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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT DAVIS, 

Plaintiff, 

v. 

PROFESSIONAL REPRESENTATIVES 

ORGANIZATION, AND MICHIGAN 

AFSCME COUNCIL 25 AFL-CIO, 

Defendant. 

Case No. 15-10767 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

R. STEVEN WHALEN

 / 

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR 

LEAVE TO FILE FIRST AMENDED COMPLAINT [28] 

 Before the Court is Plaintiff’s Motion for Leave to File First Amended 

Complaint [28]. Defendant Professional Representatives Organization [PRO 

Union] filed a Response to the Motion on June 2, 2015 [29] and Defendant 

Michigan AFSCME Council 25 filed a Response on June 3, 2015 [30]. Plaintiff 

filed a reply on June 9, 2015 [31]. For the reasons outlined below, the Order is 

GRANTED IN PART, granting Plaintiff leave to plead more specific facts in 

support of Plaintiff’s claims against Defendants. The Motion is also DENIED IN 

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PART, denying Plaintiff’s request to enter a declaratory judgment declaring that 

the prohibition set forth under 29 U.S.C. § 504(a) was not applicable to Plaintiff 

Davis on September 18, 2015, the date he was terminated by the Defendant 

AFSCME, as well as denying Plaintiff leave to amend his Complaint to include 

state law tort claims of fraudulent misrepresentation and silent fraud against the 

Defendant Pro Union. 

ANALYSIS 

 Plaintiff seeks leave to amend his complaint to include: additional facts in 

support of his hybrid §301 claims; a request for a declaratory judgment holding 

that the prohibition imposed by 29 U.S.C. §504(a) against employing Plaintiff was 

not applicable on the date he was terminated by Defendant AFSCME; and statelaw tort claims of fraudulent misrepresentation and “silent” fraud against 

Defendant PRO Union. Fed. R. Civ. Pro. 12(a)(2) provides that, when a Motion to 

Amend is filed more than 21 days after the Complaint is served, the Court may 

grant the Motion “when justice so requires.” While motions to amend are 

frequently granted, they can be denied for a declared reason including: 

undue delay, bad faith or dilatory motive on the part of the movant, 

repeated failure to cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing party by virtue of allowance 

of the amendment, futility of amendment, etc. 

Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). 

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This Court denies Plaintiff leave to amend his complaint to include a request 

for declaratory judgment on 29 U.S.C. §504. This issue is briefed in pending 

dispositive motions and will be resolved after the hearing on these motions. 

Therefore this amendment would be futile as it is already part of his hybrid §301 

action and, as such, has been adequately briefed. 

In the interests of justice, the Court grants Plaintiff leave to amend his 

complaint to include additional facts in support of his hybrid §301 claims. 

Plaintiff seeks to add the state-law claims of fraudulent misrepresentation 

and silent fraud to his complaint. Defendants argue that the Court should not grant 

leave to amend the Complaint to include the state claims because these claims are 

preempted under Section 301 of the Labor Management and Relations Act, and 

thus would be dismissed as a matter of law. 

Section 301(a) states that Federal District Courts have plenary jurisdiction 

over “suits for violation of contracts between an employer and a labor organization 

representing employees.” 29. U.S.C. § 185(a). This preemptive force covers “state 

law claims that are ‘substantially dependent on analysis of a collective bargaining 

agreement,’ but it does not reach claims that only ‘tangentially involved CBA 

provisions.’” Alongi v. Ford Motor Co., 386 F.3d 716, 724 (6th Cir. 2004), quoting 

Fox v. Parker Hannifin Corp., 914 F.2d 795, 799–800 (6th Cir.1990). The Sixth 

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Circuit has adopted a two-part test to determine whether claims are preempted 

under Section 301. 

First, the district court must examine whether proof of the state law 

claim requires interpretation of collective bargaining agreement terms. 

Second, the court must ascertain whether the right claimed by the 

plaintiff is created by the collective bargaining agreement or by state 

law. If the right both is borne of state law and does not invoke 

contract interpretation, then there is no preemption. However, if 

neither or only one criterion is satisfied, section 301 preemption is 

warranted 

DeCoe v. Gen. Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994) (citations omitted). 

When considering whether a claim is preempted, the Court looks to the 

elements of the claim to determine if the terms of the CBA must be interpreted to 

decide the claim. CNH Am. LLC v. Int'l Union, United Auto., Aerospace & Agr. 

Implement Workers of Am. (UAW), 645 F.3d 785, 791 (6th Cir. 2011). The 

allegations of fraud that Plaintiff is seeking to add to his Complaint pertain to two 

statements made by Pro Union that allegedly are fraudulent misrepresentation: (1) 

that Pro Union desired to expedite Plaintiff’s termination grievance to arbitration, 

and (2) that Plaintiff’s appeal would be taken to the full membership for a vote. 

