International Brotherhood of Teamsters Local 651 v. Philbeck

                UNITED STATES DISTRICT COURT                            
                EASTERN DISTRICT OF KENTUCKY                            
                      CENTRAL DIVISION                                  
                         (at Lexington)                                 

INTERNATIONAL BROTHERHOOD      )                                        
OF TEAMSTERS LOCAL 651,        )                                        
                               )                                        
     Plaintiff,                )    Civil Action No. 5: 19-105-DCR      
                               )                                        
V.                             )                                        
                               )                                        
MICHAEL PHILBECK,              )     MEMORANDUM OPINION                 
                               )           AND ORDER                    
     Defendant.                )                                        

                      ***    ***    ***    ***                          
   Plaintiff International Brotherhood of Teamsters Local 651 (hereafter, “Local 651” or 
“the Union”) has filed a motion for summary judgment or, alternatively, for a default judgment.  
[Record No. 68]  As relief, Local 651 requests the passwords and administrative access to a 
plethora of Facebook pages and a permanent injunction to keep Defendant Michael Philbeck 
from using the Facebook accounts and to keep him from holding himself out as an officer of 
the Union.  [Id.]  The Union is only seeking the return of the social media accounts; it is not 
seeking actual damages for other items Philbeck allegedly took and converted for his own use.  
Because Local 651 has failed to meet its burden on four of its six claims, its motion will be 
granted, in part, and denied, in part.                                    
                              I.                                        
   Defendant  Philbeck  served  as  president  of  Local  651  from  January  1,  2010,  to 
December 31, 2018.  [Record No. 1, p. 2]  Although Philbeck lost re-election as Local 651 
president in November 2018, he remains a member of the Union.  [Record No. 1, p. 1]  After 
losing the election, Philbeck allegedly removed property belonging to the Union, including a 
digital camera, laptop, and points on the Union credit card (which he converted to gift cards) 
that he retained for his personal benefit.  [Record No. 1, p. 1]  While Philbeck was president 
of the Union, he had control over its Facebook page and created a union member group on 

Facebook.  [Record No. 1, p. 2]  Philbeck removed administrative privileges from other Union 
executive board members and changed the passwords for the pages following his unsuccessful 
re-election bid.                                                          
   Local 651 president-elect Michael Watson notified Philbeck on November 20, 2018, 
not to make any extraordinary expenditures ($1,000 or more) without notifying the incoming 
officers. [Record No. 2-1, p. 5] Watson requested a meeting with Philbeck on December 20, 
2018, to discuss Philbeck’s alleged extraordinary expenditures – including  $20,000.00 for 

accrued vacation retained during previous years, a $2,000.00 laptop, a digital camera, and 
conversion of 165,000 credit card points into gift cards.  [Record No. 1, p. 6]  But no meeting 
occurred.                                                                 
   Local 651 filed this action on March 15, 2019, asserting that the defendant breached 
contracts under Section 301 of the Labor-Management Relations Act (“LMRA”), breached his 
fiduciary duty under the Labor-Management Reporting and Disclosure Act (“LMRDA”), 
converted the Union’s property, and appropriated the plaintiff’s name or likeness.  [Record 

No. 1]  Local 651 asserts additional claims for false designation of origin under the Lanham 
Act and unfair competition.  [Record No. 1]                               
   Local 651 filed a motion for a temporary restraining order or a preliminary injunction 
to enjoin Philbeck from accessing, administering, or posting on social media accounts that are 
held out, “passed off,” or could be perceived as official accounts or pages of Local 651.  
[Record No. 2]  It also sought to enjoin Philbeck from holding himself out as a current officer 
of Local 651 or attempting to gain access to unauthorized information and to compel him to 
turn over passwords for all of Local 651’s social media accounts.  [Id.]   
   This Court granted a preliminary injunction, enjoining Philbeck from posting on the 

social media accounts he controls that are portrayed, publicized, or otherwise held out or could 
be perceived as official accounts or pages of the Union without identifying himself as the 
poster and from holding himself out as a current officer of the Union.   [Record No. 14]  
Further, Philbeck was required to identify himself as the author of any post on any social media 
page perceived as an official page of the Union in bold print and all caps and state that he was 
not a current officer of the Union.  The Court modified the preliminary injunction following a 
contempt hearing on October 16, 2019.  [Record No. 52]  The Court found that Philbeck 

violated the original preliminary injunction several times and never indicated that he could not 
comply with the Court’s original order.   The Court required Philbeck to post a clear disclaimer 
at the beginning and end of every post on social media.                   
   Philbeck filed a motion to dismiss for lack of subject matter jurisdiction and for failure 
to state a claim for relief.  [Record No. 33]  That motion was denied because the Court has 
subject matter jurisdiction over the plaintiff’s claims and because the plaintiff stated viable 
claims for relief.  [Record No. 57]  Philbeck then filed a motion for a temporary restraining 

order and/or a preliminary injunction.  [Record No. 62]  That motion was denied because 
Philbeck had not asserted claims upon which to base injunctive relief and because injunctive 
relief would not be appropriate on the merits.  As further noted by the Court, Philbeck sought 
to enjoin individuals who could not be bound by an injunction.  [Record No. 63]  Philbeck 
never filed a responsive pleading following the denial of his motion to dismiss. 
   Local 651 moved for summary judgment requesting a permanent injunction giving it 
control over the disputed social media accounts, as well as costs and attorney’s fees.  While 
there are multiple references to property other than the social media accounts allegedly 

misappropriated by Philbeck, the plaintiff does not request any form of relief for the other 
Union property allegedly kept by Philbeck.  It only requests passwords and administrative 
access related to the social media accounts.  Specifically, the Union requests passwords and 
administrative access “for all social media accounts purporting to be official Teamsters Local 
651 accounts, including but not limited to, the Teamsters Local 651 Facebook Page, Teamsters 
Local 651 UPS Member Resource Group, and the Official Teamsters Local 651 Members 
Resourse [sic] Group.”  [Record No. 68-1, p. 3]  The plaintiff explains that, “based on the 

