UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

UNITE HERE LOCAL 25, P laintif f,

v. Civil Action No. 11-62 (JD B) MADISON OWNERSHIP, LLC, ET AL. Defendan ts.

MEMORAN DUM OP INION Plaintiff Unite Her e L ocal 25 ( "Union or L ocal 25" ) bring s this action ag ainst Madison Owner ship L L C ("O wner ship"), Ma dison Opera ting L L C ("O perating" ), and L oews Madison Corp. (" L oews" ) (c ollectively "de fenda nts"), se ekingan injunction under a collective ba

rg aining ag ree ment (" CBA" ) compe lling def endants to ar

bitrate a g rieva nce r elated to the sa le of the Madison Hotel. Specific ally , the Union maintains that defe ndants brea ched pr ovisions of the CBA, pa rticularly its successorship cla

use, whe n they

sold the Madison Hotel without requiring the purc haser

to be bound by

the CBA' s terms and c onditions. C urre ntly befor e the Court ar e motions t o dismiss by

eac h defe ndant. For

the re asons explained below, the Court will deny the motions. BACK GR OUND The Madison Hote l is a 300-room prope rty located a t 1177 Fiftee nth Street, N.W. in the District of Columbia. Am. Compl . ¶ 7. L ocal 25 r epre sents approximately 8,000 hotel and food service worke rs in the Washington, D.C. ar ea a nd has re prese nted employ ees at the Madison Hotel since 1962. I d. ¶ 3. The Union and the Madison Hotel e ntere d into a CBA, with a stated

-1-term of Septembe r 16, 2007 to September 15, 2010. I d. ¶ 9; CBA, a rt. 20.1. The CB A sets

1 forth the pa

rties' mutual understandingreg arding the usual aspe cts of the e mploy ment relationship, i ncluding workingconditions, wag es, bene fits, and promotions. The CBAalso contained a

provision commonly

known as a

"suc cessor ship clause." Article 1.12, titled " L ease s and Sales," stated in rele vant par t: I n the eve nt the Employ er se lls or by other c ontrac tual arr ang ement tra

nsfer s all or par

t of his business to another par ty , the Employ er sha ll require, a s a condition of such tra nsaction, that the other pa

rty be bound by

the terms and pr ovisions of this Ag ree ment, or off

er satisfactory

proof . . . that he has made an arr ang ement with the Union satisfa ctory to the Union. CBA, a rt. 1.12(a) . The CB A also conta ined a pr ovision which established a g rieva nce a nd arbitration procedur e for

resolvingdisputes: 17.1 Gr ievance P roce dure: In the eve nt a g rieva nce or misunderstanding arises out of a

nd during the term of this Ag ree ment, such disputes shall be proce ssed as de scribed be low. I t is ag ree d that any differ ence s arising incident to neg otiation of terms of a ne w Ag ree ment are not subject to this section, the sole pur

pose of whic h is to make subject to ar bitration g rieva nces a rising out of

and duringthe term of this Ag ree ment. CBA, a rt. 17.1 (" arbitra

tion clause" ). I t is hotl y disputed which par

ties are bound by

the CBA, a s well as the pe riod of time in which the CB A was in e x istence. L ocal 25 c laims that Operating, Ownership, and L oews a re a ll parties bound by

the CBA. A ccor ding to L ocal 25, Ope ratingwas the " lease hold owner" and Owner ship was the " fee owner " of the hotel. L ocal 25 f

urther c laims that L oews, the ma nag er of the hotel, was a

n "e mploy er" as def

ined under

29 U.S.C. § 152(2). See Am. Compl. ¶¶ 4-6. Oper ating and L oews dispute L ocal 25' s assertions. Owne rship does not appe ar to c ontest that it The CB A, which wa s attache d to previous submissions t o this Court, i s incorporated and 1 ref err ed to in the amende d complaint.

-2-was a

party to the CBA. The CB A itself states that it was e ntere d into between the Union and " Madison L L C

owner s and L oews Hote ls operator s of The Ma dison, a L oews Hote l here inafter ref err ed to as the (' Employ er' )." See CBA , Ex . 1 to Boa rdman De clar ation. Whil e " Madison L L C" wa s orig inally named by L ocal 25 a s a def

endant in this suit, no party now claims that an e ntity named "Ma dison L L C" e x ists or ever e x isted. The ame nded complaint filed on Ma rch 22, 2011 contains no re fer ence to "Ma dison L L C". The CBA c ontained two sig nature lines. J ohn Boa rdman, the Executive Sec reta ry -Tre asure r of L ocal 25, sig ned the Agree ment on behalf of the Union. Under

the sig nature line for " L oews Hote ls t/a The Madison, a L oews Hote l," the CBA wa s signe d by

