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July 10, 1975

James M. Morrissey, Plaintiff
National Maritime Union of America et al., Defendants

Ward, D.J.

The opinion of the court was delivered by: WARD


James M. Morrissey ("Morrissey"), a member of the National Maritime Union of America ("the Union"), brought this action in June, 1972, alleging violations of his rights under 29 U.S.C. § 411(a)(2) and (5) (hereinafter referred to as the Landrum-Griffin Act), and malicious prosecution, on the part of certain Union officers and employees and the Union itself. After a four-day trial in April, 1975, the jury returned a verdict for plaintiff, awarding a total of $333,500 in compensatory and punitive damages against defendants Joseph Curran ("Curran"), Shannon J. Wall ("Wall"), Charles Snow ("Snow"), and the Union itself. *fn1"

 Defendants move pursuant to Rules 50 and 59, Fed. R. Civ. P., for an order setting aside the verdict against them, and for judgment in their favor dismissing the complaint, or in the alternative, for a new trial. For the reasons set forth below, the motions are denied, except that the motion to set aside the verdict against the defendant Union and enter judgment in its favor is granted.

 The undisputed events which form the basis of Morrissey's allegations, briefly, are these. On July 1, 1971, Morrissey who had for years opposed the established Union leadership, was in the Union Hall in New York City, distributing pamphlets contesting Curran's policies as he had on several occasions during the preceding month. Curran was President of the Union, but on that day was in Boca Raton, Florida. The Master-at-Arms, James Nimmo, upon instructions from Snow, the Chief of Security, several times requested Morrissey to cease distributing pamphlets inside the Hall, pointing out to him a notice posted on the bulletin board in the Hall and advising him that his conduct was illegal. The notice, which was undated but was signed by Wall, then the Union's Secretary-Treasurer, read:

It is the established policy of the National Maritime Union that only official union publications may be distributed inside the Hiring Halls or other union offices. No solicitation is permitted inside any union buildings. Any persons attempting to solicit sales or distribute unauthorized literature inside NMU buildings will be asked to discontinue such practice and, in the event they fail to comply with such request, will be required to leave the premises.

 When Morrissey persisted in distributing his pamphlets and refused to leave the building, the police were called, as Snow had directed. After a brief meeting with Snow in his office, the police took Morrissey to the Sixth Precinct Station House, where, upon a complaint which Nimmo signed, he was charged with disorderly conduct and criminal trespass. Morrissey was allowed to leave within a short time but was summoned for arraignment July 13, 1971. At the arraignment the charge of disorderly conduct was dropped and the case set for trial on July 20, 1971. The trial judge, after a preliminary hearing at which no testimony was taken, summarily dismissed the charge of criminal trespass, finding no chargeable offense upon any set of facts which the State offered to prove. Counsel for the Union was present at that time.

 Morrissey, in this civil action brought pursuant to 29 U.S.C. § 412, claimed that the actions of the Union officials in prohibiting and preventing him from distributing the pamphlets in the Union Hall deprived him of his right under 29 U.S.C. § 411(a)(2) to meet and assemble freely with other Union members and to express his views, arguments and opinions; that their causing his arrest constituted improper disciplinary action in violation of 29 U.S.C. § 411(a)(5); and that the arrest and subsequent attempts to prosecute him constituted the common law tort of malicious prosecution. He sued for both compensatory and punitive damages. The Court, using a special verdict form, submitted the questions of liability and compensatory and punitive damages on the Landrum-Griffin Act claims and the malicious prosecution claim separately to the jury. The jury returned a verdict for plaintiff distributed as follows: Landrum-Griffin Act: Compensatory damages: $500 Punitive Damages against the Union: $50,000 against Curran: $100,000 against Wall: $60,000 against Snow: $10,000 Malicious Prosecution: Compensatory damages: $3,000 Punitive Damages against the Union: $50,000 against Curran: $25,000 against Wall: $15,000 against Snow: $20,000

 Defendants base their motions on the grounds that the verdict is contrary to the weight of the evidence, contrary to the law, so excessive as to shock the conscience, and duplicative, as well as on the ground that the Court made prejudicial errors in its rulings during the trial and in its charge.