Union’s First Amended Complaint, it is not seeking actual damages for the goods or monies it 
believes Philbeck took and converted to his own use.  However, the Union still contends that 
Philbeck engaged in these activities, establishing the predicate violations for the relief it 
seeks.”  [Record No. 68-1, p. 7]  Philbeck filed a response attempting to assert counterclaims 
and generally discussing unrelated qualms he has with the Union.  [Record No. 77]  
                             II.                                        
   Entry of summary judgment is appropriate if there are no genuine disputes regarding 

any material facts and the movant is entitled to judgment as a matter of law.  Fed. R. Civ. P. 
56(a); see Celotex Corp. v. Catrett, 

477 U.S. 317, 322-23

 (1986); Chao v. Hall Holding Co., 

285 F.3d 415, 424

 (6th Cir. 2002).  The determination must be “whether the evidence presents 
a sufficient disagreement to require submission to a jury or whether it is so one-sided that one 
party must prevail as a matter of law.”  Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251-52

 
(1986).                                                                   
   In the typical case, the moving party carries an initial burden to produce evidence to 
present a prima facie case that the movant is entitled to judgment as a matter of law.  Celotex, 

477 U.S. at 317

; see also Angelo v. Kroger Co., No. 86-3912, 

1987 U.S. App. LEXIS 11965, at *24

 (6th Cir. Sept. 3, 1987) (“The burden of production imposed by Rule 56 requires the 
moving party to make a prima facie showing that it is entitled to summary judgment.”) (internal 
citations omitted)).  Once the moving party has met its burden of production, “its opponent 
must do more than simply show that there is some metaphysical doubt as to the material facts.”  
Keeneland Ass’n, Inc. v. Earnes, 

830 F. Supp. 974, 984

 (E.D. Ky. 1993) (citing Matsushita 
Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 586

 (1986)).        
    “When a plaintiff is the moving party for summary judgment, the burden is high.”  

Wells v. Howard Berger Co., No. 2012-190, 2014 Dist. LEXIS 90094, at *5 (E.D. Ky. July 2, 
2014) (citing Fontenot v. Upjohn Co., 

780 F.2d 1190, 1195

 (5th Cir. 1986)).   
   A plaintiff-movant must present evidence that would entitle him to a directed 
   verdict if that evidence were not controverted at trial.  If the defendants respond 
   to the motion with controverting evidence which demonstrates a genuine issue 
   of material fact, plaintiff’s motion must be denied.  However, if, after analyzing 
   the combined body of evidence presented by both parties, the evidence is such 
   that no reasonable jury could find in favor of the defendants, then summary 
   judgment will be entered on behalf of the plaintiff-movant.          

United States v. Long, 

121 F. Supp. 3d 763, 767

 (N.D. Ohio 2014) (citing Fitzpatrick v. City 
of Atlanta, 

2 F.3d 1112, 1115

 (11th Cir. 1993)); see also Viet v. Le, 

951 F.3d 818, 823

 (6th Cir. 
2020) (“Rule  56 . . . compels summary judgment against a party who fails to make a showing 
sufficient to establish the existence of an element essential to that party’s case, and on which 
that party will bear the burden of proof at trial.”) (internal citations and quotations omitted).  
In deciding whether to grant summary judgment, the Court views all the facts and inferences 
drawn from the evidence in the light most favorable to the nonmoving party.  Matsushita Elec. 
Indus. Co., 

475 U.S. at 58

.                                               
                             III.                                       

   A.   Dispute Over Ownership of the Social Media Accounts             
   A dispute over the control of certain social media accounts underpins the plaintiff’s 
claims.  The question presented is whether Local 651 is the “owner” of the social media 
accounts or whether Philbeck is the “owner” of those accounts.            
   The main Facebook page at issue is facebook.com/teamsterslocal651, currently titled 
“Kentucky Teamsters of the Bluegrass 651.”  The website is set up as a “Facebook Page,” 
which is, “a public-facing platform through which public figures and organizations may 

engage with their audience or constituency,” instead of a Facebook User’s profile.  Davison v. 
Loudoun Cty. Bd. of Supervisors, 

227 F. Supp. 3d 605, 610

 (E.D. Va. 2017).    Pages are used 
for “businesses, brands, and organizations.”  Bland v. Roberts, 

730 F.3d 368, 385

 (4th Cir. 
2012) (internal citations and quotations omitted).                        
   A Facebook Page is created by an individual User to represent an organization 
   or brand, and that User becomes the first Page Admin, which enables him or her 
   to  customize  the  Page,  post  Status  Updates  and  photos,  and  access  other 
   features.  Facebook Users can “like” the Page to become Fans who will then see 
   the Page’s posts in their Newsfeeds.  The first Page Admin can then grant other 
   Facebook Friends various degrees of administrative access to the Page.  Full 
   access grants the new Admin equal powers to the original Admin, including the 
   ability to remove the original Admin.                                