"L arr y Bie derma

n, GM, The Ma dison, a L oews Hote l." The re a re no signature lines or r efe renc es to Madison Owne rship L L C or Madison Oper atingL L C. See id. at 35. The pa

rties' views also diffe r re g arding how many

times the CBA wa s ext ended. L ocal 25 and the de fenda

nts ag ree that the CBA' s expi ration date was e x tended to Oc tober 8, 2010. Howeve r, the Union c laims that the CBA wa s further extended to March 15, 2011. A m. Compl

. ¶¶ 9- 10. The de fenda

nts disagr ee. 2 In October

2010, the Union lear

ned that the Ma dison Hotel was on the mar ket for sa le. Am. Compl. ¶ 11. I n the wee ks that followed, the Union wa s in communication with various repr esentatives of the Hotel r eg ardingdraf ts of the purc hase a

nd sale a g ree ment (" PSA"). Duringthose discussions, the Union had expressed c oncer ns that the proposed la

ng uag e of the The Union a lleg es that subseque nt to these ag ree d-upon extensions, the relationship betwee n 2 the Union and the de fenda nts procee ded as be fore , and points to the Hotel' s ag ree ment to pay additional health ca

re c osts effe ctive Nove mber 1, 2010, a nd its continued pay

ment of hea lthcare costs there afte r. Am. Compl. ¶¶ 9-10.
-3-PSA failed to comply with the CBA' s succe ssorship clause. I d. ¶¶ 11, 13- 14. L ocal 25 a lleg es that J ohn Parker , the hotel owner ' s repr esentative, assure d the Union that the owne r under stood that lang uag e in the PSA "wa s not acc eptable a nd had to be f

ix ed." I d. ¶ 14. The Union claims that Parker

promised that the purc hase pr ice would be reduc ed in exchang e for the purc haser ' s assumption of the CBA. I d. ¶ 13-14. B oardma n ag ain inquired a

bout the PSA's status around Dec ember

22, 2010 and discove red tha t the PSA had been e x ecute d and that closingof the sale would occur

on J anuar

y 19, 2011. I d. ¶ 15. L ocal 25 c laims that the problematic languag e of the executed PSA rema ined uncha ng ed. After the purc haser

failed to re spond to requests to modify the executed PSA, the Union filed a grieva

nce on January

4, 2011 alleg ing violation of the CBA' s succe ssorship provision. I d. ¶¶ 18, 20. The Union serve d the g rieva nce on the hotel' s g ener al manag er, the hotel' s spokesman Peter Chatilovicz, and Stephen L ueke, la bor counse l for the hotel. I d. ¶¶ 9, 13, 22. Ac cordingto L ocal 25, Chatilovicz, actingon behalf of L oews, a

nd Lueke, a cting on behalf of the owne r, g ave notice that they

wer e re fusing arbitra

tion. I d. ¶ 23. On J anuar

y 11, 2011, the Union initiated this action ag ainst Madison L L C and L oews. The Union soug ht a tempora ry restra ining or der ( "T RO") to compel ar bitration of the January

4, 2011 g rieva

nce a nd to enjoin the J anuar

y 19, 2011 sale of the hotel pendingthe conc lusion of the arbitration procee dings. Compl. at 9. The Court he ld a two-da y evidentiar

y hear ing on January 13 and 14, 2011. See T r. of TRO Hr ' g , 1-181 (" Tr. Da y One" ), ECF N o. 13; Tr. of TRO Hr ' g , 182-465 (" Tr. Da

y Two" ), ECF N o. 14. After consideringall the evidenc e, includingboth testimonial and documentar y evidenc e, the Court denie d the TRO. I t concluded tha t the Union had fa iled to show a likelihood of succ ess on the mer its, specifica lly that the CBA w as extended

-4-and in ef

fec t during the re levant time, such that a rbitration could be c ompelled or the sa le of the hotel enjoined. See T r. Da y Two 453-460; Or der, ECF No. 18 (Jan. 18, 2011). J amestown Proper

ties (" J amestown" ) purc hased the Hotel as planne d on J anuar y 19, 2011. Owner ship's Mot. at 2. On Ma rch 22, 2011, the Union filed its amended c omplaint, now naming as co- defe ndants Madison Owne rship L L C, Madison Operating L L C, and L oews Madison Hotel Corp. See g ener ally Am. Compl., EC F No. 21. A lthough L ocal 25 no long er seeks to enjoin the sa le of the hote l, it continues to seek an injunction compellingdefe ndants to arbitration. Am. Com pl. ¶¶ 24-25. A ll three de fenda nts have moved to dismiss L ocal 25' s amende d complaint pursuant to Fe d. R. Civ. P . 12(b)( 1), on the g round that L ocal 25' s claims are now mooted by

