USCA11 Case: 21-12044 Date Filed: 01/19/2022 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12044
Non-Argument Calendar
____________________
MARVIN GEORGE TOWNS, JR.,
Plaintiff-Appellant,
versus
DIRECTORS GUILD OF AMERICA, INC.,
AND ACTION, LLC,
JOHN DOE CORPORATION
OR OTHER TYPE OF LEGAL ENTITY KNOWN AS,
Director's Guild of America,
Defendants-Appellees.
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2 Opinion of the Court 21-12044
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-03248-MLB
____________________
Before JILL PRYOR, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
Plaintiff Marvin George Towns appeals the district court’s
order dismissing his claims against defendant Directors Guild of
America, Inc. (“DGA”). After careful review, we affirm.
I. FACTUAL BACKGROUND
Towns, an African-American man, has worked for decades
in the film and television industry.1 In 2019, And Action, LLC,
hired Towns to work as the unit production manager for a televi-
sion series, The Have & Have Nots, filmed in Georgia.
DGA is the labor union that serves as the collective bar-
gaining agent for directors, assistant directors, and unit produc-
tion managers working in the film and television industry. Towns
is a member of DGA.
1The facts recited here are taken from the operative complaint. See Hunt v.
Aimco Props., L.P.,
814 F.3d 1213, 1218 n.2 (11th Cir. 2016) (“At the motion
to dismiss stage, we accept the well-pleaded allegations in the complaint as
true and view them in the light most favorable to the [non-movant].”).
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21-12044 Opinion of the Court 3
DGA negotiated a collective bargaining agreement, re-
ferred to as the Basic Agreement, with employers in the film and
television industry. The Basic Agreement addresses the hiring of
directors, unit production managers, and assistant directors for
film and television projects. 2 It calls for the use of qualification
lists, which consist of individuals who, by virtue of documented
work experience, receive preference for director, unit production
manager, and assistant director positions. Under the Basic
Agreement, there are three sets of qualification lists for each type
of position: one set of lists for southern California, a second set for
the New York area, and a third set for the remainder of the Unit-
ed States, which is referred to as the “Third Area.”
The Basic Agreement sets forth the requirements for an in-
dividual to be included on each qualification list. To appear on the
qualification list for unit production managers in the Third Area,
an individual must have previously completed 120 days in work
as a unit production manager with at least 75% of those days oc-
curring during production, as opposed to during preparation or
post-production. An individual does not have to be a DGA mem-
ber to appear on a qualification list.
2Even though Towns did not attach the Basic Agreement to his operative
complaint, we may consider its terms because Towns referred to the Basic
Agreement in his complaint, it was central to his claims, and its contents are
not in dispute. See Harris v. Ivax Corp.,
182 F.3d 799, 802 n.2 (11th Cir.
1999).
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4 Opinion of the Court 21-12044
To be included on a qualification list, an individual must
apply to DGA Contract Administration (“DGACA”), which com-
piles and administers the qualification lists. Under the Basic
Agreement, an applicant bears the burden to provide DGACA
with sufficient documentation to establish that he should be in-
cluded on a qualification list.
Shortly after Towns moved to Georgia and began working
for And Action, DGA notified the company that Towns was not
included on the Third Area’s qualification list for unit production
managers. 3 DGA warned And Action that it was in violation of
the Basic Agreement and could face monetary penalties for em-
ploying Towns as a unit production manager. And Action notified
Towns that he could not continue working unless he could pro-
duce documentation to establish that he satisfied the work experi-
ence requirement to appear on the Third Area’s qualification list.
When Towns was unable to produce sufficient documentation to
establish that he should be included on the qualification list,4 And
Action terminated his employment.
3 Although Towns denies that And Action was a party to the Basic Agree-
ment, he does not dispute that his employment agreement with And Action
stated that the agreement was subject to the provisions of the Basic Agree-
ment.
4According to Towns, he had sufficient work experience but was unable to
provide documentation because the paperwork that reflected his prior work
experience had been damaged when his home was flooded.
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21-12044 Opinion of the Court 5
Towns, represented by counsel, sued DGA.5 In the opera-
tive complaint,6 Towns alleged that DGA improperly forced And
Action to fire him. Towns suggested that he was targeted because
of his race.
In Count One, Towns claimed that DGA violated Geor-
gia’s right-to-work statute, which provides that no individual shall
be required to join a “labor organization” as a condition of em-
ployment. O.C.G.A. § 34-6-21(a). In the complaint, Towns repeat-
edly alleged that that the qualification list is a labor organization
that he was required to join.
