Jeff Franke v. Norfolk S. Ry. Co.

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0225n.06
No. 21-3848
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
May 12, 2023
DEBORAH S. HUNT, Clerk
)
JEFF FRANKE, et al.,
)
Plaintiffs-Appellants, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
NORFOLK SOUTHERN RAILWAY CO., et al., )
)
Defendants-Appellees. OPINION
)
)
Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.
CLAY, Circuit Judge. Plaintiffs Jeff Franke, Steven Frye, and Greg Fish appeal the
district court’s order granting Defendants’ motion to dismiss, which addressed whether removal
to federal court was proper, whether Plaintiffs’ fraud claims were preempted by the Railway Labor
Act (“RLA”), 45 U.S.C. §§ 151 et seq., and whether Plaintiffs properly pleaded fraud. For the
reasons set forth below, we AFFIRM the district court’s judgment.
I. BACKGROUND
A. Factual Background
Franke, Frye, and Fish worked as locomotive engineers for Norfolk Southern Railway
Company (“Norfolk Southern”). (Compl., R. 1-1, Page ID #14, 20, 26). Plaintiffs were each
disciplined and discharged by Norfolk Southern. (Id. at Page ID #14, 20, 27). Each Plaintiff was
represented by the International Brotherhood of Teamsters (“IBT”), IBT’s subdivision the
Brotherhood of Locomotive Engineers and Trainmen (“BLET”), and BLET’s subdivision, the
Norfolk and Southern Northern Lines Wheeling and Lake Erie General Committee of Adjustment
Case No. 21-3848, Franke, et al. v. Norfolk Southern Railway Co., et al.
(“GCA”) (collectively, “Union Defendants” or “Union”) under 45 U.S.C. §§ 151 et seq., the RLA,
and a Collective Bargaining Agreement (“CBA”). (Id., Page ID #12–14, 20–21, 26–27).
Following the internal company hearing that resulted in Plaintiffs’ termination, the Union
appealed Norfolk Southern’s determination to a Public Law Board (the “Board”) for arbitration
pursuant to the RLA and in accordance with the CBA. (Id. at Page ID #14, 20–21, 27). As agreed
upon by Norfolk Southern and the Union, Defendant David Ray served as the sole neutral arbitrator
in each Board arbitration. (Id. at Page ID #15, 21, 27). The Board upheld Plaintiffs’ terminations.
(Board Arbitration Awards; R. 28-3, R. 28-4, R. 28-5; Page ID #440–42).
B. Procedural History
Plaintiffs sued Norfolk Southern, the Union, and Ray in the Court of Common Pleas for
Lucas County, Ohio on August 20, 2020. (Compl., R. 1-1, Page ID # 9–10). In their complaint,
Plaintiffs allege that they were deprived of a fair and neutral arbitration process, because Ray, who
presided over each matter, was a former employee of Norfolk Southern, and thus, had a bias toward
Defendant Norfolk Southern, as well as a conflict-of-interest. (Id. at Page ID ## 15–16, 21–22,
28). Plaintiffs further allege that Defendants colluded in a scheme where Board arbitrations
conducted before Ray would not be decided on their merits, but rather based on the Union’s
political preferences. (Id. at Page ID # 17, 23, 29–30).
Under the terms of the RLA and CBA, either Norfolk Southern or the Union could reject
any arbitrator. (Id. at Page ID #15, 21, 28). Plaintiffs assert that Norfolk Southern and the Union
knew of Ray’s alleged bias and conflict-of-interest and “acted in bad faith, collusively, with
corrupt and fraudulent intent” when selecting him to arbitrate the grievances. (Id. at Page ID #16,
22, 28–29). According to Plaintiffs, this is evidenced by Defendants’ knowledge of: (1) Ray’s
prior employment at Norfolk Southern; and (2) Ray’s potentially “undisclosed conflict-of-interest
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with the existence of pension and retirement benefits and stock holdings with [] Norfolk Southern.”
(Id.). As noted above, Plaintiffs contend Defendants “concocted a scheme” where Ray would give
favorable appeals for grievances that came from local divisions whose local chairman would vote
for Dewayne Dehart to be General Chairman of Adjustment for the Union, and would deny appeals
from divisions whose local chairmen would not. (Id. at Page ID # 17, 23, 29–30). Plaintiffs assert
that the Union benefited by gaining political favor through the favorable resolution of certain
arbitrations, Ray benefited because he would be hired more frequently, and thus have a more
lucrative arbitration practice, and Norfolk Southern benefited because it would win a
disproportionate number of arbitrations conducted in front of Ray. (Id.).
