EVERETT F. CACI, Plaintiff, v. LABORERS
INTERNATIONAL UNION OF NORTH AMERICA, ROBERT D. LUSKIN, COMEY, BOYD &
LUSKIN, Defendants.
2000 U.S. Dist. LEXIS 4876
COUNSEL:
For EVERETT F. CACI, plaintiff: Robert H. Perk, Buffalo, NY.
For
LABORERS INTERNATIONAL UNION OF NORTH AMERICA, ROBERT D.
LUSKIN, COMEY, BOYD & LUSKIN, defendants: Stephen Presser, Cohen and Weiss,
New York, NY.
For
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, ROBERT D. LUSKIN, COMEY, BOYD & LUSKIN, defendants:
Lawrence J. Vilardo, Connors & Vilardo, Buffalo, NY.
JUDGES: HONORABLE RICHARD J. ARCARA, UNITED STATES
DISTRICT COURT.
OPINIONBY:
RICHARD J. ARCARA
OPINION:
DECISION AND ORDER
BACKGROUND On or about
December 10, 1996, plaintiff Caci filed a complaint in New York State court
against defendants
Laborers' International Union of North
America ("LIUNA"), attorney Robert D. Luskin and the law firm of Comey, Boyd and
Luskin, alleging numerous counts of defamation.
On January 17, 1997,
defendants removed this case to federal court. On January 30, 1997, plaintiff
moved to remand this case back to state court. On March 27, 1998, this Court
denied plaintiff's motion to remand finding that at least two of plaintiff's
claims (counts one and seven) were pre-empted under § 301 of the Labor
Management Relations Act ("LMRA"), [*2]
29
U.S.C. § 185(a). The Court noted that plaintiff's remaining defamation
claims also appeared to be pre-empted, but declined to decide the issue at that
juncture. The Court then referred the case to Magistrate Judge Foschio for
further proceedings.
Defendants thereafter filed a motion to dismiss the
complaint and/or for summary judgment on the ground that all of plaintiff's
remaining defamation claims are also pre-empted. On September 7, 1999,
Magistrate Judge Foschio filed a Report and Recommendation ("Report"),
recommending that plaintiffs claims be dismissed as pre-empted.
Plaintiffs filed objections to the Report and defendants filed a
response thereto. On November 23, 1999, the Court held oral argument on the
objections.
DISCUSSION Pursuant to
28
U.S.C. § 636(b)(1), this Court must make a de novo determination of those
portions of the Report to which objections have been made. Upon a de novo
review, and after reviewing the submissions and hearing argument from the
parties, the Court finds that all of plaintiffs claims should be dismissed as
pre-empted.
The instant dispute is one of several related actions filed
[*3] by various members of Local 210,
Laborers'
International Union of North America ("Local 210") against defendants. See Caci
v.
Laborers Int'l Union of North America, et al., 97-CV-0033A;
Capitano v.
Laborers Int'l Union of North America et al.,
97-CV-0035A; Fasciana v.
Laborers Int'l Union of North America,
et al., 97-CV-0833A; Panzcyskowski v.
Laborers Int'l Union of
North America et al., 97-CV-0036A. As in each of the related actions, the
complaint in this case sets forth numerous claims of defamation brought by a
member and/or officer of Local 210, plaintiff Caci. The allegations, which are
discussed in detail in the Magistrate Judge's Report and in this Court's March
1998 Decision and Order, n1 are virtually identical to the allegations set forth
in the related actions in that the defamation claims are based upon the same
allegedly defamatory statements. As noted above, this Court has previously
determined in its March 1998 Decision and Order that counts one and seven of the
complaint are pre-empted. Accordingly, the issue currently before the Court is
whether plaintiff's remaining defamation claims are also pre-empted.
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- -
n1 Familiarity with this Court's June 1998 Decision and Order is
presumed.
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- - - - - - - - - - - - [*4]
The defendants allege complete
pre-emption of plaintiff's remaining defamation claims under § 301 of the LMRA.
Section 301 of the
LMRA provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce as
defined in this chapter, or between any such labor organizations, may be
brought in any district court of the United States having jurisdiction of the
parties, without respect to the amount in controversy or without regard to the
citizenship of the parties.
29
U.S.C. § 185(a). The Supreme Court has stated that
complete
pre-emption of a plaintiff's state-law claims under Section 301 will be found
only where resolution of the state-law claim is "inextricably intertwined" with
consideration of the terms of the labor contract, or where the rights and
obligations created under state-law do not exist independently of the labor
contract.
Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 213, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985).
