UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22 - 1130
TODD BOWERS , Plaintiff

– Appellant , v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS, AND HELPERS AFL

- CIO , Defendant

– Appellee

. Appeal from the United States District Court for the Northern District of West Virginia , at Martinsburg

. Gina M. Groh , District Judge. ( 3:21−cv−00089−GMG ) Submitted: October 3, 2022 Decided: No vember 10, 2022 Before WILKINSON, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion

. ON BRIEF: Christian J. Riddell, THE RIDDELL LAW GROUP, Martinsburg, West Virginia, for Appellant. Jason R. McClitis, Brandon E. Wood, Jordan L. Glasgow, BLAKE & UHLIG, P.A., Kansas City, Kansas, for Appellee

. Unpublished opinions are not binding precedent in thi s circuit. USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 1 of 72 PER CURIAM: Todd Bowers, a longtime member of the International Brotherhood of Boilermakers (IBB), started his own welding business and entered into a collective

- bargaining agreement with the union before the relationship soured. After he sued IBB in West Virginia state court, IBB removed the case based on the Labor Management Relations Act’s creation of exclusive federal jurisdiction over cases arising from collective

- bargaining agreements. Bowers appeals the district court’s dismissal of his case with prejudice and its denial of his motion to remand. For the following reasons, we affirm. I. Bowers was a member of an IBB local lodge who founded his own welding business, Elite Mechanical. J.A. 14. He entered into a collective

- bargaining agree ment with IBB

— the Ohio Valley Agreement (OVA)

— wherein IBB would provide Bowers with certified boilermakers and Bowers would employ boilermakers exclusively through the OVA and make payments into IBB’s pension and retirement programs. Id. at 14

– 15. At some point in or around 2017, the relationship between Bowers and IBB soured based, in part, on Bowers’s hiring of a boilermaker who had been expelled by the union

. Id. at 15. Bowers also attempted to withdraw from the OVA. Id

. In early 2020, IBB’s pension fun ds filed a lawsuit against Bowers alleging that he had not properly remitted contributions to the funds for work performed by OVA

- covered employees. Id. at 168

– 76. Bowers filed a counterclaim reciting substantially identical claims to those set forth in th e instant case. Id. at 120

– 25. The parties jointly dismissed their claims. Id. at 210. USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 2 of 73 Bowers filed the complaint at issue in this appeal on February 19, 2021, in West Virginia state court. Id. at 1 4 . The complaint alleges that IBB plotted to take reprisa ls against Bowers for hiring non

- union labor , competing with IBB boilermakers for general welding work, and pulling out of the OVA. Id. at 15

– 16. It alleges that IBB tried to harass, intimidate, and put Bowers out of business by “filing meritless lawsuits , ” demanding compensation and threatening legal action for post

- 2017 work, “[t]hreatening and harassing” Bowers’s employees to “coerce them into leav ing [his] employ,” and “[f]alsely reporting” him to “relevant oversight organizations.” Id. at 16. The complaint includes five counts: (1) “ tortious interference of business, ” (2) abuse of process, (3) intentional infliction of emotional distress, (4) viol ation of W. Va. Code § 61

- 2

- 13(a) [ criminal extortion], and (5) violation of W. Va. Code § 61

- 2

- 9a [ criminal harassment]. Id. at 16

– 18. IBB removed the case to federal court. Id. at 6. It asserted that because Bowers’s claims are “directly based on the t erms of the collective bargaining agreement or substantially dependent on” analysis of it , the Labor Management Relations Act (LMRA) provides for exclusive federal jurisdiction over the complaint. Id. at 8 (citing 29 U.S.C. § 185(a) )

. IBB also moved to dis miss, arguing that (1) the LMRA preempts Bowers’s claims, (2) the claims are time

- barred by the LMRA’s statute of limitations, (3) Bowers failed to exhaust required contractual remedies, (4) no civil cause of action exists for Bowers’s West Virginia statut ory claims , and (5) the complaint lacks sufficient factual allegations to state a claim. Id. at 138. Bowers moved to remand the case back to state court. Id. at 212

– 21. USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 3 of 74 The district court dismissed the case with prejudice and denied Bowers’s motion to
re mand. Bowers v. Int’l Bhd. of Boilermakers , No. 3:21

- C V
- 89, 2022 WL 421145, at *6 (N.D. W. Va. Jan. 20, 2022). It concluded that every asserted basis in IBB’s motion to dismiss warranted dismissal. Id. at *2. Nothing in the complaint “c[ame] close to alleg ing a factual basis to support a lawsuit,” West Virginia’s criminal statutes created no private right of action, and the LMRA preempted the suit because evaluating Bowers’s claims would require the court “to consider and interpret the OVA at great length.” Id. at *2

– 4. E ven if Bowers had properly alleged claims under the LMRA, he had failed to exhaust his contractual remedies, and those claims would be time

- barred. Id. at *5

– 6. Bowers raises numerous assignments of error. We conclude that none has merit. II. First, Bowers argues that the district court lacked subject

- matter jurisdiction because his claims did not sufficiently relate to any collective

- bargaining agreement under the LMRA , so his complaint raises no federal question . We review de novo whether the district court had subject