In re CITI, LLC, 

528 B.R. 359, 366

 (Bankr. S.D. Tex. 2015).               
   In In re CITI, LLC, the bankruptcy court in the Southern District of Texas sought to 
determine whether a social media page can ever become property in a bankruptcy case.  

Id. at 361

.  Similar to the present case, the court had to determine whether the Facebook account and 
other social media pages at issue were business or personal accounts.  

Id.

  It concluded that, 
because  the  Facebook  page  was originally  created  as  a  page  for  businesses,  brands,  or 
organizations, and not an individual person it raised a presumption that it was the business’s 

page.  

Id. at 367-68

.   Additionally, the court noted that the page was directly linked to the 
business’s website and posted status updates on behalf of the business.   

Id. at 368

.  It explained 
many posts on the page were business-related and used for promotion.  

Id.

  Further, the court 
concluded that, while the individual used the page for personal reasons and used it to share 
personal posts, such activity was insufficient to overcome the presumption.  

Id.

  The court also 
found that giving employees access to post on the page supported the conclusion that the page 
was a business page.  

Id. at 370

.  Finally, it noted that a failure to provide administrative 

privileges to another individual did not change the character of the page.  

Id.

  
   Here, Local 651 claims that while Philbeck created the Facebook pages, he did so in 
his official capacity as president.  Local 651 asserts that there is no dispute that the Facebook 
pages and accounts are official property of Local 651 because they were advertised on business 
cards paid for by the Union, in the Union’s newsletter, and on the official website.  [Record 
No. 32-1]  Additionally, it asserts that former assistant to the president Stephanie Buchenroth 
administered and monitored the page while at work.  [Record No. 32-2]   Philbeck argues that 

he created the Facebook pages and used them for his own benefit as an “outspoken member 
for and against many different leaders within the Teamsters organization.”  Philbeck posted 
about deals for Union members on the Facebook page.                       
   The page was used to communicate and disseminate information to the Union.  Former 
Business Agent Paul Trulijo provided an affidavit stating that he helped promote, administer, 
and maintain the “Teamsters Local 651” Facebook page, helped create the UPS Members 
Resource Group, and created the official Union Twitter account.  [Record No. 32-1, p. 2-3]  
Both Trulijo and Buchenroth stated that the Union promoted the Facebook page on business 
cards and the Union membership journal.  [Id. at 3; Record No. 32-2, p. 3]  Further, Trulijo 

provided that the page was promoted as the official Facebook page of the Union, and he was 
an “administrator” of the Facebook page and the UPS Resource Group until Philbeck removed 
him.  [Record No. 32-1, p. 3]  Buchenroth also provided an affidavit explaining that she helped 
promote and maintain the Facebook page and the UPS Resource Group. [Record No. 32-2, p. 
2]   The Facebook posts attached to the Amended Complaint support the idea that the Page 
was used as an official Union page and not a private page of Philbeck’s.  For example, one 
post stated, “Teamsters Local 651 page created in 2010 has been informed we are in the top 

10% of union pages in the entire country,” while another invited viewers to “share our page.”  
[Records Nos. 32-7, 32-8 (emphasis added)]                                
   Philbeck  provides  unsworn  affidavits  from  multiple  individuals  contesting  the 
ownership of the Facebook page.  None of the affidavits provided include an attestation that 
they were signed under penalty of perjury.  See 

28 U.S.C. § 1746

 (requiring that the writing is 
declared true under penalty of perjury); Worthy v. Mich. Bell Tel. Co., 

472 F. App’x 342

, 343-
44 (6th Cir. 2012) (stating that affidavits or declarations must be either be sworn in front of an 

authorized officer or “made under penalty of perjury, certified as true and correct, dated, and 
signed” to be considered as competent summary judgment evidence).  Because none of the 
affidavits provided by Philbeck include language that they were made under penalty of perjury, 
the Court will not consider them for purposes of disputing the plaintiff’s motion for summary 
judgment.                                                                 
   In summary, the Court concludes that the Facebook page and UPS Official Resource 
Group are property of the Union because they were created to communicate with Union 
members, held out as official Union pages, promoted on business cards and the official 

website, and other members of the Union had administrative privileges.    
   B.   Individual Claims                                               
   The Court now turns to the individual claims asserted by the Union and the proper 
remedy to be imposed.                                                     
        i.   Conversion                                                 
   Conversion is the “wrongful exercise of dominion and control over the property of 
another.”  Jones v. Marquis Terminal, Inc., 

454 S.W.3d 849, 853

 (Ky. Ct. App. 2014).  To 

prove conversion, the plaintiff must establish the following elements:    
   (1) the plaintiff had legal title to the converted property;         
   (2) the plaintiff had possession of the property or the right to possess it at the 
   time of the conversion;                                              
   (3) the defendant exercised dominion over the property in a manner which 
   denied the plaintiff’s rights to use and enjoy the property and which was to the 
   defendant’s own use and beneficial enjoyment;                        
   (4) the defendant intended to interfere with the plaintiff’s possession; 
   (5)  the  plaintiff  made  some  demand  for  the  property’s  return  which  the 
   defendant refused;                                                   
   (6) the defendant’s act was the legal cause of the plaintiff’s loss of the property; 
   and                                                                  
   (7) the plaintiff suffered damage by the loss of the property.       

