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GUZMAN v. BEVONA

November 16, 1992

CARLOS GUZMAN, individually and on behalf of the members of Local 32B-32J of the Service Employees International Union, Plaintiff,
v.
GUS BEVONA, NICHOLAS ALVAREZ, JOSEPH J. BAUMANN, JOHN BEVONA, KYLE BRAGG, STANLEY BUSTI, ERNESTO CASTRO, ROBERT CURRENTI, ANTHONY DEJESUS, JOSEPH DUMLAO, ANDREW DUNLEA, LUKE FEENEY, JUAN GOICOECHEA, THOMAS GRAY, RICHARD HOPKINS, SERGE JEAN-JACQUES, JOHN KOSS, WILLIAM LANNON, JOSEPH LAROSA, CHARLES LEE, PETER MARTIN, KEVIN MCCULLOCH, YALMEN MERGEN, DONALD MUMM, MARIE NURSE, ANTHONY POCCIO, ALONZO RAMIREZ, WODEN RODRIGUEZ, JOSEPH SANTAPOLA, DANIELLE SISTRUNK, JOHN J. SWEENEY and COLON VILLACIS, Defendants.



The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P. PATTERSON, JR., U.S.D.J.

 Defendants, the members of the Joint Executive Board ("Executive Board") of Local 32B-32J (the "Union") move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the first, third and fourth causes of action of the second amended complaint filed by Carlos Guzman ("Guzman"), a member and former shop steward of the Union. Defendants' papers state they move in the alternative for partial summary judgment.

 The first cause of action charges the defendants with violating plaintiff's rights to freedom of speech and assembly under section 101(a)(2) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 411(a)(2) (1985) ("LMRDA"), by excluding him from a shop steward's meeting; by the retention of a private investigator to maintain surveillance of him; and by causing his employer to reduce his hours of work. *fn1"

 The third cause of action seeks contractual damages for breach of the constitutions of the Union and of the Service Employees International Union ("SEIU") pursuant to section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (1978).

 The fourth cause of action is a pendent common law claim for the intentional infliction of emotional distress.

 The Allegations of the Complaint

 The complaint alleges that in January 1991, Guzman, a member and shop steward of the Union, began circulating a petition to fellow Union members protesting a hike in dues and the exorbitantly high salaries being paid by the Union to several of the defendants. Later that month, Guzman handed out the petition in the lobby of a hotel in which the shop stewards were about to meet. When Guzman approached the entrance to the ballroom in which the meeting was being held, he was denied entry by the defendants, purportedly because they were missing his new credentials as shop steward. When he returned to the lobby to distribute more petitions, defendants directed that he be expelled from the hotel.

 About February 28, 1991, Guzman sent defendant Bevona, the Union president, a protest letter, together with the petition containing more than 400 signatures he had collected. Approximately three days later, on March 2, 1991, an unidentified man came to Guzman's apartment, questioned his neighbors as to his whereabouts and jammed a newspaper in his doorknob, presumably to ascertain when Guzman had returned to his apartment. The next morning another unidentified man knocked on Guzman's door and made a spurious inquiry to check whether Guzman was inside. Guzman saw the man leave the building and enter a parked car across the street where he sat watching Guzman's building. Guzman called the police who responded; nevertheless, the second unidentified man's surveillance of Guzman's building continued when the police departed.

 Guzman became fearful of sleeping in his apartment under these conditions. Not certain of the purpose of the unidentified men's surveillance, he fled his apartment and sought refuge with others. His neighbors reported that the men were continuing to look for him.

 The surveillance continued for over a month. Guzman complained to the Manhattan District Attorney's office and later was advised that the men were agents of a private investigation service employed by the Union to surveil Guzman. Soon thereafter Guzman's work hours as a porter at the World Trade Center were reduced without explanation. The Union's attorney later acknowledged that the investigators had been hired by Bevona to surveil Guzman and that the expenditure had been approved by the defendants.

 Discussion

 In a motion to dismiss pursuant to Rule 12(b)(6), the allegations of the complaint must be treated as true and all reasonable inferences must be made in favor of the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989). In addition, a motion to dismiss pursuant to Rule 12(b)(6) must be tested solely by the allegations contained in the complaint, by any document attached to it as an exhibit or incorporated in it by reference. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991); Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989); Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985), or by any documents not attached to or incorporated in the complaint but integral to it. I. Meyer Pincus & Assoc. v. Oppenheimer & Co., 936 F.2d 759, 762 (2d Cir. 1991). The complaint quotes from the Union's constitution, and defendants on this motion seek to cite other portions of the constitution to support their arguments. Accordingly, they have denominated their motion alternatively as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff objects that it has not yet received document discovery pursuant to requests for production or taken any depositions of the ...


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