UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

JOHN E. WARNER, Jr., et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) CAUSE NO.: 1:16-CV-367-TLS 

 ) 

CHAUFFEURS, TEAMSTERS & ) 

HELPERS LOCAL UNION NO. 414, ) 

and SPEEDWAY REDIMIX, INC., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

 This matter comes before the Court on Defendant Chauffeurs, Teamsters & Helpers 

Local Union No. 414’s (the “Union”) Motion to Dismiss or, alternatively, Stay Proceedings 

[ECF No. 11], filed on December 13, 2016. Plaintiffs John E. Warner, Jr., Rick Clay, Sam Early, 

Brian Goeglein, Mike Campbell, Brad Wilson, Ty Steury, and John Zimmerman (collectively 

“the Plaintiffs”) filed a Complaint [ECF No. 1] on October 19, 2016. The Union moves to 

dismiss pursuant to Rule 12(b)(6), asserting that the Complaint fails to state a claim upon which 

relief can be granted. Alternatively, the Union moves to stay proceedings in this Court pursuant 

to Colorado River abstention. On January 13, 2017, the Plaintiffs filed their Response [ECF No. 

24] to the Motion. The Union’s Reply [ECF No. 25] was entered September 8, 2016. This matter 

is now ripe for the Court’s review. 

BACKGROUND 

The Union is the exclusive bargaining representative of Defendant Speedway Redimix 

Inc.’s (“Speedway”) truck drivers who are employed in Fort Wayne, and a charter member of the 

International Brotherhood of Teamsters. (Compl. ¶¶ 8, 12, ECF No. 1.) The Union and 
2 

Speedway (collectively “the Defendants”) entered into a Collective Bargaining Agreement 

(“CBA”), which governs the terms and conditions of the employment of the bargaining unit 

employees. (Id. ¶ 9.) 

At the beginning of 2015, Speedway employed the Plaintiffs as truck drivers. (Id. ¶ 10.) 

The Plaintiffs were dues-paying members of the Union. (Id. ¶¶ 11, 13.) Contemporaneous with 

their initial employment, the Plaintiffs “signed a Checkoff Authorization and Assignment Card 

. . . , which authorized [Speedway] to withhold union dues from the Plaintiffs’ paychecks and to 

pay those dues to the Union.” (Id. ¶ 14.) Prior to March 2015, “the Plaintiffs noticed that they 

were losing overtime hours and jobs to the drivers of a separate company known as Speedway 

Construction Products, Inc. (“Construction Products”), which was being operated out of the same 

facility using the same dispatchers and hauling the same concrete to the same job sites.” (Id. 

¶ 15.) The Plaintiffs complained to the Union that the Construction Products’ drivers were 

getting work that the Plaintiffs and other Union members should have performed, but the Union 

“stated that there was nothing it could do” and refused to take action. (Id. ¶¶ 16–17.) 

In March 2015, the Plaintiffs were offered and accepted employment with Construction 

Products because of “higher pay and better benefits with apparently better job security.” (Id. 

¶¶ 18–20.) They resigned from Speedway with no intent to return as employees and also 

withdrew their membership with the Union, which “issued to each Plaintiff a withdrawal card.” 

(Id. ¶¶ 21–22, 24.) After starting with Construction Products, the Plaintiffs “became members of 

the International Association of Machinists, District Lodge 90, Local Lodge No. 2569.” (Id. 

¶ 23.) In March, May, and July of 2015, “the Union filed a series of unfair labor practice charges 

against [Speedway] and Construction Products with the United States National Labor Relations 
3 

Board” (“NLRB”) in which the Union alleged “that [Speedway] coerced the Plaintiffs into 

leaving the Union and [Speedway] to go work for Construction Products.” (Id. ¶¶ 26–27.)1

Then, on October 1, 2015, “the Union, [Speedway], and Construction Products entered 

into a voluntary written Settlement Agreement, which required Construction Products to 

terminate the Plaintiffs’ employment” and Speedway to rehire them, which they accordingly did. 

(Id. ¶¶ 29–30.) “Following October 1, 2015, Construction Products began hiring additional 

drivers off the street to replace the Plaintiffs. These new drivers joined the Machinists Union” 

and assumed the work that the Plaintiffs had been doing. (Id. ¶ 47.) 

