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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

The defendant American Federation of State, County and Municipal Employees ("AFSCME") has moved under Fed.R.Civ.P. 12(b)(6), to dismiss the complaint of pro se plaintiff Roy Commer ("Commer"), and also for sanctions, seeking attorney's fees for defending against two of Commer's claims. For the reasons set forth below, the motion to dismiss is granted, and the motion for sanctions is denied.

Prior Proceedings

Commer has filed numerous actions in this Court and in others pertaining to his removal as president of Local 375. The following are only a few pertinent to the instant motion: Commer v. McEntee, 2003 WL 1878239 (S.D.N.Y. April 11, 2003) (Commer VII); Commer v. American Federation of State, County and Municipal Employees, 2002 WL 31014830 (S.D.N.Y. Sept. 6, 2002) (Commer VI); Commer v. American Federation of State, County and Municipal Employees, 2002 WL 844346 (S.D.N.Y. May 2, 2002) (Commer V); Commer v. American Federation of State, County and Municipal Employees, 2001 WL 1658191 (S.D.N.Y. Dec. 27, 2001) (Commer IV); Commer v. McEntee, 145 F. Supp.2d 333 (S.D.N.Y. 2001) (Commer III), aff'd Commer v. Giuliani, 34 Fed.Appx. 802, 2002 WL 826462 (2d Cir. May 1, 2002); Commer v. McEntee, 2001 WL 274125 (S.D.N.Y. March 19, 2001) (Commer II); Commer v. McEntee, 121 F. Supp.2d 388 (S.D.N.Y. 2000) (Commer I).

In this complaint, filed on October 4, 2002, Commer alleges that AFSCME violated § 101(a)(2) and § 501 of the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 411(a)(2) and 501, § 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185, as well as 29 U.S.C. § 158. Complaint at ¶¶ 17, 22-24. Commer seeks his reinstatement as president of Local 375 and to be reimbursed for lost wages and benefits as a result of his removal. Commer further seeks damages of at least $2,000,000.

AFSCME has moved to dismiss Commer's § 501, § 301 and § 101 claims. AFSCME argues that the Court has previously dismissed Commer's § 501 claim against AFSCME because the statute does not permit claims against labor organizations. AFSCME requests dismissal of Commer's § 301 claim because this Court has previously held that the decision by the AFSCME Judicial Panel was reasonable. Finally, AFSCME argues that the § 101 claim should be dismissed because an identical § 101 claim is pending from an earlier action.

Motion to Dismiss

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 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (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 Burgess v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).

In reviewing a 12(b)(6) motion, courts 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 IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993). However, "legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." L'Europeenne de Banque v. La Republica de Venezuela, 700 F. Supp. 114, 122 (S.D.N.Y. 1988). The complaint may only be dismissed 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 (1956); see also Berheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).

Review must be limited to the complaint and documents attached or incorporated by reference thereto. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). In this context, the Second Circuit has held that a complaint is deemed to "include . . . documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).

Commer's LMRDA § 501 Claim is Dismissed as to AFSCME

Commer does not cite LMRDA § 501 in either of the two causes of action listed in the complaint. Indeed, Commer states that he "is well aware that defendant (AFSCME — an organization) is not subject to 501." Pl. Reply Mem. at 3. However, § 501 is cited elsewhere in the complaint, and Commer does allege that AFSCME breached its "fiduciary duty" by "intentionally and/or negligently allowing a system and pattern of racketeering to grow and flourish to the detriment of the union membership." Compl. at ¶ 116. AFSCME argues that Commer's claim must be dismissed because § 501 does not permit actions against labor organizations. The Court agrees.

In Commer III, the issue of whether labor organizations are subject to § 501 claims was squarely addressed and decided in AFSCME's favor. The Court held that "[b]ecause the LMRDA § 501 does not provide a cause of action against labor organizations, dismissal as to AFSCME and District 37 is appropriate pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted." Commer III, 145 F. Supp.2d at 339-40. The Court noted that "there is simply nothing in the statute that permits Section 501 claims against a labor organization for alleged violations of individual officers and/or representatives." Id. The Second Circuit affirmed the Court's holding in Commer v. Giuliani, 34 Fed.Appx. 802, 805, 2002 WL 826462, at *2 (2d Cir. May 1, 2002) ("We also affirm the district court's dismissal of Commer's LMRDA § 501 claim for the reasons cited by the district court.").

To the extent that the complaint in the present case attempts to state a claim against AFSCME for violation of LMRDA § 501, the claim is once again dismissed. The restrictions of the statute are limited to "union officers and representatives." Commer III, 145 F. Supp.2d at 339. As we recognized in Commer III, "[t]he courts of appeal that have addressed the issue have repeatedly held that an action against a labor organization is not cognizable as a matter of law." Id. (citing Local 1498, American Federation of Government Employees v. American Federation of Government Employees, 522 F.2d 486, 489 (3d Cir. 1975); Pignotti v. ...


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