SALVATORE CACI, Plaintiff, v. LABORERS'
INTERNATIONAL UNION OF NORTH AMERICA, ROBERT D. LUSKIN, individually and as the
General Executive Board Attorney of the Laborers International
Union of North America, and COMEY, BOYD AND LUSKIN, as the General Executive
Board Attorneys of the Laborers International Union of North
America, Defendants.
1999 U.S. Dist. LEXIS 21572
COUNSEL:
ROBERT H. PERK, ESQ., Buffalo, New York, for Plaintiff.
LAWRENCE
J. VILARDO and MARK R. UBA, of Counsel, CONNORS & VILARDO, LLP, Buffalo, New
York, for Defendants.
RICHARD N. GILBERG and TAMIR W. ROSENBLUM,
of Counsel, COHEN, WEISS and SIMON, New York, New York, for Defendants.
JUDGES: LESLIE G. FOSCHIO,
UNITED STATES MAGISTRATE JUDGE.
OPINIONBY: LESLIE G. FOSCHIO
OPINION: REPORT AND RECOMMENDATION
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
JURISDICTION This case was referred to the undersigned
on June 17, 1998 by the Hon. Richard J. Arcara for Report and Recommendation of
all dispositive motions. It is presently before the court on Defendants' motion
to dismiss the complaint or, alternatively, for summary judgment filed September
30, 1998 (Docket Item No. 18).
BACKGROUND
Plaintiff, Salvatore Caci ("Caci"), commenced this action in New York
Supreme Court, Erie County, on December 10, 1996 against Defendants
Laborers' International Union of North America ("LIUNA"),
Attorney Robert D. Luskin ("Luskin"), and the law [*2] firm of
Comey, Boyd and Luskin ("Comey, Boyd"), alleging numerous counts of defamation.
Defendants removed the action to federal court on January 17, 1997 on the basis
that Caci's claims were pre-empted by the Labor Management Relations Act
("LMRA"). On January 30, 1997, Caci moved to remand the action to state court.
The court, finding that Counts One and Seven were completely pre-empted by LMRA
§ 301 and commenting that the balance of the causes of action likely were also
preempted, denied the motion to remand on March 27, 1998. Decision and Order
filed March 27, 1998 (Docket Item No. 13) at 20, 25-26.
On September 30,
1998, Defendants moved to dismiss the complaint for failure to state a claim or,
alternatively, for summary judgment, filing in support a Statement of Undisputed
Facts (Docket Item No. 19), Defendants' Memorandum of Law in Support of Motion
to Dismiss or for Summary Judgment (Docket Item No. 20) ("Defendants'
Memorandum") and the Declaration of Robert D. Luskin, Esq. (Docket Item No. 21)
("Luskin Declaration"). n2 Caci's response, filed November 16, 1998 (Docket Item
No. 25), consists of the Affidavit of Robert H. Perk ("Perk Affidavit"),
Plaintiff's Response to [*3] Defendants Statement and a Memorandum
of Law ("Plaintiff's Memorandum"). On December 4, 1998, Defendants filed
Defendants' Reply Memorandum of Law in Support of Motion to Dismiss or for
Summary Judgment (Docket Item No. 26) ("Defendants' Reply"). Oral argument was
deemed unnecessary.
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n2 Defendants' Notice of Motion and
supporting papers were filed under seal as a precautionary measure as Exhibit M
to the Luskin Declaration contains portions of the transcripts of hearings from
a disciplinary proceeding held before LIUNA's Independent Hearing Officer
("IHO"), as LIUNA's rules pertaining to disciplinary hearings requires such
transcripts remain confidential.
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Based on the following,
Defendants' motion, treated as a motion to dismiss for failure to state a claim,
should be GRANTED.
FACTS n3
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n3
Taken from the pleadings and motion papers filed in this action.
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- - [*4]
Caci was a member and officer of the Local 210
chapter of
Laborers' International Union of North America
("Local 210"). In response to the perceived influence organized crime had over
LIUNA and its local chapters, such as Local 210, LIUNA's constitution was
amended on January 18, 1995 by its General Executive Board ("GEB") with the
adopting of an Ethics and Disciplinary Procedure ("the EDP") and the Ethical
Practices Code ("the EPC"). n4 The EDP was a reform measure intended to remove
the influence of organized crime in the affairs of LIUNA and was precipitated by
advice that the federal government intended to commence a civil action under the
Racketeer Influenced and Corrupt Organization Act,
18
U.S.C. § 1961 et seq., against LIUNA. Other reforms included
creation of three new officers positions within LIUNA responsible for
investigating, prosecuting, and adjudicating charges of wrongdoing within the
international union and its associated local unions. Those positions include (1)
the LIUNA Inspector General, (2) the GEB Attorney and (3) the Independent
Hearing Officer ("IHO").