Plaintiffs assert that Union Defendants owed them a duty of fair representation, which they
failed to fulfill when they did not represent Plaintiffs fairly, impartially, and in good faith. (Id. at
Page ID #15, 21, 27–28). Plaintiffs further allege that Ray owed Plaintiffs “a duty to comply with
the federal statutes[,] regulations, [and] the National Mediation Board policy requiring him to have
no bias between the parties and to have no financial interest in any party while acting as a neutral
arbitrator.” (Id.). Plaintiffs contend that all Defendants had a duty to “allow [Plaintiffs’] appeals
to be decided on the merits with an unbiased neutral arbitrator that had no conflicts-of-interest and
without engaging in an appeal fixing scheme.” (Id. at Page ID #18, 24, 30–31). They also aver
that “Defendants had a duty to inform [Plaintiffs] that [the] arbitration[s] had been compromised
because of David Ray’s bias and conflict-of-interest, and the appearance of an appeals fixing
scheme Defendants were engaged in.” (Id. at Page ID #18, 24, 30–31). Based on this purported
conduct, each Plaintiff alleged fraud claims against Defendants. (See generally id.).
We pause here to note the unique nature of the claims before us. On the one hand, Plaintiffs
argue that their complaint alleges only state fraud claims under Ohio law. (Id. at Page ID #13, 20,
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26). On the other hand, their complaint is riddled with references to federal-statutory frameworks
and federal obligations, and they seek federal relief by stating Plaintiffs’ “entitle[ment] to judicial
review of the Public Law Board decisions upholding [their] termination[s],” by asking that a court
award “damages for fraud under state and federal statutes and common law,” and by seeking
“reinstatement to [their] prior employment position[s] with all rights, benefits and status as [they]
maintained” previously “as well as past wage loss,” and “expungement and removal of any and all
references to the adverse actions, charges and discipline which formed the basis of the arbitration
related to” Plaintiffs. (Id. at Page ID #18–19, 24–25, 31; see also Page ID #12, 15–18, 21–24, 27–
31). Defendants removed the case on the basis that Plaintiffs’ action “arises under the laws of the
United States and invokes the federal question jurisdiction.” (Notice of Removal, R. 1, Page ID
#2). The removal notice asserted that Plaintiffs’ allegations of common law fraud in connection
with the RLA arbitral decisions arise under federal law. (Id., Page ID #2–5). Defendants also
asserted that Plaintiffs’ claims are preempted by the RLA. (Id., Page ID #4).
On October 16, 2020, the Parties submitted a joint proposed preliminary case schedule,
which included a proposed briefing schedule for a motion to remand. (Joint Proposed Case
Schedule, R. 16, Page ID #134). Three days later, having reviewed the preliminary case schedule,
the district court ordered the parties to “exchange letters (two-page limit) with each other and
confer regarding the merits of such a motion.” (Case Schedule Order, R. 17, Page ID #137). The
district court instructed counsel to forward the letters to the district court, and then convened a
phone conference with counsel to discuss potential briefing of the motion. (Id.).
The district court, following the telephone conference and review of the letters, denied
Plaintiffs’ proposed motion to remand, holding that although Plaintiffs assert state law fraud
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claims, “Defendants correctly note that the Railway Labor Act (“RLA”) preempts1 Plaintiffs’
attempts to limit the scope of their claims and those claims must necessarily arise under federal
law.” (Remand Order, R. 19, Page ID #159).
On December 2, 2020, the case was transferred to Judge James R. Knepp. After the
transfer, Judge Knepp approved the new joint proposed scheduling order. Defendants filed their
motions to dismiss the original complaint based on Federal Rule of Civil Procedure 12(b)(6) on
January 21, 2021, in accordance with that schedule. (Mots. to Dismiss, R. 22, 23). On February
11, 2021, Plaintiffs attempted to file an amended complaint. (Am. Compl., R. 24). Defendants
moved to strike the amended complaint as: (1) untimely and filed without leave or consent;
(2) futile as to pending motions to dismiss, and (3) an ineffective attempt to divest the court of
jurisdiction. (See Mots. to Strike, R. 25–27). On August 24, 2021, the district court granted
Defendants’ motions to dismiss and motions to strike. See Franke v. Norfolk S. Ry. Co., No. 3:20
CV 2152, 2021 WL 3737913, at *1 (N.D. Ohio Aug. 24, 2021). Because the district court correctly
struck Plaintiffs’ amended complaint, the facts summarized in this section derive from the original
complaint. The two complaints differ only slightly in ways that are not material to this Court’s
decision. (Compare Compl., R. 1-1, with Am. Compl., R. 24).
