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.
Defendant now moves to dismiss all claims against it pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6), addressing its motion to what it has
styled as "Documents Comprising the Complaint," which included the
amended complaint, the agreement between Metro-North and Hannah's union
and a number of other documents. Defendant's first argument is that this
Court lacks subject matter jurisdiction over plaintiff's state law
claims, which, it argues, are preempted by 45 U.S.C. § 153, the
Labor Act ("RLA"). Defendant's second argument is that even if
plaintiff's claim's are not preempted, his allegations fail to state a
claim upon which relief can be granted.
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.
"Minor" disputes under the RLA are limited to two types of claims: (1)
claims that can be resolved by interpreting
and applying the terms of a collective bargaining agreement; and (2)
claims that arise from situations not specifically covered by a
collective bargaining agreement but incidental to the employment
relationship. See Independent Union of Flight Attendants v. Pan American
World Airways, 789 F.2d 139 (2d Cir. 1986) (per curiam) (citing Elgin,
J. & E. Ry. v. Burley, 325 U.S. 711, 722-723, 65 S.Ct. 1282, 1289-1290,
89 L.Ed. 1886(1945)).*fn3
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
Id. at 938.
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 plaintiff was subsequently discharged after an internal
disciplinary hearing, no criminal charge was ever filed.
In dismissing plaintiff's false arrest claim, former Chief Judge
Weinstein stated that although plaintiff read his Miranda rights by the
uniformed LIRR police officers, he was never "arrested" because "he was
allowed to leave the employer's premises alone after refusing to give a
statement." Feldleit, supra, 723 F. Supp. at 896. Moreover, Judge
Weinstein distinguished his case from Merola on the grounds that:
[u]nlike Merola, plaintiff was never charged with
violating a state law, much less booked at a police
station, photographed, fingerprinted or subjected to
the other procedures that commonly accompany an
Id. at 896.
Following the reasoning in Merola and Feldleit, the Court finds that
plaintiff's arrest, incarceration and arraignment before a New York City
Criminal Court judge creates a claim that, if proven, extends beyond the
parameters of the employer-employee relationship and the normal grievance
Therefore, the Court has jurisdiction to hear plaintiff's proposed
false arrest and prima facie tort claims, and defendant's motion to
dismiss plaintiff's first and eighth causes of action under Fed.R.Civ.P.
12(b)(1) is denied.
2. Wrongful Discharge and Libel Claims
Somewhat inexplicably, despite plaintiff's concession that his wrongful
discharge claim is preempted by the RLA, he has not withdrawn his third
cause of action based on this claim, and he continues to assert such a
claim as his second cause of action in his proposed second amended
complaint. We agree with both parties that this claim is preempted, as it
is admittedly a termination dispute arising out of the employment
relationship, see Andrews, supra, 406 U.S. 320, 92 S.Ct. at 1563, and is
indeed a dispute that has already been adjudicated by the Special Board.
The Court agrees with defendant that plaintiff's libel claim, his fifth
cause of action, is preempted. The claim is based on a letter notifying
plaintiff and various company and union officials of the pending
disciplinary charges and the date of the internal company hearing. Absent
any allegations that this letter was published to anyone outside of the
company or the union, it seems clear that this letter was "intertwined"
with the employer-employee relationship and the internal grievance
machinery. Consequently, the libel claim is a minor dispute that is
preempted by the RLA.
Since this Court lacks subject matter jurisdiction over these claims,
plaintiff's third and fifth causes of action are dismissed with
C. Defendant's 12(b)(6) Motion
"The Court's function on a Rule 12(b)(6) motion is not to weigh the
evidence that might be presented at trial but merely to determine whether
the complaint itself is legally sufficient." Festa v. Local 3 Int'l
Brotherhood, 905 F.2d 35 (2d Cir. 1990); see also Ryder Energy
Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779
(2d Cir. 1984) ("The function of a motion to dismiss `is merely to assess
the legal feasibility of the complaint, not to assay the weight of the
evidence which might be offered in support thereof.'" (quoting Geisler
v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980))). "Dismissal of a
complaint for failure to state a claim is a `drastic step.'" Meyer v.
Oppenheimer Management Corp., 764 F.2d 76, 80 (2d Cir. 1985) (citation
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) must be denied "unless
it appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90(1974),
(citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2
L.Ed.2d 80(1957)); see also Rauch v. RCA Corp., 861 F.2d 29, 30 (2d Cir.
1988). The Court must accept plaintiff's allegations of facts as true,
together with such reasonable inferences as may be drawn in its favor.
supra, 416 U.S. at 236, 94 S.Ct. at 1686; Murray v. Milford, 380 F.2d 468,
470 (2d Cir. 1967). Fed.R.Civ.P. 8(a) requires only a "short and plain
statement of the claim' that will give the defendant fair notice of what
plaintiff's claim is and the ground upon which it rests." Conley, supra,
355 U.S. at 47, 78 S.Ct. at 102 (quoting Fed.R.Civ.P. 8(a)(2)); see also
Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81
The claims surviving defendant's Rule 12(b)(1) motion are plaintiff's
first cause of action, for false arrest, and his eighth cause of action,
for prima facie tort. The Court agrees with defendant that these claims
were inadequately pled in plaintiff's amended complaint However, in light
of the permission granted plaintiff in the body of this opinion to amend
his complaint, the Court need not belabor the deficiencies of the
pleading of these claims. Plaintiff's first and eighth causes of action
are dismissed without prejudice.