the hotel' s sale. 3 STANDARD OF REVIEW "[I ]n passing on a motion to dismis s, whether on the ground of lac k of jurisdiction over the subject matter

or for failure to state a c ause of action, the a lleg ations of the complaint should be construe d favor ably

to the pleade r." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see L eathe rman v. Ta

rra nt Cnty . Nar cotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phill ips v. Bure au of Prisons, 591 F.2d 966, 968 ( D.C. Cir. 1979). There fore , the fa ctual alleg ations must be presumed true , and plaintiff must be g iven eve ry favor able infe renc e that may be dra wn from the a lleg ations of fa ct. Scheue r, 416 U.S. at 236; Sparrow v. United Air L ines, Inc., 216 F .3d 1111, 1113 (D.C. Cir. 2000). Howe ver, the Court need not ac cept a s true "a leg al conc lusion couched a s a fa ctual alleg ation," nor infere nces that are unsupported by the fac ts set out in the complaint. Trudeau v. F eder al Tra de Comm'n, 456 F .3d 178, 193 (D.C. Cir. Oper ating also moves to dismiss pursuant to Fe d. R. Civ. P . 12(b)( 6), which the Court will 3 separ ately addre ss. -5-2006) (quotingPapasan v. A llain, 478 U.S. 265, 286 (1986)).

Under Rule 12(b)(1) , the par

ty seekingto invoke the jurisdiction of a fe dera l court -- plaintiff her e -- bear s the burden of establishing that the court ha s jurisdiction. S ee U S Ecolog y , Inc. v. U.S. Dep' t of Interior, 231 F .3d 20, 24 (D.C. Cir. 2000); see a lso Grand L odg e of Fr ater nal Orde r of Police v. Ashc roft, 185 F . Supp. 2d 9, 13 (D.D.C. 2001) (a court ha s an "a ffirmative obligation to ensure that it is actingwithin the scope of its jurisdictional authority .") ; Pit ney

Bow es, Inc. v. United States Postal Serv., 27 F . Supp. 2d 15, 19 (D.D.C. 1998). " ' [P ]l aintiff' s fac tual alleg ations in the complaint . . . will bear c loser scr utiny in resolving a 12(b) (1) motion' than in resolvinga 12(b) (6) motion for f ailure to state a

claim." Gra

nd L odg e, 185 F. Supp. 2d at 13-14 ( quoting 5A Cha rles Alan Wrig ht & Ar

thur R. Mill er, F eder al Prac tice and Proce dure § 1350 ( 2d ed. 1987)) . Additionally , a cour t may consider material other

than the alleg ations of the complaint in deter mining whe ther it has jurisdiction to hear the ca se, as longas it sti ll acce pts the fac tual alleg ations in the complaint as true. See J erome Stevens Pharmac euticals, Inc. v. F DA, 402 F .3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Fra ncis Xavier Parochia l Sch., 117 F.3d 621, 624-25 n.3 ( D.C. Cir. 1997); Herbe rt v. Nat' l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992). DISCUSSIO N I. Mootness L oews, Ownership, and O perating a rgue that the sa le of the Ma dison Hotel has mooted L ocal 25' s claims, beca

use there is no longe r a " live" c ontroversy and the Union now la cks any available reme dy

g iven that sale. The Court disag ree s. Article I I I of the Constituti on limit s the jurisdiction of the fe dera l courts to the

-6-consideration of case s or controve rsies. U.S. Const. art. I I I , § 2. Mootness is a justiciabilit y

doctrine de rived fr om this l imitation. S ee, e .g ., Al Najjar v. Ashcrof

t, 273 F.3d 1330, 1335 (11th Cir. 2001); see a lso U.S. Parole Comm'n v. Ge raghty , 445 U.S. 388, 395-96 (1980)

. Fe dera l courts have authority

only to "a djudicate a ctual, ong oing c ontroversie s." H onig v. D oe, 484 U.S. 305, 317 (1988). " [A] a ca se is moot when the issues pre sented a re no long er ' live' or the pa rties lack a leg ally cog nizable interest in the outcome." Powell v. McCormack, 395 U .S. 486, 496 (1969); ac cord A ss'n of

