PETER CAPITANO, 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 21574
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, Peter Capitano ("Capitano"), 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 [*2] law 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 Capitano's claims were pre-empted by the Labor Management Relations Act
("LMRA"). On January 30, 1997, Capitano 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 20-21, 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 Capitano's response, filed November 16,
1998 (Docket Item No. 24), consists of the Affidavit of Robert H. Perk ("Perk
Affidavit"), Plaintiff's [*3] Response to 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. 25) ("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 LlUNA'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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Capitano 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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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's 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 for Trusteeship further alleges
[*6] Capitano 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 Capitano. n6 The
Disciplinary Charges were essentially based on the same grounds on which the
Complaint for Trusteeship is based,
i.e., improper influence by
organized crime. Charges II and V of the Disciplinary Charges respectively
allege Capitano 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 [*7] Capitano'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 Capitano which were published to third parties. The Complaint
contains twelve causes of action, summarized as follows:
A. Count One In Count One of the Complaint,
Capitano alleges the statements contained in the Complaint for Trusteeship,
including statements that Capitano 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, Capitano 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.
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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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Capitano 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 Capitano 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, PP44-56 (Count Four), 57-68 (Count Five)).
Specifically, Count Four pertains to statements contained in an article entitled
"Report of the GEB Attorney," Complaint, P45 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 Capitano, 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 Capitano by name, Capitano maintains Defendants
intended that the statements contained in those articles to be understood as
referring to Capitano. Complaint, PP 48, 62. Capitano further asserts such
statements were made with malice. Complaint, PP 54, 67.
D. Count Six Capitano 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 Capitano, 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, Capitano alleges that on June 14, 1996, Defendants published the
Disciplinary Charges to third persons, including members of the Buffalo Media.
Complaint, PP 82-92. Capitano is charged in the Disciplinary [*11]
Charges with being an associate of LCN (Disciplinary Charge II), and with
knowingly associating with LCN members or associates. (Disciplinary Charge V).
According to Capitano, 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, Capitano 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.
Capitano 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 Capitano alleges as his ninth cause
of action that the following defamatory [*12] statement about him
was made by Defendants 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 Capitano, 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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H. Count Ten In his tenth cause of action, Capitano
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. Capitano further [*13] maintains such actions were taken by
Defendants with 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 Capitano claims in his eleventh cause of action
that as a result of Defendant's conduct and publications as alleged in Counts
One through Ten, which Capitano characterizes as intentional, wanton and
reckless actions, he has suffered severe emotional distress and exacerbation of
a physical injury,
i.e., cancer. Complaint, PP 128-32.
J. Count Twelve Count Twelve 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 Eleven of the Complaint. Complaint,
PP 133-35.
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
[*14] Item No. 20) ("Defendants' Memorandum"), at 19. Further,
Defendants assert that the EDP required Luskin, as GEB Attorney for Local 21O,
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 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 [*15] 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 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 [*16] 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 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
[*17] 1996 issues of
The Laborer, and
articles appearing in
The Buffalo News). Therefore, as Capitano 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 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 Capitano's claims on the basis that they have been completely pre-empted
by LMRA § 301 ("§ 301"). Defendants' Memorandum at 21. Capitano'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 Capitano's motion to remand this action to
state court on the basis that Counts One and Seven are completely pre-empted by
§ 301. Plaintiffs Memorandum of Law, attached to Affidavit of Robert H. Perk
filed November 16, 1998 (Docket Item No. 24) ("Plaintiff's [*18]
Memorandum"), at 1. Capitano 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 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). [*19] Accordingly, in the instant case, if
Capitano'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 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 Capitano'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 [*20] 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 Capitano's claims are
pre-empted by § 301 is that the union proceedings on which the defamation claims
are based were not commenced for the purpose of accusing Capitano of involvement
in specific incidents of organized crime activity. Instead, such proceedings are
predicated on the fact that Capitano's involvement with the LCN, either as a
member or by knowingly associating with LCN members, while Capitano was a member
of LIUNA, is a violation of the LIUNA constitution. LIUNA Constitution, EDP P 1.
