The opinion of the court was delivered by: Leisure, District Judge.
This is a diversity action arising out of an investigation and arrest,
followed by a criminal prosecution, disciplinary proceeding and
subsequent dismissal of plaintiff, Frank Hannah ("Hannah"), an employee
of defendant Metro-North Commuter Railroad ("Metro-North"). Plaintiff's
original complaint asserted that defendant committed various common law
torts against him. Metro-North has now moved for dismissal of plaintiff's
claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Plaintiff has
cross-moved, pursuant to Fed.R.Civ.P. 15(a), to amend the state-law tort
claims in his complaint and to add civil rights claims under
42 U.S.C. § 1983. In its papers opposing the amendment of the
complaint, defendant has requested an award of attorney's fees under
Fed.R.Civ.P. 11 for the costs of preparing its opposition to plaintiff's
The essential facts in this matter are not in dispute. On Wednesday,
November 27, 1985, J.J. McMahon ("McMahon"), a Metro-North employee,
noticed that his paycheck was missing. McMahon had endorsed the check
upon receiving it at the Metro-North headquarters in Grand Central
Terminal in Manhattan, but had not cashed it, apparently deciding to do
so at a restaurant in the vicinity of Grand Central Terminal. Following
the long Thanksgiving holiday weekend, McMahon reported his paycheck
missing. Metro-North immediately began an investigation regarding that
paycheck. During the course of the investigation conducted by Detective
George Coppola ("Coppola"), a member of the Metro-North Police
Department, depositions were taken of McMahon and Lauren Mahoney
("Mahoney"), a Metro-North cashier. Mahoney asserted her belief that
Hannah had submitted the check to her for payment, along with remittance
for bar receipts that Hannah had received in connection with his position
as a service attendant on the railroad. The cancelled check was
recovered, showing McMahon's endorsement, along with a second, illegible
endorsement, allegedly that of plaintiff.
On January 8, 1986, based on the information gathered from Mahoney and
McMahon, Detective Coppola arrested Hannah for forgery, possession of a
forged instrument, grand larceny, and criminal possession of stolen
property. Plaintiff was then incarcerated and arraigned before a New York
City Criminal Court judge. On January 10, 1986, Hannah was notified to
attend a hearing to be held on January 21, 1986, in connection with an
internal Metro-North investigation of the allegations against him. This
hearing was postponed numerous times. Meanwhile, the criminal charges did
not proceed in a timely fashion; and, on August 30, 1987, the criminal
charges were dismissed for lack of speedy prosecution.
On October 9, 1987, Hannah filed this action.*fn1 Hannah's original
and amended complaints named Metro-North, the TWU, and John McGrath as
defendants. This action was originally assigned to the Honorable John M.
Walker, Jr., prior to his elevation to the United States Court of Appeals
for the Second Circuit. Soon after the action was filed, Judge Walker
placed the case on the suspense docket of this Court pending the
resolution of the compulsory arbitration provided for in the collective
bargaining agreement between Metro-North and plaintiff's union. See
Documents Comprising the Complaint Exhibit A, Rule 28, at 22-26. As part
of the Stipulation and Order For Partial Stay, dated December 19, 1987,
the parties stipulated that upon return of the case to the Court's active
docket the plaintiff would file "appropriate amendments to the complaint
reflecting the results of the administrative process."
On October 16, 1987, Metro-North finally held its own hearing on the
allegations against Hannah. At the hearing, Hannah requested that he be
represented both by counsel from his union and by his personal attorney.
The Metro-North hearing officer denied these requests, but did permit
John McGrath, the president of Transport Workers Union Local 1460
("TWU"), to represent Hannah during the proceedings. On October 23,
1987, after the hearing had been completed, Hannah was notified that his
employment with Metro-North had been terminated based on the charge of
"stealing" that had been lodged against him.*fn2 Subsequent to that
decision, Hannah availed himself of the compulsory grievance arbitration
procedure mandated by the collective bargaining agreement between the TWU
On February 26, 1990, Special Board of Adjustment No. 998 found in
favor of plaintiff, and ordered him to be reinstated to his former
position with full back pay. The arbitrators found two reasons for
reinstating Hannah. First, they held that the exclusion of the TWU
attorney from Hannah's disciplinary hearing was improper under the
collective bargaining agreement. Second, they found that there was
insufficient evidence to prove convincingly that Hannah had committed the
offense charged. The arbitrators pointed to certain weaknesses in the
evidence submitted during the disciplinary hearing and found it not
sufficiently conclusive to justify Hannah's dismissal.
On March 2, 1990, plaintiff requested that this Court return this
action to its active calendar. In addition, plaintiff informed the Court
by letter that he was discontinuing all claims against the TWU and John
McGrath, but that he was proceeding against Metro-North on five causes of
action: unlawful arrest, malicious prosecution, negligent breach of
contract, libel and prima fade tort.
In response to defendant's motion, plaintiff has conceded that "since
the dismissal [did] not indicate innocence, . . . he cannot maintain a
cause of action for malicious prosecution." Plaintiff's Memorandum of Law
in Opposition to Defendant's Motion to Dismiss ("Plain.Mem.") at 3. He
has also "withdrawn those causes of action based upon breach of contract
[because] these claims have been preempted by the RLA." Plain.Mem. at 5.