In Counts Two through Four, Towns brought state law
tort claims against DGA. He alleged that DGA tortiously inter-
fered with his contractual relationship with And Action by barring
the company from employing him. In addition, Towns claimed
that DGA failed to act in good faith and was negligent in deter-
mining that he did not satisfy the work experience requirement
for the qualification list for unit production managers in the Third
Area.
5 Towns also sued And Action and DGACA. Towns reached a settlement
agreement with And Action and voluntarily dismissed his claims against it.
Although Towns named DGACA as a defendant, it never entered an appear-
ance in the case.
6 After Towns filed the initial complaint, DGA filed a motion to dismiss.
While the motion to dismiss was pending, Towns filed an amended com-
plaint. We focus our analysis on the allegations in the amended complaint.
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6 Opinion of the Court 21-12044
DGA filed a motion to dismiss. Regarding Count One,
DGA argued that Towns failed to state a claim that DGA had vio-
lated Georgia’s right-to-work statute because his complaint did
not establish that Towns had been required as a condition of em-
ployment to maintain membership in a “labor organization.”
Doc. 45-1 at 8. 7 DGA argued that the qualification list did not con-
stitute a labor organization under the statute.
With respect to the tort claims in Counts Two through
Four, DGA argued that Towns failed to state a claim for relief be-
cause the tort claims were preempted by federal law. DGA
claimed that each tort claim required the district court to interpret
the Basic Agreement and thus was preempted by § 301 of the La-
bor-Management Relations Act (“LMRA”),
29 U.S.C. § 185. DGA
also argued that the tort claims were preempted for a second rea-
son—that under federal law, a union owes a statutory duty to
represent fairly all members of a bargaining unit in enforcing a
collective bargaining agreement. See Vaca v. Sipes,
386 U.S. 171,
177 (1967). If a union breaches this duty by engaging in conduct
towards a member of the bargaining unit that is arbitrary, dis-
criminatory, or in bad faith, the member may bring a claim
against the union under federal law for breach of the duty of fair
representation. See 14 Penn Plaza LLC v. Pyett,
556 U.S. 247, 271
(2009). DGA argued that because the tort claims were covered by
7 “Doc.” numbers refer to the district court’s docket entries.
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21-12044 Opinion of the Court 7
the duty of fair representation, they were preempted. DGA fur-
ther urged the district court not to grant Towns leave to amend
his complaint, which would have afforded him an opportunity to
add a federal duty of fair representation claim, saying Towns had
already had an opportunity to amend his complaint.
In opposition to the motion to dismiss, Towns filed a short,
three-paragraph response. Nowhere in the response did Towns
address DGA’s argument regarding Count One of the complaint.
Towns acknowledged DGA’s argument that his tort claims in
Counts Two through Four were preempted by federal law be-
cause they required the district court to interpret the Basic
Agreement. He admitted that his state law claims would require
the district court to interpret the Basic Agreement. Because the
claims depended on the interpretation of the Basic Agreement,
Towns asked the district court to compel DGA to arbitrate his
claims. Towns did not argue in the response that he had brought
a federal claim for breach of the duty of fair representation, nor
did he request leave to amend his complaint to add such a claim.
In fact, Towns continued to maintain to the district court that he
had brought only “state law claims.” Doc. 58 at 3.
The district court granted DGA’s motion to dismiss. The
court began by observing that Towns’s opposition to the motion
to dismiss failed to respond to DGA’s substantive arguments. The
district court deemed DGA’s motion to dismiss unopposed. Even
though the motion to dismiss was unopposed, the district court
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8 Opinion of the Court 21-12044
explained, DGA did not automatically prevail; the court consid-
ered the merits of DGA’s motion.
The district court concluded that Towns failed to state a
claim in Count One for a violation of Georgia’s right-to-work
statute. To state a claim for relief under the statute, Towns had to
allege facts showing that And Action had conditioned employ-
ment on his membership “in a labor organization.” Doc. 64 at 8.
Although Towns stated in the complaint that the qualification list
itself was a labor organization, the court concluded that he failed
to allege facts sufficient to establish that the list was a labor organ-
ization under Georgia law. The district court acknowledged that
that DGA was a labor organization under Georgia law. But be-
cause Towns was not required to be a member of DGA to be in-
cluded on the qualification list, the district court concluded that
Towns failed to state a claim for a violation of the right-to-work
statute.
