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 failing to hold money and property of Local 375 for the benefit of its
The complaint followed certain disciplinary proceedings commenced in
1998 by Kutwal against Commer who was then serving as president of Local
375, having defeated an 18-year incumbent. Those proceedings culminated
in the removal of Commer as president and the direction that he make
certain payments to compensate Local 375 for unauthorized expenditures.
These proceedings were ongoing in April 2000.
In November 2000, Commer sought an injunction to bar the defendants
from suspending him as president and denying him the right to hold office
or to be nominated for office. That motion was denied in Commer I.
The defendants then made the instant motion to dismiss Commer's
complaint which was marked fully submitted on March 21, 2001.
Findings of Fact
The November opinion, Commer I, found facts with respect to the
disciplinary proceedings which remain unchanged by the submissions on
this motion and are not controverted.
By letter of December 3, 1999, Commer as president of Local 375
requested McEntee to conduct an investigation into seven matters which
had been called to the attention of the administrator of District 37 who
had been appointed by McEntee. These included vote fraud, improprieties
in connection with the Professional Employees Legal Services ("PELS")
fund, which was a group legal service plan, abuses relating to release
time and expenses, ratification of certain agreements, and censorship of
Local 375 newsletters. McEntee replied by letter of December 23, 1999, in
effect denying the charges described by Commer and concluded by stating
that "the fact that you are not satisfied with the outcome of those
procedures does not mean that the outcome was incorrect or that further
investigation on the part of the International Union is either warranted
or required." No specifics of these allegations are found in Commer's
complaint beyond the charge of a breach of fiduciary duty.
Prior to December 13, 1999, Local 375 represented employees in both the
public and private sectors. On that date the group of WNYC employees
disaffiliated from Local 375 which thereafter represented only public
Conclusions of Law
Dismissal and Summary Judgment is Appropriate Because the claims are
disposed of on different grounds, the applicable standards are outlined
A. Motion to Dismiss
In reviewing a motion to dismiss under Rule 12(b)(6), a court must
"accept as true the factual allegations of the complaint, and draw all
inferences in favor of the
pleader." Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1174 (2d Cir. 1993) (citing AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993)). A pro se complaint is given
liberal construction, (Hughes v. Rowe, 449 U.S. 5, 9 (1980)), although
pro se plaintiffs must still set forth allegations sufficient to state a
claim. See Doyle v. Columbia-Presbyterian Medical Center, No. 97 Civ.
5487(HB), 1998 WL 430551 (S.D.N.Y. July 29, 1998). Dismissal is warranted
only when "it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). See also Bass
v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). "A complaint consisting
merely of conclusory allegations unsupported by factual assertions cannot
meet" the standard of Rule 12(b)(6). Mina Investment Holdings, Ltd. v.
Lefkowitz, 51 F. Supp.2d 486, 489 (S.D.N.Y. 1999) (citing DeJesus v.
Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir. 1996)).
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction
When considering defendants' motion to dismiss for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1), all material factual
allegations in the complaint must be accepted as true. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Atlantic Mutual Ins. Co. v. Balfour
Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); Rubin v.
Tourneau, Inc., 797 F. Supp. 247, 248 (S.D.N.Y. 1992). The court must
examine the substance of the allegations and any other evidence before it
in resolving the jurisdictional dispute. Cargill Intern, S.A. v. M/T
PAVEL DYBENKO, 991 F.2d 1012, 1019 (2d Cir. 1993); Kamen v. American
Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); RAD Data
Communications, Inc. v. Patton Electronics Co., 882 F. Supp. 351, 352
(S.D.N.Y.) (citations omitted), dismissed on other grounds, 64 F.3d 675
(Fed. Cir. 1995). However, the Court will not draw inferences favorable
to the party asserting jurisdiction. See Norton v. Larney, 266 U.S. 511,
515, 45 S.Ct. 145, 69 L.Ed. 413 (1925); Atlantic Mutual, 968 F.2d at
C. Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that a
motion for summary judgment may be granted when "there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." The Second Circuit has repeatedly noted
that "as a general rule, all ambiguities and inferences to be drawn from
the underlying facts should be resolved in favor of the party opposing
the motion, and all doubts as to the existence of a genuine issue for
trial should be resolved against the moving party." Brady v. Town of
Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 330 n. 2 (1986) (Brennan, J., dissenting)); see
Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City
Univ., 894 F. Supp. 750, 757 (S.D.N Y 1995). If, when viewing the
evidence produced in the light most favorable to the non-movant, there is
no genuine issue of material fact, then the entry of summary judgment is
appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v. Long
Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only disputes
over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary
will not be counted."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he mere
existence of factual issues — where those issues are not material
to the claims before the court — will not suffice to defeat a
motion for summary judgment." Quarles v. General Motors Corp.,
758 F.2d 839, 840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than "metaphysical
doubt." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). "If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50
Jurisdiction as to the Officers of Local 375 is Lacking
The conclusion reached in Commer I as to the officers remains
unchanged. It was there held the LMRDA does not apply to unions or
members of unions consisting exclusively of public sector employees. See
Brock v. Southern Region, Region III of the Civil Service Employees
Association, Inc., 808 F.2d 228, 231 N.3 (2d Cir. 1987); Laboy v.