Ky. Ass’n of Counties All Lines Fund Trust v. McClendon, 

157 S.W.3d 626

, 632 n.12 (Ky. 
2005) (quoting 90 C.J.S. Trover and Conversion § 4 (2004)).               
   Local 651 contends that Philbeck converted the Union’s social media accounts for his 
own personal use and deprived the Union access to them.  It alleges that he changed passwords 
and removed former administrators on the accounts.  Philbeck asserts that he did not remove 
any property belonging to the plaintiff’s Union.  Here, it has already been established that the 
Facebook page and resource group are the property of the Union and the plaintiff had the right 
to possess them at the time of the alleged conversion.  The defendant removed administrators 

and banned certain Union members from the Facebook page and resource group, which 
interferes with the plaintiff’s right to use and enjoy the social media accounts.  [Record No. 
32-2, p. 3; Record No. 32-1, p. 2]  Philbeck exercised control over the page in a manner 
inconsistent with the plaintiff’s use and enjoyment and the defendant’s actions were the legal 
cause of the conversion.  The plaintiff suffered damage because of the inaccurate information 
being disseminated to members of the Union and it was hindered in its ability to communicate 
with the Union members.  [Record No. 32-2, p. 3]  Philbeck has not set forth any evidence that 

would dispute a material fact regarding the conversion of the Facebook page. 
   Accordingly, the plaintiff’s motion for summary judgment will be granted on its 
conversion claim.                                                         
        ii.         Invasion of Privacy                                 
   An  individual  can  invade  another’s  privacy  by  appropriating  another’s  name  or 
likeness.  See McCall v. Courier-Journal & Louisville Times Co., 

623 S.W.2d 882, 887

 (Ky. 
1981).  Section 652C of the Restatement (Second) of Torts creates liability for “the defendant’s 

appropriation, to his own use or benefit, of the reputation, prestige, social or commercial 
standing, public interest or other values of the plaintiff’s name or likeness.”  Bowling v. 
Bowling, No. 91-5920, 

1992 U.S. App. LEXIS 18505

, at *14 (6th Cir. 1992).  This cause of 
action may provide redress to a plaintiff whose name is used without permission to advertise 
a business or product or it can be used “when [a] defendant makes use of the plaintiff’s name 
or likeness for his own purpose and benefit, even though the use is not a commercial one, and 
even though the benefit sought to be obtained is not a pecuniary one.”  

Id.

 (citing Restatement 
(Second) of Torts 652C cmt. b.\).                                         
   In order that there may be liability under the rule stated in this Section, the 
   defendant must have appropriated to his own use or benefit the reputation, 
   prestige, social or commercial standing, public interest or other values of the 
   plaintiff’s name or likeness.  It is not enough that the defendant has adopted for 
   himself a name that is the same as that of the plaintiff, so long as he does not 
   pass himself off as the plaintiff or otherwise seek to obtain for himself the values 
   or benefits of the plaintiff’s name or identity.                     

Restatement (Second) of Torts, 652C, cmt. c.  A person can appropriate someone’s name or 
likeness by utilizing the goodwill associated with a person’s name.  See Thornton v. Western 
& Southern Fin. Group Beneflex Plan, 

797 F. Supp. 2d 796, 815

 (W.D. Ky. 2011).  
   Local 651 asserts that Philbeck misappropriated the Union’s name and likeness.  It 
believes that Philbeck has used the reputation and prestige of Teamsters Local 651 for his own 
benefit by controlling the social media accounts and passing them off as official Union pages.   
   Philbeck utilized the Union’s name and likeness by continuing to hold the Facebook 
pages out as sources of Union information.  [Record Nos. 32-7, 32-12]  He benefitted from the 
goodwill associated with the Union’s reputation and prestige by utilizing Local 651’s name 
and likeness and posting as if the page was an official page of the Union.  Philbeck has not 
provided any information creating a genuine issue of material fact disputing his use of the 
Facebook page.                                                            
   Accordingly, the Court concludes that Philbeck misappropriated the name and likeness 
of the Union and summary judgment will be granted in favor of the Union on this claim.  The 
Union’s remaining claims are all without merit or it failed to present adequate proof on the 
claims.  However, the Court will briefly discuss the remaining claims in turn.  
        iii.  Section 301 of the LMRA                                   
   Local 651 also asserts that Philbeck violated Section 301 of the LMRA by breaching 
the  International  Brotherhood  of  Teamsters  Constitution  by  making  extraordinary 

expenditures and failing to relinquish Union property.  [Record No. 68-1, p. 8]  Additionally, 
it contends Philbeck violated the Constitution by misappropriating the use of Union logos.  
Because the Union is only seeking injunctive relief regarding the Facebook pages, the Court 
will only address the merits of its breach of contract claim relating to violations stemming from 
the use and control of the Facebook pages.                                
   Local 651 asserts that Philbeck violated Article XXII, Section 4(e) of the Union 
Constitution by failing to relinquish property and violated Article IX, Section 13 for using the 