 It is clear that the motion for judgment notwithstanding the verdict on the ground that it is against the weight of the evidence must be denied. The standard on such a motion is the same as the standard for a directed verdict, that is, whether there was evidence from which the jury could have properly found for plaintiff, against whom the motion is made, viewing the evidence most favorable to him and giving him the benefit of all reasonable inferences. 9 Wright and Miller, Federal Practice and Procedure § 2524 (1971); Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970). The Court is of the view that the evidence presented, viewed in this light, was certainly sufficient to permit the case to go to the jury.

 The central events of July 1, 1971, testified to largely by plaintiff and Nimmo, and set forth above, were basically undisputed. To defeat plaintiff's Landrum-Griffin Act claims, defendants attempted to show that the notice signed by Wall and posted in the Union Hall, to the effect that Union policy prohibited passing out unauthorized literature, was a valid regulation of conduct which might interfere with the Union's performance of its obligations, or a reasonable rule as to the responsibility of members toward the Union as an institution. 29 U.S.C. § 411(a)(2). In the Court's view, the evidence presented utterly failed to establish this defense. Snow testified by deposition that the members tended to get into arguments which sometimes became fights, and that Morrissey would never back away from a fight, although he did not start fights. Wall testified on the stand that he had signed the notice and caused it to be posted at Snow's request, because passing out literature in the Hall tended to stimulate arguments.

 Whether this would be a reasonable basis for adopting a standing rule might have been a question for the jury. However, the Union Constitution, in evidence, clearly states that all policies of the Union and all changes in official Union policy, must be formally approved by the members of the Union. And the transcript of the proceeding before Judge Ringel in New York Criminal Court on July 20, 1971, also in evidence in this action, at which the charge of criminal trespass was dismissed, contains statements made by attorneys for the Union, that the notice in question was never so ratified. The notice itself purports to reflect a national policy. There is no evidence whatever in the record that the "policy" referred to in the notice was ever adopted by the Union membership. Accordingly, the Court instructed the jury, on this issue alone, that the notice itself was not duly promulgated by the Union. Wright and Miller, supra, § 2425.

 Proof of a threat of imminent disturbance as a result of Morrissey's conduct on July 1, 1971 might also have defeated his Landrum-Griffin Act claim. However, there was little evidence (other than Curran's hearsay testimony relating his later conversations with Snow) that Morrissey's distributing literature on that date caused or threatened to cause any imminent disruption in the Union Hall. In fact, the preponderance of evidence was to the contrary, creating certainly sufficient question to warrant submission of this issue to the jury.

 Curran, to defeat Morrissey's Landrum-Griffin Act claim against him, argues that there is no evidence in the record to connect him to the events of July 1, 1971, since he was in Boca Raton, Florida and none of the other participants in Morrissey's arrest and prosecution testified to consulting him concerning it. He himself testified by deposition that he did not know of the fact of the arrest until after it had occurred, when he discussed the events with Snow, the Port Agent, and the Union's counsel. However, records of telephone calls from the Union headquarters to Boca Raton on June 30, 1971 and July 20, 1971, as well as on other dates during those months, were introduced, although there is no direct evidence concerning the identity of the parties to those conversations or their content. Morrissey had distributed pamphlets in the same manner on several occasions during the preceding month, and had been instructed to cease by the Union attorneys.

 Curran also testified by deposition that he, as President of the Union, was generally familiar with Union affairs, and while he stated that he did not himself know whether the notice was posted in the Union Hall on July 1, 1971, he did not disclaim knowledge of its existence, or indicate disapproval of the "policy" in any way. Moreover, he stated that he made no effort to have the charges against Morrissey dropped, in the context of statements from which the jury could infer general approval of Snow's action. The inference that Curran was consulted concerning this method of enforcing the "policy" reflected in the notice, and its ...

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