IGNATIUS FASCIANA, CHARLOTTE E. FASCIANA, Plaintiffs, v.
ARTHUR A. COIA, LABORERS INTERNATIONAL UNION OF NORTH AMERICA,
ROBERT D. LUSKIN, COMEY, BOYD & LUSKIN, DANIEL A. BRAUN, JOHN J. CURRAN,
JR., Defendants.
2000 U.S. Dist. LEXIS 4877
COUNSEL:
For IGNATIUS FASCIANA, CHARLOTTE E. FASCIANA, plaintiffs: Eugene Tenney, The Law
Office of Eugene C. Tenney, Esq., Buffalo, NY.
For ARTHUR A.
COIA,
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, ROBERT D.
LUSKIN, COMEY, BOYD & LUSKIN, DANIEL A. BRAUN, JOHN J. CURRAN, defendants:
Mark R. Uba, Lawrence J. Vilardo, Connors & Vilardo, Buffalo, NY.
JUDGES: HONORABLE RICHARD J.
ARCARA, UNITED STATES DISTRICT COURT.
OPINIONBY: RICHARD J. ARCARA
OPINION: DECISION AND ORDER
BACKGROUND On or about June 12, 1997,
plaintiffs Ignatius Fasciana ("Fasciana") and Charlotte Fasciana ("Mrs.
Fasciana") filed a complaint in New York State court against defendants Arthur
A. Coia,
Laborers' International Union of North America
("LIUNA"), attorney Robert D. Luskin, the law firm of Comey, Boyd and Luskin,
Daniel A. Braun and John J. Curran, Jr., alleging several counts of defamation
and one count of loss of consortium. On or about September 18, 1997, plaintiffs
filed an amended complaint in New York State court containing similar
allegations.
On October 20, 1997, defendants [*2] filed a
notice of removal of plaintiffs' claims to federal court on the ground that all
of plaintiffs' claims are pre-empted by § 301 of the Labor Management Relations
Act ("LMRA"),
29
U.S.C. § 185(a). On November 18, 1997, plaintiffs moved to remand the case
to state court. On June 15, 1998, this Court denied plaintiff's motion to remand
finding that at least one of plaintiffs' claims (count one) was pre-empted under
§ 301 of the LMRA. The Court noted that plaintiffs' remaining claims also
appeared to be pre-empted, but declined to decide the issue at that juncture.
The Court then referred the case to Magistrate Judge Foschio for further
proceedings.
Defendants thereafter filed a motion to dismiss the amended
complaint and/or for summary judgment on the ground that all of plaintiffs'
remaining claims are pre-empted. On September 7, 1999, Magistrate Judge Foschio
filed a Report and Recommendation ("Report"), recommending that plaintiffs
claims be dismissed.
Plaintiffs filed objections to the Report and
defendants filed a response thereto. On November 23, 1999, the Court held oral
argument on the objections.
DISCUSSION 
Pursuant to
28
U.S.C. § 636 [*3] (b)(1), this Court must make a de novo
determination of those portions of the Report to which objections have been
made. Upon a de novo review, and after reviewing the submissions and hearing
argument from the parties, the Court finds that all of plaintiffs claims should
be dismissed.
The instant dispute is one of several related actions
filed by various members of Local 210,
Laborers' International
Union of North America ("Local 210") against defendants. n1 See Caci v.
Laborers Int'l Union of North America, et al., 97-CV-0033A;
Caci v.
Laborers Int'l Union of North America, et al.,
97-CV-0034A; Capitano v.
Laborers Int'l Union of North America
et al., 97-CV-0035A; Panzcyskowski v.
Laborers Int'l Union of
North America et al., 97-CV-0036A. As in each of the related actions, the
amended complaint in this case sets forth numerous claims of defamation brought
by a member and/or officer of Local 210, plaintiff Fasciana. The allegations in
the amended complaint, which are discussed in detail in the Magistrate Judge's
Report and in this Court's June 1998 Decision and Order, n2 are virtually
identical to the allegations set forth in the related actions in that the
[*4] defamation claims are based upon the same allegedly defamatory
statements. As noted above, this Court has previously determined that count one
of the amended complaint is pre-empted. Accordingly, the issue currently before
the Court is whether plaintiff Fasciana's remaining defamation claims are also
pre-empted.
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n1 The Court notes that defendants Coia, Braun
and Curran are not named as defendants in some of the related actions. The
remaining defendants, LIUNA, Luskin and the law firm of Comey, Boyd and Luskin,
are all named as defendants in each of the related actions.
n2
Familiarity with this Court's June 1998 Decision and Order is presumed.
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The defendants allege complete pre-emption of counts two
and three under § 301 of the LMRA.
Section 301 of
the LMRA provides:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce as
defined in this chapter, or between any such labor organizations, may be
brought in any district court [*5] of the United States having
jurisdiction of the parties, without respect to the amount in controversy or
without regard to the citizenship of the parties.