Seabrook, No. 96 Civ. 2359, 1996 WL 417523, at *3 (S.D.N.Y. July 25,
1996). This rule applies to union locals comprised only of public sector
employees even where the "intermediate or international bodies with which
they affiliate may be [subject to the LMRDA]." 29 C.F.R. § 451.3(a)(4).
As of December 13, 1999, Local 375 has consisted only of public sector
employees. The subject of Commer's complaint was conduct that occurred in
January and February of 2000. Thus, the conduct which Commer alleges as
the basis of his § 101(a)(2) claim, 29 U.S.C. § 411(a)(2),
against the individual defendants of Local 375 occurred at a time when
they were not subject to the jurisdiction under the LMRDA.
Since the LMRDA does not reach public sector unions or members, the
LMRDA claims as to the officers of Local 375 must be dismissed pursuant
to Rule 12(b)(1) for lack of subject matter jurisdiction.
Jurisdiction Over the LMRDA § 501 Claim is Lacking
Section 501(a) of the LMRDA, 29 U.S.C. § 501, states the duty of
union officers "to hold its money and property solely for the benefit of
the organization and its members and to manage, invest, and expend the
same in accordance with its constitution and bylaws." Section 501(b),
29 U.S.C. § 501(b), provides for suits by members whenever the
union's officers refuse to take any corrective action. Such suits,
however, can be brought only "upon leave of court obtained upon verified
application for good cause shown."
Because Section 501(b) extends the jurisdiction of the federal courts,
it is strictly construed. Coleman v. Brotherhood of Railway and Steamship
Clerks, 340 F.2d 206, 208 (2d Cir. 1965) ("We hold that this provision of
the statute is mandatory"); Persico v. Daley, 239 F. Supp. 629, 631
(S.D.N.Y. 1965) ("Bearing in mind the recent admonition of the Court of
Appeals that the statute was not `intended by Congress to constitute an
invitation to the courts to intervene at will in the internal affairs of
unions' (internal citation omitted) the court believes that a strict and
literal interpretation of Section 501(b) is called for."); see also
Phillips v. Osborne, 403 F.2d 826, 829 (9th Cir. 1968).
As a condition precedent to a derivative claim against a union officer
under Section 501, a putative plaintiff must first make an actual demand
upon the union under Section 501(b), to initiate legal action against the
officer. See 29 U.S.C. § 501;
Coleman, supra, 340 F.2d at 208; see
also Dinko v. Wall, 531 F.2d 68, 72 (2d Cir. 1976). The demand itself is
not sufficient to confer rights upon the putative plaintiff under the
statute, as the union must also refuse to take remedial action or to
initiate suit within a reasonable period of time after the demand has
been made. Id.; see also Adams-Lundy v. Association of Professional
Flight Attendants, 844 F.2d 245, 248 (5th Cir. 1988) ("the board must
refuse to take action within a reasonable time after being requested to
do so."); Hanahan v. Lucassen, 764 F. Supp. 194, 196 (D.D.C. 1991)
("Section 501(b) specifically requires that union members present a
demand to sue and be refused before leave to bring a derivative suit may
At the most, Commer in his correspondence with McEntee sought an
investigation without demanding legal action against particular
officers. In addition, no leave has been sought to initiate an action
under this section. Thus, subject matter jurisdiction is lacking under
Section 501 of the LMRDA, 29 U.S.C. § 501, and dismissal is proper
pursuant to Rule 12(b)(1).
AFSCME and District 37 Are Not Proper Parties to an
LMRDA § 501 Claim
By its terms, the restrictions which are imposed by Section 501 are
limited to union officers and representatives. For example, LMRDA §
501(a) requires that "officers, agents, shop stewards, and other
representatives" of the labor organization "hold its money and property
solely for the benefit of the organization," and further, "to refrain
from dealing with such organization as an adverse party or in behalf of
any adverse party in any matter connected with his duties and from
holding or acquiring any pecuniary or personal interest which conflicts
with the interests of such organization." 29 U.S.C. § 501(a).