Mayo v. Board of Education of Prince George's County , 713 F.3d 735 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LARRY C. MAYO; LESLIE CARROLL- 
WICKS; MARY MAYS-CARROLL;
AVERY MILLIGAN; SANDRA PONOSKI,
Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF PRINCE  No. 11-1816
GEORGE’S COUNTY; VERJEANA M.
JACOBS; ASSOCIATION OF CLASSIFIED
EMPLOYEES/AMERICAN
FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES,
Defendants-Appellees.

LARRY C. MAYO; LESLIE CARROLL- 
WICKS; MARY MAYS-CARROLL;
AVERY MILLIGAN; SANDRA PONOSKI,
Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF PRINCE  No. 11-2037
GEORGE’S COUNTY; VERJEANA M.
JACOBS; ASSOCIATION OF CLASSIFIED
EMPLOYEES/AMERICAN
FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES,
Defendants-Appellees.

2 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
J. Frederick Motz, Senior District Judge.
(8:11-cv-01052-JFM)
Argued: January 31, 2013
Decided: April 11, 2013
Before NIEMEYER, GREGORY, and DAVIS,
Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Gregory and Judge Davis joined.
COUNSEL
ARGUED: Richard Talbot Seymour, LAW OFFICES OF
RICHARD T. SEYMOUR, PLLC, Washington, D.C., for
Appellants. Abbey G. Hairston, THATCHER LAW FIRM,
Greenbelt, Maryland; Mark James Murphy, MOONEY,
GREEN, SAINDON, MURPHY & WELCH, PC, Washing-
ton, D.C., for Appellees. ON BRIEF: Nicholas W. Wood-
field, R. Scott Oswald, THE EMPLOYMENT LAW GROUP,
P.C., Washington, D.C.; Jay P. Holland, Timothy F. Maloney,
Brian J. Markovitz, JOSEPH, GREENWALD & LAAKE,
P.A., Greenbelt, Maryland, for Appellants. Natalie R. Bedard,
MOONEY, GREEN, SAINDON, MURPHY & WELCH, PC,
Washington, D.C., for Appellee Association of Classified
Employees/American Federation of State, County and Munic-
ipal Employees; Sarah M. Burton, THATCHER LAW FIRM,
Greenbelt, Maryland, for Appellees Board of Education of
Prince George’s County and Verjeana M. Jacobs.
MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 3
OPINION
NIEMEYER, Circuit Judge:
Five current or former temporary employees (the "Tempo-
rary Employees") of the Board of Education of Prince
George’s County, Maryland ("School Board") filed a class
action complaint in the Circuit Court for Prince George’s
County, asserting employee-compensation claims against the
School Board, its chair, and the Association of Classified
Employees/American Federation of State, County and Munic-
ipal Employees, AFL-CIO, Local 2250 (the "Union"). They
alleged that even though the collective bargaining agreement
("CBA") excluded "temporary employees" from the bargain-
ing unit, they were entitled to the benefits of an arbitration
award entered as the result of an arbitration between the
School Board and the Union, as well as benefits from the
underlying CBA.
The School Board and its chair filed a notice of removal to
federal court, which included a statement that the Union also
agreed to the removal, and all defendants thereafter filed
motions to dismiss for failure to state a claim. The Temporary
Employees not only opposed the motions to dismiss but also
filed a motion to remand, arguing that the removal was
invalid because the Union did not timely file its own notice
of removal or other paper giving its consent in writing. The
district court denied the Temporary Employees’ motion to
remand and entered an order under Federal Rule of Civil Pro-
cedure 12(b)(6), dismissing the complaint for failure to state
a claim. After filing a notice of appeal from the order of dis-
missal, the Temporary Employees also filed a motion in the
district court for reconsideration of its dismissal order. The
district court granted the defendants’ motion to strike the
motion for reconsideration. The Temporary Employees then
filed a second notice of appeal from that order.
We affirm on both appeals, concluding (1) that the Union
adequately consented to the notice of removal; (2) that the
4 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
Temporary Employees’ complaint failed to state a claim for
relief; and (3) that the district court did not err in striking the
Temporary Employees’ motion for reconsideration.
