The opinion of the court was delivered by: KELLY
The motion by defendant National Maritime Union of America ("NMU") for summary judgment, pursuant to Fed. R. Civ. P. 56(c), is presently before the court. The defendant claims first, that the plaintiff's case is barred by the applicable statute of limitations and second, that the plaintiff has failed to state a cause of action. I find that the plaintiff is time barred in this matter.
Summary judgment is never warranted except on a clear showing that no genuine issue of any material fact remains for trial. Suchomajcz v. Hummel Chemical Company, 524 F.2d 19, 24 (3d Cir. 1975). In the instant case, undisputed facts demonstrate that the Memorandum of Understanding which is the subject of the action was negotiated by defendant NMU on December 19, 1984. The plaintiff alleges that he was wrongfully ordered off a vessel pursuant to said agreement on January 7, 1985, and that he received a copy of the agreement on or about January 11, 1985. Thus, the last possible date that the plaintiff can claim his cause of action accrued is January 11, 1985, although it is arguable that the date is January 7, 1985, the date he claims to have been wronged.
The complaint herein was filed on July 3, 1985. The plaintiff's attorney served the complaint by mail upon the defendant on July 16, 1985, some thirteen days after it was filed and more than six months after the last date on which the plaintiff's cause of action could have accrued, i.e., January 11, 1985. Service was not effected until July 22, 1985 and acknowledged July 26, 1985.
The United States Supreme Court has established that the statute of limitations applicable to cases arising under 29 U.S.C. § 185 alleging a breach of the duty of fair representation by the Union is six months, based upon Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983); Taylor v. Ford Motor Co., 761 F.2d 931 (3d Cir. 1985).
The section provides in relevant part, as follows:
Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made. . . .
In this Circuit the six month limitation period must include service as well as filing of the complaint. Thus, if the complaint is not served within the six month period after the cause of action accrued, it is time barred. West v. Conrail, 780 F.2d 361, 363 (3d Cir. 1985); Waldron v. Motor Coils Mfg., 606 F. Supp. 658 (W.D. Pa. 1985).
In West v. Conrail, supra, the cause of action accrued March 25. The complaint was filed within six months, on September 24, but was not mailed until October 11. After noting that most courts agreed that service must be effected within the six months, the court explained its holding:
The balance struck by Congress and recognized in DelCostello is reflected in the language of 10(b), which unambiguously requires both filing and service of process within six months of the accrual of the cause of action. We are reluctant to upset that balance by grafting Fed. Rule Civ. Proc. 4(j) onto 10(b), particularly since doing so would increase the time limit for initiation of the dispute resolution process form six to ten months, a substantial addition.
In Waldron v. Motor Coils Mfg., supra, plaintiff's cause of action accrued on March 23, 1984. The summons and complaint were timely filed by September 21, 1984. However, he did not attempt to serve the union until September 27, 1984, and service was acknowledged on October 4th. The court held that service was untimely and dismissed the complaint.
In opposition to the defendant's motion, the plaintiff argues that it would be inequitable for the court to apply West retroactively. The plaintiff claims that West was a case of first impression whose result was not clearly foreshadowed, and therefore, should not be retroactively applied to their case. The argument is not persuasive. First, I note that West affirmed a retroactive dismissal of the lower court. Both the District and the Circuit Courts were confronted with an accomplished fact: the failure to file and serve within the six month period. In dismissing the complaint, they gave retroactive application to the statute. Second, under the analysis provided ...