29
U.S.C. § 185(a).
The Supreme
Court has stated that complete pre-emption of a plaintiff's state-law claims
under Section 301 will be found only where resolution of the state-law claim is
"inextricably intertwined" with consideration of the terms of the labor
contract, or where the rights and obligations created under state-law do not
exist independently of the labor contract.
Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 213, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985).
Where resolution of plaintiff's state-law claim depends on interpretation of the
labor contract, the claim is pre-empted.
Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 129 L. Ed. 2d 203, 114 S. Ct. 2239
(1994). However, the fact that the labor contract provides a remedy
that plaintiff could pursue as an
alternative to the state-law claim
does not mean that pre-emption is required. See
Trans
Penn Wax Corp. v. McCandless, 50 F.3d 217, 229 (3d Cir. 1995) (
"plaintiff may
bring a state-law [*6] tort action against an employer, even where
he could have brought a similar claim on a provision in [the labor contract], so
long as the state claim does not require interpretation of the [labor
contract.]"). Likewise, the fact that the state-law analysis involves attention
to the same factual considerations as a determination under that labor contract
does not mandate pre-emption.
Lingle
v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 100 L. Ed. 2d 410,
108 S. Ct. 1877 (1988). A state-law claim will only be completely pre-empted
where it cannot be resolved without interpretation of the labor contract.
As previously determined in this Court's June 1998 Decision and Order,
the LIUNA constitution is a labor contract within the meaning of Section 301 of
the LMRA. Therefore, if resolution of plaintiff Fasciana's defamation claims
requires interpretation of the terms of the LIUNA constitution, those claims are
pre-empted.
The Court finds that plaintiff Fasciana's second and third
claims of defamation are pre-empted under § 301 of the LMRA. In count two of his
amended complaint, plaintiff Fasciana alleges that statements made by defendant
Braun to [*7]
The Buffalo News in June 1996 were
defamatory. In count three, plaintiff alleges that statements made in the
November/December 1996 issue of
The Laborer were
defamatory. Both statements involve allegations that Local 210 has been
controlled or influenced by members or associates of organized crime in
violation of the LIUNA constitution. In other words, the issue of whether the
complaint for trusteeship was necessary and whether Local 210 has been
influenced or controlled by organized crime members necessarily turns on whether
plaintiff or others violated various provisions of the LIUNA constitution. This
determination cannot be made without interpreting the LIUNA constitution itself.
Because the veracity of the statements cannot be without interpreting the LIUNA
constitution, counts two and three must be dismissed as pre-empted.
Furthermore, with respect to count three, that claim is also pre-empted
because the labor contract imposed a duty upon defendant Luskin to publish the
allegedly defamatory statements. As this Court stated in its June 1998 Decision
and Order,
in situations
where, as here, the labor contract imposed a duty upon the defendant to make the
statements that [*8] are alleged to be defamatory, courts have
repeatedly held that plaintiff's defamation claims are pre-empted. See e.g.
Johnson
v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989); Peek
v. Philadelphia Coca-Cola Bottling Co., 1997 U.S. Dist. LEXIS 10138, 1997 WL
399379 (E.D. Pa. 1997) (pre-emption found where allegedly defamatory
statements "overwhelmingly related to conduct that formed the substance of
plaintiff's grievance and arbitration proceedings"). See § 3 of the Ethics and
Disciplinary Procedure n3 (providing that the General Executive Board Attorney,
defendant Luskin, "shall prepare reports concerning his or her activities, the
progress he or she is making towards achieving the objectives and purposes of
the Disciplinary Procedure, to be published on a bimonthly basis in
The
Laborer.").
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n3 As noted in this
Court's June 1998 Decision and Order, at 3, the Ethics and Disciplinary
Procedure became part of the LIUNA constitution in January 1995.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - -
- -
Having dismissed all of plaintiff Fasciana's defamation
[*9] claims as pre-empted, the Court finds that dismissal of Mrs.
Fasciana's derivative claim for loss of consortium (count four) is also
required. See
St.
John v. Int'l Assn' of Machinists and Aerospace Workers, Local 1010, 139 F.3d
1214, 1217, n.1 (8th Cir. 1998) (
where loss of
consortium claim is derivative of a pre-empted claim, loss of consortium claim
cannot survive).
CONCLUSION For the reasons
discussed above, in the Magistrate Judge's Report, and in this Court's June 1998
Decision and Order, the Court hereby dismisses counts two and three of the
amended complaint as pre-empted. Count four, Mrs. Fasciana's loss of consortium
claim, is also dismissed. The Clerk of the Court is hereby directed to enter
judgment in favor of defendants and close the case.
IT IS SO ORDERED.
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: March 31, 2000
Civil
Procedure : Federal Magistrates : Pretrial Orders 