II. Plaintiffs Motion to Amend His Complaint
Fed.R.Civ.P. 15(a) "sets forth a policy in favor of granting leave to
amend, stating that `leave to amend shall be freely given when justice so
requires.'" Jaser v. New York Property Ins. Underwriting Ass'n,
815 F.2d 240, 243 (2d Cir. 1987). A motion to amend should be denied only
for good reason such as "`undue delay, bad faith, futility of amendment,
and perhaps, most important, the resulting prejudice to the opposing
party.'" Richardson Greenshields Secur., Inc. v. Mui-Hin Lau, 825 F.2d 647,
653 n. 6 (2d Cir. 1987) (quoting State Teachers Retirement Board v. Fluor
Corp., 654 F.2d 843, 856 (2d Cir. 1981)); Tokio Marine & Fire Ins. Co.
v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir. 1986), (citing
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d
Mere delay alone will not suffice as a basis for the district court to
deny a request to amend. Richardson Greenshields, supra, 825 F.2d at 653
n. 6. Parties have been permitted to assert new claims long after they
acquired the facts necessary to support such claims, see, e.g., Green v.
Wolf Corp., 50 F.R.D. 220, 223 (S.D.N.Y. 1970), and have even been
permitted to amend a complaint on the eve of trial. See Hanlin v.
Mitchelson, 794 F.2d 834 (2d Cir. 1986).
Defendant has conceded the liberal standard for leave to amend
pleadings in this Circuit, but nonetheless urges the Court to deny
plaintiff's motion on the ground that, even with the proposed amendments,
plaintiff's claims are either preempted by the RLA or fail to state a
claim upon which relief can be granted. While the merits of a claim
ordinarily are not relevant to a motion to amend, Maritime Ventures Int.
v. Caribbean Trading & Fid., 689 F. Supp. 1340, 1357 (S.D.N.Y. 1988), if
a proposed amendment is clearly frivolous or advances a claim that is
legally insufficient on its face, it is well established that leave to
amend should be denied. S.S. Silberblatt, Inc. v. East Harlem Pilot
Block-Bldg. 1 Housing Dev. Fund Co., 608 F.2d 28, 42 (2d Cir. 1979);
Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir.
1974); Dooner v. NMI, Ltd., 725 F. Supp. 153, 157 (S.D.N.Y. 1989).
The Court finds that the interests of justice, as well as the
stipulation of the parties dated December 19, 1987, require that
plaintiff be permitted to amend his complaint. However, plaintiff's
proposed second amended complaint, submitted along with his motion to
amend, will be scrutinized as if defendant's arguments in its reply brief
constituted a motion to dismiss these claims. See Glick v. Koenig,
766 F.2d 265, 268 (7th Cir. 1985) ("[A] district court is justified in
denying an amendment if the proposed amendment could not withstand a
motion to dismiss.").
A. Plaintiff's Prima Facie Tort Claim
In his proposed second amended complaint, plaintiff alleges, inter
defendant . . . intentionally and maliciously without
cause, excuse or justification discharged the
plaintiff . . . and prosecuted him criminally. . . .
Plaintiff's Proposed Second Amended Complaint ("Second Amend.Comp.")
¶ 31 (emphasis added), and that
the arrest, discharge, incarceration and prosecution of
the plaintiff were . . . inflicted by defendant upon
plaintiff solely to injure and damage the plaintiff.
Id. ¶ 32 (emphasis added).
It is clear from these statements that plaintiff is attempting to base
his prima facie tort claim on facts arising from his discharge and
criminal prosecution in addition to his arrest. This is improper. As
discussed above, any claims for wrongful discharge, or which arise from
his discharge, are preempted by the RLA.
In addition, it is improper for plaintiff to bring a prima facie tort
claim, akin to the traditional theory of malicious prosecution, when
plaintiff cannot bring such a claim directly. New York courts have
consistently stated that prima facie tort "should not `become a
"catch-all" alternative for every cause of action which cannot stand on
its legs.'" Curiano v. Suozzi, 63 N.Y.2d 113, 118, 480 N.Y.S.2d 466,
470, 469 N.E.2d 1324, 1328(1984) (quoting Belsky v. Lowenthal,
62 A.D.2d 319, 323, 405 N Y So.2d 62, 65, aff'd 47 N.Y.2d 820, 418 N Y
So.2d 573, 574, 392 N.E.2d 560, 561(1978)). It cannot he used "to avoid
the more stringent requirements of traditional torts." Vevaina v.
Paccione, 125 A.D.2d 392, 509 N.Y.S.2d 113, 114(1986) (quoting Curiano,
supra, 63 N.Y.2d at 118, 480 N.Y.S.2d at 470, 469 N.E.2d at 1328); see
also Belsky, supra, 62 A.D.2d at 323, 405 N.Y.S.2d at 65 ("[I]t would be
unwise, we think, to allow every unrealized cause of action to be
tortured into a prima facie tort action, by the liberal application of
`malicious' to the motives of the disappointed plaintiff . . .").
However, although double recovery is not allowed, "`where a traditional
tort remedy exists, a party will not be foreclosed from pleading, as
alternate relief, a cause of action for prima facie tort.'" Hughes v.
Patrolmen's Benevolent Assoc., 850 F.2d 876, 882 (2d Cir. 1988) (quoting
Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N Y So.2d 735,
480 N.E.2d 349(1985)).
Under these well-established principles, the only proper basis for
plaintiff's prima facie tort claim is his arrest and initial incarceration
on January 8, 1986, prior to his arraignment, the same facts that give
rise to plaintiff's false arrest claim.