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COMMER v. MCENTEE

May 22, 2001

ROY COMMER, PLAINTIFF,
v.
GERALD MCENTEE, JOHN SEFERIAN, THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 37, AFSCME, STANLEY HILL, MARTIN LUBIN, MARK SHAPLO, ROBERT MEYER, RALPH PEPE, LOUIS ALBANO, ROBERT MARIANO, UMA KUTWAL, MICHELLE KELLER, JOHN DOES 1-30, AND RUDOLPH GIULIANI, AS MAYOR OF THE CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Robert W. Sweet, U.S.D.J.

OPINION

The defendants Gerald McEntee ("McEntee"), John Seferian ("Seferian"), American Federation of State, County and Municipal Employees International ("AFSCME"), AFSCME District Council 37 ("District 37"), Robert Mariano ("Mariano"), Uma Kutwal ("Kutwal"), Michelle Keller ("Keller") and Ralph Pepe ("Pepe"), have moved pursuant to Rules 12(b)(1), 12(b)(6) and 56, Fed.R.Civ.P., to dismiss the complaint of pro se plaintiff Roy Commer ("Commer") or grant summary judgment. Defendants Louis Albano ("Albano"), Robert F. Meyer ("Meyer") and Stanley Hill ("Hill") seek to join in the motion and defendant Rudolph Giuliani ("Giuliani"), has moved for dismissal on other grounds. For the reasons set forth below, the motion is granted as to all defendants.*fn1

Commer has frequently resorted to the courts in his battle to unhorse the union leadership of his local union (Local 375 of District 37 of AFSCME ("Local 375")) and to cure abuses which he has perceived to exist. See, eg. Commer v. District Council 37, et al., 990 F. Supp. 311 (1998 S.D.N.Y.) (challenging amendments to union constitution and seeking certification of his election); Commer v. Keller, et al., 64 F. Supp.2d 266 (claiming that he was suspended in violation of his rights to freedom of speech and association, as guaranteed by federal labor law and union constitution); Commer v. The City of New York, et al., 1999 WL 673046 (S.D.N.Y.) (alleging that Defendants breached the union constitution when they failed to seek ratification of an agreement between the union and the City of New York by the union membership, and that the ratification of a subsequent agreement by the union membership was improper). While certain abuses appear to have been established (see Juan Gonzalez, No Rush to Reform Union, Daily News, Jul. 18, 2000, at 17; Maureen Fan, Ousted Union Big Seeks Fund Probe, Daily News, Nov. 5, 1998, at 20; Steven Greenhouse, Union Made Little Effort to Police Itself, N.Y. Times, Oct. 18, 1998, at B7; Dave Saltonstall and Paul Schwartzman, Aside for Probe, Daily News, Nov. 29, 1998, at 7), Commer has failed in this instance to meet the requirements of a successful action under § 101(a)(2) and § 501 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 411(a)(2) and 501, as well as § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185.

The Parties

Commer is a member of Local 375 and previously the president of Local 375.

District 37 is the regional governing body of AFSCME and is comprised of several dozen local unions, including Local 375.

AFSCME is an international union.

McEntee is president of AFSCME.

Seferian is chairperson of the AFSCME Judicial Panel.

Kutwal is currently acting president of Local 375 and was at all relevant times previously the first vice-president of Local 375.

Keller is executive committee chair of Local 375.

Mariano is treasurer of Local 375.

Albano is a former president of Local 375.

Hill is the former executive director of District 37.

Meyers is the former treasurer of District 37.

Giuliani is the Mayor of the City of New York.

Prior Proceedings

As previously set forth in this Court's opinion denying Commer's motion for injunctive relief, Commer v. McEntee, et al., 121 F. Supp.2d 388, 390 (S.D.N.Y. 2000) ("Commer I"), familiarity with which is presumed, this action was initiated by the filing of a complaint in the Pro Se Clerk's office on October 18, 2000. The complaint alleges that the defendants imposed union discipline on Commer, by suspending him from union office and banning him from running for new office for a two-year period, in retaliation for speech activity protected under § 101(a)(2) of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(2). Jurisdiction is alleged pursuant to LMRDA § 102, 29 U.S.C. § 412.

The complaint may also be construed to challenge the defendants' interpretation of the Local 375 constitution under § 301 of the LMRA, 29 U.S.C. § 185. It is also alleged that certain of the defendants violated Section 501(6) of the LMRDA, 29 U.S.C. § 501(6), by ...


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