I
The School Board and the Union were parties to a CBA
that covered "all employees of the Board who are contained
within the bargaining unit represented by the Union" for the
period July 1, 2007, through June 30, 2010. Article 2, § 1 of
the CBA defined the bargaining unit to include "all classified
employees of Prince George’s County Public Schools with the
exception[ ] of" certain employees, including "[t]emporary
employees." And to protect the work positions for members
of the bargaining unit, Article 7, § 17 of the CBA provided:
A substitute or temporary employee will not be used
to fill an authorized position in excess of sixty (60)
working days except (1) when a qualified individual
is not available to fill a position on a permanent basis
or (2) where necessary to hold a position for a person
on an approved leave of absence or (3) to preserve
a vacancy for an employee currently assigned to a
position scheduled to be eliminated (e.g., school
closings, budget reductions, reorganization).
During wage-related negotiations in July 2008, the School
Board provided the Union, at the Union’s request, with a list
identifying the substitute and temporary employees in the
School Board’s employ and giving information about them.
The list included 2,180 such employees, many of whom had
been employed by the School Board in the same position for
more than 60 days and were performing the same duties as
permanent classified employees who, as members of the bar-
gaining unit, received higher pay and benefits. After receiving
this information, the Union filed a grievance against the
School Board, contending that the School Board’s practice of
hiring substitute and temporary employees violated Article 7,
MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 5
§ 17 of the CBA. The grievance thereafter proceeded to arbi-
tration.
In a decision dated July 8, 2009, the arbitrator concluded
that the School Board had indeed violated the CBA by "em-
ploy[ing] substitute and temporary employees to fill what
would be permanent positions but for the failure of the Board
to establish those positions pursuant to the terms of the Agree-
ment, and to seek their funding as [full-time equivalent
employees] through the budgeting process." The arbitrator
found that Article 7, § 17 "specifically was negotiated as a
limitation on the ability of the Board to employ substitute and
temporary employees to perform bargaining unit work" and
that "the issue is the preservation of bargaining unit work for
bargaining unit personnel, not the identity of the specific sub-
stitute or temporary employee who may be filling a position
at any particular time." Although the arbitrator concluded that
the Board had violated Article 7, § 17, he acknowledged that
the scope of the violation was unclear. Accordingly, he
instructed the parties to identify "[t]hose positions filled for in
excess of 60 days by substitute and temporary employees that
comprise duties covered by existing bargaining unit classifi-
cations," clarifying that "those that amount to bargaining unit
positions are covered by this Award, and those that do not, are
not."
The arbitrator tailored relief to three relevant periods of
time. He determined that "[n]o remedy [was] warranted for
the period of the violation occurring prior to the filing of the
grievance," because "the Union’s long silence" would make
any remedy "grossly unfair and inequitable." For the period
going forward, however, the arbitrator directed that the
School Board cease its practice of "circumvent[ing] the terms
of the Agreement by using substitute or temporary employ-
ees" to do work that should have been performed by "classi-
fied position[s]," emphasizing that "this ruling is tied not to
the individual being employed on a substitute or temporary
basis, but rather is tied to the position that is being filled by
6 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
a substitute or temporary employee, whomever the individual
happens to be." Finally, for the period between the Union’s
filing of the grievance and the School Board’s compliance
with the award, the arbitrator concluded that "it would be
inappropriate to order the conversion to permanent status of
those substitute and temporary employees who ultimately are
found . . . to have filled what should have been permanent
classified positions." The arbitrator explained that there was
no evidence that the School Board and the Union had dis-
cussed the "automatic conversion of substitute and temporary
employees under such circumstances" and that, in the absence
of such evidence, ordering such a conversion would be inap-
propriate given "the numerous important questions, unan-
swered on this record, that normally are addressed upon the
hiring of an individual into a permanent position." Subject to
the "proviso that retroactive conversion of the incumbents . . .
is not warranted," the arbitrator "return[ed] to the parties for
settlement in the first instance, along with several other unre-
solved remedial questions, the question of appropriate remedy
for the period of time between the filing of the grievance and
the Board’s compliance with this Award."