Plaintiffs appeal the district court’s order: (1) denying Plaintiffs’ request to file a formal
motion to remand; (2) granting Defendants’ motion to strike; (3) denying Plaintiffs’ request to
remand; and (4) granting Defendants’ motion to dismiss. (Pls.’ Br., ECF No. 41, 30.) This Court
affirms the district court’s judgment and addresses each argument in turn.
1
The district court considered Defendants’ argument that federal jurisdiction existed
because complete preemption applied, which Defendants supported with citation to cases applying
ordinary preemption. (Defs.’ Letter, R. 19-2, Page ID #162–63 (citing Wellons v. Nw. Airlines,
Inc., 25 F. App’x 214, 218 (6th Cir. 2001))).
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II. DISCUSSION
A. Motion to Remand
1. Standard of Review
This Court has not addressed the standard of review for a denial of formal briefing on a
motion to remand. But the Court has applied the abuse of discretion standard when evaluating a
district court’s denial of a counsel’s request for supplemental briefing. See AES-Apex Emp. Servs.,
Inc. v. Rotondo, 924 F.3d 857, 866–67 (6th Cir. 2019); Jomaa v. United States, 940 F.3d 291, 299
(6th Cir. 2019). Moreover, Plaintiffs and Defendants argued their positions using abuse of
discretion standards in their briefs. (See Pls.’ Br., ECF No. 41, 22; Defs.’ Br., ECF No.49, 25–
27.) Accordingly, the Court reviews the district court’s denial of Plaintiffs’ request to file a formal
motion to remand for abuse of discretion. When this Court reviews for abuse of discretion, it will
reverse only when it “is firmly convinced that a mistake has been made.” Bush v. Rauch, 38 F.3d
842, 848 (6th Cir. 1994).
2. Analysis
Plaintiffs argue that the district court abused its discretion by not allowing Plaintiffs to
fully brief a motion to remand under 28 U.S.C. § 1447(c) after the parties submitted their two-
page letters. (Pls.’ Br., ECF No. 41, 22–24.) We disagree.
This Court follows the general principle that “a district court has broad discretion to
manage its docket.” Am. C.L. Union of Ky. v. McCreary County, 607 F.3d 439, 451 (6th Cir. 2010)
(citation omitted) (“[T]he [district] court had ample discretion to strike Defendants’ late renewed
motion for summary judgment.”); see also AES-Apex Emp. Servs., Inc., 924 F.3d at 867 (finding
no abuse of discretion in the district court’s denial of defendant’s motion for supplemental
summary judgment briefing); Jomaa, 940 F.3d at 299 (finding no abuse of discretion in district
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court’s denial of a motion to file supplemental briefing, based on the district court’s finding that
additional briefing would be unnecessary to resolve the pertinent issue).
In this case, Plaintiffs were within their rights to challenge the district court’s subject matter
jurisdiction. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.”). The district court
gave Plaintiffs the opportunity to be heard on the matter; and requested for counsel to confer, and
exchange letters outlining their potential arguments regarding jurisdiction. (Case Schedule Order,
ECF No. 17, Page ID # 137). Following a telephone conference and review of the letters, the
district court denied Plaintiffs’ proposed motion to remand, holding that Plaintiffs’ state law claims
arise under federal law and were preempted by the RLA. (Remand Order, R. 19, Page ID #159).
Plaintiffs argue that counsel had no “warning” that the letters would be used to decide the
issue of remand, and the letters were mere outlines of the parties’ positions, not a thorough briefing
of Plaintiffs’ arguments. (Pls.’ Br., ECF No. 41, 22–23). However, Plaintiffs do not present an
argument that counsel was deprived of any opportunity to be heard on the matter, or that the letter
misrepresented their argument. Given the broad discretion district courts possess in managing
their dockets and the Plaintiffs’ opportunity to be heard on the matter, the district court did not
abuse its discretion when it held that additional briefing was unnecessary, and that the letters and
conference were sufficient to decide the matter. See Am. C.L. Union of Ky., 607 F.3d at 451.