The district court then determined that Counts Two
through Four, the state law tort claims, were preempted by § 301
of the LMRA. The court explained that the LMRA preempted any
state law claim that required the interpretation of a collective bar-
gaining agreement. Because each tort claim required the district
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21-12044 Opinion of the Court 9
court to interpret the Basic Agreement, the court concluded that
the tort claims were preempted. 8
In a footnote, the district court considered DGA’s argu-
ment related to the duty of fair representation. The court ex-
plained that the tort claims could be construed as claims that
DGA violated its duty of fair representation, but such claims were
cognizable only under federal, not state, law.
After the district court granted the motion to dismiss,
Towns filed a motion for reconsideration. He argued that the dis-
trict court erred in dismissing Count One because, he claimed, the
allegations in his complaint were sufficient to establish that the
qualification list was a labor organization. The district court de-
nied the motion for reconsideration. This is Towns’s appeal.
II. STANDARD OF REVIEW
We review de novo a district court order granting a motion
to dismiss for failure to state a claim for relief, accepting the com-
plaint’s allegations as true and construing them in the light most
favorable to the plaintiff. See Fox v. Gaines,
4 F.4th 1293, 1295
(11th Cir. 2021). We also review de novo a district court’s inter-
8 The district court rejected Towns’s request that the court compel arbitra-
tion. After reviewing the Basic Agreement, the court concluded that the
agreement gave Towns no right to seek arbitration. In the alternative, the
court ruled that Towns waived any arbitration right he had by substantially
invoking the judicial process.
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10 Opinion of the Court 21-12044
pretation of a statute.
Id. And we review de novo the district
court’s determination that the federal law preempted Towns’s
state law tort claims. United Steel, Paper & Forestry, Rubber,
Mfg., Energy Allied Indus. & Servs. Workers Int’l Union AFL-CIO
CLC v. Wise Alloys, LLC,
642 F.3d 1344, 1349 (11th Cir. 2011).
III. LEGAL ANALYSIS
On appeal, Towns argues that the district court erred in
dismissing his claims against DGA. With regard to Count One,
Towns argues that the district court erred by failing to consider
whether DGACA, which administered the qualification lists, was
a labor organization for purposes of Georgia’s right-to-work stat-
ute. With respect to Counts Two through Four, Towns says the
district court erred in concluding that federal law preempted his
tort claims. We address each argument in turn.
A. The District Court Did Not Err in Dismissing Count
One Because Towns Failed to State a Claim That DGA
Violated the Right to Work Statute.
On appeal, Towns argues that the district court erred in
dismissing Count One, which alleged that DGA violated Geor-
gia’s right to work statute. Georgia law provides that “[n]o indi-
vidual shall be required as a condition of employment . . . to be or
remain a member or an affiliate of a labor organization.”
O.C.G.A. § 34-6-21(a). A “labor organization” is an entity that “ex-
ists for the purpose, in whole or in part, of dealing with employers
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21-12044 Opinion of the Court 11
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work.” Id. § 34-6-20(6).
In the district court, Towns argued that DGA violated the
statute, claiming the qualification list was the relevant labor or-
ganization. See Doc. 44 ¶¶ 27 (alleging that the qualification “lists
are obviously an ‘organization’”), 32 (claiming that qualification
lists “easily fit[]” into the definition of organization), 52 (asserting
that the qualification lists were “a labor organization as defined
under the statute”). The district court rejected this argument,
concluding that the complaint failed to allege facts establishing
that a qualification list was a labor organization. On appeal,
Towns does not challenge the district court’s determination that
the qualification list was not itself a labor organization. Instead, he
argues that the district court’s analysis was incomplete because it
failed to consider whether DGACA was a labor organization.
The problem for Towns is that he raises this issue for the
first time on appeal. We generally do not consider issues raised
for the first time on appeal. 9 See Access Now, Inc. v. Sw. Airlines
Co.,
385 F.3d 1324, 1331–32 (11th Cir. 2004). “The reason for this
prohibition is plain: as a court of appeals, we review claims of ju-
dicial error in the trial courts.”
Id. at 1331.
9This rule is not absolute. In “exceptional circumstances,” we may exercise
discretion to review an issue raised for the first time on appeal. Dean Witter
Reynolds, Inc. v. Fernandez,
741 F.2d 355, 360–61 (11th Cir. 1984). But we
cannot say that exceptional circumstances are present here.
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12 Opinion of the Court 21-12044
Towns suggests that he raised the issue of whether
DGACA was a labor organization in the district court. But
Towns’s response to the motion to dismiss did not argue that
DGACA qualified as a labor organization. He nevertheless says
that the allegations in the complaint taken together show that he
was alleging that DGACA was a labor organization. Although
Towns claimed in his complaint that the qualification list was a
labor organization, he made no similar allegation about DGACA.