As directed by the arbitrator, the Union and the School
Board reached a settlement regarding the issues committed to
them and reduced the settlement to a memorandum of under-
standing dated May 13, 2010. Under the settlement, the
School Board agreed to pay the Union just over $1 million as
"backpay amounts." The School Board also agreed to hire a
minimum number of additional full-time bargaining unit
employees by specified targeted dates.
On March 11, 2011, five current or former temporary
employees of the School Board—Larry Mayo, Leslie Carroll-
Wicks, Mary Mays-Carroll, Sandra Ponoski, and Avery
Milligan—filed a class action complaint in the Circuit Court
for Prince George’s County, Maryland, naming as defendants
the School Board, Verjeana Jacobs (in her capacity as Chair
of the School Board), and the Union. They purported to repre-
MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 7
sent a class defined as "[a]ll present and former Temporary
Employees of the Board and its Chair performing duties cov-
ered by a CBA bargaining unit classification . . . for in excess
of 60 days." In Count I, the Temporary Employees sought a
declaratory judgment "that the Arbitration Award is valid and
enforceable" by members of the class; that they had become
permanent employees after 60 days of employment; and that
they were therefore entitled to damages. In Count II, they
alleged that the Union had "breached its duty of fair represen-
tation by fraudulently misleading the Plaintiffs and the Tem-
porary Employees about the July 8, 2009 arbitration decision
and award in their favor and instead accepting a payoff from
the Board to resolve the Plaintiffs’ and Temporary Employ-
ees’ rights." In Count III, they alleged a breach of contract by
the School Board, claiming that "Plaintiffs are third-party
beneficiaries under the CBA and were not paid the compensa-
tion and benefits of full time employees that the CBA man-
dates." And finally, in Count IV, they alleged a Takings
Clause violation against the School Board and its chair, under
42 U.S.C. § 1983.
The School Board and its chair filed a notice of removal,
pursuant to 28 U.S.C. § 1441, in which they stated that the
Union had been consulted and had "agree[d] with the removal
of this action to federal court." Three days later, counsel for
the Union entered his appearance in the district court, and yet
another three days later, on April 28, 2011, the Union filed a
motion to dismiss the complaint for failure to state a claim. In
its accompanying memorandum of law, the Union noted that
it had been served with process "[o]n or about March 26,
2011" and that it had consented to the notice of removal. The
School Board and its chair also filed a motion to dismiss. The
Temporary Employees opposed the motions to dismiss and
also filed a motion to remand the case on the ground that the
Union had not timely filed its own notice of removal or other
writing reflecting its consent to the removal.
In an order dated July 19, 2011, the district court denied the
Temporary Employees’ motion to remand and granted the
8 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
defendants’ motions to dismiss the complaint. On the remand
motion, the court said that it had determined that removal was
effective because of (1) Fourth Circuit precedent; (2) its
assumption that "generally attorneys will act professionally";
and (3) Rule 11, which, the court noted, "provides a fully sat-
isfactory deterrent to an attorney making a misrepresentation
to the court as to whether a co-defendant has consented to
removal." On the motions to dismiss, the court concluded that
Count I appeared to be requesting an advisory opinion and
that, in any event, the requested declaratory judgment was
"absolutely inconsistent" with the arbitration decision. As to
Count II, the court concluded that the Union did not owe the
Temporary Employees a duty of fair representation; that the
claim was in any event untimely; and that the plaintiffs did
not exhaust their state administrative remedies. With respect
to Count III, the court again concluded that, to the extent that
the Temporary Employees could claim to be third-party bene-
ficiaries of the CBA, their remedy was to seek state adminis-
trative relief. Finally, as to Count IV, the court concluded that
state agencies, such as the School Board, are not "persons"
within the meaning of 42 U.S.C. § 1983 and that the Eleventh
Amendment bars damage claims against state agencies and
officials.
The Temporary Employees promptly filed a notice of
appeal from the district court’s July 19, 2011 order. And sev-
eral weeks later, on August 19, 2011, the Temporary Employ-
ees filed a motion in the district court, requesting
reconsideration of the order dismissing their complaint. The
School Board and its chair filed a motion to strike the Tempo-
rary Employees’ motion for reconsideration, arguing that the
motion was untimely and that, in any event, the court had
been divested of jurisdiction by the Temporary Employees’
earlier appeal. By order dated September 12, 2011, the district
court granted the motion to strike, and the Temporary
Employees filed a second notice of appeal from that order.