Notwithstanding these concessions, however, plaintiff argues that his
remaining tort claims are not preempted by the RLA. In addition,
plaintiff has cross-moved to amend his complaint, pursuant to Rule 15(a),
to supplement his claims for unlawful arrest and imprisonment, libel, and
prima facie tort, and to add a claim for wrongful discharge and a civil
rights action under 42 U.S.C. § 1983.
In its papers opposing plaintiff's crossmotion, defendant asserts that
because its moving papers demonstrate that plaintiff has no viable
claim, "[p]laintiff's response should have been in the form of a
stipulation to dismiss this action with prejudice. . . . [W]e believe
Metro-North is entitled to . . . an order under Rule 11 for its
attorney's fees in opposing his cross-motion." Memorandum of Law in
Further Support of the Motion of Defendant Metro-North Commuter Railroad
to Dismiss the Complaint and in Opposition to Plaintiff's Cross-Motion to
Amend His Complaint ("Def.Reply") at 25.
The Court will first address defendant's motion to dismiss, and will
then turn to plaintiff's motion to amend.
I. Defendant's Motion to Dismiss
A. Claims Discontinued by Plaintiff
In his letter to the Court of March 30, 1990, plaintiff informed the
Court that he was discontinuing and withdrawing all claims against
defendants Transport Workers Union (Local 1460) and John McGrath,
individually and in his capacity as President of the Union, and that he
was discontinuing and withdrawing his fourth, sixth, seventh, ninth,
tenth, and eleventh causes of action as to all defendants, and his eighth
cause of action against all defendants except Metro-North.
In his papers opposing defendant's motion to dismiss, plaintiff
concedes that he cannot maintain an action for malicious prosecution, his
second cause of action. Plain Mem. at 3.
Accordingly, defendant's motion to dismiss is granted as to these
claims, which are dismissed with prejudice.
B. Defendant's 12(b)(1) Motion
Defendant asserts that plaintiff's state law claims should be dismissed
for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P.
12(b)(1), because they are preempted by the Railway Labor Act,
45 U.S.C. § 153 Second ("RLA").
The RLA was enacted in 1926 to promote stability in the railroad
industry by encouraging labor and management to resolve their disputes
peacefully. See Detroit & T. Shore Line R.R. v. UTU, 396 U.S. 142, 148, 90
S.Ct. 294, 298, 24 L.Ed.2d 325(1969). Under the current version of the
statute, exclusive jurisdiction over "minor" disputes arising out of the
employment relationship is vested in labormanagement boards created by
statute or Public Law Boards chosen by the parties. See, e.g., Atchison,
T. & Sta. F. Ry. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d
563(1987); Andrews v. Louisville & N R.R., 406 U.S. 320, 92 S.Ct. 1562,
32 L.Ed.2d 95(1972); Baylis v. Marriott Corp., 843 F.2d 658, 662 (2d
Cir. 1988); Underwood v. Trans World Airlines, Inc., 710 F. Supp. 78, 85
(S.D.N.Y. 1989). Consequently, district courts lack subject matter
jurisdiction over such claims. Baylis, supra, 843 F.2d at 662.
Plaintiff concedes that his claims for negligent breach of contract and
wrongful discharge are minor disputes under the RLA, and thus preempted.
He argues, however, that his tort claims for unlawful arrest and
imprisonment, prima facie tort, and libel are not minor disputes because
they are not "inextricably intertwined" with either the collective
bargaining agreement or the employment relationship. Rather, plaintiff
argues, his remaining claims stem solely from his arrest, imprisonment
and criminal prosecution, a course of action by defendant that is
independent of its role as his employer, its internal disciplinary
procedures, or its rights and obligations under the collective bargaining
agreement. Defendant contests this characterization of the claims,
arguing that the claims are not based on the criminal prosecution of the
plaintiff, but rather on the manner in which defendant conducted its
internal investigation prior to arresting plaintiff.
1. Unlawful Arrest and Prima Facie Tort
In Merola v. National R.R. Passenger Corp., 683 F. Supp. 935 (S.D.N.Y.
1988), the Court addressed circumstances similar to those in the instant
case. In Merola, an employee of the Amtrak police force was arrested,
booked and retained in custody by the New York City Police on criminal
charges. After an internal investigation and hearing were conducted,
Merola was dismissed from his job. When the criminal charges were later
dismissed, Merola sued his former employer and various co-workers for
false arrest and imprisonment, malicious prosecution and illegal
In holding that Merola's claims were not preempted by the RLA, Judge
Cedarbaum held that the claims
[did] not arise out of the discharge itself. Rather,
they address[ed] the entirely different question of
whether he was unlawfully arrested, prosecuted and
wiretapped, and the extent of the damages he suffered
The Court concluded that the claims did not involve questions that were
"basically contractual in nature," Id. at 939, and that it therefore
possessed subject matter jurisdiction over them.
Another recent case emphasized that the viability of the claims turns
on the nature of the incarceration. In Feldleit v. Long Island R.R.,
723 F. Supp. 892 (E.D.N Y 1989), the plaintiff was questioned in his
employer's office, and then taken by LIRR police officers to a conference
room where he was read his Miranda rights and asked to make a statement.
When he refused, plaintiff's employer insisted that he leave the
premises. Although ...