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-Footnotes- - - - - - - - - - - - - - - - - -
n4 Copies of the EDP and
the EPC are attached as Exhibits A and B, respectively, to the Luskin Affidavit.
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On January 18, 1995, Robert D. Luskin,
Esq., one of LIUNA's attorneys, was appointed GEB Attorney with authority to
initiate and impose supervision and trusteeship upon subordinate bodies of
LIUNA, including local unions like Local 210, and to take disciplinary action
against individual LIUNA members for violations of LIUNA Ethics and Disciplinary
Procedure ("EDP") and the LIUNA constitution. Pursuant to his authority as GEB
Attorney, Luskin, on January 18, 1995, initiated trusteeship proceedings against
Local 210 by sending letters of notice to Local 210's officers and members,
along with a Complaint for Trusteeship which was also filed with the LIUNA
Independent Hearing Officer. n5 The Complaint for Trusteeship alleges that for
at least the past twenty-five years, the Buffalo family of La Cosa Nostra
("LCN") organized crime syndicate "has exercised a substantial if not dominating
influence over the Local 210's affairs." Complaint for Trusteeship, PP 1-3.
Members and associates of LCN had been placed and served as officers and
employees of Local 210 and its affiliated funds, and their wives and sisters had
been hired as clerical workers. Complaint for Trusteeship, P 4. The Complaint
[*6] for Trusteeship further alleges Caci is among the "members and
associates" of LCN who exercised control over Local 210 for the benefit of LCN
rather than for Local 210's members. Complaint for Trusteeship, P 4.
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- -
n5 A copy of the Complaint for Trusteeship is attached as Exhibit C
to the Complaint.
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Luskin also filed disciplinary charges
("Disciplinary Charges") against members and officers of LIUNA, including Caci.
n6 The Disciplinary Charges were essentially based on the same grounds on which
the Complaint for Trusteeship is based, i.e., improper influence based on
organized crime. Charges II and IV of the Disciplinary Charges respectively
allege Caci committed conduct "barred" under the EDP by being an associate of
LCN, and by knowingly associating with members of LCN.
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n6
A copy of the Disciplinary Charges is attached as Exhibit F to the Complaint.
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The core of Caci's Complaint is that the
statements made by or on behalf of Defendants in the Complaint for Trusteeship
and the Disciplinary Charges regarding alleged organized crime affiliations and
influences constitute false and defamatory statements about Caci which were
published to third parties. The Complaint contains eleven causes of action,
summarized as follows:
A. Count One In
Count One of the Complaint, Caci alleges the statements contained in the
Complaint for Trusteeship, including statements that Caci was among the members
and associates of the LCN who exercised control over Local 210 for the benefit
of LCN rather than Local 210's members, are false and defamatory
per se
as they were made by Defendants with malice, and were published by Defendants to
third parties, including members and non-members of LIUNA, and the Buffalo area
media. (Complaint, PP 10-23).
B. Counts Two and
Three In Counts Two of the Complaint, Caci alleges that
statements contained in a letter dated December 11, 1995, written by Luskin to
the officers and members of Local 210, are false and defamatory
per se
as they were made with malice and were published [*8] to third
parties including members and non-members of LIUNA. n7 (Complaint, PP 24 - 33).
Statements in that letter refer the recipients to the Complaint for Trusteeship
for "a more detailed recitation of the evidence of organized crime influence"
within Local 210. Complaint, Exhibit B at 1. Readers of the letter are also
advised that Luskin, as GEB Attorney, found it necessary to appoint a trustee to
take control of Local 210 to remove the influence of organized crime.
Id. - - - - - - - - - - - - - - - - - -Footnotes- - - -
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n7 A copy of the December 11, 1995 letter is
attached as Exhibit B to the Complaint.
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Caci makes
essentially identical allegations in Count Three of the Complaint as to
statements in a December 11, 1996 letter, written by Luskin to the members of
Local 210. n8 (Complaint, PP 34- 43). That letter stated that a formal
trusteeship process had been commenced to rid Local 210 of the influence of
organized crime in accordance with the LIUNA constitution. Complaint, Exhibit A
at 1-2.
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n8 A copy of the December 11, 1996 letter is
attached as Exhibit A to the Complaint.