- matter jurisdiction. See Foy v. Giant Food Inc. , 298 F.3d 284, 287 (4th Cir. 2002). We conclude that the district court had jurisdiction because § 301 of the LMRA preempts Bowers’s claims

. Section 301 of the LMRA completely preempts state law, and any claim so preempted “is considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar Inc. v. Williams , 482 U.S. 386, 393 (1987). Removal of such claims is therefore proper. See i d. ; 28 U.S.C. § 1441(a). The LMRA preempts a state

- law claim “when resolution of the claim requires the interpretation of a collective

- bargaining USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 4 of 75 agreement or is inextricably intertwine d with consideration of the terms of the labor contract.” Foy , 298 F.3d at 287 (quotation marks and citations omitted). Bowers’s claims are “inextricably intertwined with consideration of the terms of” the OVA. His claim for tortious interference of busine ss depends on whether he was violating the terms of the OVA’s exclusive

- referral provision and whether IBB was within its rights under the OVA’s jobsite

- access provision to talk to and try to convince his employees to leave. See J.A. 39 (exclusive

- referral provision), 55 (jobsite

- access provision). Resolution of this claim requires interpretation and application of these provisions. Bowers’s abuse

- of

- process claim depends on whether IBB’s funds filed meritless lawsuits, and that questi on is inextricably intertwined with consideration of the OVA’s provisions governing employer contributions

. See id. at 60

– 67. And Bowers’s claim for intentional infliction of emotional distress closely parallels the claim that we held preempted in Foy : Suc h a claim “requires an inquiry into whether [IBB] was legally entitled to act as [it] did , ” which “can be determined only by interpreting the collective bargaining agreement.” 298 F.3d at 288 (quotation marks omitted)

. Thus, the Labor Management Relations Act preempt ed Bowers’s claims and established federal jurisdiction over his case. III. Next, Bowers contends that the district court erred in concluding that Counts Four and Five fail to state a claim because the West Virginia criminal statutes do not cr eate a private cause of action. Whether a statute creates a private cause of action is a question of law subject to de novo review. See Diaz de Gomez v. Wilkinson , 987 F.3d 359, 363 (4th USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 5 of 76 Cir. 2021). I t is clear that t he West Virginia criminal

- extortion and criminal

- harassment statutes, §§ 61

- 2

- 13(a) and 61

- 2

- 9a, do not create private causes of action. In West Virginia, w hether a private cause of action exists based on a violation of a statute is determined by applying the four

- part test set forth in Hurley v. Allied Chemical Corporation , 262 S.E.2d 757 ( W. Va. 1980). This test considers (1) whether the plaintiff is a member of the statute’s intended class of beneficiaries , (2) whether there exists express or implied legislative intent to create a private cause of action , (3) whether a private cause of action is consisten t with the statutory scheme , and (4) whether a private cause of action would intru de into exclusively federal areas

. Hurley , 262 S.E.2d at 763. Here , §§ 61

- 2

- 13(a) and 61

- 2

- 9a are criminal statutes “enacted for the protection of the general public ; ” the y do not “ expressly identif [ y ]” a class they intend to benefit. Id. at 761 (quotation marks omitted). Moreover, the plain language of the se statutes

— and other statutes in the same chapter

— provide s only for criminal penalties ; neither the statutory text nor scheme suggest s any intent to create a private cause of action . So, these criminal statutes do not create private cause s of action. Counts Four and Five failed to state a claim. IV. Finally, Bowers argues that we lack appellate jurisdiction because the district court dismissed his suit without giving him an opportunity to amend his complaint and did not certify that the complaint’s d eficiencies could not be cured by amendment. We disagree. We have jurisdiction because this is an appeal of a dismissal with prejudice, which is a final decision of the district court. See 28 U.S.C. § 1291; Harrison v. Edison Bros. Apparel Stores, Inc. , 9 24 F. 2 d 530, 534 (4th Cir. 1991). Bowers never properly moved to USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 6 of 77 amend his complaint, so the district court was not required to offer him the opportunity to amend. See J.A. 1

– 5; Cozzarelli v. Inspire Pharms. Inc. , 549 F.3d 618, 630

– 31 (4th Cir. 2008) (hold ing that a request for leave to amend made in a response to a motion to dismiss “did not qualify as [a] motion [] for leave to amend” under Fed. R. Civ. P. 7(b), 15(a)). Moreover, amendment would have been futile : E ven if Bowers had properly stat ed claims

u nder the LMRA, those claims would have be en time

- barred by the applicable six

- month statute of limitations and precluded by his failure to exhaust his remedies under the collective

- bargaining agreement. See Smith v. United Parcel Serv., Inc. , 776 F.2d 99, 100 (4th Cir. 1985) (statute of limitations) ; Republic Steel Corp. v. Maddox , 379 U.S. 650, 652

– 53 (1965) (exhaustion requirement). V. We have reviewed Bowers’s other assignments of error and find them to be without merit . For the foregoing reasons, the judgement is affirmed. AFFIRMED USCA4 Appeal: 22-1130 Doc: 30 Filed: 11/10/2022 Pg: 7 of 7