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Drake v. Richerson

United States District Court, Sixth Circuit

May 31, 2013

MICHAEL DRAKE, et al., Plaintiffs,
DEREK RICHERSON, et al., Defendants.


SARA LIOI, District Judge.

Before the Court is the motion of defendant Laborers' Local Union No. 894 ("Local 894") for summary judgment (Doc. No. 34), plaintiffs, Michael and Cynthia Drake, have filed a response (Doc. No. 41), and Local 894 has replied (Doc. No. 42). For the reasons that follow, Local 894's motion is granted, in part, and this matter is remanded to state court.


This case arises out of two encounters between plaintiff Michael Drake ("Drake") and defendant Derek Richerson ("Richerson").[1] The first event occurred on April 3, 2009, when Drake was working at a construction site as a non-union employee of Structural Building Systems (formerly known as "C.T. Taylor"). (Doc. No. 39, Deposition of Michael Drake at 778-79, 789, 798.) Richerson who was, at the time, Vice President and one of several field representatives of the local union, was dispatched to the construction site purportedly to inquire about opportunities for union masons on the construction project. (Doc. No. 35, Deposition of Dereck Richerson at 598, 607.) Plaintiffs maintain that Richerson's true reason for the visit was to pressure non-union workers into joining the local union.

Once at the site, Richerson approached Drake, who was operating a piece of heavy machinery. (Doc. No. 39 at 799-801.) Richerson asked plaintiff if he had joined the union, to which Drake responded that he had nothing to do with the union and advised Richerson that he needed to get back to work. ( Id. at 801-02.) However, Richerson blocked Drake's path, grabbed onto his machine, and fired more questions at him. ( Id. at 802-03.) Drake eventually abandoned his machine and went into a school building, located at the site, looking for his supervisor. Richerson followed and resumed his interrogation. Drake became "hot" and frustrated with Richerson's pursuit and asked him to leave. ( Id. at 804-05.) Richerson ultimately withdrew from the building. ( Id. at 805.)

Drake eventually located his supervisor and advised him that a union representative was on site and was asking questions. ( Id. at 806.) When Drake returned to his machine, he observed Richerson speaking with a mason. ( Id. at 816.) Drake noticed Richerson pointing and gesturing in his direction. ( Id. ) While Drake later learned that Richerson had made threats of violence against him, Richerson left the construction site peacefully that day and without any further interaction with Drake. ( Id. at 821, 825.)

The second encounter between these two men occurred on January 9, 2010 at a convenience store in Akron, Ohio. Richerson had visited the store for the purpose of purchasing groceries and a lottery ticket. (Doc. No. 35 at 619.) He returned to his car, and scratched off the concealed code to reveal that he was an instant winner. Meanwhile, Drake entered the store. He, too, was planning to purchase some lottery tickets, and had promised the store's proprietor that he would perform some freelance construction work at the store. (Doc. No. 39 at 833-34.)

Richerson decided to return to the store to claim his prize. (Doc. No. 35 at 621.) When he observed Drake standing near the counter, Richerson approached Drake inquiring, "Hey, Bug, remember me?"[2] (Doc. No. 39 at 841.) Drake thought Richerson looked familiar, and held out a hand as if to shake Richerson's. Instead of returning the gesture, Richerson began to strike Drake repeatedly with his fists and kick him. ( Id. at 841-43.) The beating lasted for several minutes, with Drake eventually falling to the ground and Richerson sitting on him, during which Richerson patted his side, revealing a gun holster and cautioned Drake not to follow him out of the store. ( Id. at 843-44.) After Richerson left the scene, the store owner phoned the police. Drake sustained serious injuries to his ribs, spleen, and face during the attack, and was unable to return to work for more than six weeks. ( Id. at 860-61, 885.) Richerson was arrested and charged in connection with the assault. (Doc. No. 35 at 623.)

According to plaintiffs, Richerson was never disciplined by the union. While plaintiffs acknowledge that Richerson was not permitted to return to the work site where Drake was employed, they note that Richerson remained in his position with the union, and that he was permitted to continue his campaign for local union president. Richerson was ultimately successful in his election bid. (Doc. No. 35 at 629.)

At some point after the election, Richerson was tried in the Summit County Court of Common Pleas, and was convicted of felonious assault, under Ohio Rev. Code § 2903.11(A)(1), and a firearm specification, under Ohio Rev. Code § 2941.145. He was sentenced to two years imprisonment for the assault, which was ordered to run consecutively with a mandatory three-year sentence for the gun specification. (Doc. No. 5-5 at 374, State Appellate Brief of Richerson; Doc. No. 35 at 629-31.) Following his conviction, Local 894 terminated his employment.[3] (Doc. No. 35 at 630.)

On January 6, 2011, Drake brought suit in the Summit County Court of Common Pleas against Richerson, Local 894, and Laborers' International of North America ("the International"), raising claims of assault and conspiracy. Plaintiff Cynthia Drake also brought a derivative claim for loss of consortium. On August 9, 2011, plaintiffs amended their complaint to add claims for negligent and intentional infliction of emotional distress, negligent hiring and negligent retention, and unfair labor practice(s) ("ULP"). (Doc. No. 1-20, First Amended Complaint.) Relying exclusively on plaintiffs' new ULP claim, defendants successfully removed the action to federal court.[4] (Doc. No. 1, Notice of Removal.)

Local 894 now moves for summary judgment on all claims raised in the First Amended Complaint. In its motion, the local union argues that there is no evidence in the record that, if believed, would support union liability for the assault by Richerson. With respect to the claim of unfair labor practices, Local 894 argues that the action is time-barred, and that the claim fails on the merits because there is no evidence that it attempted to coerce Drake into joining the union. Plaintiffs, however, insist that there are genuine issues of material fact relating to the state tort claims, and that there are also factual disputes surrounding the timeliness of the ULP claim.


Under Fed.R.Civ.P. 56(a), when a motion for summary judgment is properly made and supported, it shall be granted, "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must ...

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