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C. Counts Four and Five Caci alleges in
both Counts Four and Five that Defendants made various defamatory statements
against him in two separate articles published in the January/February 1996
issue of
The Laborer, a bi-monthly publication
published by LIUNA with a circulation consisting of thousands of members and
non-members in the United States and Canada. (Complaint, PP 44-56 (Count Four),
57-68 (Count Five)). Specifically, Count Four pertains to statements contained
in an article entitled "Report of the GEB Attorney," Complaint, P 45 and Exhibit
D, and Count Five pertains to statements contained in an article entitled
"Inspector General's Report." Complaint, P 58 and Exhibit E. According to Caci,
the subject of both articles is the action taken by Luskin in initiating
proceedings for imposition of a trusteeship on Local 210, based on the belief of
Luskin and the Inspector General that Local 210 was dominated by members of LCN
who violated the LIUNA constitution by engaging in,
inter alia,
"financial improprieties," "discriminatory use of job referrals" and
"evisceration of union democracy." Complaint Exhibit E at 16. Although neither
article specifically [*10] refers to Caci by name, Caci maintains
Defendants intended that the statements contained in those articles to be
understood as referring to Caci. Complaint, PP 48, 62. Caci further asserts such
statements were made with malice. Complaint, PP 54, 67.
D. Count Six Caci alleges as his sixth cause of
action that on February 23, 1996, Luskin, in his capacity as GEB Attorney, held
a press conference that was broadcast on television and radio and published by
The Buffalo News and other print media, where he stated to third
parties including members of the Buffalo media, "I stand behind every word in
that Complaint for Trusteeship. We were prepared to prove it and would be
prepared to prove it now if we needed to do it." Complaint, P 69-81. According
to Caci, such statement is false and defamatory
per se, was intended to
refer to him and was spoken with malice. Complaint, PP 74-78.
E. Count Seven As his seventh cause of action, Caci
alleges that on June 14, 1996, Defendants published the Disciplinary Charges to
third persons, including members of the Buffalo Media. Complaint, PP 82-92. Caci
is charged in the Disciplinary Charges with being an associate [*11]
of LCN (Disciplinary Charge II), and with knowingly associating with LCN members
or associates. (Disciplinary Charge V). According to Caci, the statements
contained in the Disciplinary Charges are false, defamatory
per se and
were made by Defendants with malice. Complaint, PP 88-91.
F. Count Eight In Count Eight of the Complaint,
Caci alleges that Defendants authorized one Daniel A. Braun to make the
following statement with regard to the Disciplinary Charges to
The Buffalo
News:
These are the people who we feel have played a part in the
corruption of Local 210 . . . .This is another step in removing those
influences from the Local. We know that the U.S. Justice Department is closely
monitoring everything we do, and if they aren't satisfied with the steps we're
taking, they can take control of the international.
Complaint, PP 93-96.
Caci further claims such statements were
intended to be understood as referring to him, are false, defamatory
per
se and were made with malice. Complaint, PP 97-106.
G. Count Nine Caci alleges as his ninth cause of
action that the following defamatory statement about him was made by Defendants
[*12] and published in the November/December 1996 issue of
The
Laborer:
Buffalo. We previously reported that the GEB Attorney filed
charges against 28 members and former officers of Local 210, Buffalo, New
York, whom we had identified as members of associates of the Buffalo family of
La Cosa Nostra. n9
Complaint, PP 107-111.
According to Caci, such statement was intended to refer to him, is false,
defamatory
per se and was made by Defendants with malice. Complaint, P
P 112- 18.
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n9 A copy of this article is attached as
Exhibit I to the Complaint.
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Footnotes- - - - - - - - - - - - - - - - -
H. Count
Ten In his tenth cause of action, Caci claims that Defendants
published copies of the Complaint for Trusteeship, the December 11, 1995 letter
and the December 11, 1996 letter to various members of the Buffalo new media
resulting in public broadcast of statements contained therein in the print media
and on television and electronic media. Complaint, PP 119-23. Caci further
maintains such actions were taken by Defendants with [*13] malice
and with actual knowledge that the statements contained in those documents were
false, or with reckless disregard as to whether such statements were false or
not. Complaint, PP 124 -27.
I. Count Eleven
Count Eleven of the Complaint does not state a separate cause of action
but, rather, is a demand for damages based on the claims alleged in Counts One
through Ten of the Complaint. Complaint, PP 128-30.