Moreover, the district court extensively addressed Plaintiffs’ remand arguments in its order
granting Defendants’ motion to dismiss, noting that “[i]n response to Defendants’ Motions to
Dismiss, Plaintiffs expend significant effort arguing for a remand to state court,” and affirmed the
court’s previous decision to deny Plaintiffs’ request to remand. Franke, 2021 WL 3737913, at *3.
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In sum, Plaintiffs were twice given the opportunity to present their arguments regarding
subject matter jurisdiction, and the court twice arrived at the same conclusion. (See Remand Order,
ECF No. 19); Franke, 2021 WL 3737913, at *3. Accordingly, the district court’s decision to deny
additional formal briefing of the motion to remand, after parties had been heard, was not an abuse
of discretion. The Court affirms the ruling of the district court.
B. Defendants’ Motions to Strike Plaintiffs’ Amended Complaint
1. Standard of Review
When a district court denies a motion to amend a complaint because the proposed
amendment would be futile (i.e., that it would not withstand a motion to dismiss), the Court applies
a de novo standard of review. United States ex rel. Sheldon v. Kettering Health Network, 816 F.3d
399, 407 (6th Cir. 2016) (citing Seaton v. TripAdvisor LLC, 728 F.3d 592, 596 (6th Cir. 2013).
2. Analysis
Plaintiffs, having focused their appellate argument almost exclusively on arguing the RLA
does not apply, have not substantively addressed the district court’s decision to strike their
amended complaint. The entirety of Plaintiffs’ argument in their opening brief as to the motion to
strike the amended complaint reads:
Plaintiffs believe that their case should be remanded to state court. Should the
Court agree, then the motion to strike is moot, because the district court had no
jurisdiction. If the Court disagrees, the district court is likely correct that
attempts to amend the complaint would be futile.
(Pls.’ Br., ECF No. 41, 28). Plaintiffs do not attempt to argue that the district court was wrong in
finding that their amended complaint was futile, and instead, assert that if their state law claims
are preempted, the district court was correct. To preserve an issue for appellate review, a party
must develop its argument in its appellate briefing; Plaintiffs do not meet this requirement on this
issue. Puckett v. Lexington-Fayette Urb. Cnty. Gov’t, 833 F.3d 590, 610–11 (6th Cir. 2016); see
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also Bolden v. City of Euclid, 595 F. App’x 464, 468 (6th Cir. 2014) (finding that in addressing an
issue on appeal, “a party is required to do more than advert to an issue in a perfunctory manner”).
Having failed to argue the merits of the district court’s rulings on the motion to strike in their
opening brief, Plaintiffs forfeited these issues on appeal.
Moreover, even if this Court found that the issue was not forfeited, the district court did
not err in striking Plaintiffs’ amended complaint. When Plaintiffs filed their amended complaint,
they were already on notice that their complaint was subject to federal pleading standards. (See
Remand Order, R. 19; Am. Compl., ECF No. 24). Additionally, Plaintiffs’ amended complaint
was offered for filing subsequent to Defendants’ motions to dismiss. (See Mot. to Dismiss, R. 22,
23). Thus, Plaintiffs were in possession of Defendants’ arguments relating to the deficiencies of
the claims before filing their amended complaint. Even with pertinent information at hand,
Plaintiffs’ amended complaint did not address RLA preemption and did not address the
fundamental deficiencies in their fraud claims identified in Defendants’ Motions. (See Am.
Compl., R. 24).
Federal Rule of Civil Procedure 15 “instructs courts to “‘freely give leave’ to amend.”
