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January 25, 1994


The opinion of the court was delivered by: SONIA SOTOMAYOR


 Plaintiffs bring this action pursuant to § 6 of the Norris-LaGuardia Act, ch. 90, 47 Stat. 70 (1932), as amended, 29 U.S.C. § 106 (1992), for injuries inflicted upon them by union members during a lawful strike by Local 1199, Drug, Hospital and Health Care Employees Union, RWDSU, AFL-CIO, ("Local 1199" or the "Union"). Defendants move to dismiss the second, fifth and seventh causes of action of the complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. Defendants also move to remand the remaining pendant state law claims to state court.

 The issue before me is whether a labor union is liable for the unlawful acts of its members, officers or agents under § 6 of the Norris-LaGuardia Act, absent a showing that the unlawful acts were authorized or ratified by each member of the union as required by the holding of the New York Court of Appeals in Martin v. Curran, 303 N.Y. 276, 101 N.E.2d 683 (1951). I answer this question in the negative and, for the reasons discussed below, hold that § 6 of the Norris-LaGuardia Act does not preempt Martin's requirement that a plaintiff plead and establish the liability of each union member before a union can be held liable for the unlawful acts of its members in a federal court adjudication of pendent state law claims. Defendants' motion to dismiss the second, fifth and seventh causes of action of the complaint is therefore GRANTED. Under 28 U.S.C. § 136(c)(3) (1992), I remand the remaining state law causes of action to state court for final adjudication.


 For purposes of defendants' motion to dismiss, the relevant facts -- which I interpret in the light most favorable to plaintiffs -- are not in dispute.

 The complaint sets forth eleven (11) causes of action. Two (2) causes of action arise under Title I of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411 (1992). The remaining nine (9) causes of action are pendent state law claims. By Stipulation and Order dated September 3, 1993, the parties agreed to dismiss with prejudice the first, third, fourth, sixth, ninth, tenth and eleventh causes of action, including the two causes of action that conferred subject matter jurisdiction in this Court when defendants removed the case from state court.

 Defendants now move to dismiss plaintiffs' second, fifth and seventh causes of action against the Union, Local 1199. The second cause of action is a state tort claim for the assault upon Modeste; the fifth cause of action is Arthur Modeste's state law derivative claim for loss of society and services arising from the injuries to his wife; and the seventh cause of action relates to the state law claims for the assault upon Bowens. *fn1"

 Defendants in this motion maintain that Martin requires dismissal of these three state law tort claims against the Union and its officers. In Martin, the New York Court of Appeals held that the officers of the National Maritime Union, an unincorporated association, were not liable for the unlawful acts of some of the union members because plaintiffs failed to plead and were unable to establish "that the individual members of the union authorized or ratified the tort complained of." Id., 303 N.Y. at 280 (emphasis supplied). The Court stated:

A voluntary, unincorporated membership association is neither a partnership not a corporation. It is not an artificial person, and has no existence independent of its members. A part of the members of a voluntary organization cannot bind the other without their consent before the act which it is claimed binds them is done, or they, with full knowledge of the facts, ratify and adopt it.

 Id., 303 N.Y. at 282 (emphasis supplied).

 The Court of Appeals in Martin recognized that N.Y. Gen. Ass'n Law § 13 (McKinney 1993), permits suits to be brought against an unincorporated association (such as a labor union) in its representative capacity. *fn2" It explained, however, that § 13 was not meant to effect a substantive change in the law of associational liability but rather only simplified service of process by eliminating the need to join every member of the union in an action. Thus, Martin interpreted § 13 as a mere procedural tool and not a substantive amendment affecting New York's law of associational liability.

 Plaintiffs argue that § 6 of the Norris-LaGuardia Act creates a substantive federal right to sue unions for the acts of their members in federal court and that § 6 preempts New York's Martin rule by setting forth the substantive law necessary to determine a labor union's liability for state law torts committed by its members. Plaintiffs also contend that Martin is contrary to the federal common law recognized by United Mine Workers v. Coronado, 259 U.S. 344, 42 S. Ct. 570, 66 L. Ed. 975 (1922), that unincorporated associations could be held liable for the actions of their members. Finally, plaintiffs warn that application of the Martin rule will result in the "evisceration of federal protection afforded to victims of [labor related] violence."

 Defendants counter that the Martin rule is consistent with and is not preempted by § 6 of the Norris-LaGuardia Act. Defendants maintain that § 6 provides only a standard of proof for union liability while the law of the state in which the district court sits determines whether the union has capacity to sue or be sued for the actions of its members. Defendants urge this Court to hold that under the Martin rule in New York, plaintiff may not sue Local 1199 in federal court in its representative capacity for the violations of state law by four of its members unless all of its members authorized or ratified the actions taken by the individual members.