Defendants maintain
Luskin filed the Complaint for Trusteeship and Disciplinary Charges in
accordance with § 3 of the EDP, Article IX, § 7 of the LIUNA constitution, and
Title III of the LMRDA,
29
U.S.C. § 461 et seq. Defendants' Memorandum of Law in Support of
Motion to Dismiss or for Summary Judgment filed September 30, 1998 (Docket Item
No. 20) ("Defendants' Memorandum"), at 19. Further, Defendants assert that the
EDP required Luskin, as GEB Attorney for Local 210, to prepare for publication
in
The Laborer reports regarding his activities and
progress made toward achieving the objectives and purposes of the EDP.
Defendants' Memorandum at 19.
DISCUSSION 
On a motion to
dismiss under Fed.R.Civ.P. 12(b)(6) for failure [*14] to state a
claim, the court looks to the four corners of the complaint and is required to
accept the plaintiff's allegations as true and to construe those allegations in
the light most favorable to the plaintiff.
Scheuer
v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974);
Villager
Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995),
cert. denied,
519
U.S. 808, 117 S. Ct. 50, 136 L. Ed. 2d 14 (1996); Hill
v. City of New York, 45 F.3d 653, 657 (2d Cir. 1995). The court is
required to read the complaint with great generosity on a motion to dismiss.
Yoder
v. Orthomolecular Nutrition Institute, 751 F.2d 555 (2d Cir. 1985). The
complaint may be dismissed only where "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle
him to relief."
Allen
v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting
Conley
v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
The issue is not whether a plaintiff is likely to prevail ultimately, "but
whether the claimant is entitled [*15] to offer evidence to support
the claims. Indeed it may appear on the face of the pleading that a recovery is
very remote and unlikely but that is not the test."
Weisman
v. LeLandais, 532 F.2d 308, 311 (2d Cir.1976) (quoting
Scheuer,
supra, at 236).
Pursuant to Fed.
R. Civ. P. 12(b), if matters outside the pleading are presented to and not
excluded by the court, a party's motion to dismiss under Fed. R. Civ. P.
12(b)(6) shall be treated as one for summary judgment and disposed of as
provided by Fed.R.Civ.P. 56. However, where the party moving to dismiss has
included in the motion papers information not found in the pleadings, provided
the "plaintiff has actual notice of all the information in the movant's papers
and has relied upon these documents in framing the complaint the necessity of
transforming a Rule 12(b)(6) motion into one under Rule 56 is largely
dissipated."
Cortec
Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991),
cert. denied,
503
U.S. 960 (1992). Defendants have moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim or,
alternatively, for summary judgment [*16] pursuant to Fed.R.Civ.P.
56. In support of their motion to dismiss under Fed.R.Civ.P. 12(b)(6) Defendants
rely on the Complaint, public records established by prior related decisions,
the LIUNA constitution, and certain other exhibits and transcripts that are part
of the record in the case. Defendants' Memorandum at 20. The documents on which
Defendants rely in their motion to dismiss have been incorporated into the
Complaint either by incorporation in the text of the complaint (portions of
Complaint for Trusteeship and Disciplinary Charges), incorporation by reference
(LIUNA constitution and EDP), or as exhibits (Luskin letters dated December 11,
1995 and December 11, 1996, Complaint for Trusteeship, Disciplinary Charges,
articles appearing in the January/February and November/December 1996 issues of
The Laborer, and articles appearing in
The Buffalo
News). Therefore, as Caci had actual notice of such documents and relied on
them in framing the Complaint, Defendants' reliance on those documents does not
require treating the motion to dismiss as a motion for summary judgment.
See
Cortec
Industries, Inc., supra, 949 F.2d at 48. Accordingly, the court treats
the instant [*17] motion only as a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) rather than for summary judgment pursuant to Fed. R.
Civ. P. 56.
1. Pre-emption Defendants
seek dismissal of all Caci's claims on the basis that they have been completely
pre-empted by LMRA § 301 ("§ 301"). Defendants' Memorandum at 21. Caci's
response in opposition to dismissal consists largely of a challenge to Judge
Arcara's findings in his Decision and Order filed March 27, 1998 (Docket Item
No. 13) ("the Decision and Order") denying Caci's motion to remand this action
to state court on the basis that Counts One and Seven are completely pre-empted
by § 301. Plaintiff's Memorandum of Law, attached to Affidavit of Robert H. Perk
filed November 16, 1998 (Docket Item No. 24) ("Plaintiff's Memorandum"), at 1.
Caci also asserts that his claims do not require interpretation of any labor
contract provision or the LIUNA constitution but, rather, involve rights and
obligations which are defined solely under New York common law of defamation.
Plaintiff's Memorandum at 2-3.
