United States District Court, S.D. New York
March 10, 2004.
HARRY FARRELL, JOHN SUGRUE, LUCIA GIACOMETTI, DANIEL McNAMARA and LISA VELLA, Plaintiffs, -against- EMANUEL HELLEN, individually and as President of the LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; JERRY WATERS, individually and as Vice President of LOCAL 1-2 UTILITY WORKERS UNION OF AMERICA; ROBERT CONETTA, as Secretary-Treasurer of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; ROBERT O'BRIEN, individually and as Chairman of the Executive Board of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; RONALD DAVIS, individually and as General Counsel of LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA; and LOCAL 1-2, UTILITY WORKERS UNION OF AMERICA, Defendants
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM AND ORDER
This case concerns the free speech and due process rights of union
members and raises the issue of when a union's attorney may be liable for
violating those rights. The plaintiffs are dissident members of Local
1-2, Utility Workers Union of America ("Local 1-2" or the "Union"), who
allege that union officials violated their statutory rights under Title I
of the Labor Management Reporting and Disclosure Act (the "LMRDA,"
commonly known as the Landrum-Griffin Act), 29 U.S.C. § 401 et
seq., and under § 301 of the Labor-Management Relations Act (the
"LMRA," commonly known as the
Taft-Hartley Act), 29 U.S.C. § 185, and their contractual
rights under the Union by-laws. The parties have agreed that I exercise
jurisdiction over the case for all purposes, including trial, pursuant to
28 U.S.C. § 636(c). The plaintiffs now move pursuant to Rule 15(a) of
the Federal Rules of Civil Procedure to amend the Complaint to assert two
new causes of action and to include an additional plaintiff. Defendant
Ronald Davis has moved under Rule 12(b)(1) to dismiss the claims
against him for lack of subject matter jurisdiction. He also seeks
sanctions pursuant to Rule 11 on the ground that these claims were not
well-founded in law. I will outline the relevant facts in my discussion
of each motion.
Motion to Amend
The plaintiffs in the original Complaint are Harry Farrell, Lucia
Giacometti, John Sugrue, Daniel McNamara, and Lisa Vella. In a union
election in November 2002, Mr. Farrell was elected Senior Business Agent
for Local 1-2, while Ms. Giacometti and Mr. Sugrue were elected Business
Agents. (Complaint dated May 30, 2003 ("Compl."), ¶ 3). Mr. McNamara
and Ms. Vella are members of the Union. (Compl., ¶ 4).
The dispute at the heart of this case began when Mr. Farrell, Ms.
Giacometti, and Mr. Sugrue proposed amendments to the Union by-laws that
would have altered the succession to the post of Union President and
would have required Union officers and staff to submit to periodic drug
and alcohol testing. (Compl., ¶ 8). The proponents discussed the
amendments with another Union Business
Agent, Harcourt Cordew, who reported these conversations to the
Union President, defendant Emmanuel Hellen. (Compl., ¶ 9). According
to Mr. Cordew, the dissidents Mr. Farrell, Ms. Giacometti, and
Mr. Sugrue were less than complimentary about Mr. Hellen's
stewardship of the Union. (Compl., Exh. 2).
Mr. Hellen responded by bringing internal Union charges against the
dissidents. (Compl., ¶¶ 10-11 & Exhs. 2, 3, 4). He also filed a
defamation action against them in New York State Supreme Court, Nassau
County, which he withdrew without prejudice on March 19, 2003. (Compl.,
¶¶ 12, 37). While the internal Union charges were pending, the
dissidents were apparently suspended from office. (Compl., 5 16). Under
the by-laws of Local 1-2, the Union's Executive Committee served as a
Trial Committee to consider those charges. (Compl., ¶ 14). It found
the dissidents guilty of all of the specifications except for the charge
of defamation, which had been withdrawn. (Compl., ¶ 84 & Exh. 18
at 5). On the basis of these findings, the Trial Committee recommended
that the three dissidents be expelled from office. (Compl., ¶ 85
& Exh. 18 at 5).
On April 30, 2003, a general membership meeting of Local 1-2 was held
at Washington Irving High School in Manhattan. (Compl., ¶ 101).
Discussion of the Trial Committee Report was apparently raucous, with the
dissidents being heckled and their time to speak curtailed. (Compl.,
¶¶ 102-116). A vote was then taken by secret ballot, and the
membership approved the Trial Committee Report with respect to Mr.
Farrell and Mr. Sugrue but rejected it with respect
to Ms. Giacometti. (Compl., ¶¶ 122-128, 136). As a result, Mr.
Farrell and Mr. Sugrue were expelled from office, while Ms. Giacometti
resumed her position as Business Agent. (Compl., Plaintiffs 137). Because
Mr. Farrell and Mr. Sugrue were retired and not actively employed as
utility workers, they were also ousted from membership in the Union.