Upon returning to work for Speedway, none of the Plaintiffs “asked to rejoin the Union” 

or “signed new Authorization Cards authorizing” Speedway to withhold dues from their 

paychecks, but Speedway did withhold from their paychecks and the Union collected them as 

dues. (Id. ¶¶ 31–35.) Speedway “relie[d] upon the Authorization Cards . . . signed . . . in March 

of 2015.” (Id. ¶ 36.) In February 2016, the Plaintiffs learned that the Union considered the 

“Plaintiffs to still be members of the Union,” and so “submitted new letters of withdrawal” to the 

Union. (Id. ¶ 39.) Nevertheless, Speedway “continued to withhold money from the Plaintiffs’ 

paychecks and to pay that money to the Union” for all Plaintiffs except Samuel Early and 

Bradley Wilson. (Id. ¶ 40.) 

In April 20, 2016, the Plaintiffs (except for Early and Wilson) “filed a grievance under 

the CBA” with the Union in response to the withholdings, but the “Union refused to investigate 

the grievances or to represent the Plaintiffs” and Speedway denied their claims. (Id. ¶¶ 41–44.) 

Also that spring, “the Plaintiffs saw an advertisement by Construction Products seeking to hire 

 1

 The Plaintiffs claimed that the Union’s NLRB charges “were frivolous” and “in bad faith in 

order to coerce Construction Products to terminate the Plaintiffs’ employment and force the Plaintiffs to 

return to work for” Speedway. (Compl. ¶ 28.) 
4 

truck drivers,” but, when the Plaintiffs submitted applications, “Construction Products informed 

the Plaintiffs that it could not hire them because the Union objected and would file more legal 

actions against Construction Products.” (Id. ¶¶ 48–50.) 

The Plaintiffs filed a two-count Complaint against the Defendants on October 19, 2016. 

Count I asserted a § 301 claim against Speedway for breach of the CBA. Count II asserted a 

breach of the duty of fair representation (“DFR”) claim against the Union for four separate 

reasons: “refusing to represent the Plaintiff in their grievances” against Speedway; “accepting 

and retaining dues money withheld by [Speedway] from the Plaintiffs’ paychecks” without a 

legal right; “failing to take action to prevent Construction Products . . . from recognizing a 

different union as a representative of the Drivers of Construction Products, to pay those drivers 

higher benefits and wages, and by allowing those drivers to take work which” the Plaintiffs 

would otherwise have been “entitled under the seniority provisions of the CBA”; and “interfering 

with the Plaintiffs’ ability to obtain work within their profession” and “threatening bad faith and 

frivolous legal actions against Construction Products in order to induce Construction Products 

not to hire the Plaintiffs.” (Id. ¶¶ 60–63.) 

STANDARD OF REVIEW 

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 

sufficiency of the complaint and not the merits of the suit. Gibson v. City of Chi., 910 F.2d 1510, 

1520 (7th Cir. 1990). The court presumes all well-pleaded allegations to be true, views them in 

the light most favorable to the plaintiff, and accepts as true all reasonable inferences to be drawn 

from the allegations. Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 

1995). 
5 

 The Supreme Court has articulated the following standard regarding factual allegations 

that are required to survive dismissal: 

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 

detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his 

“entitlement to relief” requires more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do. Factual allegations must 

be enough to raise a right to relief above the speculative level, on the assumption 

that all the allegations in the complaint are true (even if doubtful in fact). 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks, ellipsis, citations, and 

footnote omitted). A complaint must contain sufficient factual matter to “state a claim that is 

plausible on its face.” Id. at 570. “A claim has facial plausibility when the pleaded factual 

content allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 

556). 

 Although the court must accept as true all well-pleaded facts and draw all permissible 

inferences in the plaintiff’s favor, it need not accept as true “[t]hreadbare recitals of the elements 

of a cause of action, supported by mere conclusory statements.” Id. at 678 (citing Twombly at 

555). Legal conclusions can provide a complaint’s framework, but unless well-pleaded factual 

allegations move the claims from conceivable to plausible, they are insufficient to state a claim. 