Flig ht Attendants v. Delta A ir L ines, Inc., 879 F .2d 906, 909 (D.C. Cir. 1989). Howe ver, " as longas some issues re main alive, ' the re maining live issues supply the constitutional requireme nt of a c ase or controve rsy .' " D elta Air L ines, Inc., 879 F .2d at 909 (quoting Powell, 395 U.S. at 496-97). The mootness doctrine " is not a leg al conc ept with a fixed content or susc eptible of scie ntific verif ication." Ger ag hty , 445 U.S. at 400-01 (c iting Poe v. Ullman, 367 U.S. 497, 508-09 (1961)) . Instead, the Supre me Court has desc ribed the mootness doctrine a s havinga " flexibl e cha rac ter." I d. Def endants have filed se para te motions to di smiss, but eac h motion challeng es the amende d complaint on the basis of mootness. While eac h defe ndant ar g ues var iations of why L ocal 25' s case is moot, all contend that beca use of the hote l's sa le, the alleg ed violations of the CBA will not rec ur, and no r emedy would be ava ilable to the Union in arbitration. Specifically , Oper ating argues that it no longe r holds a lea sehold interest in the Madison Hote l after the sale and that the Union is for eclose d from see king mone tary damag es due to a

n alleg ed bre ach of

the

succe ssorship clause, be cause its J anuar y 4, 2011 g rieva

nce only soug ht an injunction ag ainst the sale. Ope rating ' s Mot. to Dism iss at 13-14. For its part, Owner ship argues that, eve n assuming that the Union incurr ed dama g es bec ause of an alleg ed bre ach by

defe ndants, those damag es did

-7-not "a

rise under " the CBA, but we re instea d cause d by J amestown. Ownership' s Mot. to Dism iss at 6-8. L oews make s what ca n be cha rac terized as a f

utilit y arg ument -- be cause L oews ne ver owned the Ma dison Hotel, nor had a ny influence over the terms and c onditions of the hotel's sale, a n arbitrator could not possibly find that L oews ha d brea ched the succe ssorship clause. L oews' Mot. to Dismi ss at 4-9. A sig nificant proble m with defenda nts' mootness a

rguments is that the Union's a mended complaint does not seek to r escind or e njoin the sale of the H otel. Instead, L ocal 25 se eks an order to compel def

endants to ar

bitrate its previously -submitted gr ievanc e. See g ener ally Am. Compl.; Pl.'s Opp' n to Owner ship's Mot. at 2. As this Court expressed at the TRO he aring , if the Court were to find that there w as an e x tension of the CBAuntil March 2011, then the Court would also nec essar ily

find that any

dispute over the suc cessor ship clause must g o to arbitration. This result would essentially g rant the Union the relief it requests -- an opportunity to have its g rieva nce he ard by

an ar bitrator. TRO Hr ' g at 4:23-25. That the a rbitrator, not this Court, should decide the actua l merits of any claimed br eac h to the succe ssorship clause is not in serious dispute. See Tr . Day One 6:16-7:15; 12:13-18-14:9 (pa rties ag ree ing tha

t if there is no CBA, then the Court has no jurisdiction to provide relief , and agree ing tha

t any challeng e on the merits to a claimed br eac h of the succ essorship clause would be hea rd by an ar bitrator). Moreove r, any

further question as to what re medies the Union mig ht be entitled to beca use of a brea ch of the CBA is an issue f or the a rbitrator to re solve, not the Court. The same analy sis 4 All three c ases that Ownership re lies upon involve challeng es to judicial enfor ceme nt of 4 awa rds alre ady

imposed by

an ar bitrator -- not decisions over whether a dispute should be submitt ed to ar

bitration in the first instance. See Kra ft Foods, Inc. v. Of fice & Prof

' l Emp. I nt'l Union, 203 F.3d 98, 103 ( 1st Cir. 2000) (upholding a rbitration re medy

when it " dr[ew] it s essenc e" from the CB A); S.D. Warre n Co. v. United Paperwor kers' Int'l Union, 845 F .2d 3, 7-8 (1st Cir. 1988) (dec lining to enf orce arbitration awar d when a rbitrator ig nored " plain languag e of
-8-applies to L oews' and Owne rship' s arguments, which in essenc e cla im that because the Union' s

submitt ed g rieva

nce only soug ht one kind of re medy , it would be fore closed fr om seekingother kinds of reme dies. These arguments essentially conflate mootness with futilit y . The Court nee d not (and should not) dec ide what kinds of r emedies, if a ny , an ar bitrator could pr ovide for br eac h of the succ essorship clause , or any other bre ach a

rising unde r the CB A. I t only needs to de cide 3 whether arbitration should be compelled under the CBA, a