(Compl., Plaintiff 139, 160 & Exh. 21).
The plaintiffs then filed the instant action, asserting seven causes of
action. They allege, first, that the defendants abridged the free speech
rights of Mr. Farrell, Ms. Giacometti, and Mr. Sugrue in violation of the
LMRDA, 29 U.S.C. § 411 (a)(2). Next, they allege that the defendants
violated another provision of LMRDA, 29 U.S.C. § 411 (a)(5), by
constructively removing Mr. Farrell and Mr. Sugrue from the Union without
due process. Third, the plaintiffs contend that the actions of the
defendants have intimidated Mr. McNamara and Ms. Vella, thus depriving
them of their free speech and free assembly rights. (Compl., ¶¶
163-165). Fourth, the plaintiffs argue that the expulsion of the
dissident officers violated certain procedural rights guaranteed by the
National Utility Workers Union of America constitution and therefore also
violated the LMRA, 29 U.S.C. § 185. (Compl., ¶¶ 166-178). They
further maintain that the defendants tortiously interfered with a
contract: the Union by-laws. (Compl., ¶¶ 179-185). Next, the
dissident officers argue that the defendants had agreed to provide them
with a due process hearing but then violated that contractual obligation.
(Compl., ¶¶ 186-190). Finally, the plaintiffs assert that the rights
of members such as Mr. McNamara
and Ms. Vella to elect Union officers were abridged. (Compl., ¶¶
As noted above, the plaintiffs have now moved to amend the Complaint to
include an additional plaintiff and two more causes of action. The
proposed additional plaintiff is John Duffy, a Union Business Agent and
signatory of the by-law amendments suggested by the dissidents. (Proposed
Amended Complaint ("Am. Compl."), ¶¶ 198, 202). The new Eighth Cause
of Action alleges, among other things, that the defendants impeded Mr.
Duffy from addressing a membership meeting concerning how vacancies on
the Executive Board, including those caused by the expulsion of Mr.
Farrell and Mr. Sugrue, should be filled. (Am. Compl., ¶¶ 197-260).
The Proposed Amended Complaint alleges that the defendants again failed
to maintain order and obstructed participation by dissident Union
members. According to the plaintiffs, the defendants prevented them from
expressing their views, nominating candidates, and voting, all in
violation of Union by-laws and the LMRDA, 29 U.S.C. § 411 (a)(1),
(2). (Am. Compl., ¶¶ 253-260).
In the proposed Ninth Cause of Action, the plaintiffs assert that the
defendants reduced the duties of Mr. Duffy and Ms. Giacometti in
retaliation for their support of the dissident faction. (Am. Compl.,
¶¶ 261-271). These actions allegedly violated the plaintiffs' free
speech rights under 29 U.S.C. § 411 (a)(2) and their right to be
free from retaliation under 29 U.S.C. § 529. (Am. Compl., ¶¶
B. Analytical Framework
A motion to amend is governed by Rule 15(a) of the Federal Rules of
Civil Procedure, which states that leave to amend "shall be freely given
when justice so requires." Fed.R.Civ.P. 15(a); see Oneida Indian
Nation of New York v. City of Sherrill, New York, 337 F.3d 139, 168
(2d Cir. 2003). Notwithstanding the liberality of the general rule, "it
is within the sound discretion of the court whether to grant leave to
amend," John Hancock Mutual Life Insurance Co. v. Amerford
International Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citation
omitted), and for the proper reasons, a court may deny permission to
amend in whole or in part. See Krumme v. WestPoint Stevens
Inc., 143 F.3d 71, 88 (2d Cir. 1998). In discussing the use of this
discretion, the Supreme Court has stated:
In the absence of any apparent or declared reason
such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of
amendment, etc. the leave sought should
. . . be "freely given."
Foman v. Davis, 371 U.S. 178
, 182 (1962).
Here, the defendants argue that the plaintiffs' proposed amendments
should be denied as fufile. A motion to amend may be denied on this
ground if the amendment could not withstand a motion to dismiss. See
Oneida Indian Nation, 337 F.3d at 168; Milanese v. Rust-Oleum
Corp., 244 F.3d 104, 110 (2d Cir. 2001); Smith v. CPC
International, Inc., 104 F. Supp.2d 272, 274 (S.D.N.Y. 2000).
The plaintiffs' new claims may ultimately be found to be without merit,
but at this stage of the proceedings they cannot be deemed fufile. With
respect to the Eighth Cause of Action, the defendants argue that "[a]11
Plaintiffs allege is that their attempts to interrupt an orderly meeting
were stopped by the union leadership." (Defendants' Memorandum of Law in
Opposition to Motion to Amend Complaint) ("Def. Memo.") at 2nd unnumbered
page). This is not an accurate characterization of the claim. The
plaintiffs assert that the defendants filled vacancies on the Executive
Board using a process that violated the by-laws and then prevented the
plaintiffs from challenging that action by manipulating the membership
meeting. This states a cause of action for violation of
29 U.S.C. § 411 (a)(1) and (2). See Parker v. Local Union No. 1466, United
Steel Workers of America, AFL-CIO, 642 F.2d 104, 106-07 (5th Cir.