Id. at 680. Determining whether a complaint states a plausible claim for relief requires a 

reviewing court to “draw on its judicial experience and common sense.” Id. at 679. Plaintiffs can 

also plead themselves out of court if the allegations clearly establish all the elements of an 

affirmative defense, including the defense that the action was filed after the statute of limitations 

period expired. Chi. Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613–14 (7th 

Cir. 2014); see also Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011) (“[W]hen the allegations 

of the complaint reveal that relief is barred by the applicable statute of limitations, the complaint 
6 

is subject to dismissal for failure to state a claim.”); United States v. Lewis, 411 F.3d 838, 842 

(7th Cir. 2005) (citing exception to the rule that complaints do not have to anticipate affirmative 

defenses to survive a motion to dismiss where “the allegations of the complaint itself set forth 

everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals 

that an action is untimely under the governing statute of limitations”); Tregenza v. Great Am. 

Comm’ns Co., 12 F.3d 717, 718 (7th Cir. 1993) (noting that even though a plaintiff is not 

required to negate a statute of limitations affirmative defense in his complaint, “if he pleads facts 

that show that his suit is time-barred or otherwise without merit, he has pleaded himself out of 

court”). 

Rule 12(b) requires that a court treat a motion to dismiss as one for summary judgment 

under Rule 56 when “matters outside the pleadings are presented to and not excluded by the 

court.” Fed. R. Civ. P. 12(b). Despite the language of Rule 12(b), a court has the option to 

convert the motion to one for summary judgment and consider the documents, or to ignore the 

documents and confine its analysis to the motion to dismiss. Id. 12(d); Tierney v. Vahle, 304 F.3d 

734, 738 (7th Cir. 2002); Venture Ass’n Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th 

Cir. 1993). Finally, a court may also take judicial notice of matters of public record without 

converting a Rule 12(b)(6) motion into a motion for summary judgment. Henson v. CSC Credit 

Servs., 29 F.3d 280, 284 (7th Cir. 1994) (citing United States v. Wood, 925 F.2d 1580, 1582 (7th 

Cir. 1991)); see also Ennega v. Starns, 677 F.3d 766, 773–74 (7th Cir. 2012) (noting that the 

affirmative defense of the statute of limitations may sometimes “be resolved at the motion-todismiss stage based on the allegations in the complaint and a few undisputable facts within [a 

court’s] judicial-notice power”).

 
7 

ANALYSIS 

 This Court has jurisdiction over the Plaintiffs’ Complaint pursuant to the National Labor 

Relations Act (“NLRA”), 29 U.S.C. § 185, as well as 28 U.S.C. §§ 1331(a) & 1337. The Union 

moves to dismiss the Complaint for failure to state a claim on the grounds that the six-month 

statute of limitations bars all of the Plaintiffs’ duty of fair representation claims. The Plaintiffs 

dispute the Union’s contention. Alternatively, the Union asks the Court to abstain from hearing 

the case. 

“A union has broad authority as the exclusive bargaining agent for a class of employees.” 

Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1175 (7th Cir. 1995). “To balance the power 

bestowed upon a union to exclusively represent all employees in employment disputes, a 

concomitant duty of fair representation is owed by the union to each of its members.” Nemsky v. 

ConocoPhillips Co., 574 F.3d 859, 865 (7th Cir. 2009) (internal quotation marks and brackets 

omitted). As the “exclusive bargaining representative for its members,” a union “has a duty [to] 

‘fairly . . . represent’ all of them, ‘both in its collective bargaining with [an employer] and in its 

enforcement of the resulting collective bargaining agreement.’” Rupcich v. United Food & 

Commercial Workers Int’l Union, 833 F.3d 847, 853 (7th Cir. 2016) (quoting Vaca v. Sipes, 386 

U.S. 171, 177 (1967)). A union breaches its duty to fairly represent a member where its conduct 

toward a member is “arbitrary, discriminatory, or in bad faith.” Vaca, 386 U.S. at 190. The rule 

announced in Vaca “applies to all union activity, including contract negotiation.” Air Line Pilots 

Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991); see also Yeftich v. Navistar, Inc., 722 F.3d 911, 

915 (7th Cir. 2013) (stating that the union’s obligation to serve the interests of all without 

discriminating toward any, to exercise its discretion in good faith, and to avoid arbitrary conduct 

“exists through the negotiation of a collective-bargaining agreement and during administration of 
8 

the agreement”); Schultz v. Owens-Illinois, Inc., 696 F.2d 505, 514 (7th Cir. 1982) 

(acknowledging that a duty of fair representation case may allege a breach in the negotiation of a 

collective bargaining agreement). 

