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May 29, 1996


The opinion of the court was delivered by: ROSS

 ROSS, United States District Judge:

 On February 8, 1996, this court issued an Opinion and Order granting summary judgment in favor of defendants in this action, except as to defendant Local 3 on counts Seven and Eight of the complaint. Local 3 subsequently moved for reconsideration of that order as to Count Eight of the complaint. Because Local 3 raised new legal arguments in its motion for reconsideration, the court, in an Opinion and Order dated May 8, 1996, elected to treat that portion of Local 3's motion as a new motion for summary judgment, and ordered plaintiffs to show cause why the motion should not be granted. *fn1" Plaintiffs have now responded by submitting an additional memorandum of law, together with affidavits and supporting documents.

 All relevant facts relating to this motion are outlined in the court's orders of February 8 and May 8, 1996. For the reasons stated herein, the court now grants the motion, and dismisses Count Eight of the complaint in its entirety.


 Local 3 advances two arguments concerning plaintiff's state law tort claims on this motion. First, it argues that such claims are pre-empted by federal labor law. Second, it argues that, under Martin v. Curran, 303 N.Y. 276, 101 N.E.2d 683 (1951), plaintiff cannot recover against a labor union for tortious acts committed by its members without a showing that such acts were authorized or ratified by all of the union's members. The court concludes that plaintiff's second contention is correct, and that plaintiffs have not demonstrated the existence of a genuine issue of material fact that would enable them to recover against Local 3 on their state law claims. It therefore does not address plaintiff's arguments concerning pre-emption.

 Martin involved a claim for libel against the officers of a union, in their representative capacities, stemming from an article published in the union's official newspaper. The New York Court of Appeals held that the union was not liable because the complaint did not allege "that the individual members of the union authorized or ratified the tort complained of." 303 N.Y. at 280. The court reasoned that:

A voluntary, unincorporated membership association is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members. No agency of one member for another is implied. A part of the members of a voluntary organization cannot bind the others 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. (citations and internal quotation marks omitted). Thus, although New York law permits a plaintiff to sue a union by naming its president or treasurer as a defendant, rather than naming the entire union membership, see N.Y. Gen Ass'ns Law ยง 13, it "has limited such suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven." Id. at 282.

 The rule in Martin has been criticized frequently. See, e.g., Jund v. Town of Hempstead, 941 F.2d 1271, 1281 (2d Cir. 1991) (noting that a requirement of proof of unanimous membership authorization or ratification, in the case of large organizations. "would prove an insurmountable obstacle to virtually any plaintiff."). Nonetheless, New York courts have continued to adhere to it. See R.M. Perlman v. New York Coat, Suit, Dresses, Rainwear & Allied Workers Union Local 89-22-1, 789 F. Supp. 127, 132 (S.D.N.Y. 1992) (reviewing New York cases following Martin). Federal courts have also continued to recognize the rule's vitality in New York. See Modeste v. Local 1199, Drug, Hospital and Health Care Employees Union, 38 F.3d 626, 627 (2d Cir. 1994); Jund, 941 F.2d at 1278 n.1, 1281; R.M. Perlman, 789 F. Supp. at 131-33. Unwise or outdated though it may be, Martin remains the law in New York, and this court is obligated to follow it.

 Plaintiffs' attempts to argue that Martin does not apply are unpersuasive. First, they argue that the decision of the Court of Appeals in Madden v. Atkins, 4 N.Y.2d 283, 174 N.Y.S.2d 633, 151 N.E.2d 73 (1958) undercuts the prior holding in Martin. The Second Circuit squarely rejected that argument in Morrissey v. National Maritime Union, 544 F.2d 19, 33 (1976). See also R.M. Perlman. 789 F. Supp. at 131-32. In Madden, the Court of Appeals recognized an exception to the Martin rule for cases in which a union member sues his union for wrongful expulsion. In such cases, it is sufficient for the plaintiff to prove that the expulsion was "brought about by action on the part of the membership, at a meeting or otherwise, in accordance with the union constitution . . . ." 4 N.Y.2d at 296. Since this case does not involve a claim of wrongful expulsion, or even a claim by a union member against a union, Madden is inapplicable.

 Plaintiffs also cite Browne v. International Brotherhood of Teamsters, 203 A.D.2d 13, 609 N.Y.S.2d 237 (App. Div. 1994). In that case, the plaintiff was a security guard who was hit in the head by a brick thrown by a union member escorting a truck through a picket line. A jury found for the plaintiff against the union, and the Appellate Division affirmed the verdict. It held that the union could be liable for the acts of its members where the union directed and authorized the strike, and either openly encouraged violence or deliberately failed to check it. To the extent that plaintiffs are arguing that Browne demonstrates that Martin is no longer good law, however, the court rejects their argument. The Browne court did not discuss Martin. In light of the substantial body of case law discussed above that suggests Martin is still good law in New York, the Appellate Division's decision in Browne is not sufficiently definitive to persuade this court that Martin no longer applies. See R.M. Perlman, 789 F. Supp. at 132 (adhering to Martin, despite contrary ruling by New York Supreme Court, in the absence of rulings by New York's higher courts).

 Thus, in order to prevail on their state law tort claims, plaintiffs must be able to demonstrate that any tortious acts were authorized or ratified by the entire membership. As the Second Circuit noted in Jund, this is a nearly impossible burden to meet. Like the plaintiff in Martin, plaintiffs here have not alleged authorization or ratification by the entire membership. Nor have they produced any evidence that suggests they could prove such authorization or ratification, even if it had been pled.

 The only evidence that plaintiffs have submitted in support of their contention that the union membership authorized or ratified any tortious act consists of some 900 letters written by Local 3 members to the Port Authority of New York and New Jersey. The letters were part of a campaign by Local 3 members to convince the Port Authority to cease doing business with plaintiff TAP Electrical contracting services, which had been barred by New York State from bidding on or being awarded public work contracts. Initially, the court notes that a letter-writing campaign can hardly be characterized as "conduct marked by violence and imminent threats to the public order." United Mine Workers of America v. Gibbs, 383 U.S. 715, 721, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966) (citations omitted). Plaintiffs' argument as to why their state law claims are not preempted by federal labor law is thus inapplicable to this incident. Furthermore, it is doubtful that a letter-writing campaign that merely conveyed truthful information to the Port Authority could properly be considered a tortious act. *fn2" Leaving these matters aside, however, plaintiffs' voluminous submission is still not sufficient to satisfy the Martin rule. Although the number of letters indicates that the campaign had broad support within Local 3, it does not show that the campaign was authorized or ratified by every union member. Under Martin, an unincorporated labor union has no legal existence apart from its members, and cannot be held liable unless every member ...

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