On appeal, the Temporary Employees contend (1) that the
Union’s consent to removal was inadequate to effect a
MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 9
removal on its behalf; (2) that the district court erred in con-
cluding that the Union did not owe the Temporary Employees
a duty of fair representation and that they were not entitled to
the benefits of the arbitration award; (3) that the district court
erred in dismissing their claim for breach of the CBA based
on a third-party beneficiary theory; and (4) that the district
court abused its discretion in striking their motion for recon-
sideration of the dismissal order.
II
In removing this case from state court to federal court
under 28 U.S.C. § 1441(a), the School Board and its chair
stated in the notice of removal that they had consulted with
the Union and that the Union had consented to the removal.
The Union, however, did not sign the notice of removal, nor
did it timely file its own notice or a written consent to the
School Board’s notice. The Temporary Employees contend
that the removal was defective and that the district court erred
in refusing to remand this case to state court. They argue that
all defendants must "join" in the notice of removal and that
"joining" means to "support [it] in writing." Because the
Union did not sign the notice of removal or timely sign a
paper giving its own notice of removal or consent, they con-
tend that the case was not properly removed.
The text of 28 U.S.C. § 1446 provides that to remove a case
to federal court, "[a] defendant or defendants" (1) must file a
notice of removal that includes a "short and plain statement
of the grounds for removal, together with a copy of all [previ-
ously served] process, pleadings, and orders"; (2) must sign
the removal pursuant to Federal Rule of Civil Procedure 11,
which in turn provides that the notice must be "signed by at
least one attorney of record in the attorney’s name—or by a
party personally if the party is unrepresented"; and (3) must
file the notice within 30 days after receipt of the complaint
through service of process. The applicable version of the stat-
ute does not address how a case involving multiple defendants
10 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
is to be removed or how the defendants must coordinate
removal, if coordination is required.1 Nonetheless, the
Supreme Court has construed the statute to include a "una-
nimity requirement," such that all defendants must consent to
removal. See Lapides v. Bd. of Regents of Univ. Sys. of Ga.,
535 U.S. 613, 620 (2002) (citing Chicago, R.I. & P.R. Co. v.
Martin, 178 U.S. 245, 248 (1900), for the proposition that "re-
moval requires the consent of all defendants"); Wis. Dep’t of
Corrections v. Schacht, 524 U.S. 381, 393 (1998) (Kennedy,
J., concurring) ("Removal requires the consent of all of the
defendants"). But neither the statute nor the Supreme Court’s
decisions have specified how defendants are to give their
"consent" to removal.
Adopting a formal approach, the Seventh Circuit has stated
that "[a] petition for removal is deficient if not all defendants
join in it" and that, to do so, "all served defendants . . . have
to support the petition in writing, i.e., sign it." Gossmeyer v.
McDonald, 128 F.3d 481, 489 (7th Cir. 1997). Approving a
less formal process—the procedure used by the defendants in
this case—the Sixth Circuit has held that a notice of removal
filed by three defendants which stated that the fourth defen-
dant concurred in the removal satisfied the rule of unanimity.
See Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 201-02
(6th Cir. 2004). The Ninth Circuit has adopted the Sixth Cir-
cuit rule. See Proctor v. Vishay Intertechnology Inc., 584 F.3d
1208, 1225 (9th Cir. 2009) (concluding that "[o]ne defen-
dant’s timely removal notice containing an averment of the
other defendants’ consent and signed by an attorney of record
is sufficient"). And other courts of appeals have taken hybrid
1
The current version of 28 U.S.C. § 1446, not applicable to the case at
hand, provides, "When a civil action is removed solely under section
1441(a), all defendants who have been properly joined and served must
join in or consent to the removal of the action." 28 U.S.C.
§ 1446(b)(2)(A). Although the statute now explicitly requires consent, it
still does not indicate the form of that consent, and our analysis in this
opinion would be unchanged were we to have before us the current ver-
sion of the statute.
MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 11
positions. See Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d
1254, 1262 n.11 (5th Cir. 1988) (concluding that while each
defendant need not sign the notice of removal, there must be
at least "some timely filed written indication from each served
defendant . . . that it has actually consented to such action");
Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008)
(applying the Fifth Circuit’s rule in Getty Oil).
We have not addressed this precise question. In Darcan-
gelo v. Verizon Communications, Inc., 292 F.3d 181, 187 n.2
(4th Cir. 2002), we noted that a defendant’s notice of removal
"was filed with [the other defendant’s] consent," but we did
not state how the other defendant expressed its consent.
The relevant procedure for removal, set forth in § 1446,
requires rather simply that "[a] defendant or defendants desir-
ing to remove any civil action . . . shall file . . . a notice of
removal signed pursuant to Rule 11." 28 U.S.C. § 1446(a).
And Rule 11 in turn provides, "Every . . . paper must be
signed by at least one attorney of record . . . ." These texts do
not make clear how a case involving multiple defendants is to
be removed in light of the requirement that all defendants
must consent to the removal. While § 1446 does include the
plural "defendants" in the subject, it requires only "a notice"
of removal. The plural use of "defendants" is apparently
included to accommodate the situation where more than one
defendant "desire" to remove, without recognizing the
required interplay among defendants in light of the originally
court-made rule that all defendants must consent to removal.
To be sure, § 1446 requires at least one notice of removal
signed by at least one attorney, in accordance with Rule 11,
thus mandating that at least one attorney for the removing
defendant or defendants be accountable to the court by repre-
senting, as provided in Rule 11, that removal is warranted by
law and is not pursued for an improper purpose and that the
facts alleged are justified or supported. See Fed. R. Civ. P.
11(b). Thus, the texts do indeed require the formality of filing
12 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
a paper that is signed and that represents the bona fides of the
removal. They do not, however, require that in a case involv-
ing multiple defendants where all defendants must consent to
removal that each of the defendants sign the notice of removal
or file a separate notice of removal complying with § 1446(b).
Moreover, we can see no policy reason why removal in a
multiple-defendant case cannot be accomplished by the filing
of one paper signed by at least one attorney, representing that
all defendants have consented to the removal. It is true that
such a procedure does not include the signature of an attorney
representing each defendant. But that does not suggest that the
nonsigning attorneys for the defendants lack accountability to
the court when they will be before the court within days of the
removal, signing papers and otherwise performing as officers
of the court. Indeed, in this case, the Union did file papers
early on, signed by its attorney, indicating that it had con-
sented to the removal.2 The practice of having one attorney
represent to the court the position of other parties in the case,
with the intent that the court act on such representation, is
quite common. The courts often receive motions representing
that the opposing party consents to the motion, and courts
have not traditionally required the other party to file a sepa-
rate paper confirming that consent. Were there to be a misrep-
resentation by an attorney signing a paper, falsely stating that
another defendant consented to removal, the other defendant
"would [no doubt] have brought this misrepresentation to the
court’s attention and it would have been within the district
court’s power to impose appropriate sanctions, including a
remand to state court." Harper, 392 F.3d at 202. And those
"appropriate sanctions" would surely include the sanctions
authorized by Rule 11, which are explicitly available when an
attorney misrepresents the evidentiary basis for a "factual
contention." See Fed. R. Civ. P. 11(b)-(c).
2
Because the Union’s written indication of consent was filed more than
30 days after its receipt of the complaint by process, that written indica-
tion, the Temporary Employees say, cannot be advanced to satisfy the
time requirement for removal.
MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 13
Accordingly, we conclude that a notice of removal signed
and filed by an attorney for one defendant representing unam-
biguously that the other defendants consent to the removal
satisfies the requirement of unanimous consent for purposes
of removal. Because the Union adequately consented to the
removal filed by the School Board and its chair, we conclude
that the removal was effective in this case and that the district
court did not err in declining to remand the case to state court.