 Plaintiffs agree that if I remanded all of the pendent state law claims to state court, the Martin rule would invalidate their claims against the Union as plead in their second, fifth and seventh causes of action because they can not plead or prove that every member of the Union authorized or ratified the acts of the individual members. Plaintiffs argue, however, that § 6 creates a federal substantive right which confers not only subject matter jurisdiction in this Court precluding remand of this action to state court but also creates a federal substantive right on the question of agency liability precluding dismissal of their three causes of action against the Union for the state law torts of its members because they have plead union liability consistently with § 6.

 The parties' arguments raise complex federal common law and preemption issues. A careful review of the applicable case law and the legislative history of § 6 leads me to conclude, however, that in enacting § 6, Congress did not intend to create a substantive right conferring subject matter jurisdiction in federal courts or to preempt state tort law and that plaintiffs' ability to sue Local 1199 in its representative capacity for the state tort acts of its members is controlled by Martin.


 I The Standards for Preemption

 My inquiry begins, as it must, with an analysis of the preemptive effect, if any, of § 6 of the Norris-LaGuardia Act on the State of New York's common law of torts. The touchstone of federal preemption analysis is the intent of Congress in "enacting the federal statute at issue." Cable Television Ass'n v. Finneran, 954 F.2d 91, 95 (2d Cir. 1992) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S. Ct. 2890, 2898, 77 L. Ed. 2d 490 (1983)); Medical Society of New York v. Cuomo, 976 F.2d 812, 816 (2d Cir. 1992) ("In considering a preemption claim, our 'sole task' is to determine the intent of Congress.") (citations omitted).

 Federal preemption claims are typically presented in one of three variants: (1) the federal statute expressly states a congressional intention to occupy the field, see, e.g., Atlantic Healthcare Benefits Trust v. Googins, 2 F.3d 1 (2d Cir. 1993) (ERISA's explicit preemption clause); (2) the federal statute so comprehensively regulates the field that it is logical to infer that Congress intended to exclude "supplemental" state regulation, see, e.g., Medical Society, 976 F.2d at 817 (citing Hillsborough County v. Automated Medical Lab. Inc., 471 U.S. 707, 713, 105 S. Ct. 2371, 2375, 85 L. Ed. 2d 714 (1985)); or (3) the state law "stands 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281, 107 S. Ct. 683, 689, 93 L. Ed. 2d 613 (1987) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581 (1941)).

 In the case at bar, neither party argues, nor could they, that § 6 explicitly and by affirmative statutory mandate preempts state tort law. Rather, plaintiffs maintain that § 6 so completely occupies the field of union liability that state law is preempted by implication and stands as an obstacle to accomplishing Congress's purpose in enacting § 6.

 Where, as here, an express preemption clause is absent, "persuasive indicia" may suffice to imply a congressional intention to occupy a field. Cable Television Ass'n, 954 F.2d at 95 (citing Jones v. Ignis Packing Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 1309, 51 L. Ed. 2d 604 (1977)); see also Medical Society, 976 F.2d at 817 (implied preemption). Thus, a federal statute will preempt state law if its shown to be "sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation." Hillsborough County Fla. v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719, 105 S. Ct. 2371, 2385, 85 L. Ed. 2d 714 (1985) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152, 91 L. Ed. 1447 (1947)).

 Alternatively, where persuasive indicia is lacking, "the state rule will only fall if it actually conflicts with the federal law." Cable Television Ass'n, 954 F.2d at 95. Conflict preemption takes place when state law "obstructs [or interferes with] the delicately crafted federal regime. . . ." Medical Society, 976 F.2d at 820.

 I am mindful that I should indulge a strong presumption against preemption in cases, such as this one, where traditional areas of state law are involved. Medical Society, 976 F.2d at 816. This assumption stems from "the cognate presumption that Congress does not normally intend to displace state law," particularly in areas traditionally regulated by the states. Id. (citing Maryland v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114, 2128, 68 L. Ed. 2d 576 (1981)). Thus, a plaintiff must present "compelling evidence of an intention to preempt" before a federal statute preempts traditional areas of state law. Medical Society, 976 F.2d at 816 (and cases cited therein). Thus, for example, "clear and manifest preemptive purpose" is required before a federal law can supersede "the historic police power of the states." Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 500, 108 S. Ct. 1350, 1353, 99 L. Ed. 2d 582 (1988).

 I am also mindful that the deference given to states in the area of tort law is comparable to the deference traditionally afforded to the states with respect to their police power. As described by the Supreme Court:

We have allowed the States to grant compensation for the consequences, as defined by the traditional law of torts, of conduct marked by violence and imminent threats to the public order. State jurisdiction has prevailed in these situations because the compelling state interest, in the scheme of our federalism, in the maintenance of ...

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