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COMMER v. MCENTEE

United States District Court, Southern District of New York


April 10, 2003

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 KIJTWAL, 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, United States District Judge

MEMORANDUM OPINION

A dispute has arisen in one of three actions pending before this Court involving pro se plaintiff Roy Commer ("Commer") over Commer's document demands which are manifestly inappropriate since he seeks to review all records of the Local, the District Council and the International body for five or more years. In view of Commer's pro se status and inability to narrow the demand appropriately, the union's objections are sustained but in order to resolve this matter some discovery is required.

Commer commenced this action on October 18, 2000, asserting claims based on alleged violations of Labor Management Relations Act ("LMRA") § 301, Labor-Management Reporting and Disclosure Act ("LMRDA") § 501 and LMRDA § 101. The entire complaint was dismissed in Commer v. McEntee, 145 F. Supp.2d 333 (S.D.N.Y. 2001).

On appeal, the Second Circuit affirmed that decision with regard to the § 301 and § 501 claims. Commer v. Giuliani, 34 Fed. Appx. 802, 2002 WL 826462 (2d Cir. May 1, 2002) (unpublished). However, the decision was vacated with regard to the § 101 claims. Id. at *3 Under § 101(a)(2), Commer claims that he was retaliated against for free speech in that he took various whistle-blowing actions. The Second Circuit held that the issue of whether the judicial panel's intent was pretextual was controverted, and that because a motion to compel discovery by Commer had not been ruled upon prior to the dismissal of the claim, the Court would not reach the adequacy of Commer's proof to defeat a motion for summary judgment. The grant of summary judgment was vacated without prejudice to the defendants' right to move again for such relief after the close of such discovery. Id.

In addition, the Second Circuit vacated the grant of summary judgment on the Section 101 claim as it relates to defendants associated with Local 375. Id. Those claims had been dismissed based on a finding that the last private employees had disaffiliated from Local 375 as of mid-December 1999 and therefore the local union defendants were not subject to the LMRDA with respect to actions taken in 2000. The Circuit held that because Commer had made discovery requests for documents to support that factual finding and that such requests had not been ruled upon, "Commer is entitled, at a minimum, to know whether any such documents exist and to receive copies if they do." Id. In addition, the Second Circuit noted that Commer's claims of actions occurring prior to 2000 should be explicitly addressed. Id.

Commer filed the instant motion to compel discovery on March 25, 2003. The Defendants filed opposition papers on April 3, 2003. Oral argument was heard on April 9, 2003, at which time the motion was fully submitted.

The Second Circuit has mandated that Commer be granted discovery on two general themes: (1) evidence of the disaffiliation of private employees of Local 375 in December 1999 and (2) evidence with regard to his free speech claim.

Counsel for the defendants represented in their papers and at oral argument that evidence of the disaffiliation has already been produced to Commer and that the defendants are prepared to move for summary judgment on that claim once more. To the extent, however, that any such evidence has not been produced to Commer, it must be so produced at a time and place reasonable to the defendants.

The scope of production for the second general class of documents presents a more difficult question. The defendants have represented that they have produced the following types of documents already: (1) copies of decisions from the American Federation of State, County and Municipal Employees ("AFSCME") Judicial Panel and related appeals; (2) copies of the hearing transcripts and exhibits from each of the matters involving Commer; and (3) copies of the International and Local 375 constitutions and by-laws relative to the time periods involved. While such production is necessary, it does not appear broad enough given the mandate from the Second Circuit regarding Commer's retaliation claim. Therefore, the defendants shall produce to Commer at a time and place reasonable to them the following categories of documents:

(1) any documents in the possession of any of the defendants which indicate that any of the defendants had knowledge of any charges of union impropriety made by Commer during the relevant time period; and
(2) any documents in the possession of any of the defendants that support or relate to Commer's allegations of union impropriety during the relevant time period.
Commer shall also be entitled to take the depositions of all of the defendants or, in the case of the organizational defendants, a Rule 30(b)(6) witness on their behalf.

It is so ordered.

20030410

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