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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[*5]
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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[*6]
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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[*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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[*22]
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