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MORIARTY v. SMITH

September 14, 1995

GENE MORIARTY, as Chairman of the Trustees of the 966 Health Plan and the 966 Pension Plan, Plaintiff, against STEVEN SMITH, JOSEPH PASQUALONE, EDWIN GONZALEZ, STEPHEN ZACCHERIO, VINCENT SOMBROTTO, and BRYAN McCARTHY, personally and in their capacities as plan fiduciaries, Defendants.


The opinion of the court was delivered by: HAROLD BAER, JR.

 HAROLD BAER, JR., District Judge

 I. BACKGROUND

 An unrelated lawsuit brought by the United States resulted in the International Brotherhood of Teamsters placing its Local 966 under temporary trusteeship. Plaintiff, who was appointed Trustee of the Local, appointed himself and another individual to replace the two union trustees then sitting on the Local's Health and Pension Funds. These funds are administered by boards that consist of two union trustees and two employer trustees. After assuming his position as a union trustee on the funds' boards in 1994, plaintiff discovered what he alleges are horrendous practices perpetrated by the employer trustees sitting on those boards. He brings the instant suit against the individual employer trustees, among others, to obtain damages and to end the various practices complained of, e.g. failing to pursue delinquent contributions, failing to monitor solvency of the pension fund, and negotiating an illegal insurance contract.

 This case was filed in February of 1995. While the suit was pending, plaintiff relates that he encountered difficulty in trying to repair the funds, because he and his union co-trustee continually deadlocked with the employer trustees. The funds' trust agreements that were in existence from before the time plaintiff replaced the previous union trustees provide for a mechanism to resolve trustee deadlocks. Plaintiff does not approve of the arbitrator selected under that mechanism and moves by Order to Show Cause to appoint a new neutral, arguing in part that plaintiff and his union co-trustee never assented to the existing trust agreements, and therefore, the arbitrator specified in the agreements is not one that is "agreed" upon as required by law. See 29 U.S.C. ยง 186(c)(5)(b). In addition, plaintiff states that even if the named arbitrator had been agreed to, that individual cannot decide the question of whether he will continue serving as the named arbitrator, which is another matter that has resulted in deadlock. Unfortunately, additional briefing of several issues must be completed before any ruling can be made.

 II. DISCUSSION

 Defendants state that

 
the plaintiff's procedural deficiencies with respect to this motion are egregious. The plaintiff has not served or filed a summons and complaint with respect to the relief which is sought on this motion. This motion is entirely outside of the context of the lawsuit in which it was filed. . . . We urge that it is a violation of due process to request . . . relief [that] . . . is entirely outside the scope of the lawsuit.

 Defs.' Mem. L. Opp'n at 4-5 (citation omitted). Defendants, however, fail to cite case law that supports their proposition. Plaintiff's response, meanwhile, is of even less help, as he feebly provides,

 
To the extent it may be procedurally required, the plaintiff . . . respectfully requests that the underlying complaint be deemed amended to include a cause of action for the invalidation of the trust amendment and that summary judgment on that cause of action be granted in plaintiff's favor.

 Pl.'s Rep. Mem. L. at 10 n.6. Plaintiff fails to cite a statute, rule, or case that authorizes such an amendment. Rather, plaintiff first points out that the statute at issue permits a party to petition a United States District Court for the appointment of an arbitrator. Then, plaintiff engages in what he must consider logical reasoning, and states, "Plaintiff could . . . have petitioned the court for the requested relief, without ever having filed a complaint in the first place. Defendants have therefore not been prejudiced whatsoever by plaintiff's decision to bring this as a motion in connection with the underlying complaint, instead of as a separate petition." Id. at 8. In so arguing, plaintiff completely misses defendants' apparent contention that due process requires plaintiff to obtain personal jurisdiction over them in connection with all the relief he seeks.

 As for plaintiff's dubious contention that he is not restricted to the arbitrator named in the agreement due to plaintiff not having served as a trustee at the time the arbitrator was so named, plaintiff again fails to put any meat on the bones of his skeletal argument. Defendants' opposing assertion might sound persuasive in the classroom of a first-year Contracts course, but does not suffice in this Court and hardly improves on plaintiff's questionable efforts, as it also constitutes a conclusory statement:

 
This is an outrageous assertion which is totally contrary to the law. The plaintiff succeeds in interest to prior union trustees and, as such, is bound by their actions, whether he benefits from it or whether he believes the actions are to his detriment. The plaintiff cannot ...

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