Complete
pre-emption under § 301 of a state law claim is required only where "resolution
of the state law claim is 'inextricably [*18] 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
(1977). That a union's constitution, such as the LIUNA constitution, is a
labor contract within the meaning of § 301 is well settled.
Wooddell
v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93. 101,
116
L. Ed. 2d 419, 112 S. Ct. 494 (1991); Int'l
Bhd. of Teamsters v. Local Union Number 810, 19 F.3d 786, 791 (2d Cir.
1994); Shea
v. McCarthy, 953 F.2d 29, 31 (2d Cir. 1992); Int'l
Union of Operating Engineers Local Union No. 17 v. Lexo, 918 F. Supp. 69,
72 (W.D.N.Y. 1995). Accordingly, in the instant case, if Caci's state law
claims cannot be resolved without interpreting the LIUNA constitution, they are
pre-empted by § 301.
Despite the fact that analysis of the state law
claim would require consideration of the same facts as would an analysis of the
claim under the labor contract, so long resolution of the state law claim
[*19] does not require interpretation of the labor contract,
pre-emption under § 301 is not mandated.
Lingle
v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 100 L. Ed. 2d
410, 108 S. Ct. 1877 (1988). However, if resolution of any element of the
state law claim requires interpretation of a labor contract, that claim is
pre-empted under § 301.
Lingle
v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 407, 100 L. Ed. 2d
410, 108 S. Ct. 1877 (1988). In other words, "as long as the state-law claim
can be resolved without interpreting the agreement itself, the claim is
'independent' of the agreement for § 301 pre-emption purposes."
Lingle,
supra, at 410. Whether Caci's defamation claims require interpretation
of the LIUNA constitution depends on what is required to prove a defamation
claim under New York law.
A defamation claim
under New York law requires proof (1) of a defamatory statement of fact, (2)
about or concerning the plaintiff, (3) published by the defendant to a third
party, (4) causing the plaintiff injury.
Weldy
v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir. 1993).
Relevant to the court's analysis of whether Caci's claims are pre-empted
by § 301 is that the union proceedings [*20] on which the defamation
claims are based were not commenced for the purpose of accusing Caci of
involvement in specific incidents of organized crime activity. Instead, such
proceedings are predicated on the fact that Caci's involvement with the LCN,
either as a member or by knowingly associating with LCN members, while Caci was
a member of LIUNA, is a violation of the LIUNA constitution. LIUNA Constitution,
EDP P 1.
Defendants assert Caci's argument in opposition to the motion
to dismiss is an attempt to seek reconsideration of the Decision and Order in
which Judge Arcara found that Counts One and Seven and implied that Counts Two
through Six and Eight through Ten are completely pre-empted by § 301 and
accordingly denied remand. Defendants' Reply Memorandum of Law in Support of
Motion to Dismiss or For Summary Judgment filed December 4, 1998 (Docket Item
No. 25) ("Defendants' Reply") at 2-3. According to Defendants, if Caci is
unsatisfied with that decision, the proper avenue for relief is an appeal.
Defendants' Reply at 3.
At the outset, the court notes that the findings
contained in Judge Arcara's Decision and Order are now the law of this case.
Under the law of
the case doctrine, [*21] a decision on an issue of law made at one
stage of the case becomes binding precedent to be followed in subsequent stages
of the same litigation.
Pescatore
v. Pan American World Airways, Inc., 97 F.3d 1, 7-8 (2d Cir.1996); Liona
Corporation v. PCH Associates, 949 F.2d 585, 592 (2d Cir. 1991). The
purpose of law of the case rules is "to maintain consistency and avoid
reconsideration of matters once decided during the course of a single continuing
lawsuit."
Liona
Corp., supra, at 592 (quoting 18 C. WRIGHT, A. MILLER & E. COOPER,
FEDERAL PRACTICE & PROCEDURE, § 4478, at 788 (1981). Therefore, the court's
consideration of Defendants' motion to dismiss must be consistent with the
findings contained in the Decision and Order denying remand.
Caci,
relying on
Lingle,
supra, argues that the rights and obligations of the parties to these
defamation claims are defined solely under New York common law, the defamation
claim is independent of any labor contract, including the LIUNA constitution,
and thus not pre-empted by § 301. Plaintiff's Memorandum at 2. Caci further
maintains that in the "unlikely event" that reference to [*22] the
LIUNA constitution, including the EDP or the EPC, is necessary to resolve the
defamation claims, such reference is insufficient to support pre-emption under §
301.
Id. Such reliance is misplaced.