Defendants assert Capitano'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 [*21] Summary Judgment filed December 4, 1998 (Docket
Item No. 25) ("Defendants' Reply") at 2-3. According to Defendants, if Capitano
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, 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.
Capitano,
[*22] 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. Plaintiffs Memorandum at 2. Capitano further
maintains that in the "unlikely event" that reference to 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 Capitano 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 19. Further, according to
the Decision and Order, proof of the first element of Counts One and Seven,
defamation [*23] claims, necessarily requires interpretation of the
LIUNA constitution. Decision and Order at 15-16. 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 required to
be made. Decision and Order at 14, 22-23, 23-24. Such findings are now the law
of this case. Thus, although Capitano 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 17. Thus, determination of the veracity
[*24] 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 Capitano asserts that the publication of the
Disciplinary Charges to third persons, including members of the Buffalo news
media, 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 all of Capitano'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 counts in the Complaint, Judge Arcara
stated "that the issue of whether [Capitano] 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
[*25] of the LIUNA Constitution itself." Decision and Order at 21
(emphasis added). Therefore, Judge Arcara implicitly determined that ail
Plaintiff's causes of action based on defamation 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 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,
Ten and Eleven 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 [*26] was necessary turns on whether there is evidence
that Capitano 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
defamation based on Defendants' publication of articles in the January/February
1996 issue of
The Laborer. Complaint, P P44-56 (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 [*27] 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 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 Capitano alleges
Luskin's statements [*28] 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 Capitano participated in conduct barred under the LIUNA constitution,
including 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, Capitano'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 [*29] 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
Capitano 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 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
Capitano was not for the purpose of accusing Capitano of organized crime
activity. Rather, it is evident that Capitano 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 [*30] 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- - - - - - - - - -
- - - - - - -
Capitano's tenth cause of action, asserting defamation
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 Capitano's state [*31] 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) (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 [*32] whether
challenged statements were false, made with malice, or resulted in damages).
Count Eleven is not a defamation claim; instead, it raises a tort claim
for intentional infliction of emotional distress. Complaint, PP 128-32. By
predicating this claim on Defendants' conduct in publishing the allegedly
defamatory statements, however, Capitano has conditioned liability on a finding
that Defendants' conduct in publishing the statements challenged in Counts One
through Ten constituted defamation. As Capitano's defamation claims are all
pre-empted under § 301, his emotional distress claim is without any factual or
legal basis independent of the pre-empted claims and, as such, should also be
dismissed for failure to state a claim based on pre-emption.
Stafford,
supra, at 296 (holding both state law emotional distress and defamation
claims pre-empted by § 301 where emotional distress claim "clearly would never
have come into existence but for the original dispute" on which the defamation
claim was based).
Finally, as stated, Judge Arcara found that Count
Twelve does not state a separate cause of action but, rather, is a demand for
damages. Decision and Order at 10, [*33] 21 n. 8. Accordingly, Count
Twelve is insufficient to state a claim and should be dismissed.
To
summarize, all of Capitano's causes of action require interpretation of the
Complaint for Trusteeship which, as Judge Arcara found, Decision and Order at
14, is a labor contract within the meaning of § 301. That Capitano 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 Compliant reveals the absence of any allegation of a violation under the
LMRA or the LIUNA constitution, the defamation claims,
i.e., Counts One
through Ten, and the emotional distress claim, Count Eleven, 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 [*34] 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 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 or emotional distress 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 [*35] labor organizations.").
As such, Capitano will not be able to plead any facts supporting claims based on
either defamation or emotional distress under the LMRA and the complaint should
be dismissed with prejudice.
2. Privileges
Insofar as Defendants also seek dismissal of Capitano's claims based on
alternative grounds including privilege and failure 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 Capitano'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 [*36] 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. 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 
