denial forced G. & Q. Drywall to ultimately discharge plaintiffs. This may or may not be true, but we are not concerned with the factual accuracy of the Complaint, but its very nature. The Complaint does not indicate it was triggered by the discharge, but that the discharge and the instant litigation were both triggered by the same factors, those mentioned above. Therefore, we do not believe that a motion to dismiss for failure to join an indispensable party is appropriate and we shall deny said motion.
The § 301 Claim : The Union defendants contend that the claim for punitive damages under § 301 should be struck. We note that while there is some authority for the proposition that punitive damages are available in § 301 cases, the law of this Circuit is set forth in Local 127 United Shoe Workers of America v. Brooks Shoe Manufacturing Co., 298 F.2d 277 (3d Cir. 1962) (en banc), which held that such damages are not proper. See also Neipert v. McKee et al., C.A. #76-1936 (Slip Opinion dated December 21, 1976), and the cases cited therein.
The Civil Rights and Title VII Claims : The Union defendants move to dismiss the § 1983 claim for lack of state action. For the reasons already stated in that portion of this Memorandum dealing with the corresponding Contractors Association motion we shall grant this motion. Likewise, the Union defendants move to dismiss Doster's Title VII claim because he failed to file with the EEOC and Peterson's claim because his filing was not timely. Again for reasons already discussed we shall grant the motion as to Doster and deny it as to Peterson. Of course, since the Union defendants were mentioned in the EEOC charges that ground for dismissal, available to the Contractors Association, is not available to the Union defendants.
After considering all of the arguments and the applicable law we shall grant the following motions to dismiss or strike: the Contractors Association motions to dismiss Peterson's Title VII claim and both plaintiffs' claims under the First, Thirteenth and Fourteenth Amendments, and to strike punitive damages under § 301; and the motions of all defendants to dismiss the claims under § 1983, and Doster's Title VII claim. Because the reason for granting the striking of punitive damages under both § 301 and Title VII apply to all defendants even though each contention was asserted in only one motion, and because the dismissal of the claims under the First, Thirteenth and Fourteenth Amendments applies to all defendants even though it was only raised by the Contractors Association, we shall grant the motions to dismiss these claims as to all defendants. Therefore, after this disposition is put into effect, there will remain, as to Peterson, an action under § 1981 with the possibility of punitive damages against all defendants, a Title VII action against the Union defendants, and a § 301 claim against all defendants except the individual defendants (who, as mentioned, were not named in the Second Amended Complaint); and as to Doster, there will remain a § 1981 claim, with the possibility of recovering punitive damages, and a § 301 claim against all but the individual defendants.
AND NOW, this 9th day of June, 1978, IT IS ORDERED:
1. that both plaintiffs' claims under § 1983 and the First, Thirteenth and Fourteenth Amendments are hereby DISMISSED;
2. that both plaintiffs' claims against the General Contractors Association under Title VII are DISMISSED;
3. that plaintiff Doster's Title VII action as to all defendants is hereby DISMISSED;
4. that all motions to strike claims under § 301 and Title VII for punitive damages are GRANTED as to all defendants;
5. that all other motions to dismiss and strike are hereby DENIED.
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