A. Applicable Statute of Limitations Period 

 A complaint based upon a union’s breach of the duty of fair representation is subject to a 

six-month statute of limitations. DelCostello v. Teamsters, 462 U.S. 151, 154–55 (1983) 

(adopting six-month statute of limitations period from 29 U.S.C. § 160(b)); Christiansen v. APV 

Crepaco, Inc., 178 F.3d 910, 914 (7th Cir. 1999); Lewis v. Local Union No. 100 of Laborers’ 

Int’l Union, 750 F.2d 1368, 1377 (7th Cir. 1984). Both parties agree that the six-month statute of 

limitations applies for all hybrid DFR claims. (Pls.’ Resp. 6, ECF No. 24; Def.’s Mem. 6, ECF 

No. 18.) However, the Plaintiffs argue that their Complaint contains both a “hybrid” claim 

against the employer and a “straight” DFR claim against the Union, and that the latter claim is 

not subject to a six-month limitations period. (Pls.’ Resp. 5.) 

This argument is without merit. It is well-settled within the Seventh Circuit that all DFR 

claims, whether hybrid or not, are subject to the six-month statute of limitations period. E.g., 

Johnson v. Graphic Comm. Int’l Union, 930 F.2d 1178, 1182–83 (7th Cir. 1991). The Plaintiffs 

rely upon Bullock v. Dressel, 435 F.3d 294 (3d Cir. 2006), a Third Circuit case which did not 

apply the six-month timeframe, to argue that the six-month limitations period does not apply in 

their case. “Bullock, of course, is not binding on this Court.” See Wilkinson v. SEIU Local 

1199NW, No. C06-469C, 2007 WL 43849, at *6 (W.D. Wash. Jan. 4, 2007) (rejecting a similar 

argument). Moreover, the Court could find no indication that the Seventh Circuit has adopted 

Bullock’s reasoning, even when faced with a claim for breach of DFR that is not coupled with a 
9 

claim against the employer. Thus, the Court will apply the six-month statute of limitations set out 

in Johnson to all of the Plaintiff’s DFR claims.

B. The DFR Claims 

The parties dispute whether the various breach of DFR claims that the Plaintiffs asserted 

against the Union are time-barred. A breach of DFR “cause of action accrues from the time a 

final decision on a plaintiff’s grievance has been made or from the time the plaintiff discovers, or 

in the exercise of reasonable diligence should have discovered, that no further action would be 

taken on his grievance.” Chapple v. Nat’l Starch & Chem. Co. & Oil, 178 F.3d 501, 505 (7th Cir. 

1999) (quoting Richards v. Local 134, Int’l Bhd. of Elec. Workers, 790 F.2d 633, 636 (7th Cir. 

1986)). “[C]ontinued union inactivity after an initial failure to respond to a grievance request 

does not constitute a continuing violation of the duty of fair representation.” Christiansen, 178 

F.3d at 916 (quoting Adams v. Budd Co., 846 F.2d 428, 431 (7th Cir. 1988)); Metz v. Tootsie Roll 

Indus., Inc., 715 F.2d 299, 304 (7th Cir. 1983). “A grieved employee cannot rely on a union’s 

lack of response to informal correspondence to toll the statute of limitations when he has failed 

to invoke the formal grievance procedures available to him under a collective bargaining 

agreement.” Cohen v. Flushing Hosp. & Med. Ctr., 68 F.3d 64, 68 (2d Cir. 1995) (citing Sosbe v. 

Delco Elecs. Div. of Gen. Motors Corp., 830 F.2d 83, 87 (7th Cir. 1987)). 