nd with respec t to which defe ndants. And to decide that, the Court must resolve whe ther the CB A was e x tended to Mar ch 2011 and who ar e " parties" to the CBA. The pa rties place too much relianc e on their g ener alized assertion that one- time violations, as opposed to rec urringviolations of the CBA, c ould moot thi s action involving a n injunction to compel arbitration. The inquiry as to whethe r ar

bitration should be compelled is not based on the nature, magnitude, or fr equenc y of the bre ach, but whe ther the pa rties had intended for

that brea ch to be c overe d by the ar bitration clause. A t all times, the releva nt focus is on what the par

ties had agree d upon. See RDP Technolog ies, Inc. v. Cambi AS, 800 F. Supp. 2d 127, 139-40 (D.D .C. 2011) (desc ribing the " established proposition" that 'a rbitration is a matter of c ontrac t and a pa rty cannot be require d to submitto arbitrate any dispute which he ha s

the contra ct" ); L eed Architec tural Prods, Inc. v. United Steelwor kers of Am., L ocal 6674, 916 F.2d 63, 66- 67 (2d Cir. 1990) (instruc ting district cour t to vacate arbitration awar d when arbitrator violated we ll-established rule that arbitrator s cannot de rive a uthority from sourc es outside the CBA)

. Courts also rec og nize that there is a ne ed for arbitrators to rely

on their own judg ment "when it 3 comes to for

mulating r emedies" beca

use of the ne ed " for f

lexi bility in meeting a wide va

riety of situations." United Steelwor kers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960); ac cord H all v. Trea sure B ay Virg in I slands Corp., 371 F. App' x . 311, 313 (3d Cir. 2010); Dexter Axl e Co. v. Int'l Ass' n of Mac hinists & Aer ospace Workers, 418 F .3d 762, 769 n.5 (7th Cir. 2005); Chry sler Motors Corp. v. Int'l Union, 959 F .2d 685, 688 (7th Cir. 1992). -9-not ag ree d so to submit ' ") (quoting AT & T Tec hs Inc. v. Commc' n Workers of Am., 475 U.S.

648, 648 (1986))

. L oews, in par

ticular, g reatly

overstate s the applica

bility of the Court' s prior finding s in denying a TRO on the ultimate question whether a CBA(and he nce, a

n arbitration clause) w as in exis tence at the time of the January 4, 2011 g rieva

nce. L oews foc uses on the Court' s prior "r uling" that the CBA ha d expired in October 2010, a nd claims that the " Court effe ctively addre ssed -- a

nd denied - - the Union' s reque sted relief ." See L oews' Mot. to Dismi ss at 4, 6. But L oews' char acte rization of this C ourt' s decision deny ing the TRO does not square with the TRO standard that the Court actually applied. Indeed, the Court repe atedly emphasized both at the hear ing a nd in its Order that its finding s were limit ed to consider ing the merits of the re quested TRO. See, e.g ., Tr. Da

y One 6:4-8 ( "[W] e' re he re on a TRO . . . "[the Court is] g oing to r esolve [whether ther e is a c ollective bar g aining ag ree ment] i n this contex t of a TRO he aring .") ; Tr. Day Two 458:3-6 (" For

the purposes of

the injunctive re lief that is soug ht . . . plaintiff has not ca rried that burden to e stablish that there wa s an extension."); id. at 14-19 ( "I cannot g rant the r equeste d TRO relief

beca use I cannot c onclude that plaintiff ha s succe eded or is likely to succe ed on the merits of [its ] claim. I t is only a likelihood of succ ess standar d in a [TRO] or pre liminary injunction context , when we ' re spe akingof the mer its."); see also Orde r De nying Pl.' s Mot. for a TRO, ECF No. 7 ( J an. 18, 2011) ( "[P] laintiff has not shown a likelihood of suc cess on the me rits of its claim that the CBA w as extended throug h Marc h 15, 2011.") . The Court did not resolve on the merits either

whether the CBA w as extended until March 2011 or who was a

party to the CBA. Acc ording ly , notwithstanding the hote l's sa le, the question whe ther the Court is able to

-10-g rant the Union's r equeste d relief -- a n order direc ting the pa

rties to arbitrate the g rieva nce - -
rema ins a " live" issue that the Court must resolve. No def endant ha s persua sively

argued that it would be appr opriate f

or the Court to consider

what would occ ur during arbitration in deciding whether the Union' s g rieva

nce should be hear d in that forum. B eca use a live issue r emains with respe ct to the extension of the CBA ( and the a rbitration clause ), and the Union clea rly continues to have a "le g ally cog nizable interest in the outcome" of the c ase, Powe ll, 395 U.S. at 496, L ocal 25' s claim is not moot. II. Sub jec t Mat terJursidi ction und er Labor M anagem ent Re lations Act As previously

expressed, this case prese nts two options for the Court. I f the CB A had expired in October 2010, the n pursuant to sec tion 301 of the L abor Ma nag ement Relations Act (" L MRA") , codified at 29 U.S.C. § 185(a), the c ase must be dismissed bec ause the Court would lack subjec t matter jurisdiction over L ocal 25' s reque st to arbitrate a g rieva nce unde r that CBA