marks, labels, and other insignia of the International Union.1            
   Article XXII, Section 4(e) of the International Union Constitution states: 
   During the period between the date of election and the end of the term of office, 
   no extraordinary expenditure of Local Union funds shall be made, and no action 
   shall  be  taken  that  commits  the  Local  Union  to  make  such  extraordinary 
   expenditures in the future, without the approval of the officers-elect and the 
   membership.  An expenditure may be considered to be “extraordinary” if: (a) it 
   is not routine or recurring in the operation of the Local Union, such as, but not 
   limited to, those items set forth in Article VII, Section 2(a)(1); (b) it is for an 
   amount greater than the Local Union would normally pay for the particular item 
   in the ordinary course of its business; (c) it establishes new benefits, or increases 
   the amounts of previously authorized benefits, for Local Union officers or 
   employees; or (d) the payment would have a significant adverse effect on the 
   financial  stability  of  the  Local  Union  and/or  affect  its  ability  to  provide 
   representational services to the membership.  Nothing contained herein shall 
   relieve the Local Union of the responsibility to arrange for the payment of 
   financial obligations or benefits previously authorized in accordance with the 
   Local Union’s Bylaws, on such terms as necessary to preserve the ability of the 
                                                                        
1 Both parties spend time re-hashing the arguments made and ruled upon regarding the motion 
to dismiss.  The Court has already determined that it has subject matter jurisdiction to hear 
Local 651’s breach of contract claim under Section 301 of the LMRA.  [Record No. 57, p. 4]   
   Local Union to meet its current financial commitments and provide services to 
   the membership.                                                      

[Record No. 32-3, p. 171]   While this may relate to a claim for a violation of extraordinary 
expenditures, the injunction and relief sought related to this claim are only for an injunction 
regarding control of the social media accounts.  Refusing to turn over the social media accounts 
has no relation to this provision of the Constitution.  Accordingly, Philbeck did not violate 
Article XXII, Section 4(e) of the Union Constitution for refusing to turn over passwords of the 
social media accounts.                                                    
   Article IX details the powers and duties of the General Executive Board.  Article IX, 
Section 13 specifically states:                                           
   The General Executive Board shall have full control over all marks, labels, and 
   other insignia of the International Union, including the right to retake and 
   repossess such marks, labels, and insignia and to change the provisions, terms, 
   and conditions of all agreements relating to the use, printing, and issuance of 
   marks, labels, and other insignia.  The General Executive Board shall also have 
   the right to assign from time to time any International officer to act on its behalf 
   with respect to all marks, labels, and other insignia.  All subordinate affiliates 
   shall be subject to the orders of the General Executive Board, or its designated 
   International officer, respecting the use, printing and issuance of marks, labels, 
   or other insignia.                                                   

[Record No. 32-3, pp. 76-77]  Local 651 asserts “[s]ome of the logos used on the social media 
accounts belong to the International Union, and to misappropriate them is a violation of the 
International Constitution.”  But Local 651 is not the General Executive Board and as is 
discussed in more detail below, it has not shown that it owns the trademarks or collective 
markings.  Accordingly, this claim also fails.                            
        iv.  Section 501 of the LMRDA                                   
   Local 651 next asserts that Philbeck violated his fiduciary duty to Local 651 and its 
members under Section 501 of the LMRDA because he failed to hold Union money and 
property for the benefit of the Union and its members.  It claims he converted credit card 
rewards points for his own benefit, kept a laptop and camera he received while President, spent 
“an exorbitant amount on calendars,” and paid himself for vacation time he was not entitled to 

before leaving office.  The Union further contends that he used its social media accounts for 
his own political gain and to harm his opponents.                         
   Section 501(a) states:                                               
   The  officers,  agents,  shop  stewards,  and  other  representatives  of  a  labor 
   organization occupy positions of trust in relation to such organization and its 
   members as a group.  It is, therefore, the duty of each such person, taking into 
   account the special problems and functions of a labor organization, to hold its 
   money and property solely for the benefit of the organization and its members 
   and to manage, invest, and expend the same in accordance with its constitution 
   and bylaws and any resolutions of the governing bodies adopted thereunder, to 
   refrain from dealing with such organization as an adverse party or in behalf of 
   an adverse party in any matter connected with his duties and from holding or 
   acquiring any pecuniary or personal interest which conflicts with the interests 
   of such organization, and to account to the organization for any profit received 
   by him in whatever capacity in connection with transactions conducted by him 
   or under his direction on behalf of the organization.  A general exculpatory 
   provision in the constitution and bylaws of such a labor organization or a general 
   exculpatory resolution of a governing body purporting to relieve any such 
   person of liability for breach of the duties declared by this section shall be void 
   as against public policy.                                            

29 U.S.C. § 501

(a).  “[Section] 501 violations generally involve unreasonable and arbitrary 
actions such as self-dealing or the misuse of union funds. []  We have recognized, however, 
that § 501 contains nonfinancial aspects and may be violated when union officials cause union 
members to suffer an invaluable and irreparable loss of democratic rights.”  UFCW Local 911 
v. UFCW Int’l, 

301 F.3d 468, 477

 (6th Cir. 2002).                         
   “Section 501(a) applies to fiduciary responsibility with respect to the money and 
property of the union and that it is not a catch-all provision under which union officials can be 
sued on any ground of misconduct with which the plaintiffs choose to charge them.”  Yanity 
v. Benware, 

376 F.2d 197, 201

 (2d Cir. 1967) (internal citations and quotations omitted).  
“Congress intended unions’ constitutions and by-laws to play a major role in shaping these 
duties.”  Anderson v. Int’l Union, 

370 F.3d 542

, 553 (6th Cir. 2004).     

