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April 5, 1995

INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, WILLIAM G. BERNARD, Individually and as General President, JAMES A. GROGAN, Individually and as General Secretary/Treasurer, Defendants.

The opinion of the court was delivered by: BARRINGTON D. PARKER, JR.


 This action for violations of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 411, et seq., the Labor-Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185, libel and infliction of emotional distress is before this Court on the individual Defendants' motion to dismiss for lack of personal jurisdiction and failure to state a claim against them, pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure.

 In June, 1991, the Plaintiff, Kenneth Madden ("Madden"), was elected business manager/financial secretary of the Asbestos Abatement Local 201 ("Local 201"). Local 201 is an affiliate of the Defendant International Association of Heat and Frost Insulators and Asbestos Workers ("the International"). The Defendant William Bernard ("Bernard") is the General President of the International, and the Defendant James Grogan ("Grogan") is the General Secretary/Treasurer of the International. (Bernard and Grogan are hereinafter collectively referred to as "the individual Defendants.") Their offices are in Washington, DC.

 As an officer of Local 201, one of Madden's duties was to represent the interests of Local 201 vis-a-vis the International. On at least two occasions, Bernard and Grogan discussed the amount of dues owed the International by Local 201 at union meetings conducted in New York, in February and March, 1993. On both occasions, Madden informed Grogan that Local 201 disputed Grogan's claim as to the amount owed.

 Bernard subsequently wrote to Madden threatening to remove him from office if Local 201 did not pay the amount allegedly owed the International. At Grogan's request, Madden again met with him in New York at the offices of Local 201 to discuss the amount of dues owed. Madden requested another meeting with Bernard, who instructed him to meet both him and Grogan in New York City in October, which Madden did. The next day in New York City, Madden also met with Bernard privately to discuss to amount of dues owed.

 In November, Grogan personally delivered to Madden in New York, a letter from Bernard removing him from his position as business manager/financial secretary of Local 201 for alleged infractions of the National Labor Relations Act and ERISA. The letter was subsequently published in "The Asbestos Worker Journal," a magazine published and distributed by the International. In the letter, Bernard appointed a Vice President of the International, Jack Keane ("Keane"), as his agent to hold a hearing to determine whether Madden's removal was warranted. The hearing was held in December, at the offices of Local 201 in New York. At the hearing, Keane refused to permit the presence of Madden's attorneys. Madden refused to continue with the hearing.

 By letter, Bernard advised Madden that the hearing would continue in January at the offices of Local 201 in New York, without any attorneys and regardless of whether Madden was present. Madden attended the hearing accompanied by a member of Local 201, as allegedly permitted by the Constitution and By-laws, who was refused entry to the hearing by Keane. Grogan attended and apparently testified at the hearing. In February, 1994, Bernard informed Madden by letter that the "evidence" produced at the hearing had convinced him that Madden's removal was "warranted."

 In October, 1994, Madden filed this action against the International and Bernard and Grogan, "individually" and in their capacity as officers of the International. Bernard and Grogan have now moved to dismiss the complaint, on the ground that this Court lacks in personam jurisdiction. They also move to dismiss Madden's second claim for violations of LMRA for failure to state a claim against them. In addition, they move to dismiss the complaint as against Grogan on the grounds that it fails to allege any action or wrongdoing by him.


 1. Personal Jurisdiction

 At this phase of the litigation, prior to discovery, the plaintiff can defeat a motion to dismiss for lack of personal jurisdiction by making a prima facie showing of jurisdiction solely through allegations. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990), cert. denied, 498 U.S. 854, 111 S. Ct. 150, 112 L. Ed. 2d 116 (1990). Because the motion is decided solely on the basis of affidavits and pleadings, doubts as to jurisdiction at this stage must be resolved in favor of the plaintiff. See Interface Biomedical Laboratories v. Axiom Medical, Inc., 600 F. Supp. 731, 735 (E.D.N.Y. 1985). To defeat the motion, Madden need only make a prima facie showing that facts are alleged that would afford this Court personal jurisdiction over the individual Defendants.

 In this federal question case the Court must, of course, look to the forum state's long-arm statute, Civil Practice Law and Rules ("CPLR"), § 302, to determine the existence of in personam jurisdiction. See Editorial Musical Latino Americana v. Mar Intern., 829 F. Supp. 62, 64 (S.D.N.Y. 1993); United States v. First Nat'l Bank, 379 U.S. 378, 381, 85 S. Ct. 528, 530, 13 L. Ed. 2d 365 (1965). The individual Defendants argue that this Court lacks personal jurisdiction over them because Madden has failed to allege that, under § 302(a)(1), *fn1" the Defendants transacted business in New York and that his claims arise from the Defendants' business transactions. *fn2"

 The 'transacts business' clause of the long-arm statute "gives New York personal jurisdiction over a non-domiciliary if two conditions are met: first, the non-domiciliary must 'transact business' within the state; second, the claims against the non-domiciliary must arise out of that business activity." Cutco Indus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). Under § 302(a)(1), "a single transaction is sufficient, even if the defendant never enters the state, so long as the defendant's activities [in New York] were purposeful and there is a substantial relationship ...

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