III
In Count II of their complaint, the Temporary Employees
purported to allege that the Union breached a duty of fair rep-
resentation owed to them. They alleged that the Union did so
"by fraudulently misleading [them] about the July 8, 2009
arbitration decision and award in their favor and instead
accepting a payoff from the Board to resolve [their] rights."
More fully, they asserted that the Union mislead them by
"failing to inform [them] . . . [1] that the Union had secured
an arbitration award against the Board declaring them to be
permanent employees under the CBA and [2] that they were
entitled to an award of retroactive compensation and benefits
consistent with their rights under the CBA." (Emphasis
added). And they asserted that instead of informing them and
looking after their interests, "[t]he Board and the Union sur-
reptitiously agreed to disregard the rights and interests of the
Plaintiffs . . . in exchange for the payment of monies paid by
the Board . . . to the Union."
The district court dismissed this count under Rule 12(b)(6)
for failure to state a claim, and we review that order de novo
to determine whether the claim they purport to assert was
"plausible on its face." Francis v. Giacomelli, 588 F.3d 186,
190 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombley, 550
U.S. 544, 570 (2007)).
It is well to note at the outset that the Temporary Employ-
ees were not members of the Union and were expressly
14 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
excluded from the bargaining unit under the CBA. Moreover,
the Temporary Employees were not parties to the arbitration
action between the Union and the School Board. Nonetheless,
the Temporary Employees allege that they were owed a duty
of fair representation under Maryland law, citing Md. Code
Ann., Educ. § 6-501(d), (g)(1). We do not need to reach
whether the Union owed the Temporary Employees this duty
because their theory of how the Union breached this duty is
based on isolated statements in the arbitrator’s decision,
which were taken out of context. As a consequence, their
claim is based on a complete misreading of the arbitrator’s
decision.
Contrary to the Temporary Employees’ assertion, the arbi-
trator did not declare them to be permanent employees. He
stated explicitly that "based on the record as a whole, the arbi-
trator concludes that it would be inappropriate to order the
conversion to permanent status of those substitute and tempo-
rary employees who are ultimately found . . . to have filled
what should have been permanent classified positions." The
arbitrator repeatedly explained that "the issue is the preserva-
tion of bargaining unit work for bargaining unit personnel,
not the identity of the specific substitute or temporary
employee who may be filling a position at any particular
time." Thus, the arbitrator grounded his ruling on the purpose
of preserving work provided by specific positions for mem-
bers of the bargaining unit. There is simply no support for the
Temporary Employees’ assertion that the arbitrator declared
them to be permanent employees.
Similarly, the arbitrator did not conclude that the Tempo-
rary Employees were entitled to retroactive compensation and
benefits, as they claim. In granting relief, the arbitrator made
three relevant rulings. First, he concluded that "[n]o remedy
is warranted for the period of the violation occurring prior to
the filing of the grievance." Second, he concluded that for the
period after the award, the School Board must cease using
substitute or temporary employees to do work that should
MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 15
have been done by bargaining unit personnel, emphasizing
that "this ruling is tied not to the individual being employed
on a substitute or temporary basis, but rather is tied to the
position that is being filled by a substitute or temporary
employee, whomever the individual happens to be." (Empha-
sis added). And third, he concluded that for the period
between the Union’s filing of the grievance and the School
Board’s compliance with the award, "the best course is to
return to the parties for settlement in the first instance . . . sub-
ject to the foregoing proviso that retroactive conversion of the
incumbents of such positions is not warranted." (Emphasis
added). There is simply no language that can be read to pro-
vide relief to the Temporary Employees.
Accordingly, we affirm the district court’s order dismissing
Count II because the Temporary Employees’ theory of breach
is based on fundamental misreading of the arbitrator’s deci-
sion and therefore is implausible.
IV
In Count III, the Temporary Employees purport to allege a
breach of contract claim against the School Board, asserting
that they were "third party beneficiaries under the CBA and
were not paid the compensation and benefits of full time
employees that the CBA mandates, and thus they suffered
damages."
Again, we note that the Temporary Employees were not
members of the bargaining unit under the CBA, nor were they
parties to the CBA. And to be third-party beneficiaries of the
CBA, they would have to demonstrate that the School Board
and the Union intended them to be entitled to a benefit under
the CBA. See Astra USA, Inc. v. Santa Clara Cnty., Cal., 131
S. Ct. 1342, 1347 (2011) ("A nonparty becomes legally enti-
tled to a benefit promised in a contract . . . only if the con-
tracting parties so intend").
