendant National Labor Relations Board-Region 5-on July 22, 2015.
After conducting an investigation of Plaintiff's allegations, the Regional Director of Region 5 concluded that neither charge had the requisite evidence to proceed to prosecution. The Regional Director accordingly notified Cummings of the dismissals of Board Case Nos. 05-CA-159905 and 05-CB-156648 on October 27 and 28, 2015, respectively. Cummings subsequently appealed both dismissals to the General Counsel of the Board. The General Counsel denied the appeals after a review “did not disclose that either [MVM or the Union] violated the [National Labor Relations] Act.” On December 2, 2015, Plaintiff sought reconsideration of the denial, but the General Counsel again denied her appeals. Specifically, the General Counsel stated that the “decision to discipline [the Plaintiff] was based solely on the firearm incident.” Neither MVM nor the Union was deemed to have violated the Act for their alleged actions.

Cummings v. Nat'l Labor Relations Bd., No. RDB-16-216 (ECF No. 36), 2016 WL 3523573, at *4 (D. Md. June 28, 2016) (internal references omitted). After this Court dismissed Cummings' claims against the National Labor Relations Board (“NLRB”), Cummings filed several motions, including a Motion for Reconsideration, challenging the dismissal. These motions were denied on October 19, 2016. (RDB-16-216, ECF Nos. 55, 56.)

         The case now pending before the Court is based on the same underlying facts, but seeks relief against different parties.

         STANDARDS OF REVIEW

         I. Motion to Dismiss Pursuant to Rule 12(b)(1)

         A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.” Davis, 367 F.Supp.2d at 799.

         Where the challenge is factual, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. “[T]he court may look beyond the pleadings and ‘the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'” Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003) (citation omitted). The court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004); see also Sharafeldin v. Md. ...


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