   The plaintiff asserts that Philbeck did not hold Union money and property solely for 
the benefit of the Union and its members.2  It contends that Philbeck failed to Union’s social 
media accounts for the Union’s benefit and used them to try and garner support for his own 
political gain.                                                           
   In Brotherhood of Railway, Airline & S.S. Clerks, Freight Handlers, Express & Station 
Employees v. Orr, the union sought to have former officers turn over property of the local.  No. 
CIV-1-76-86, 

1977 U.S. Dist. LEXIS 15840

 (E.D. Tenn. May 18, 1977).  The former officers 

refused to transmit the money to the division office after a restructuring of the union occurred.  

Id. at *8

.  The plaintiff alleged that the defendants – by retaining possession of the funds and 
assets of the local union – violated the position of trust they held as former officers of the local 
and violated the duties imposed upon them by 

29 U.S.C. § 501

(a).  The court emphasized that 
the duty was upon the defendants as former officers to deal with the money and property of 
the Local in accordance with the constitution, by-laws, and any resolutions.  It concluded that 
the defendants violated their fiduciary duty under § 501(a) because they did not hold the money 

and property in accordance with the union constitution and statutes.      
   The Sixth Circuit noted in Corea v. Welo that, while Ҥ 501 is generally regarded as a 
section designed to prevent fiscal mismanagement and fraud, it also contains nonfinancial 
                                                                        
2  To the extent the parties dispute the Court’s jurisdiction to entertain the plaintiff’s breach of 
fiduciary duty claim under the LMRDA, the Court has already determined that the Union has 
a  private  right  of  action  under  §  501(a)  and  the  Court  accordingly  has  subject  matter 
jurisdiction.                                                             
aspects.  Section 501 ‘has been interpreted to impose a general fiduciary duty upon union 
officials, above and beyond monetary involvement.’”  

937 F.2d 1132

, 1144 (6th Cir. 1991) 
(quoting Wade v. Teamsters Local 247, 

527 F. Supp. 1169, 1177

 (E.D. Mich. 1981)).  The 

court concluded that the defendant officers did not violate any provision of the International 
constitution or by-laws, nor did they violate any statutory provisions.  And because there was 
no deprivation of democratic rights, “it was not necessary to invoke the more general fiduciary 
duties imposed on union officials by § 501.”  Id.                         
   Here the plaintiff fails to specify which section of the Union constitution, by-laws, or 
statutes Philbeck violated by failing to return and hindering access to the Union’s social media 
accounts.  Further, there is no “deprivation of democratic rights” that would allow for an 

expansion of the fiduciary duties in § 501 by refusing to turn over the passwords to the social 
media accounts.  Id. at 1144 (concluding that because no deprivation of democratic rights had 
occurred, it was not necessary to invoke the more general fiduciary duties imposed by the 
statute).  Accordingly, the Union has failed to meet its burden to show a violation of § 501(a) 
for the failure to turn over the social media accounts.                   
   Further, while the Union mentions the conversion of credit card points, keeping a laptop 
and camera, paying out vacation in violation of the Constitution, and over-spending on 

calendars, which better fit into the purpose behind § 501(a), the Union does not seek relief on 
these issues.  “Breach of fiduciary duty . . . involve injuries.”  UFCW Local 911, 

301 F.3d at 476

.  And because the Union does not elaborate on its injuries and does not seek relief for any 
of that property, the claim will be denied.                               
        v.   Lanham Act and Unfair Competition                          
   Title 15 of the United States Code, Section 1125(a)(1)(A) creates a civil cause of action 
for:                                                                      

   [using]  in  commerce  any  word,  term,  name,  symbol,  or  device,  or  any 
   combination thereof, or any false designation of origin, false or misleading 
   description of fact, or false or misleading representation of fact, which is likely 
   to cause confusion, or to cause mistake, or to deceive as to the affiliation, 
   connection, or association of such person with another person, or as to the origin, 
   sponsorship, or approval of his or her goods, services, or commercial activities 
   by another person . . .                                              

The plaintiff must establish that it held trademarks, the marks are valid and protectable, it did 
not consent to the use of those marks, and the use of the marks was likely to cause confusion.  
Eat BBQ LLC v. Walters, 

47 F. Supp. 3d 521, 527-28

 (E.D. Ky. 2014); see also Winchester 
Federal Savings Bank v. Winchester Bank, Inc., 

359 F. Supp. 2d 561, 564

 (E.D. Ky. 2004).  
The plaintiff must also show that the false designation has a substantial economic effect on 
interstate commerce.  Johnson v. Jones, 

149 F.3d 494, 502

 (6th Cir. 1998).  A “federal 
trademark infringement analysis is identical to Kentucky’s common law unfair competition 
analysis.”  Eat BBQ LLC, 

47 F. Supp. 3d at 527

.  “In commerce” for the purpose of the Lanham 
Act means “in connection with the sale, distribution, or advertising of any goods or services.”  