16 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
But far from evincing such an intent, the CBA explicitly
excludes the Temporary Employees from its coverage. The
agreement states that it is between the School Board and the
Union and that "[t]he term ‘employees,’ when used in this
agreement, shall hereinafter refer to all employees of the
Board who are contained within the bargaining unit repre-
sented by the Union." The bargaining unit is then defined as
"all classified employees of Prince George’s County Public
Schools with the exception[ ] of . . . [t]emporary employees."
(Emphasis added). It is true that the agreement does limit the
use of substitute or temporary employees to fill authorized
positions, but it does so to protect those positions for mem-
bers of the bargaining unit. We find no textual indication or
suggestion that the Temporary Employees were intended ben-
eficiaries of the CBA.
Perhaps recognizing the lack of textual support for their
third-party beneficiary claim, the Temporary Employees
argue further that the "facts support their claims that they are
intended third-party beneficiaries." But the only facts they
rely on are (1) that the Union’s grievance was intended to
benefit Temporary Employees and (2) that "the Arbitrator’s
Award clearly finds that employees who fill an ‘authorized
position’ are working in bargaining unit positions and were
intended to benefit from the arbitration award." These facts,
however, were not established, and the Union’s grievance was
not a part of the record. In his decision, the arbitrator summa-
rized the Union’s grievance as "seek[ing] a ruling that the
Board has employed substitute or temporary employees in
violation of . . . the [CBA] . . . by allowing non-bargaining
unit employees to perform work reserved to bargaining unit
employees." (Emphasis added). And the Temporary Employ-
ees’ argument that the arbitrator’s award independently shows
that they are intended beneficiaries of the CBA is also not
supported. The arbitrator emphasized that his ruling was
based on the CBA’s protection of work for the bargaining
unit, concluding that the provision on the use of Temporary
Employees "was negotiated as a limitation on the ability of
MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY 17
the Board to employ substitute and temporary employees to
perform bargaining unit work in lieu of establishing and fill-
ing permanent classified positions with bargaining unit
employees."
Because we find no support for the Temporary Employees’
claim that they were third-party beneficiaries of the CBA, we
likewise affirm the district court’s order dismissing Count III
for failure to state a plausible claim for relief.
V
Finally, the Temporary Employees contend that the District
Court abused its discretion in striking their motion for recon-
sideration of the court’s order dismissing the complaint.
In their motion for reconsideration, the Temporary Employ-
ees recognized that their motion was untimely but requested
that the court "waive the 14-day time period [as provided by
local rules] under the circumstances." Relying on a new fact,
they also reargued a position that they originally took in oppo-
sition to the motion to dismiss and that the district court had
previously addressed. The defendants filed a motion to strike
the Temporary Employees’ motion, arguing that the Tempo-
rary Employees’ motion was untimely and that the district
court lacked subject matter jurisdiction in view of the fact that
the Temporary Employees had already appealed the dismissal
order. The district court granted the motion to strike without
explanation.
In these circumstances we conclude that the district court
did not abuse its discretion. To be sure, if the Temporary
Employees’ motion was to be taken as a Rule 59(e) motion,
it was filed beyond the 28-day period given for the filing of
Rule 59(e) motions. But more importantly, they advanced no
new argument that would require the district court to alter or
amend its judgment under Rule 59(e), or even under Rule
60(b). In the end, the position they took was considered by the
18 MAYO v. BOARD OF EDUCATION OF PRINCE GEORGE’S COUNTY
district court and preserved for appeal, although we did not
find it necessary to address the point because we concluded
that the Temporary Employees’ complaint failed to state plau-
sible claims.
***
In sum, we conclude that the School Board properly
removed this case to federal court; that neither substantive
claim asserted by the Temporary Employees stated a plausible
claim for which relief could be granted; and that the district
court did not err in striking the Temporary Employees’
motion for reconsideration. The judgment is accordingly
AFFIRMED.