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DINKO v. WALL

March 2, 1976

Andy Dinko, individually and on behalf of the members of the National Maritime Union of America, Plaintiff
v.
Shannon J. Wall, as President of the National Maritime Union of America and individually, et al., Defendants


Werker, D.J.


The opinion of the court was delivered by: WERKER

WERKER, D.J.:

This case was remanded to me by the Court of Appeals for further proceedings consistent with its opinion. *fn1"

 Upon the original motion to vacate an order authorizing this action I dismissed the complaint upon the grounds that the plaintiff had not made a sufficient demand (the Court of Appeals reversed this conclusion) and that the plaintiff had not shown "good cause."

 Before the opinion of the Court of Appeals in this case there was no existing definition of good cause as required by Title 29, section 501(b) LMRDA.

 A definition has now been furnished in the following terms:

 
"We believe that both these policies are served if good cause in section 501(b) is construed to mean that plaintiff must show a reasonable likelihood of success and, with regard to any material facts he alleges, must have a reasonable ground for belief in their existence." *fn2"

 The Court of Appeals based upon that definition has instructed me to articulate my reasons why in my sound discretion I came to the conclusion that the plaintiff's application did not show sufficient good cause to warrant the initial authorization to bring this action.

 The gravamen of plaintiff's complaint is contained in paragraphs 9 and 15(a) through (n) in the First Cause of Action. The Second Cause of Action and the allegations made therein arise from the acts complained of in the First Cause of Action. The Second Cause of Action must necessarily be dismissed if good cause is not shown in the First Cause of Action.

 No hearing was held in this matter since I concluded that none was necessary. I had available to me the deposition of the plaintiff and all of the documents with respect to the allegations of plaintiff which were refuted by defendants by documentary evidence not argument. I assumed that I was permitted to proceed on documentation outside the complaint and upon admissions made by the plaintiff and the defendants.

 Paragraph 9 of the complaint purports to allege the contents of the demand contained in plaintiff's letter to the Union dated December 17, 1974. It does not.

 The claims in that letter were

 (a) The regular November meeting of the Union held on November 25, 1974 was invalid and unconstitutional.

 (b) The vote at said meeting approving the Staff Pension Plan was invalid ...


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