Where resolution of plaintiff's state-law claim depends on interpretation of the
labor contract, the claim is pre-empted.
Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 129 L. Ed. 2d 203, 114 S. Ct. 2239
(1994). [*5]
However,
the fact that the
labor contract provides a remedy that plaintiff could pursue as an
alternative to the state-law claim does not mean that pre-emption is
required. See
Trans
Penn Wax Corp. v. McCandless, 50 F.3d 217, 229 (3d Cir. 1995) ("plaintiff
may bring a state-law tort action against an employer, even where he could have
brought a similar claim on a provision in [the labor contract], so long as the
state claim does not require interpretation of the [labor contract.]").
Likewise, the fact that the state-law analysis involves attention to the same
factual considerations as a determination under that labor contract does not
mandate pre-emption.
Lingle
v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 100 L. Ed. 2d 410,
108 S. Ct. 1877 (1988). A state-law claim will only be completely pre-empted
where it cannot be resolved without interpretation of the labor contract.
As previously determined in this Court's March 1998 Decision and Order,
the LIUNA constitution is a labor contract within the meaning of Section 301 of
the LMRA. Therefore, if resolution of plaintiff's claims requires interpretation
of the terms of the LIUNA [*6] constitution, those claims are
pre-empted.
The Court finds that all of plaintiff's remaining defamation
claims are pre-empted under § 301 of the LMRA. As Magistrate Judge Foschio
determined, and as this Court intimated in its March 1998 Decision and Order,
the issue of whether the statements alleged to be defamatory in counts two
through ten of the complaint necessarily require interpretation of the LIUNA
constitution. In other words, the issue of whether the complaint for trusteeship
was necessary and whether Local 210 has been influenced or controlled by members
and associates of organized crime necessary turns on whether plaintiff Caci and
others violated various provisions of the LIUNA constitution. This determination
cannot be made without interpreting the LIUNA constitution itself. Because the
veracity of the statements alleged to be defamatory cannot be resolved without
interpretation of the LIUNA constitution itself, counts two, three, four, five,
six, eight, nine and ten must be dismissed as pre-empted.
Furthermore,
as the Court indicated in its March 1998 Decision and Order, in situations
where, as here,
the labor contract
imposes a duty upon the defendant to make the [*7] statements that
are alleged to be defamatory, courts have repeatedly held that plaintiff's
defamation claims are pre-empted. See e.g.
Johnson
v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989); Peek
v. Philadelphia Coca-Cola Bottling Co., 1997 U.S. Dist. LEXIS 10138, 1997 WL
399379 (E.D. Pa. 1997) (pre-emption found where allegedly defamatory
statements "overwhelmingly related to conduct that formed the substance of
plaintiff's grievance and arbitration proceedings").
Here, most of the
statements alleged to be defamatory-were required to be made under the terms of
the LIUNA constitution. Specifically, statements alleged to be defamatory in
counts two and three are contained in letters sent to members of Local 210
notifying them of the hearing to be conducted regarding the appointment of a
trustee. That notice was required pursuant to Article IX, § 7 of the LIUNA
constitution. Similarly, the statements alleged to be defamatory in counts four,
five and nine of the complaint were all contained in issues of
The
Laborer, a bimonthly publication that is published by
LIUNA. Section 3 of the Ethics and Disciplinary Procedure n2 requires that the
General Executive Board Attorney [*8] (defendant Luskin) "prepare
reports concerning his . . . activities, the progress he . . . is making towards
achieving the objectives and purposes of the Disciplinary Procedure, to be
published on a bimonthly basis in
The Laborer." As
with the statements made in counts two and three, defendants were under a duty
under the LIUNA constitution to make the statements alleged to be defamatory in
counts four, five and nine. The issue of whether those statements exceeded the
scope of defendants' duties under the LIUNA constitution will necessarily
require interpretation of the constitution itself. Therefore, counts two, three,
four, five and ten pre-empted on this-basis also.
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n2 As
noted in this Court's June 1998 Decision and Order, at 3, the Ethics and
Disciplinary Procedure became part of the LIUNA constitution in January 1995.
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CONCLUSION For the reasons
discussed above, in the Magistrate Judge's Report, and in this Court's March
1998 Decision and Order, the Court hereby dismisses all of plaintiff's
[*9] claims as pre-empted. The Clerk of the Court is directed to
enter judgment in favor of the defendants and to close this case.
IT IS
SO ORDERED.
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT
COURT
Dated: March 31, 2000
Labor
& Employment Law : Collective Bargaining & Labor Relations :
Enforcement 