April 11, 2013 4th Circuit published opinion

Mayo v Board of Education for Prince George’s County

Mayo and other temporary employees filed a declaratory judgment action seeking a declaration that they were permanent employees entitled to pay and protection under a collective bargaining agreement and an arbitrator’s award under that agreement. Board filed a notice of removal which stated that the union defendant consented to the removal. The union’s attorney appeared and filed a motion to dismiss. Mayo filed a motion to return the case to state court. The district court denied mayo’s remand motion and granted the motion to dismiss. It also struck a motion to reconsider. The panel affirmed. It held that when multiple defendants agree to remove the case, the attorney for one of the defendants signs the removal notice and represents that all other defendants agree to the removal, 28 USC 1446 is satisfied. Thus, the union consented to the removal and remand was not authorized on these facts. The panel held that Mayo completely misread the arbitrator award in that the arbitrate refused to order the Board to grant permanent status to employees, denied relief for the period before the grievance was filed and limited the effect of the order to positions not employees. Thus, there was no plausible claim under the arbitrator’s award and dismissal was appropriate. The panel held there was no claim under a third party beneficiary theory as Mayo and the other temporary workers were explicitly excluded from the CBA and there was no evidence that the Board intended to bestow any benefit on Mayo. Finally, the panel held that the district court did not err in rejecting the motion for reconsideration as it was filed late and advanced no new arguments.

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