For example, although Caci
argued in support of his motion to remand that his common law defamation claims
could be resolved by defining criminal facilitation and accomplice liability
under New York Penal Law, Judge Arcara held that from the circumstances and
manner in which the terms "knowingly associate," "barred conduct" and
"kickbacks" were used in the Disciplinary Charges, definitions assigned those
terms under the LIUNA constitution was intended. Decision and Order at 18.
Further, according to the Decision and Order; proof of the first element of
Counts One and Seven, that the statements on which such claim are based are
defamatory, necessarily requires interpretation of the LIUNA constitution.
Decision and Order at 15. Judge Arcara also found in the Decision and Order that
the LIUNA constitution is a "labor contract" within the meaning of § 301,
Defendants made the challenged publications while performing their duties under
the LIUNA constitution, and such statements were [*23] required to
be made. Decision and Order at 14, 22, 23-24. Such findings are now the law of
this case. Thus, although Caci continues to argue that these findings have no
legal or factual support, Plaintiff's Memorandum at 1, Judge Arcara's findings
are indisputably the law of this case and that issue may not be considered on
the instant motion.
With regard to Count One, Judge Arcara found that
whether the publication of the Complaint for Trusteeship to third persons
constitutes defamation depends on interpreting the meaning of "knowingly
associate" and "kickback" as well as determining whether the financial
transactions described in the Complaint for Trusteeship are of the type deemed
improper under the LIUNA constitution, a labor contract within the meaning of §
301. Decision and Order at 16-17. Thus, determination of the veracity of the
alleged defamatory statements asserted thereunder is dependent upon
interpretation of the LIUNA constitution and Count One, rendering Count One
pre-empted by § 301.
Id. A similar finding was made as to Count
Seven in which Caci asserts that the publication of the Disciplinary Charges to
third persons, including members of the Buffalo news media, [*24]
constitutes defamation. Complaint, PP 82-92. Again, proof of the veracity of the
allegedly defamatory statements in the Disciplinary Charges has been determined
to require interpretation of the LIUNA constitution, Decision and Order at 18-
19, and is the law of the case.
It is also the law of this case that ail
of Caci's defamation claims "involve allegations that Local 210 has been
controlled by members or associates of the LCN who have violated various
provisions of the LIUNA Constitution . . .. " Decision and Order at 21. With
regard to the remaining defamation claims, Judge Arcara stated "that the issue
of whether [Caci] has it fact violated various provisions of the LIUNA
Constitution, including the issue of whether he was a member or associate of the
LCN, will necessarily require interpretation of the LIUNA Constitution itself."
Decision and Order at 21 (emphasis added). Therefore, Judge Arcara implicitly
determined that all Plaintiff's causes of action have been pre-empted under §
301, Decision and Order at 21, and the instant motion must be decided in
accordance with that finding. However, as it was not necessary to determine
whether federal question jurisdiction existed [*25] with regard to
the remaining claims to find Defendants' removal of the action to this court was
proper, Judge Arcara refrained from finding Counts Two, Three, Four, Five, Six,
Eight, Nine and Ten were also pre-empted. The court therefore turns to this
question.
Counts Two and Three also require interpretation of the LIUNA
constitution. Specifically, both Counts Two and Three are predicated on
allegedly defamatory statements made in letters written by Defendant Luskin to
officers and members of Local 210 regarding evidence that Local 210 has come
under the influence of organized crime, necessitating the need for formal
trusteeship proceedings as specified in the Complaint for Trusteeship.
Complaint, Exhibit A at 1-2, and Exhibit B at 1. Whether the Complaint for
Trusteeship was necessary turns on whether there is evidence that Caci violated
various provisions of the LIUNA constitution. Accordingly, the court's
determination of whether such statements are defamatory is inextricable
intertwined with resolution of whether the Complaint for Trusteeship was filed
in accordance with the LIUNA constitution. Counts Two and Three are, therefore,
pre-empted by § 301.
Counts Four and Five allege [*26]
defamation based on Defendants' publication of articles in the January/February
1996 issue of
The Laborer. Complaint, P P 44-56 (Count
Four), 57-68 (Count Five). Count Four is predicated on the publication of an
article entitled Report of the GEB Attorney which contains statements detailing
the steps taken by Luskin, as GEB Attorney, with regard to the trusteeship
proceedings commenced to remove the influence of organized crime from Local 210.