. Henc e, without a CBA , there would be nothing for the Court to compe l. On the other ha nd, if the Court deter

mines that a CBAwas in ef fec t during the re levant time per iod, then any claims reg ardingbrea ch of the succe ssorship clause - - or a ny other bre ach a

rising unde r the CB A -- would be dec ided by

an ar bitrator. See T r. Da

y One 4:21-5:10. No de fenda nt has discussed in g reat leng th the Court's subjec t matter jurisdiction over this ac tion as impacted by the CBA’ s expiration. However , the Court bear s an af firmative oblig ation to ensure that it acts within it s jurisdictional authority . See, e.g ., Gen. Motors Corp. v. EPA., 363 F .3d 442, 448 (D.C. Cir. 2004); Gra

nd L odg e of F rate rnal Or der of Police v. Ashcrof

t, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Section 301 of the L MRA confe rs jurisdiction on fede ral c ourts over " [s] uits for violation

-11-of contra cts betwe en an e mploy er a nd a labor org anization." See 29 U .S.C. § 185(a); Am. Compl. ¶ 2; see a lso L opez v. Comm onwea lth Oil R ef. Co., 833 F . Supp. 86, 88 (D.P.R. 1993), aff ' d, 29 F.3d 619 ( 1st Cir. 1994) (quoting United Paperw orker s I nt'l Union v. Int'l Pape r Co., 920 F.2d 852, 859 ( 11th Cir. 1991)). Acc ording ly , the ce ntral issue in this case is whe ther a CBA e x isted during the J anuar y 2011 timeframe , such that the Court could c ompel the par ties to comply with the arbitra

tion clause of the CBA with re spect to L ocal 25' s g rieva nce. See L opez, 833 F. Supp. at 88; Will iams v. WC ISteel Co., 170 F.3d 598, 605 (6th Cir. 1999) (c iting L itton Fin. Printing D iv. v. NL RB, 501 U.S. 190, 206 (1991)) ; Asbury v. Container Prods, Inc., Civ. A. No. 90-1035, 1991 WL229953 (E.D. L a. Oc t. 25, 1991), aff ' d sub nom. Asbury

v. Container Prods, 968 F.2d 17 (5th Cir. 1992) ( dismiss ing br eac h of contra ct claim under 301(a) for lac k of jurisdiction when CBA ha d expired by the re levant time). The Court bea

rs the re sponsibili ty

of dete rmining in the f

irst instance whe ther a

CBA wa s in exi stence at the time of the pa rties' dispute. I t is "we ll settled that where the dispute at issue

conce rns contra ct formation, the dispute is gene rally for c ourts to decide." Gra nite Rock Co. v. Int'l B rotherhood of

Teamsters, 130 S. Ct. 2847, 2855-56 (2010); acc ord Nat'l R.R. Passeng er Corp. v. Boston & Me. Corp., 850 F .2d 756, 761 (D.C. Cir. 1988) (" [I ]ss ues of f ormation . . . must alway s be dec ided by the cour ts . . . ."). I

n RDP Technolog ies, Inc. v. Cambi AS, this Court noted that while the D.C. Circuit has not consider ed the pr opriety of district courts adjudicatingchalleng es to the for mation of a c ontrac t containingan ar bitration clause, the D.C. Circuit has cited to ca ses from other circ uits taking that a

pproac h. 800 F. Supp. 2d at 139 (c iting Nat' l R.R. P asseng er Corp., 850 F . 2d at 761). More over, the Supreme Court in Gra nite Rock instructs that, "[t] o satisfy itself that [an] ag ree ment exis ts, the court must resolve a ny issue that

-12-calls into question the formation or a pplicability

of the spec ific ar

bitration clause that a par ty seeks to have the cour

t enforc e." 130 S. Ct . at 2856. Henc e, " courts should order arbitration of a dispute only

wher e the c ourt is satisfied that the for mation of the par

ties' arbitration ag ree ment . . . is [ not] in issue." I d. at 2857 (e mphasis added)