Kuyat v. BioMimetic Therapeutics, Inc., 747 F.3d 435, 444 (6th Cir. 2014) (quoting
Fed. R. Civ. P. 15). However, “Plaintiffs are not entitled to a directive from the district court
informing them of the deficiencies of the complaint and then an opportunity to cure those
deficiencies.” Graham v. Fearon, 721 F. App’x 429, 439 (6th Cir. 2018) (citation and quotation
marks omitted) (finding no abuse of discretion when the court denied the plaintiffs’ motion to
amend “because Plaintiffs’ request was perfunctory and did not point to any additional factual
allegations that would cure the complaint”). In this case, because Plaintiffs’ amended complaint
was nearly identical to their original complaint and did not point to any additional factual
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allegations that would cure the original complaint’s deficiencies, the district court did not abuse
its discretion in granting Defendants’ motions to strike. The Court affirms the district court’s
ruling striking Plaintiffs’ amended complaint.
C. Subject Matter Jurisdiction
1. Standard of Review
The Court reviews a denial of a motion to remand de novo. Ahearn v. Charter Twp. of
Bloomfield, 100 F.3d 451, 453 (6th Cir. 1996). To determine whether the action was properly
removed, we examine the complaint as it existed at the time of removal. Id; see also Harper v.
AutoAlliance Int’l, Inc., 392 F.3d 195, 210 (6th Cir. 2004).
2. Analysis
Because Plaintiffs’ complaint expressly pleads federal claims and thus federal question
jurisdiction exists, this Court affirms the district court’s ruling denying Plaintiffs’ request to
remand. “[A]ny civil action brought in a State court of which the district courts of the United
States have original jurisdiction[] may be removed by the defendant” to federal court. 28 U.S.C.
§ 1441(a). “Only state-court actions that originally could have been filed in federal court may be
removed to federal court by the defendant.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987). Importantly, a case “may not be removed to federal court on the basis of a federal defense,
including the defense of pre-emption, even if the defense is anticipated in the plaintiff’s complaint,
and even if both parties concede that the federal defense is the only question truly at issue.” Id. at
393.
Federal district courts “have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Both to determine (1)
whether a plaintiff’s case arises under federal law and (2) whether removal is proper on that basis,
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federal courts look at the face of the plaintiff’s “well-pleaded complaint.” Aetna Health Inc. v.
Davila, 542 U.S. 200, 207 (2004) (quoting Franchise Tax Bd. of State of Cal. v. Constr. Laborers
Vacation Tr. for S. Cal., 463 U.S. 1, 9–10, 10 n.9 (1983)); Long v. Bando Mfg. of Am., Inc., 201
F.3d 754, 757–58 (6th Cir. 2000) (“In determining removal jurisdiction under § 1441, as in
determining original ‘arising under’ jurisdiction, federal courts apply the ‘well-pleaded complaint’
rule.” (quoting Caterpillar, 482 U.S. at 392)). The well-pleaded complaint rule “directs us to look
only to ‘what necessarily appears in the plaintiff’s statement of his own claim in the bill or
declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is
thought the defendant may interpose.’” Hogan v. Jacobson, 823 F.3d 872, 878 (6th Cir. 2016)
(quoting Aetna, 542 U.S. at 207).
Alongside their state fraud claims, two plaintiffs seek “judicial review of the Public Law
Board2 decisions upholding [their] termination[s],” and all plaintiffs seek “reinstatement” of their
employment “as well as past wage loss,” and “expungement and removal of any and all references
to the adverse actions, charges and discipline which formed the basis of the arbitration related to”
Plaintiffs. (Id. at Page ID #18–19, 24–25, 31). The express requests for judicial review alongside
the demanded relief of reinstatement of their employment and record expungement (which appears
to require the setting aside of their arbitration awards) fairly demonstrate an RLA fraud claim. The
RLA permits a party to seek review of (i.e., essentially to appeal) an arbitration award from a
division of the Adjustment Board by filing “a petition for review of the division’s order” in the
appropriate federal district court. 45 U.S.C. § 153 First (q). The federal district court’s “[j]udicial
review of the arbitral decision is limited.” Consol. Rail Corp. v. Ry. Lab. Execs.’ Ass’n, 491 U.S.
2A Public Law Board, which is a type of Special Adjustment Board, is an arbitration
tribunal. Bhd. of Locomotive Eng’rs & Trainmen v. United Transp. Union, 700 F.3d 891, 899 (6th
Cir. 2012).