15 U.S.C. § 1114

(1).; Taubman Co., 319 F.3d at 774.                       
   The Union asserts that the Teamsters’ name and logos are distinct trademarks and 
collective membership markings, including the Teamsters’ horses and name on the Facebook 
page.  The Union states some of the International Teamsters’ logos are registered trademarks, 
but others are just distinctive and protectable marks.  It believes that it has used the distinctive 
and protectable marks continuously and conspicuously.  Local 651 contends Philbeck used the 
marks to post about member deals to certain places, like the Kentucky Kingdom.  
   Philbeck argues that Local 651 has “no contractual or legal basis nor the right to bring 
these claims on the International Teamsters behalf or actions before [the] court[].”  [Record 
No. 77, p. 7]  He asserts this action can only be brought by the General Executive Board 

because it controls the trademark and collective membership markings.     
   The first requirement for proving a violation of the Lanham Act is to show that the 
plaintiff held the trademark.  Coach, Inc. v. Goodfellow, 

717 F.3d 498, 402

 (6th Cir. 2013).  
The Union has not demonstrated that it held the trademark or collective markings or that it was 
granted a license to use the trademarks.  Cf.  Iowa Farmers Union v. Farmers’ Educ. & Coop. 
Union of Am., 

247 F.2d 809

 (8th Cir. 1957) (noting that the union charter granted the defendant 
the right to use the trademarks of the plaintiff until the charter was revoked).  The plaintiff 

could also show that it has a “common law right to a trademark” but “only by demonstrating 
that its use of the mark was deliberate and continuous, not sporadic, casual or transitory.”  Eats 
BBQ LLC, 47 F. Supp 3d at 528 (citing Circuit City Stores, Inc. v. CarMax, Inc., 

165 F.3d 1047, 1054-55

 (6th Cir. 1999)).  But there is no evidence here that Local 651 was deliberately 
and continuously using any of the collective markings or trademarks.      
   Because the plaintiff has failed to provide any evidence that it held the trademarks, its 
Lanham Act and unfair competition claims fail.                            

        vi.  Remedy                                                     
   As discussed above, the Union only succeeds on its conversion and invasion of privacy 
claims.  The Union requests that Philbeck be ordered to return administrative access for the 
social media accounts at issue.  While the Union completely fails to discuss the standard for 
permanent  injunctive  relief,  the  Court  previously  granted  its  motion  for  a  preliminary 
injunction.                                                               
   “In general, the standard for a preliminary injunction is essentially the same as for a 
permanent injunction with the exception that for a preliminary injunction the plaintiff must 
show a likelihood of success on the merits rather than actual success.”  Am. Civil Liberties 

Union of Ky. v. McCreary Cty., 

607 F.3d 439, 445

 (6th Cir. 2010) (citations and quotation 
marks omitted).  The plaintiff must show (1) it has suffered an irreparable injury; (2) there is 
no adequate remedy at law; (3) considering the balance of hardships between the plaintiff and 
defendant, a remedy in equity is warranted; and (4) it is in the public’s interest to issue a 
permanent injunction.  Audi AG v. D’Amato, 

469 F.3d 534, 550

 (6th Cir. 2006) (citing eBay 
Inc. v. MercExchange, LLC, 

126 S. Ct. 1837

, 1839 (2006)).                 
   Inasmuch as the Court has determined that summary judgment should be entered in 

favor of Local 651 on its invasion of privacy and conversion claims, the requirement for 
showing actual success on the merits has been satisfied.                  
    Additionally, this Court concluded when it granted the preliminary injunction that 
there was a threat of irreparable injury if the preliminary injunction was not granted and the 
injury was not fully compensable by money damages.  Overstreet v. Lexington-Fayette Urban 
Cty. Gov’t, 

305 F.3d 566, 578

 (6th Cir. 2002) (explaining an injury is irreparable if it is not 
fully compensable by monetary damages).  It would be difficult to quantify how much the 

social media accounts of the Union would be worth.  The Court also previously explained that 
an injunction would be in the public interest and not cause substantial harm to others because 
keeping Philbeck from posting on the Union’s social media accounts would ensure that the 
resources of the Union are actually run by the Union.  Now that the Court has determined that 
the Union owns the Facebook page, requiring Philbeck to turn over the passwords to all the 
Union’s  social  media  accounts  is  necessary.    Accordingly,  a  permanent  injunction  is 
appropriate.                                                              
   C.   Philbeck’s Claims                                               

   Philbeck claims that Local 651 has violated his rights to free speech and assembly under 
Section 101 of the LMRDA.  “Generally, a party must assert in its responsive pleading any 
counterclaim against an opposing party when it arises out of the transaction or occurrence that 
is the subject matter of the opposing party’s claim.”  United States v. Eisenberg, 

149 F. Supp. 3d 71, 83

 (D.D.C. 2015); see also Fed. R. Civ. P.  13 (“A pleading must state as a counterclaim 
any claim that – at the time of its service – the pleader has against an opposing party if the 
claim . . . arises out of the transaction or occurrence that is the subject matter of the opposing 

parties’ claim.”); Tyler v. DH Capital Mgmt., 

736 F.3d 455, 460

 (6th Cir. 2013).  Philbeck 
failed to file a responsive pleading at all in this matter after the Court denied his motion to 
dismiss on October 22, 2019.  [Record No. 57] It is improper for Philbeck to attempt to assert 
counterclaims in a response to a motion for summary judgment, long after his time to file an 
answer has expired.  Accordingly, Philbeck cannot now assert counterclaims against Local 
651.                                                                      
   D.   Alternative Motion for Default Judgment                         

