United States District Court, D. Maine
UNITIL CORPORTATION and NORTHERN UTILITIES, Inc. d/b/a/ UNITIL, Plaintiff,
UTILITY WORKERS UNION OF AMERICA LOCAL 341, Defendant.
ORDER ON MOTION TO STRIKE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
application to vacate an arbitration award, the company
referenced the documents actually admitted at the arbitration
hearing. When the union produced one of those documents for
the Court's consideration in pending cross-motions for
judgment on the pleadings, the company objected and moved to
strike. The Court concludes that the company's own
spreadsheet, which was admitted before the arbitrator, was
properly before the Court during the pendency of the
cross-motions for judgment on the pleadings. However, since
it was not necessary to consult those documents in order to
rule in favor of the union, the Court dismisses as moot the
company's motion to strike.
November 21, 2016, the parties stipulated that each of the
seven attachments that Unitil filed along with its
Application to Vacate Arbitration Award are true and genuine
copies of original documents central to the dispute between
the parties regarding whether to vacate or uphold an
arbitrator's decision and award. Stipulation of the
Parties re Docs. at 1-2 (ECF No. 13). The parties
further stipulated that “[t]he Court may review and
consider [them] in connection with any motions filed by the
parties in this action, including any motion for judgment on
the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure.” Id. at 2. These attached documents
are: the collective bargaining agreement of the parties, the
grievance form submitted by the Union, Unitil's response
to the Union's grievances, the Union's demand for
arbitration, the arbitrator's decision and award,
Unitil's post-arbitration-hearing brief, and the
Union's post-arbitration-hearing brief. Appl. to
Vacate Arbitration Award Attachs. 1-7 (ECF No. 1).
response to Unitil's motion for judgment on the
pleadings, the Union attached some additional documents:
correspondence between the attorneys in which Unitil produced
a spreadsheet of the hours the temporary employees worked as
construction inspectors, a document that was admitted into
evidence at the arbitration hearing. Union's
Opp'n to Unitil's Mot. for J. on the Pleadings
(ECF No. 20), Attachs. 1-3; Aff. of Paul F. Kelly
(ECF No. 23). In its reply, Unitil objected to these
documents in part on the ground that they were not properly
authenticated. Pl.'s Reply to Def.'s Obj. to the
Pl.'s Mot. for J. on the Pleadings at 3 (ECF No. 22)
(“Putting aside that the Union inappropriately has
submitted documents [Docs. 20-1, 20-2 and 20-3]
(unauthenticated documents, at that) in connection with its
motion for judgment on the pleadings”). In response to
Unitil's concern about the fact the Union's attached
documents were not authenticated, the Union filed an
affidavit from its attorney, authenticating the documents.
Aff. of Paul F. Kelly (ECF No. 23), Attachs. 1-3.
with the authenticating affidavit and the relevance of the
documents in a motion for judgment on the pleadings, Unitil
moved to strike Attorney Kelly's affidavit and the
attached documents. Pls.' Mot. to Strike Aff. of Paul
F. Kelly (ECF No. 24) (Pls.' Mot.). The
Union responded on May 16, 2017. Opp'n to
Unitil's Mot. to Strike Aff. of Paul F. Kelly (ECF
No. 25) (Union Opp'n). Unitil argues that the
affidavit and the attachments must be stricken because the
Court may not properly consider them in connection with the
cross-motions for judgment on the pleadings. Pls.'
Mot. for J. on the Pleadings (ECF No. 19); Mot. for
J. on the Pleadings of Def. Utility Workers Union of America,
Local 341 (ECF No. 18). It cites caselaw to support that
proposition. Pls.' Mot. at 2. The Union contends
that the documents, particularly the temporary employee
spreadsheet, are properly before the Court. Union
Opp'n at 1-3.
First Circuit has discussed what a trial court may consider
in ruling on a motion for judgment on the pleadings.
Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007).
The First Circuit explained that “[a] Rule 12(c) motion
implicates the pleadings as a whole.” Id.
(citing Aponte-Torres v. Univ. of P.R., 445 F.3d 50,
55 (1st Cir. 2006)). Thus, a court is not limited solely to
the allegations in the pleadings. A court may also consider
“documents the authenticity of which are not disputed
by the parties; . . . documents central to plaintiffs'
claim; [and] documents sufficiently referred to in the
complaint.” Id. (quoting Waterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993) (under Rule
12(b)(6))); R.G. Fin. Corp. v. Vergara-Nuñez,
446 F.3d 178, 182 (1st Cir. 2006) (citations omitted) (in
Rule 12(c) context, courts “may supplement the facts
contained in the pleadings by considering documents fairly
Complaint, Unitil made direct allegations as to the documents
that were introduced into evidence at the arbitration
At the arbitration hearing, the Company established, through
documents and testimony, that (a) there is no provision in
the Agreement prohibiting the Company from assigning work to
contractors or that in any way restricts the Company's
right to do so with respect to the work at issue; (b) several
provisions in the Agreement both explicitly and implicitly
authorize the assignment of work to contractors
(e.g., Exhibit A at 2 and 46); and (c) ambiguous and
a “balancing test” is undertaken also supports
the Company's use of contractors with respect to the
Id. ¶ 19. The Unitil Complaint therefore raised
the question of what occurred at the arbitration hearing,
including specifically referencing what documents were
introduced before Arbitrator Wolfson.
Attorney Kelly's affidavit, he represented that Unitil
itself produced the spreadsheet attached to his affidavit,
that the Union introduced the spreadsheet at the arbitration
hearing, and that Unitil did not object to the admission of
the spreadsheet at the time of the hearing. Furthermore,
Arbitrator Wolfson appears to have made express reference to
this document in her Award and Unitil attached her Award to
its Complaint. Compl. Attach. 5, Decision &
Award at 22 (“The records produced by the Employer
show that McSheffery has continuously worked all twelve
months of the year for the past three years”) (ECF No.
does not object to the authenticity of the documents attached
to Attorney Kelly's affidavit, and it would be in a
difficult position to do so, since it apparently produced the
spreadsheet in response to Attorney Kelly's request. In
these circumstances, the Court takes a dim view of
Unitil's objection, and it concludes that, assuming
authenticity is not contested, the documents attached to
Attorney Kelly's affidavit, particularly the document
actually admitted at the arbitration hearing, are
“documents central to plaintiffs' claim; [and]
documents sufficiently referred to in the complaint.”
Curran, 509 F.3d at 44.
in ruling on the cross-motions for judgment on the pleadings,
the Court did not find it necessary to consider the
spreadsheet and the other documents authenticated by Attorney
Kelly's affidavit. The Court was able to rely only on the
pleadings of the parties and the documents to which they
stipulated. Given that the Court has granted judgment on the
pleadings in favor of the Union without regard to the
documents submitted by the Union to which Unitil objects, ...