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299, 304 (1989); 45 U.S.C. § 153 First (q). “On such review, the findings and order of the division
shall be conclusive on the parties, except that the order of the division may be set aside, in whole
or in part, or remanded to the division,” (1) “for failure of the division to comply with the
requirements of this chapter,” (2) “for failure of the order to conform, or confine itself, to matters
within the scope of the division’s jurisdiction,” or (3) “for fraud or corruption by a member of the
division making the order.” 45 U.S.C. § 153 First (q). Thus, the request for judicial review and
the setting aside of Plaintiffs’ arbitration award established that the case properly belongs in federal
court. Further, all three plaintiffs “seek[] damages for fraud under state and federal statutes and
common law,” (Compl., R. 1-1, Page ID # 18, 24, 31 (emphasis added)). Therefore federal
question subject matter jurisdiction exists, and this Court affirms the district court’s ruling denying
Plaintiffs’ request to remand.
D. Preemption
Both before this court and the district court, the parties argued for and against removal by
invoking (1) the merits-based defense of ordinary preemption and/or (2) the jurisdictional doctrine
of complete preemption. “Ordinary preemption, [which] flows from the Supremacy Clause of the
United States Constitution[,] . . . provides only a defense that can be invoked in state or federal
court.” Hudak v. Elmcroft of Sagamore Hills, 58 F.4th 845, 852 (6th Cir. 2023). Ordinary
preemption is distinct from the “jurisdictional” and “‘misleadingly named doctrine’ of complete
preemption.” Id. (quoting Hogan, 823 F.3d at 879); Trollinger v. Tyson Foods, Inc., 370 F.3d 602,
608 (6th Cir. 2004) (“[Ordinary] [p]reemption . . . does not . . . concern the subject-matter
jurisdiction of a court to hear a claim.”). Ordinary preemption “concerns the merits of the claim
itself—namely, whether it is viable and which sovereign’s law will govern its resolution. That is
why litigants typically invoke preemption as a defense to state-law claims asserted in state or
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federal court, not as a jurisdictional defect.” Trollinger, 370 F.3d at 608. In this case, preemption
is only posed as an argument to establish federal jurisdiction and not as a merits-based defense.
Accordingly, we decline to decide whether the RLA completely preempts Plaintiffs’ state law
fraud claims because, as explained above, this action nonetheless arises under federal law.
E. Motion to Dismiss
1. Standard of Review
This Court reviews de novo a district court’s grant of a motion to dismiss under Rule
12(b)(6). Majestic Bldg. Maint., Inc. v. Huntington Bancshares Inc., 864 F.3d 455, 458 (6th Cir.
2017). A motion to dismiss is properly granted if the plaintiff “fail[ed] to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss, the plaintiff must allege facts that are sufficient “to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.The reviewing court must accept the factual allegations in the complaint “as true and
construe the complaint in the light most favorable to the [p]laintiff[].” Hill v. Blue Cross & Blue
Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). This Court may affirm the district court’s
dismissal of the plaintiff’s claims “on any ground supported by the record,” including grounds not
relied upon by the district court. Insight Commc’ns, 804 F.3d at 794; In re Comshare Inc., 183
F.3d at 547–48.
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2. Analysis
Plaintiffs focused their appellate argument on jurisdiction and preemption, and as a
consequence, neglected to address the district court’s holding on Defendants’ motion to dismiss.
See supra Part II(B)(2). The entirety of Plaintiffs’ opening brief with respect to Defendants’
motion to dismiss, reads:
Plaintiffs believe that their suit should be remanded to state court, making the issue
of the district court’s dismissal moot. The motions to dismiss would be determined
by the same analysis of whether Plaintiffs’ claims require the interpretation of the
CBA.
(Pls.’ Br., ECF No. 41, 27–28). Plaintiffs have not preserved this issue for appeal. Having failed
to argue the merits of the district court’s rulings on the motion to dismiss regarding whether they
have sufficiently pleaded fraud claims upon which relief can be granted, Plaintiffs have forfeited
these issues on appeal. See Glennborough Homeowners Ass’n v. U.S. Postal Serv., 21 F.4th 410,
414 (6th Cir. 2021) (“[T]ime, time, and time again, we have reminded litigants that we will treat
an argument as forfeited when it was not raised in the opening brief.” (quoting Island Creek Coal
Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018))). Given the extent of this forfeiture, we need
not address the merits of the district court’s decision to grant Defendants’ motion to dismiss under
Rule 12(b)(6) and dismissal of Plaintiffs’ claims and affirm.
Accordingly, this Court affirms the district court’s dismissal.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s judgment.
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