Instead, he takes the position that the district court should have
hunted through his complaint and inferred from his allegations
that, without saying so, he intended to raise a claim that DGACA
also was a labor organization. But “[j]udges are not like pigs,
hunting for truffles buried in” a party’s filings. United States v.
Dunkel,
927 F.2d 955, 956 (7th Cir. 1991). Because Towns did not
argue in the district court that DGACA was a labor organization,
we decline to consider this argument on appeal. See Stewart v.
Dep’t of Health & Hum. Servs.,
26 F.3d 115, 115 (11th Cir. 1994)
(“Judicial economy is served and prejudice is avoided by binding
the parties to the facts presented and theories argued below.” (in-
ternal quotation marks omitted)). 10
10 Even assuming that Towns raised this argument in the district court, we
would not conclude that the district court erred in granting the motion to
dismiss because the allegations in the complaint were insufficient to establish
that DGACA was a labor organization that Towns was required to join.
There was no allegation in the complaint that Towns was required to be a
member of DGACA as a condition of obtaining or keeping employment.
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21-12044 Opinion of the Court 13
B. The District Court Did Not Err in Dismissing Counts
Two Through Four Because the Claims Were
Preempted.
Towns also argues on appeal that the district court erred in
concluding that his tort claims were preempted. We disagree.
Section 301 of the LMRA provides that “[s]uits for violation
of contracts between an employer and a labor organization repre-
senting employees in an industry affecting commerce . . . may be
brought in any district court of the United States having jurisdic-
tion of the parties.”
29 U.S.C. § 185(a). To ensure uniformity in
the interpretation of collective bargaining agreements across the
country, federal courts have recognized that § 301 completely
preempts state law claims, including tort claims, that require the
interpretation or application of a collective bargaining agreement.
See Atwater v. Nat’l Football League Players Ass’n,
626 F.3d 1170,
1176 (11th Cir. 2010). To determine whether § 301 preempts a
state law claim, we ask “whether the resolution of the state-law
claim depends upon the meaning of a collective-bargaining
agreement.” Id. (internal quotation marks omitted). If the state
claim is dependent on the meaning of the collective bargaining
agreement, then application of state law principles is preempted
and federal labor law principles must be applied to resolve the
dispute. Id. at 1176–77.
The district court correctly determined that Towns’s tort
claims were preempted by federal law. After all, Towns admitted
in the district court that the tort claims would require the district
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14 Opinion of the Court 21-12044
court to “interpret the Basic Agreement.” Doc. 49 at 2. Based on
this concession, it follows that the tort claims were preempted.
See Atwater, 626 F.3d at 1176–77.
Towns tries to sidestep this problem. Rather than address
the binding precedent, which provides that federal law preempts
state law claims that depend upon the interpretation of a collec-
tive bargaining agreement, Towns argues that the district court
must have erred in holding that his tort claims were preempted
because, he says, this preemption determination conflicts with the
district court’s conclusion that DGACA was not a labor organiza-
tion. This argument is flawed because, as we explained above, the
district court never concluded that DGACA was not a labor or-
ganization as Towns did not raise this argument in the district
court.
Towns makes one final argument. He argues that the dis-
trict court should have construed Counts Two through Four of
his complaint as bringing a federal claim that DGA violated the
duty of fair representation it owed Towns in enforcing the collec-
tive bargaining agreement. See 14 Penn Plaza,
556 U.S. at 271
(recognizing that federal law gives a member of a collective bar-
gaining unit a cause of action if in administering the collective
bargaining agreement the union engages in conduct that is arbi-
trary, discriminatory, or in bad faith).
Again, Towns’s problem is that he never raised in the dis-
trict court any argument that he had brought or sought to bring a
claim alleging a breach of the duty of fair representation. Even af-
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21-12044 Opinion of the Court 15
ter DGA moved to dismiss the complaint and argued that Counts
Two through Four were preempted and could only be brought as
a federal claim alleging breach of the duty of fair representation,
Towns did not seek to amend his complaint to add such a claim.
Towns doubled down instead, insisting that he had brought only
state law claims. Even after the district court granted the motion
to dismiss, when Towns filed a motion for reconsideration, he did
not raise any argument that he had stated a claim for a breach of
the duty of fair representation under federal law. We decline to
consider Towns’s argument that the district court should have
found that he stated a claim for breach of the duty of fair repre-
sentation. See Access Now,
385 F.3d at 1331.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district
court’s dismissal of Towns’s complaint.
AFFIRMED.