. In order for a dispute to “arise under” a CBAthat trig g ers the pa rties' agree ment to resolve that dispute by

arbitration, there must be a CB A to consider a s a startingpoint for the Court’s analy sis. I f no CBAwas in plac e at the time of the alleg ed bre ach a

nd the Union’s submitt ed g rieva

nce, the n it likely

follows (at lea st based on the f acts of this ca se) that the arbitration clause within the CBAhad also e x pired. Henc e, the Court would lac k any authority 4 to direct the pa

rties to arbitration. This analy sis is consist ent with the Court' s observation at the TRO hear ing , tha t its jurisdiction to decide this case depends " on there beinga violation of a c ontrac t betwee n an

Whether an a

rbitration clause within an expired CBA e x tends beyond that CBA de pends on 4 sever al consider ations. Significa ntly , courts look to the intent of the pa rties, as manife sted by the languag e of the arbitration ag ree ment. See, e.g ., AT & T Tec hs I nc., 475 U.S. at 648; RDP Tec hnologie s, I nc., 800 F . Supp. 2d at 139-40. Courts have not hesitate d in enforc ing br oad arbitration ag ree ments over r ights that " arise unde r" a CBA , even if the CBA the rea fter e x pires or terminate s. See, e.g ., Nolde B rothers I nc. v. B aker

y Workers, 430 U.S. 243, 255 (1977); L itton, 501 U.S. 190, 209 (1991) (post-expiration gr ievanc es ar e not ar bitrable unless they

"a rise under" the contra ct and de scribingcirc umstances whe re post-e x piration g rieva nces satisfy

that standard) ; Washington Mailers Union L ocal M-29 v. Washing ton Post , 699 F. Supp. 2d 130, 133 (D.D.C. 2010) ( finding that parties intende d for post-e x piration arbitra bility of contra ctual lifetime employ

ment g uara

ntee, a rig ht that had vested unde r the CB A prior to its expi ration). Her e, assumingthat a CBAexis ted at the time of the g rieva nce, the parties do not ser iously dispute that a g rieva

nce ba sed on a br eac h of the succ essorship clause falls under the CBA, e ven though O wner ship briefly argues that any

"da mag es" as a r esult of a br eac h wer e ca used by J amestown. See Owner ship's Mot. to Dismiss at 7. The arbitration clause itself, a s set forth in the CBA, states that it ex tends to "g rieva nces a rising out of and during

the term of this Ag ree ment." See CBA, a rt. 17.1 (empha sis added). H ence , if the CBAwas e x tended until Marc h 2011, the alleg ed bre ach w ould have oc curr ed while the CB A was in for ce, a nd may be arbitra ble.
-13-employ er a nd a labor org anization." See T r. Da y One 4:10-11. The Court also noted that the rele vant threshold question is whether the CBA w as in eff

ect dur ing the operative time period, Tr. Da y One 4:12-20, and that a f actua l finding that there w as no CBAin effe ct at the time of the alleg ed bre ach of

the CBA w ould be " the end of things for

[t he Court]" bec ause suc h a finding would be tantamount to a de termination that " there ' s no jurisdiction." See id. at 5:4-10. The pa rties have clea

rly disputed whether

the CBA w as extended throug h Marc h 15, 2011, such that L ocal 25' s J anuar y 4, 2011 g rieva

nce c ould be cove red by

the CBA' s arbitra

tion clause . Although the Court concluded at the TRO hear ing that the Union "ha s not carr ied [the] burden to e stablish that there wa s an extension [ of the CB A]," Tr. D ay Two 458:4-6, it also noted that it was conc eivable that the Union might be a ble to demonstrate a

n extension of the CBA with " some more time and de positions and further de velopment of e vidence ," id., 458:7-9. In addition, even a ssuming that a CB A was in e ffe ct in J anuar y 2011, the par

ties have disag ree d over who is bound by the agree ment. As this Court previously observe d, it is somewhat be wilderingat this juncture how the ide ntities of the parties bound by the ag ree ment could still remain unclea

r. Notwithstanding the claimed e x tensions, the CBA ha d alre ady been in place f or a numbe r of year s. But in any event, the issue of

which par

ties were bound by

the CBA r emains a significant fa ctual dispute. Ope ratingclaims that it was not a par ty to the CBA and neve r has be en, and that L arr y Bie derma

n did not act as Ope rating ' s ag ent when he signe d the CBA. O perating' s Mot. at 8-10. L ocal 25 a rgues otherw ise. Dete rmining which par ties are bound by the CBA is a

signific ant inquiry , for the Court would lac k jurisdiction over any defe ndant who wa s not a party to -- and he nce, not bound by -- the CB A. See, e .g ., Sheetmetal Workers Union L ocal v. Pub. Serv. Co. of Ind., Inc., 771 F .2d 1071, 1073-74 (7th Cir. 1985)