   Local 651 has requested alternative relief seeking entry of a default judgment against 
Philbeck. It previously filed a motion for entry of default, which was denied because the 
defendant had participated in the case.  [Record Nos. 17, 18]  Rule 55 of the Federal Rules of 
Civil Procedure states that, “[w]hen a party against whom a judgment for affirmative relief is 
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or 
otherwise, the clerk must enter the party’s default.”  “Although the term ‘otherwise defend’ is 
not defined in the federal rules, it is generally understood to include motions attacking service, 
motions to dismiss, motions for bills of particulars, or motions for summary judgment.”  
Hammond v. Hofbauer, No. 2:08-CV-64, 

2008 U.S. Dist. LEXIS 44995

, at *2 (W.D. Mich. 

June 9, 2008) (citing 10 James Wm. Moore, et al., Moore’s Federal Practice § 55.10[2][b] (3d 
ed. 2007); see also Bright v. Bartlett, 

2019 U.S. Dist. LEXIS 180329

, *5-6 (E.D. Tenn. Oct. 
18, 2019) (denying a motion for default judgment where the defendant filed a motion to 
dismiss).  Philbeck filed a motion to dismiss, defended his position against the preliminary 
injunction, filed his own motion for a temporary restraining order, and responded to the motion 
for summary judgment.  Therefore, default judgment is inappropriate.      
   E.   Costs and Attorney’s Fees                                       

   The Union has requested costs and attorney’s fees incurred in this action. Typically, “a 
prevailing party may not ordinarily recover attorney fees in the absence of a statute or 
enforceable contract providing for a fee award.”  Shimman v. International Union of Operating 
Engr’s, Local 18, 

744 F.2d 1226, 1230

 (6th Cir. 1974).  There is a “bad faith” exception to the 
American Rule that allows for “attorney fees in certain exceptional cases where the opposing 
party has acted in bad faith.”  

Id.

  Here, the Union asserts that Philbeck has continued to try 
and play games with the Union and manipulate this situation to his own benefit.  Thus, it 

contends he acted in bad faith, and awarding costs and fees is appropriate.  The plaintiff also 
asserts that attorney’s fees can be granted for violations of Section 301(a) of the LMRA and 
the Lanham Act.                                                           
   But both the LMRA claim and the Lanham Act claims have been dismissed, the Union 
did not prevail on multiple claims it asserted, and – contrary to its assertion – this case is not 
an exceptional case warranting the use of the bad faith exception.  Accordingly, the Union’s 
request for attorney’s fees and costs is denied.                          
   F.   Philbeck’s Motion for Leave                                     

   Philbeck has also filed a motion for leave to modify the declarations of witness 
statements and requested to increase the number of documents submitted to the Court.  The 
Court declines to grant this motion because Philbeck was given ample time to prepare his 
response to the motion for summary judgment and given repeated extensions to file it.  
                             IV.                                        
   Based on the foregoing analysis and discussion, it is hereby         
   ORDERED as follows:                                                  

   1.   Plaintiff  International  Brotherhood  of  Teamsters  Local  651’s  motion  for 
summary judgment [Record No. 68] is DENIED, in part, and GRANTED, in part.  
   2.   Plaintiff’s claims for breach of contract under the LMRA, breach of fiduciary 
duty under the LMRDA, the Lanham Act, and unfair competition are DISMISSED, with 
prejudice.                                                                
   3.   Summary judgment is entered in favor of Plaintiff Local 651 on its conversion 
claim and invasion of privacy claim.                                      

   4.   Within  thirty  days  of  the  entry  of  this  Memorandum  Opinion  and  Order, 
Defendant Michael Philbeck is DIRECTED TO DELIVER the passwords for the social 
media accounts owned by the Union to an authorized official of the Union for all of the social 
media accounts purporting to be official Union accounts, including the Teamsters Local 651 
Facebook  Page,  Teamsters  Local  651  UPS  Member  Resource  Group,  and  the  Official 
Teamsters Local 651 Members Resourse [sic] Group.                         
   5.     Defendant  Philbeck  is  PERMANENTLY  ENJOINED  from  continuing  to 
administer the social media accounts or any other account that is or could be perceived as an 
official social media account of the Union while he is not serving as an officer of the Union. 
    6.     Defendant Philbeck is PERMANENTLY ENJOINED as holding himself out 
as a current officer of the Union during any period in which he is not actively serving as an 
elected officer of the Union. 
    7.     Willful violation of this Order may subject any person who commits such an act 
to criminal and/or civil prosecution for contempt of this Court. 
    8.     Defendant  Michael  Philbeck’s  motion  for  leave  to  modify  declarations  and 
increase the number of documents [Record No. 80] is DENIED. 
    9.     Local 651’s request for attorney’s fees and costs is DENIED. 
    Dated:  June 3, 2020. 

                               We      oe.  Danny c.  Reeves,  Chief Judge 
                                Wale        (United States District Court 
                                  “se—    Eastern District of Kentucky 

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