Here, the Plaintiffs’ lawsuit was filed on October 19, 2016. Under the six-month statute 

of limitations, any cause of action must have accrued on or after April 19, 2016, otherwise it 

would be considered untimely. There are four alleged instances of breach, and at this stage, the 

Court is only concerned with determining whether these allegations plausibly state a claim for 

breach of DFR. Therefore, the Court confines its consideration to whether the face of the 

Complaint makes plain the suit’s untimeliness, and excludes those documents attached in the 
10 

Union’s Motion but unreferenced in the Complaint’s allegations. See Del Korth v. Supervalu, 

Inc., 46 F. App’x 846, 848 (7th Cir. 2016) (per curiam) (“[W]hen the record does not make it 

clear when the statute of limitations began to run, a 12(b)(6) dismissal is premature.”); 766347 

Ontario Ltd. v. Zurich Capital Mkts., Inc., 249 F. Supp. 2d 974, 988 (N.D. Ill. 2003) 

(“Defendants’ statute of limitations argument is based primarily not on allegations from the First 

Amended Complaint but documents attached to a declaration by Defendants’ counsel. These 

documents are not appropriately before the Court on this motion to dismiss.”). 

The first allegation is that the Union “refus[ed] to represent the Plaintiffs in their 

grievances against [Speedway] for the Article 5 violations and fail[ed] to investigate the 

grievances or follow the Grievance process.” (Compl. ¶ 60.) The parties disagree on the basis for 

this cause of action. The Union argues that the Plaintiffs’ basis for their grievance was that the 

Union accepted dues improperly withheld from their paychecks. The withholdings began in 

October 2015, when the Plaintiffs returned to work with Speedway as part of the Defendants’ 

settlement agreement with the NLRB. As a first step, the Union argues that the Plaintiffs 

complained to the NLRB and state court that the Union was improperly withholding their dues 

and preventing their withdrawal.2

 Only after unfavorable dispositions in both forums did the 

Plaintiffs file a formal grievance with the Union, which was subsequently denied and 

necessitated this federal lawsuit. Accordingly, the Union argues that such a DFR claim accrued 

outside the six-month limitations period, as the Plaintiffs knew, or reasonably should have 

known, the Union’s position at some point during those prior legal actions. 

However, the Plaintiffs argue that the basis for their grievance was that the Union 

accepted dues improperly withheld from their paychecks and that both Defendants did so in 

 2

 The Complaint is devoid of any allegations that mention the NLRB and state court proceedings 

referenced in the Union’s Motion to Dismiss. 
11 

violation of the CBA. The Plaintiffs suggest that they “could not have raised that allegation 

without first attempting to resolve the issue through the dispute and grievance procedure” in the 

CBA. (Resp. 7.) February 2016 is when the Plaintiffs allege that they learned that the Union still 

considered them to be members, when they realized that their dues were allegedly being 

withheld in violation of the CBA, and when they sought their withdrawal through the Union’s 

dispute and grievance procedures. On April 20, 2016, the Plaintiffs “filed a grievance under the 

CBA,” which the Union subsequently rejected. (Compl. ¶ 41.) Accordingly, the Plaintiffs argue 

that they did not have a cause of action until their April 20, 2016, grievances were denied. 

Furthermore, the Plaintiffs argue that “had [they] attempted to file a § 301 claim without first 

filing a grievance, the Union would now be arguing that the Plaintiffs’ failed to exhaust 

contractual remedies.” (Resp. 8.) 

The second allegation is that the Union “accept[ed] and retain[ed] dues money withheld 

by [Speedway] from the Plaintiffs’ paychecks when the Union knew that it had no legal right to 

retain the money.” (Compl. ¶ 61.) As was discussed in the preceding paragraph, the Plaintiffs did 

not receive any rejection as to their formal grievance under the CBA regarding their dues 

withholdings until after April 20, 2016. However, the Union argues that the Plaintiffs’ cause of 

action accrued at the latest in February 2016, when the Union moved to dismiss the Plaintiffs’ 

state court lawsuit.3

 The third allegation is that the Union “fail[ed] to take action to prevent 

Construction Products . . . from recognizing a different union as a representative of the [d]rivers 

of Construction Products, to pay those drivers higher benefits and wages, and by allowing those 

drivers to take work” that the “Plaintiffs were entitled.” (Id. ¶ 63.) The Plaintiffs argue that the 