Complaint, Exhibit D at 15. As to Count Five, the article entitled
Inspector
General's Report specifies that the Complaint for Trusteeship alleges that
organized crime has exercised control over Local 210 through
such means as preferential and discriminatory use of job referrals,
manipulation and subversion of the collective bargaining process, financial
improprieties, evisceration of union democracy, and the use of job sites for
LCN-controlled commercial and criminal activity.
Complaint, Exhibit E at 16.
Similar to Counts Two and Three,
whether such statements are defamatory depends on whether the Complaint for
Trusteeship was filed and, thus, whether the trusteeship proceedings were
commenced, in accordance with [*27] the LIUNA constitution. That
determination cannot be made without interpreting various provisions of the
LIUNA constitution, including the EDP which specifically provides for the use of
the trusteeship proceeding to eradicate the influence of organized crime on
local chapters of LIUNA. Additionally, resolution of Count Five requires
interpretation of the terms "financial improprieties," "discriminatory use of
job referrals," and "evisceration of union democracy" as defined in the LIUNA
constitution.
See EDP, Exhibit B to Luskin Declaration. Counts Four and
Five can not be resolved without interpreting the LIUNA constitution, a labor
contract as defined under § 301, and thus are pre-empted by § 301.
Whether Count Six in which Caci alleges Luskin's statements to
The
Buffalo News and other print media on February 23, 1996, indicating
Luskin's support for the Complaint for Trusteeship, constituted defamatory
statements also depends on the interpretation of the LIUNA constitution. For
example, whether the filing of the Complaint for Trusteeship was a violation of
the LIUNA constitution depends on whether Caci participated in conduct barred
under the LIUNA constitution, including [*28] being a member or
associate of the LCN, as defined under the LIUNA constitution. As Judge Arcara
has already found with regard to Count One that a cause of action based on
defamation which requires interpretation of the LIUNA constitution is pre-empted
by § 301, so is Count Six also pre-emoted by § 301.
Similarly, Caci's
allegation in Count Eight that Daniel Braun's statements to
The Buffalo
News with regard to the Disciplinary Charges filed were defamatory
necessarily depends on whether the publication of the Disciplinary Charges to
third persons was defamatory. As stated, Judge Arcara has decided with regard to
Count Seven that whether the publication of the Disciplinary Charges to third
persons was defamatory is inextricably intertwined with an interpretation of the
LIUNA constitution. Accordingly, the defamation claim asserted under Count
Eight, as Count Seven, is pre-empted under § 301.
As with Count Six,
resolution of Count Nine, in which Caci asserts defamation based on the
publication of statements, pertaining to the Disciplinary Charges filed against
members and officers of Local 210, in an article entitled
Report of the GEB
Attorney which appeared in the November/December [*29] 1996
issue of
The Laborer, also depends on the
interpretation of the LIUNA constitution. n10 As stated, a fair reading of the
Complaint as it refers to the underlying union proceedings demonstrates that the
attribution in those proceedings of LCN involvement to Caci was not for the
purpose of accusing Caci of organized crime activity. Rather, it is evident that
Caci was alleged to have violated the LIUNA constitution through such alleged
involvement. Accordingly, the veracity of the statements contained in that
article that charges have been filed "against 28 members and former officers of
Local 210, Buffalo, New York, whom we have identified as members or associates
of the Buffalo family of La Cosa Nostra," Complaint, Exhibit I at 30, cannot be
determined without construing the meaning of "member" or "associate" as defined
in the LIUNA constitution. As such, § 301 pre-empts Count Nine.
-
- - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10 A copy of this article is attached as Exhibit I to the Complaint.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - -
Caci's tenth cause of action, asserting defamation
[*30] based on the publication of the Complaint for Trusteeship, the
December 11, 1995 and December 11, 1996 letters to various members of the
Buffalo new media also necessarily requires interpretation of the LIUNA
constitution to determine the veracity of the alleged defamatory statements. The
publication of such documents will not constitute defamation unless statements
within those documents are defamatory.
Weldy,
supra, at 61. However, as discussed in connection with Counts One, Two
and Three, whether those documents contain defamatory statements cannot be
determined without construing the LIUNA constitution.
Discussion,
supra, at 16, 17. Accordingly, Count Ten is pre-empted by § 301.
All Caci's state law defamation claims are, therefore, pre-empted by §
301. This finding is consistent with other courts which have considered similar
issues.
