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COMMER v. AMERICAN FEDERATION OF STATE

July 17, 2003

ROY COMMER, PLAINTIFF,
v.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, DEFENDANT.



The opinion of the court was delivered by: Robert Sweet, Senior District Judge

OPINION

Plaintiff pro se Roy Commer ("Commer") has moved to amend his complaint. For the following reasons, the motion is denied.

Facts

The relevant facts and parties are discussed in greater detail in Commer v. AFSCME, No. 01 Civ. 4260, 2001 WL 1658191 (Dec. 27, 2001) ("Commer II") and Commer v. AFSCME, No. 01 Civ. 4260, 2002 WL 844346 (S.D.N.Y. May 2, 2002) ("Commer III"), Commer v. AFSCME, No. 01 Civ. 4260, 2002 WL 31014830 (S.D.N.Y. Sept. 6, 2002) ("Commer IV"), familiarity with which is presumed.

Prior Proceedings

Commer filed his original complaint on May 18, 2001, asserting that American Federation of State, County and Municipal Employees ("AFSCME") International violated Sections 101 and 464 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S. § 411(a)(2) ("LMRDA"). Commer requested that he be reinstated to his position as President of Local 375, and all other positions within AFSCME. He also sought an order dissolving the administratorship imposed upon District Council 37 ("DC 37") by AFSCME International.

On December 27, 2001, Commer's § 101 claim was dismissed, but summary judgment was denied as to the § 464 claim. Commer II, 2001 WL 1658191.*fn1

On February 26, 2002, the administratorship was dissolved, and new officers were installed for DC 37. As a result, on May 2, 2002, Commer's remaining § 464 claim was dismissed as moot. Commer III, 2002 WL 844346, at *1-2. However, Commer was given the opportunity to move to amend his complaint to assert a viable claim. Id. at *2.

On June 3, 2002, Commer again filed a motion for leave to amend his complaint and attached a proposed amended complaint. That complaint again sought relief under §§ 101 and 464 despite the Court's earlier dismissals of those claims, and further sought to posit a cause of action pursuant to LMRA § 501. On September 6, 2002, Commer's motion to amend his complaint was denied, with leave to replead. Commer IV, 2002 WL 31014830, at *2-3.

On April 11, 2003, Commer moved for a second time to amend his complaint, attaching a new proposed amended complaint. In this latest round, Commer seeks relief under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. Commer continues to seek relief under LMRDA § 464, 29 U.S.C. § 464, in spite of this Court's repeated dismissals of such claims and denial of leave to replead such claims. Finally, Commer cites a number of other statutes, including LMRDA §§ 101 and 501, 29 U.S.C. § 411(a)(2) and 501, even while insisting that these statutes are cited "neither as claims nor for jurisdiction." Proposed Amended Complaint ("Compl.") at § 2.

Discussion

I. Standard of Review

In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware ...


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