 3

 The Union also argues that the Plaintiffs should have known well-before February 2016, 

because the money was being withheld from their paychecks as of October 2015, pursuant to the 

settlement agreement’s enforcement, and it was the basis of their state court complaint filed in November 

2015. 
12 

Union provided shifting explanations regarding the relationship between Speedway and 

Construction Products. They contend that the settlement agreement allows them the right to 

apply to work with Construction Products, but when the Plaintiffs so applied in April 2016 the 

Union told them they could not. The Union argues that this theory is expressly time-barred 

because of the following allegations: (1) in March 2015, the Plaintiffs noticed movement of work 

from Speedway to Construction Products with loss of overtime hours and jobs, complained to the 

Union, and the Union did nothing (Id. ¶¶ 15–17); and (2) in October 2015, Construction Products 

began hiring additional drivers off the street to replace the Plaintiffs (Id. ¶ 47). To the Union, 

these allegations show that the Plaintiffs knew or would have had reason to know of a breach by 

October 2015. 

 The Court does not find that these allegations reveal that the statute of limitations bars the 

Plaintiffs’ breach of DFR claims. It may be the case that the Plaintiffs knew, or reasonably 

should have known, that their membership dues were improperly being withheld before April 20, 

2016. On the other hand, it may not have been reasonable for the Plaintiffs to know that the 

Union was in breach of the CBA until their formal grievance with the Union was finally rejected 

after April 20, 2016. Additionally, the Plaintiffs might have known, or reasonably should have 

known, that the Union failed to challenge the single-employer relationship between Speedway 

and Construction Products based on the incidents of October 2015. Then again, the Plaintiffs did 

not formally seek employment with Construction Products after the settlement agreement was 

entered until April 2016, in which case it would not have been reasonable for them to know 

before then. Whether the Plaintiffs “knew, or reasonably should have known” that they had 

breach of DFR claims is a factually intensive endeavor, and thus is inappropriate in a motion to 

dismiss. Metz, 715 F.2d at 303–05; see also FDIC v. Kime, 12 F. Supp. 3d 1113, 1120 (S.D. Ind. 
13 

2014) (denying a motion to dismiss because “the FDIC was not required to overcome affirmative 

defenses in its Complaint” because the facts “of its equitable-estoppel response to the 

Defendants’ statute of limitations defense” were not appropriately considered at that stage); 

766347 Ontario Ltd., 249 F. Supp. 2d at 988 (denying motion to dismiss federal securities claim 

because “inquiry notice is often a question of fact”). The Union may move for summary 

judgment on such grounds, should it feel that it is warranted, but the Court cannot find that the 

Complaint is untimely based upon the allegations pled therein. 

Separately, the fourth allegation in the Complaint is that the Union “interfer[ed] with the 

Plaintiffs’ ability to obtain work within their profession” by “induc[ing] Construction Products 

not to hire” them. (Compl. ¶ 62.) The Plaintiffs argue that in April 2016, Construction Products 

was advertising driver positions to which they applied for but were denied “due to threats from 

the Union” and lies the Union made in prior complaints to the NLRB about its members’ ability 

to work for Construction Products. (Resp. 11.) The Union argues that this is just a state law claim 

for tortious interference with prospective business relationship, which is preempted under the 

NLRA. The Court agrees that this is not a cognizable claim for breach of DFR. Irrespective of 

whether the Union interfered with the Plaintiffs’ ability to work for Construction Products, such 

a claim does not complain of the Union’s negotiations with Speedway to create their collective 

CBA. Nor does it complain of how the CBA is being enforced, as there are no provisions within 

the CBA governing such circumstances. Such a claim involves the Union’s alleged tortious 

interference, which arises under state law. See Comfax Corp. v. N. Am. Van Lines, Inc., 587 

N.E.2d 118, 124–25 (Ind. Ct. App. 1992).4

 “[S]tate regulation is forbidden whether federal law 

arguably protects or arguably prohibits the conduct.” Ehredt Underground, Inc. v. 