Stafford
v. True Temper Sports, 123 F.3d 291, 296 (5th Cir. 1997) (holding state
law defamation claims pre-empted under § 301 where alleged defamatory statements
made in connection with investigation into appropriateness of dismissal under
labor contract);
Bagley
v. General Motors Corp., 976 F.2d 919, 921 (5th Cir. 1992)
[*31] (noting that holding a company liable for defamation based on
statements made in connection with internal investigation and suspension
procedures would render company unable to ever undertake such investigation);
Naitram
v. Local 2222 of the Int'l Bhd. of Elec. Workers, 982 F. Supp. 83, 86 (D.
Mass. 1997). Compare Luecke
v. Schnucks Market, Inc., 85 F.3d 356, 359-60 (8th Cir. 1996) (holding
state law defamation claim not pre-empted by § 301 where resolution of
defamation claim based on allegations that employers told others that discharged
employee refused to take drug test after workplace accident did not require
interpretation of labor contract to determine whether challenged statements were
false, made with malice, or resulted in damages).
Finally, as stated,
Judge Arcara found that Count Eleven does not state a separate cause of action
but, rather, is a demand for damages. Decision and Order at 10, 20 n. 8.
Accordingly, Count Eleven is insufficient to state a claim and should be
dismissed.
To summarize, all of Caci's causes of action require
interpretation of the Complaint for Trusteeship which, as Judge Arcara found,
Decision and Order at 14, [*32] is a labor contract within the
meaning of § 301. That Caci makes numerous references in his Complaint to the
LIUNA constitution, the Complaint for Trusteeship and the Disciplinary Charges
as well as to terms defined under the EDP, supports this finding. Complaint, PP
12-16, 25, 35, 41-42, 46, 53, 60, 66, 67, 71, 77, 78, 80, 85, 90, 91, 95,
102-104, 110, 116-17, 120-124 and Exhibits C and F. Accordingly, Counts One
through Eleven require interpretation of a labor contract and are pre-empted by
§ 301.
As a careful reading of the Complaint reveals the absence of any
allegation of a violation under the LMRA or the LIUNA constitution, all the
defamation claims,
i.e., Counts One through Ten, should be dismissed.
Further, although generally upon dismissing a complaint for failure to state a
claim leave to amend should be provided, "
where a plaintiff
is unable to allege any fact sufficient to support its claim, a complaint should
be dismissed with prejudice."
Sluder
v. United Mine Workers of America, Intern. Union, 892 F.2d 549, 550
(7th Cir) (affirming district court's dismissal with prejudice personal injury
claim which could not be resolved without reference to labor [*33]
contract deemed pre-empted under § 301 for failure to state a claim),
cert.
denied,
498
U.S. 810, 112 L. Ed. 2d 21, 111 S. Ct. 45 (1990). See Cortec
Industries, Inc., supra, 949 F.2d at 48 (citing
Spain
v. Ball, 928 F.2d 61, 62-63 (2d Cir. 1991) (dismissing with prejudice
plaintiff's claim under the Age Discrimination in Employment Act which, by its
terms, applies only to persons over age 40 as plaintiff was only 35 years old
when the alleged discrimination occurred)).
It is settled that no
recovery for either defamation lies under the LMRA.
Wooddell,
supra, at 98 (holding "a suit properly brought under § 301 must be a
suit either for violation of a contract between an employer and a labor
organization representing employees in an industry affecting commerce or for
violation of a contract between such labor organizations."). As such, Caci will
not be able to plead any facts supporting claims based on defamation under the
LMRA and the complaint should be dismissed with prejudice.
2. Privileges Insofar as Defendants also seek
dismissal of Caci's claims based on alternative grounds including privilege and
failure [*34] to plead the individual liability of every member of a
voluntary association,
i.e., LIUNA, Defendants' Memorandum at 30-39, as
the court's finding that all of Caci's claims are completely pre-empted by § 301
is dispositive of the entire case, there is no need to address the alternative
grounds.
CONCLUSION Based on the foregoing,
Defendants' motion to dismiss (Docket Item No. 18) should be GRANTED and the
action should be DISMISSED with prejudice.
Respectfully submitted,
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: September 7th, 1999
Buffalo, New York
Pursuant to
28
U.S.C. § 636(b)(1), it is hereby
ORDERED that this
Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must
be filed with the Clerk of the Court within ten (10) days of service of this
Report and Recommendation in accordance with the above statute, Rules 72(b),
6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the District
Court's Order. [*35]
Thomas
v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small
v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989);
Wesolek
v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988). Let the Clerk
send a copy of this Report and Recommendation to the attorneys for the Plaintiff
and the Defendants.
SO ORDERED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: September 7th, 1999
Buffalo, New York
Civil
Procedure : Pleading & Practice : Defenses, Objections & Demurrers :
Failure to State Claim or Cause of Action 