-14-(dismissing complaint for la ck of jurisdiction whe n the labor a g ree ment did not bind the

defe ndant); Dist. 2 Marine E ng ' rs B enef icial Ass' n-Assoc. Ma

r. Off icer s v. Grand B assa Ta

nkers, Inc., 663 F .2d 392, 401 (2d Cir. 1981) (f inding no jurisdiction under 301(a) when the de fenda nt was not the e mploy er of

the union worke rs). These f actua lly complicated que stions -- when the CB A expired and whic h parties a re bound by it -- ar e not ea sily

resolved. T r. Da

y Two 454-55. At this juncture, ba sed on the

rec ord and the arguments befor e it, the Court rema ins unable to deter mine whether

(and a s to which par ties) the Court should direct a rbitration. Acc ording ly , it is t he better course to allow the par ties an opportunity

to eng ag e in discover

y , which may

ultimately

lead this Court to conclude that it lacks subject matter jurisdiction. Finally , the Court is mindful that subj ect matter jurisdiction is ordinarily

analy zed under the standar ds g overninga motion to dism iss pursuant to Fed. R. Civ. P. 12(b)(1), a nd that the inquiry is usually

a thre shold question determined at the outset of the ca se. He re, how ever , the inquiry into whether the Court has jurisdiction to compel arbitration under the CB A depe nds on whether there was a

CBA in ef

fec t at all when the a lleg ed bre ach oc curr ed and L ocal 25' s g rieva nce w as submitted in J anuar y 2011 Acc ording ly , wher e the jurisdictional question is closely intertwined with the mer its of the case , the D.C. Circuit has instructed that it is appropr iate for

a cour t to allow discovery

to proce ed, and to c onsider the issue of subject matter jurisdiction on a motion for summary judgme nt therea fter. See , e.g ., Her bert v. Na t'l Ac ad. of Scis., 974 F.2d 192, 198 (D.C. Cir. 1992) ( "[T]hough the tria l court may rule on disputed jurisdictional fac ts at any time, if they

are inext rica

bly intertwined with the mer its of the case it should usually

defe r its jurisdictional decision until t he mer its are he ard." ) (c iting L and v. Dollar ,

-15-330 U.S. 731, 731 (1947)); L oug hlin v. U.S., 230 F. Supp. 2d 26, 36-37 (D.D.C. 2002) ( "When

the jurisdictional issues are inext rica bly intertwined with the mer its of the cause of ac tion, courts have not dismissed fede ral c laims on Rule 12(b)(1) motions unless they are clea rly insubstantial or immaterial. Instead, they are treated as motions for summary judgme nt.") . Dismissal of the

case on the basis of F ed. R. Civ. P. 12(b)(1) " may be improper

befor e the plaintiff ha s had a chanc e to discover

the fa cts nec essar

y to establish jurisdiction." Her bert, 974 F .2d at 198 (c iting Colli ns v. New Y ork Cent. Sy s., 327 F.2d 880 (D .C. Cir. 1963)). 5

CONCLUSION For the fore g oing r easons, the Court will deny defe ndants' motions t o dismiss . A separ ate Or der a ccompa

nies this Memorandum Opinion.

/s/ p J OHN D. B ATES United States District J udg e Dated: Marc h 23, 2012

For simil ar r easons, the Court will deny Oper ating ' s motion t o dismiss based on F ed. R. Civ. 5 P. 12(b)(6). O perating c laims that the Union has fa iled to alleg e suff icient fa cts that Oper ating was a party to the CBA, that it ag ree d to an extension, or that it failed to arbitrate the g rieva nce. See g ener ally

Oper ating ' s Mot. to Dism iss. However , the Union alleg ed that Ope ratingwas the "le asehold owne r" of the Hote l and a pa rty to the CBA at all releva

nt times, that defenda

nts extended the CBA a

nd continued their r elationship with L ocal 25 " as bef ore" and that the Hote l "owner" notified the Union that it ref used to arbitrate the g rieva nce. A m. Compl

. ¶¶ 4, 9-10 & 23. These a lleg ations are sufficie nt to survive a 12(b) (6) motion to dismi ss. See B ell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007); Ashcr oft v. I qbal, 556 U.S. ___, 129 S. Ct . 1937, 1949 (2009) ( quoting Tw ombly , 550 U.S. at 570); Atherton v. District of Columbi a Of

fice of the Mayor, 567 F .3d 672, 681 (D.C. Cir. 2009). The f act- intensive issues as to whethe r Ope rating was a party to the CBA a

nd whether

it -- or a ny defe ndant -- a g ree d to ext end the CB A throug h Marc h 15, 2011 rema in in disput e. -16-