Also, Plaintiff is seeking to add a claim of silent fraud against Pro Union for failing 

to inform Plaintiff that his appeal was not brought before the full membership of 

the Union for a vote, and that members of the Union had ulterior motives by 

unilaterally withdrawing his termination grievance. 

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These allegations do not require any interpretation of the CBA agreement, 

but rather require only a determination of whether, inter alia, these statements 

were made; if they were false; and if Plaintiff acted in reliance to his detriment on 

these statements. See e.g. Alongi v. Ford Motor Co., 386 F.3d 716, 726 (6th Cir. 

2004) (holding claims of fraudulent misrepresentation are not preempted by 

Section 301); CNH Am. LLC v. Int'l Union, United Auto., Aerospace & Agr. 

Implement Workers of Am. (UAW), 645 F.3d 785, 790 (6th Cir. 2011) (holding 

same); Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 

(1987) (holding same). Similarly, the silent fraud claim requires Plaintiff to show 

that there was a non-disclosure and that Defendants had a duty to disclose that 

information that caused Plaintiff harm. MacDonald v. Thomas M. Cooley Law 

Sch., 724 F.3d 654, 665-66 (6th Cir. 2013). As plead in his amended complaint, 

Plaintiff relies on the Constitution of the Union to impute the legal duty to disclose 

and not the CBA. [28-1 at 143]. 

 Because the state-law claims are not preempted, if this Court were to allow 

Plaintiff to amend his complaint to include them, the Court would have to exercise 

supplemental jurisdiction over these claims. The Court denies Plaintiff’s request to 

amend the Complaint to include the state-law tort claims because it would be futile 

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since this Court will decline to exercise supplemental jurisdiction to the state 

claims Plaintiff seeks to add to his Complaint. 

A District Court can refuse to exercise supplemental jurisdiction over a state 

claim if “the claim substantially predominates over the claim or claims over which 

the district court has original jurisdiction.” 28 U.S.C.A. § 1367(c)(2). Under this 

exception, the Court may decline to exercise supplemental jurisdiction over state 

claims that would “either require elements of proof distinct from the federal claim, 

or cause a substantial expansion of the suit beyond that necessary and relevant to 

the federal claim.” Burch v. Medilodge of Port Huron, LLC, No. 12–CV–13454, 

2013 WL 1499344, at *1 (E.D.Mich. Apr.11, 2013). 

The state claims Plaintiff is seeking to add require elements of proof 

distinctive from the Federal claims, which supports denial of supplemental 

jurisdiction. The Federal claims are a hybrid §301 action, which require a Plaintiff 

to show that the employer breached the terms of the CBA, and the union breached 

its duty of fair representation. Garrison v. Cassens Transp. Co., 334 F.3d 528, 538 

(6th Cir. 2003). In contrast, to prevail on a claim of fraudulent misrepresentation 

under Michigan law, a Plaintiff must prove that: 

(1) the defendant made a material representation; (2) the 

representation was false; (3) when the defendant made the 

representation, it knew that it was false, or made the representation 

recklessly, without any knowledge of its truth, and as a positive 

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assertion; (4) the defendant made the representation with the intention 

that it should be acted on by the plaintiff; (5) the plaintiff acted in 

reliance on the representation; and (6) the plaintiff suffered injury due 

to his reliance on the representation 

MacDonald v. Thomas M. Cooley Law Sch., 724 F.3d 654, 662 (6th Cir. 2013), 

citing Hord v. Envtl. Research Inst. of Mich., 463 Mich. 399, 617 N.W.2d 543, 546 

(2000) (per curiam). Claims of silent fraud require Plaintiffs to not only establish a 

non-disclosure, but also that the Defendant “had a legal duty to make a disclosure.” 

MacDonald v. Thomas M. Cooley Law Sch., 724 F.3d 654, 665-66 (6th Cir. 2013), 

citing Hord v. Envtl. Research Inst. of Mich., 463 Mich. 399, 617 N.W.2d 543, 546 

(2000) (per curiam) (citations omitted). Moreover, Plaintiff is seeking relief of 

damages totaling $75,000 for each state law claim. In contrast, Plaintiff’s federal 

claims only entitle him to relief in the amount of back pay and wages from the time 

period of September 3, 2014 and December 29, 2014. The addition of these statelaw claims would thus greatly expand the scope of the case. Because the Court 

appropriately would decline to exercise supplemental jurisdiction over these state 

claims, it is appropriate to deny amendment of the complaint to add these claims, 

because such an amendment would be futile. 

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Accordingly, 

IT IS ORDERED that Defendant’s Motion for Leave to File First Amended 

Complaint is GRANTED IN PART and DENIED IN PART.

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: December 23, 2015 Senior United States District Judge 

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