 4

 The Plaintiffs asserted a similar claim in state court and that judge similarly found that the 

NLRA preempted their tortious interference claim. (See State Ct. Order, ECF No. 18-3.) 
14 

Commonwealth Edison Co., 90 F.2d 238, 242 (7th Cir. 1996); see also Chi. Dist. Council of 

Carpenters Pension Fund v. Reinke Insulation Co., 464 F.3d 651, 657 (7th Cir. 2006). 

Accordingly, the Court will dismiss this theory of liability, as the proper place to raise such a 

concern is with the NLRB, not in a legal suit through a DFR claim. 

C. Colorado River Abstention 

In the alternative, the Union asks the Court to stay this litigation pending the resolution of 

the state court proceedings. A federal court’s ability to abstain from a case that falls within its 

jurisdiction “‘is the exception, not the rule,’ and can be justified only in exceptional 

circumstances.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 496 (7th Cir. 2011) (quoting 

Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992)). Further, Colorado River abstention is 

permitted in considerably fewer circumstances than the other theories of abstention. Id. at 498 

(quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 818 (1976)). 

Under the Colorado River doctrine, a federal court may stay or dismiss a suit before it when 

there is a concurrent state court case and exceptional circumstances exist that would promote 

“wise judicial administration.” Colo. River, 424 U.S. at 817–18. A district court must make a 

two-part inquiry to determine whether Colorado River abstention should apply: (1) whether the 

concurrent state and federal actions are actually parallel; and (2) if so, whether “exceptional 

circumstances” justify abstention. Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 

(7th Cir. 2014). Cases are parallel under Colorado River if there is “a substantial likelihood that 

the state litigation will dispose of all claims presented in the federal case.” Adkins, 644 F.3d at 

499. “A court should examine ‘whether the suits involve the same parties, arise out of the same 

facts and raise similar factual and legal issues,’” id. (quoting Tyrer v. City of S. Beloit, 456 F.3d 

744, 752 (7th Cir. 2006)), and doubts should be resolved in favor of exercising jurisdiction, id. 
15 

Upon a review of the first factor, the Court finds that the two proceedings are not parallel. 

True, the state court proceeding involves the same Plaintiffs and the Union, arises from the same 

facts alleged in the Complaint, and raises similar factual issues. But there are different legal 

issues in this Complaint not present in the state court. In state court, the complaint alleged that 

the Union was in breach of the Indiana Right to Work Act, Ind. Code § 22-6-6-8, committed 

common law tortious interference and criminal conversion, and improperly collected dues to 

which it had no entitlement. But notably in this Court, there are breach of DFR claims alleged 

against the Union under the theories discussed in the preceding section, and they incorporate the 

Union’s breach of the CBA in April 2016. Furthermore, the tortious interference claim was 

voluntarily dismissed from the state court complaint, and the other two claims were dismissed 

pursuant to the state court’s determination that it lacked subject-matter jurisdiction over them. 

They are currently on appeal and there are multiple conceivable dispositions for the two claims. 

However, because the state court determined that it did not have jurisdiction over the claims, any 

disposition affirming such an appeal would lack preclusive effect. See Okoro v. Bohman, 164 

F.3d 1059, 1063 (7th Cir. 1999) (“[J]udgment on the merits precludes relitigation of any ground 

within the compass of the suit, while a jurisdictional dismissal precludes only the relitigation of 

the [jurisdictional] ground of that dismissal.”). Thus, the Court has doubts that there is a 

“substantial likelihood that the state litigation will dispose of all” the federal claims presented 

and so resolves them in favor of continuing to exercise its jurisdiction. Adkins, 644 F.3d at 499 

(emphasis added).5

 

 5

 Not satisfying the first part of the Adkins test excuses the Court from analyzing the lengthy list 

of non-exhaustive factors used to determine whether “exceptional circumstances” are present. Freed, 756 

F.3d at 1018 (stating that the court need not address the second part if the first part is not met). 
16 

CONCLUSION

 For the reasons stated above, the Defendant Chauffeurs, Teamsters & Helpers Local 

Union No. 414’s Motion to Dismiss [ECF No. 11] is GRANTED IN PART and DENIED IN 

PART. The breach of DFR claim alleged in Paragraph 62 of the Complaint is DISMISSED. 

 SO ORDERED on March 16, 2017. 

 s/ Theresa L. Springmann 

 CHIEF JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT