The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiff Don Hamrick, proceeding pro se, complains that Defendant Crowley Maritime Corporation ("Crowley") waived the normal requirement that he undergo a pre-employment physical examination but that Defendant Dr. Richard S. Hoffman reported to Crowley that Mr. Hamrick had high blood pressure despite the waiver; that Crowley thereafter discharged him as unfit for duty; and that Defendant Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District/NMU, AFL-CIO ("Seafarers" or "Union"), failed to represent him properly concerning his discharge. All three Defendants have filed motions to dismiss or, in the alternative, for summary judgment, which are now ripe for decision [Dkt. ## 8, 9 & 10]. With his opposition [Dkt. # 16], Mr. Hamrick filed a copy of a petition for certiorari to the Supreme Court on a case he filed in the Eighth Circuit. When Crowley objected, Mr. Hamrick filed a "rebuttal" and motion for recusal [Dkt. # 19].
Mr. Hamrick is a seaman, who was referred by the Union's hiring hall for employment aboard the Charleston Express, a vessel owned by Crowley and operated by Marine Personnel and Provisioning, Inc. (the "Company"). The Union is signatory to collective bargaining agreements ("CBA") with various shipping companies, including the Company. The CBA sets the terms and conditions of employment for seamen employed on U.S.-flag vessels that sail the deep seas, the Great Lakes, and the inland waters of the United States.*fn1 The Company itself is not sued. The CBA between the Union and the Company requires pre-employment physical examinations. As a result, on or about September 11, 2007, Mr. Hamrick presented himself for a physical at the Norfolk, Virginia offices of Dr. Richard S. Hoffman. As is routine, a nurse first checked his vital signs, including his blood pressure. At that point, a Union representative arrived and informed Mr. Hamrick that the Company had instructed him to report immediately to the Charleston Express because it was leaving earlier than originally scheduled. Mr. Hamrick left as instructed without ever seeing Dr. Hoffman. However, Dr. Hoffman's office contacted the Company and notified it that Mr. Hamrick's blood pressure was elevated. The Company contacted the Charleston Express and directed that Mr. Hamrick's blood pressure be monitored during the voyage. Although Mr. Hamrick initially resisted, he eventually submitted to testing, which revealed that his blood pressure remained high.
The Charleston Express arrived in Antwerp, Belgium, on September 19, 2007. The Company asked Mr. Hamrick to be examined by a physician. When he refused, the Company brought him back to Norfolk as "Medically Unfit for Duty." Mr. Hamrick was paid his full pay for the one-way trip and travel expenses.
Mr. Hamrick complained to the Union during the voyage and upon his return about having his blood pressure checked. In an effort to resolve the dispute, the Union obtained the Company's agreement to pay Mr. Hamrick his unearned wages until the end of the voyage as well as maintenance and cure benefits. Dissatisfied, Mr. Hamrick visited the Union hiring hall on September 24, 2007, and told Union officials that he did not want the Union to do anything for him because he would sue in federal court instead and file a charge with the National Labor Relations Board. Two days later, he returned and told Union representatives that he wanted overtime pay for the duration of the voyage to Antwerp. The Union agreed to pursue this request with the Company. A few hours later, Mr. Hamrick submitted a written "counter-offer" that sought additional relief. In particular, Mr. Hamrick said that he wanted a protocol for "waivers" of all pre-employment fitfor-duty physical examinations, the possible elimination of these pre-employment exams, and the Union's agreement to join in his Second Amendment lawsuit.*fn2
On October 4, 2007, Mr. Hamrick filed a five-page grievance with the Union. The Union states that it is still pursuing Mr. Hamrick's grievance with respect to the voyage to Antwerp. See Seafarers' Mem. in Supp. of Mot. to Dismiss ("Seafarers' Mem."), Statement of Material Facts ¶ 32.
A. Federal Rule of Civil Procedure 12(b)(2)
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing a factual basis for the court's exercise of personal jurisdiction over the defendant. Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990).
The plaintiff must allege specific acts connecting the defendant with the forum. Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001). Bare allegations and conclusory statements are insufficient. Id.
In determining whether a factual basis for personal jurisdiction exists, the court should resolve factual discrepancies appearing in the record in favor of the plaintiff. Crane, 894 F.2d at 456. The court need not treat all of the plaintiff's allegations as true, however. United States v. Philip Morris Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000). Instead, the court "may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts." Id.
B. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment]to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted). The court must treat the complaint's factual allegations - including mixed questions of law and fact - as true, drawing all reasonable inferences in the plaintiff's favor, Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003), and the facts alleged "must be enough to raise a right to relief above the speculative level," Twombly, 127 S.Ct. at 1965. But the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).In deciding a 12(b)(6) motion, the Court may consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial ...