IGNATIUS FASCIANA, CHARLOTTE E. FASCHIANA, Plaintiffs, v.
ARTHUR A. COIA, General President of LIUNA, LABORERS
INTERNATIONAL UNION OF NORTH AMERICA, ROBERT D. LUSKIN, individually and as the
General Executive Board Attorney of LIUNA, COMEY, BOYD & LUSKIN, DANIEL A.
BRAUN, individually and as General Executive Board Attorney of LIUNA and JOHN J.
CURRAN, individually and as General Executive Board Attorney of LIUNA,
Defendants.
1999 U.S. Dist. LEXIS 21571
COUNSEL:
EUGENE C. TENNEY, ESQ., Buffalo, New York, for Plaintiffs.
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 15, 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. 13), and Plaintiffs' motion to declare the correction
contained in an amended complaint proper filed November 16, 1998 (Docket Item
No. 19). [*2]
BACKGROUND
Plaintiffs, Ignatius Fasciana ("Fasciana") and his wife, Charlotte E.
Fasciana (collectively referred to as "Plaintiffs"), commenced this action in
New York Supreme Court, Erie County, on June 12, 1997 against Defendants
Laborers' International Union of North America ("LIUNA"),
Arthur A. Coia ("Coia"), Attorney Robert D. Luskin ("Luskin"), Daniel A. Braun
("Braun"), John J. Curran ("Curran") and the law firm of Comey, Boyd and Luskin
("Comey, Boyd"), alleging numerous counts of defamation and, as to Mrs.
Fasciana, one count of loss of consortium. Defendants removed the action to
federal court on October 20, 1997 on the basis that Fasciana's claims were
pre-empted by the Labor Management Relations Act ("LMRA"). On November 18, 1997,
Plaintiffs moved to remand the action to state court. The court, finding that
Count One was completely pre-empted by LMRA § 301 and commenting that the
remaining causes of action based on defamation likely were also preempted and
that insofar as the loss of consortium claim is derivative of any pre-empted
defamation claims, it would not survive, denied the motion to remand on June 15,
1998. Decision and Order filed June 15, 1998 (Docket [*3] Item No.
11) at 12-13, 14-16.
On September 30, 1998, Defendants moved to dismiss
the complaint for failure to state a claim or, alternatively, for summary
judgment and also to dismiss the action as to Defendant John M. Curran as
improperly commenced. Defendants filed in support of their motion a Statement of
Undisputed Facts (Docket Item No. 14), Defendants' Memorandum of Law in Support
of Motion to Dismiss or for Summary Judgment (Docket Item No. 15) ("Defendants'
Memorandum") and the Declaration of Robert D. Luskin, Esq. (Docket Item No. 16)
("Luskin Declaration"). n2
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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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On November 16,
1998, Plaintiffs moved for an order declaring that [*4] a
typographical error in the original complaint as to Defendant Curran's name was
properly corrected in an amended complaint filed September 18, 1997. Plaintiffs
filed one set of papers both in support of their motion and responsive to
Defendants' dispositive motion including a Statement of Disputed Facts (Docket
item No. 20), a Memorandum of Law in Opposition to Defendants' Motion to Dismiss
or for Summary Judgment (Docket item No. 21) ("Plaintiffs' Memorandum"), and the
Affidavit of Attorney Edward J. Schwendler, III (Docket Item No. 23)
("Schwendler Affidavit"). 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.
Based on the following, Defendants' motion, treated as a
motion to dismiss for failure to state a claim, should be GRANTED and
Plaintiffs' motion for an order declaring the correction of a typographical
error was proper is DISMISSED as moot.
FACTS n3
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n3 Taken from the pleadings and motion papers filed in
this action.
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Fasciana 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 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.
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n5 A copy of the Complaint for Trusteeship is attached as Exhibit F to
the Luskin Declaration.
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Footnotes- - - - - - - - - - - - - - - - - [*7]
Luskin also
filed disciplinary charges ("Disciplinary Charges") against members and officers
of LIUNA, including Fasciana. 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 VI of the
Disciplinary Charges respectively allege Fasciana 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 A to the Amended Complaint.
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The core
of Fasciana's Amended Complaint is that the statements made by or on behalf of
Defendants in the Disciplinary Charges regarding alleged organized crime
affiliations and influences constitute false and defamatory statements about
Fasciana which were published to third parties. In total, the Amended Complaint
contains four causes of action, summarized as follows:
A.
Count One In Count One of the Amended Complaint, Fasciana
[*8] alleges that on June 14, 1996, Defendants published the
Disciplinary Charges to third persons, including members of the Buffalo Media.
Amended Complaint, PP 19-40. Fasciana is charged in the Disciplinary Charges
with being an associate of LCN (Disciplinary Charge II), and with knowingly
associating with LCN members or associates (Disciplinary Charge VI), in
violation of the EDP. According to Fasciana, the statements contained in the
Disciplinary Charges are false, defamatory
per se and were made by
Defendants with malice. Amended Complaint, P 38.
B. Count
Two In Count Two of the Amended Complaint, Fasciana 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.
Amended Complaint, PP 41-42.
Fasciana further claims such
[*9] statements were intended to be understood as referring to him,
are false, defamatory
per se and were made with malice. Amended
Complaint, PP 43-54.
C. Count Three
Fasciana alleges in Count Three that Defendants made various defamatory
statements against him in an article published in the November/December 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. n7 (Amended Complaint, PP 55-69. In
particular, Fasciana refers to the statement
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. The hearings commenced in July 1996 and have continued for
more than 30 trial days. They are scheduled to conclude in November. Since the
charges were filed, five members . . . [including] Ignatius Fasciana . . .
have signed agreements that prohibit them from ever maintaining membership in,
receiving anything of value from, or participating in the affairs of any
entity affiliated [*10] with LIUNA. Fasciana is permitted to
retain retiree status in LIUNA.
Amended Complaint, P 58.
According to Fasciana, such statement was written by Defendant
Luskin or under his supervision and were authorized, endorsed or ratified by
Defendants COIA, LIUNA and Comey, Boyd. Amended Complaint at PP 61-62. Fasciana
further maintains the statement is false, defamatory
per se and made by
Defendants with malice. Amended Complaint, PP 63-69.
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n7 A
copy of this article is attached as Exhibit C to the Amended Complaint.
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D. Count Four Count Four
is a derivative claim for loss of consortium filed by Fasciana's wife for loss
of services, society and companionship of her husband as a result of the
allegedly defamatory statements made by Defendants as set forth in Count One
through Three of the Amended Complaint. Amended Complaint, PP 70-72.
Defendants maintain Luskin filed the Complaint for Trusteeship and
Disciplinary Charges in accordance With § 3 of the EDP, Article IX, § 7 of the
LIUNA [*11] 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
1.
Motion to Dismiss 
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). [*12]
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 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 [*13] 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 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
Amended 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
Amended Complaint either by incorporation in the text of the Amended Complaint
(portions of Disciplinary Charges), incorporation [*14] by reference
(LIUNA constitution and EDP), or as exhibits (Disciplinary Charges, article
appearing in the November/December 1996 issue of
The
Laborer, and article appearing in
The Buffalo
News). Therefore, as Fasciana had actual notice of such documents and
relied on them in framing the Amended 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.
A. Preemption Defendants seek dismissal
of all Fasciana's claims on the basis that they have been completely pre-empted
by LMRA § 301 ("§ 301"). Defendants' Memorandum at 21. Fasciana's response in
opposition to dismissal consists largely of a challenge to Judge Arcara's
findings in his Decision and Order filed June 15, 1998 (Docket Item No. 11)
("the Decision and Order") denying Fasciana's motion to remand this action to
state court on the basis that Count One is completely pre-empted by § 301.
Plaintiffs' [*15] Memorandum of Law in Opposition to Motion to
Dismiss or for Summary Judgment filed November 16, 1998 (Docket Item No. 21)
("Plaintiffs' Memorandum"), at 2. Fasciana 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. Plaintiffs' 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); [*16]
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 Fasciana'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 Fasciana's [*17] 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 Fasciana'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 Fasciana of involvement
in specific incidents of organized crime activity. Instead, such proceedings are
predicated on the fact that Fasciana's involvement with the LCN, either as a
member or by knowingly associating with LCN members, while Fasciana was a member
of LIUNA, is a violation of the LIUNA constitution. LIUNA Constitution, EDP P 1.
Defendants assert Fasciana'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 Count One, and implied that Counts [*18] Two
and Three, 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 Fasciana 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,
[*19] the court's consideration of Defendants' motion to dismiss
must be consistent with the findings contained in the Decision and Order denying
remand.
Fasciana, 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 3. Fasciana 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, Judge Arcara held that from the
circumstances and manner in which the terms "knowingly associate" and "barred
conduct" were used in the Disciplinary Charges, definitions assigned those terms
under the LIUNA constitution was intended. Decision and Order at 13. Further,
according to the Remand Decision and Order, proof of the first element of Count
One, a defamation claim, necessarily requires interpretation of the LIUNA
[*20] constitution. Decision and Order at 5. 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 11, 16-17, 17-18. Such findings are
now the law of this case. Thus, although Fasciana continues to argue that these
findings have no legal or factual support, Plaintiffs' Memorandum at 2, Judge
Arcara's findings are indisputably the law of this case and that issue may not
be considered on the instant motion.
Judge Arcara found with regard to
Count One, in which Fasciana asserts that the publication of the Disciplinary
Charges to third persons, including members of the Buffalo news media,
constitutes defamation, that proof of the veracity of the allegedly defamatory
statements in the Disciplinary Charges requires interpretation of the. LIUNA
constitution. Decision and Order at 12-14. That finding is now the law of the
case.
It is also the law of this case that all of Fasciana's defamation
claims "involve allegations that Local 210 has been controlled [*21]
by members or associates of the LCN who have violated various provisions of the
LIUNA Constitution . . .." Decision and Order at 14-15. With regard to the
remaining defamation counts in the Amended Complaint, Judge Arcara stated "that
the issue of whether [Fasciana] 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 14-15 (emphasis added). Therefore, Judge Arcara
implicitly determined that all Plaintiffs' causes of action based on defamation
have been pre-empted under § 301, Decision and Order at 14-15, 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 the remaining defamation claims,
Counts Two and Three, were also pre-empted. n8
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n8 With
regard to Count Four, Judge Arcara stated that "the loss of consortium claim
will not survive, to the extent that it is derivative of a pre-empted defamation
claim." Decision and Order at 16.
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Fasciana's allegation in Count Two 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 One 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 Two, as Count One, is pre-empted under § 301.
Resolution of Count Three, in which Fasciana 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. n9 As stated, a fair reading of the Amended Complaint as it
refers to the underlying union proceedings demonstrates that the attribution in
those proceedings of LCN involvement to Fasciana was not for the purpose of
accusing Fasciana [*23] of organized crime activity. Rather, it is
evident that Fasciana was alleged to have violated the LIUNA constitution
through such 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," Amended Complaint, Exhibit
B 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
Three.
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n9 A copy of this article is attached as Exhibit B
to the Amended Complaint.
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All Fasciana'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 [*24] 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 whether challenged statements were
false, made with malice, or resulted in damages).
Count Four is not a
defamation claim; instead, it raises a tort claim for loss of consortium
derivative of Fasciana's defamation claims. Amended Complaint, PP 70-72.
A loss of
consortium is a derivative action and, as such, its viability [*25]
is dependent on the viability of a primary cause of action, such as a common law
tort action.
Stander
v. Orentreich, 165 Misc. 2d 530, 627 N.Y.S.2d 879, 884 (App. Div.
Dep't. 1995). However, if all the primary causes of action on which the
derivative loss of consortium claim is dependant fail, the derivative claim also
falls.
Maddox
v. City of New York, 108 A.D.2d 42, 487 N.Y.S.2d 354, 359 (App. Div. 2d
Dep't. 1985).
In the instant case, assuming the district judge agrees
with the court's recommendation that Fasciana's three primary causes of action
based on defamation be dismissed as pre-empted under § 301, the derivative loss
of consortium claim fails and should also be dismissed.
To summarize,
all of Fasciana's defamation causes of action require interpretation of the
Complaint for Trusteeship which, as Judge Arcara found, Decision and Order at
11, is a labor contract within the meaning of § 301. That Fasciana makes
numerous references in his Amended Complaint to the Disciplinary Charges which
references both the LIUNA constitution and the Complaint for Trusteeship, as
well as to terms defined under the EDP, supports this finding. Amended
Complaint, [*26] PP 20-39, 42-52, 58-68 and Exhibit A. Accordingly,
Counts One through Three require interpretation of a labor contract and are
pre-empted by § 301.
As a careful reading of the Amended Complaint
reveals the absence of any allegation of a violation under the LMRA or the LIUNA
constitution, the defamation claims,
i.e., Counts One through Three,
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 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
plaintiffs claim under the Age [*27] 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, Fasciana
will not be able to plead any facts supporting claims based on defamation under
the LMRA and the Amended Complaint should be dismissed with prejudice.
B. Alternative Grounds for Dismissal
Insofar as Defendants also seek dismissal of Fasciana's claims based on
alternative grounds including privilege, failure to plead the individual
liability of every member of a voluntary association,
i.e., LIUNA, and
failure to properly commence the action with regard to Defendant Curran.
Defendants' Memorandum at 30-41, as the court's finding that all of Fasciana's
claims are completely pre-empted by § 301 is dispositive [*28] of
the entire case, there is no need to address the alternative grounds.
3. Motion for Order Declaring Amendment Correct As
stated, Plaintiffs commenced this action on June 12, 1997 when their original
complaint was filed in New York Supreme Court, Erie County. Defendant Curran's
name was incorrectly listed in that complaint as "John J. Curran, Jr." After
their time to amend as of right has expired, Plaintiffs, without seeking leave
from the court to amend, filed on September 18, 1997, the Amended Complaint in
which Defendant Curran's name is properly listed as "John M. Curran, Jr."
Defendants assert as an alternative ground on which to dismiss the
Amended Complaint that the action was never properly commenced against Defendant
Curran based on Plaintiffs' failure to correctly identify Defendant Curran in
the original complaint, as well as to seek leave of court to filed the Amended
Complaint when such leave was required. Defendants' Memorandum at 40-41.
Defendants further maintain that Defendant has never acted in the capacity in
which he is sued, i.e., as LIUNA GEB Attorney and, as such, the court is without
over jurisdiction over him.
Id. at 41. To avoid dismissal
[*29] of the Amended Complaint with regard to Defendant Curran,
Plaintiffs moved on November 16, 1998 for a court order either declaring that
the filing of the Amended Complaint for the sole purpose of correcting the name
of Defendant Curran was proper, or, alternatively, leave to file an amended
complaint.
As the court is recommending dismissal of all the defamation
claims based on pre-emption and the derivative loss of consortium claim as
without any basis, Plaintiffs' motion for an order declaring the filing of the
Amended Complaint properly commenced the action against Defendant Curran or,
alternatively, for leave to file an amended complaint is moot and should be
dismissed. The court, thus, need not further address it.
CONCLUSION Based on the foregoing, Defendants'
motion to dismiss (Docket Item No. 18) should be GRANTED and the action should
be DISMISSED with prejudice; Plaintiff's motion to declare the correction
contained in an amended complaint proper (Docket Item No. 19) is DISMISSED as
MOOT.
Respectfully submitted,
LESLIE G. FOSCHIO
UNITED
STATES MAGISTRATE JUDGE
DATED: September 7th, 1999
Buffalo, New York
Pursuant to
28
U.S.C. § 636 [*30] (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. 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 