1981) (LMRDA guarantees union member right "to be recognized at meetings
and to have those meetings conducted in an orderly fashion"); Waring
v. International Longshoremen's Association, Local 1414,
665 F. Supp. 1576, 1582 (S.D. Ga. 1987); Morrissey v. National Maritime
Union, 397 F. Supp. 659, 665 (S.D.N.Y. 1975), aff'd in part,
rev'd in part on other grounds, 544 F.2d 19 (2d Cir. 1976).
Likewise, the defendants argue that they cannot be held liable for
retaliating against Ms. Giacometti and Mr. Duffy merely because these
plaintiffs were reassigned and their duties reduced. (Def. Memo, at 3rd
unnumbered page). It is well established that:
(i) criticism of union officers, even when it
amounts to slander, is protected speech under the
LMRDA; and (ii) when union discipline is imposed
on the basis of a combination of factual
allegations an essential element of which is
protected speech, the discipline as a whole is
invalid under the LMRDA.
Petramale v. Local No. 17 of Laborers International Union of
North America, 736 F.2d 13
, 16 (2d Cir. 1984). Reduction of a union
officials duties, even if otherwise within the union's discretion, may be
actionable if it is retaliatory and significant in effect. See
Shales v. General Chauffeurs, Salesdrivers and Helpers Local Union No.
330, 173 L.R.R.M. (BNA) 2316, No. 00 C 575, 2003 WL 22038643, at
*5-6 (N.D. Ill. Aug. 28, 2003). Accordingly, amending the Complaint to
add this cause of action would not be fufile.
Finally, the proposed additional claims are sufficiently related to the
claims asserted in the original Complaint that amendment is warranted. To
be sure, it might not be enough if they simply encompassed additional
examples of "the efforts by Defendants to suppress democracy and dissent
within Local 1-2," (Memorandum of Law in Support of Plaintiffs' Motion to
Amend Complaint at 2). But the relationship is more direct, since the
Eighth Cause of Action concerns steps taken to fill the very positions
from which the plaintiffs were expelled and the Ninth Cause of Action
challenges alleged retaliation for conduct described in the original
Complaint. The motion to amend is therefore granted.
Motion to Dismiss
Defendant Ronald Davis is a partner in the law firm of Davis &
Hersh, LLP, and serves as General Counsel of Local 1-2. (Am. Compl.,
¶ 7). According to the plaintiffs, Mr. Davis participated in
violating their rights by drafting Mr. Cordew's affidavit which formed
the basis for the charges against the dissidents (Am. Compl., ¶ 9),
drafting the charges themselves (Am. Compl., ¶ 22), serving as
counsel to the Trial Committee (Am. Compl., ¶ 41), instructing
members of the Executive Board to distribute a leaflet to Union members
discussing the charges (Am. Compl., ¶ 17), and representing Mr.
Hellen in his defamation action against the dissidents. (Am. Compl.,
Mr. Davis argues that as counsel providing advice to the Union, he is
not an officer or agent of the Union and therefore cannot be liable under
B. Analytical Framework
To begin with, Mr. Davis has misdesignated his motion as one to dismiss
for lack of subject matter jurisdiction under Rule 12(b)(1). "Whether a
federal court possesses federal-question subject matter jurisdiction and
whether a plaintiff can state a claim for relief under a federal statute
are two questions that are easily, and often, confused." Carlson v.
Principal Financial Group, 320 F.3d 301, 305-06 (2d Cir. 2003)
(citations omitted). A court has federal question jurisdiction whenever
the plaintiff seeks recovery under federal statutory or constitutional
long as the claim is neither a pretext for obtaining jurisdiction
nor so insubstantial as to be frivolous. Id. at 306. Those
conditions are easily met here. The plaintiffs assert genuine claims
against Mr. Davis under the LMRDA and the LMRA, and the Court therefore
has subject matter jurisdiction.
Mr. Davis' argument is more properly framed as a motion to dismiss for
failure to state a claim under Rule 12(b)(6). On such a motion, "a court
must construe all well-pleaded factual allegations in the complaint in
plaintiff's favor and may dismiss the complaint only if Ait appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.'" Resnick v.
Swartz, 303 F.3d 147, 150-51 (2d Cir. 2002) (quoting Harris v.
City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). Accordingly,
"[t]he issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). "To
survive a motion to dismiss, however, the complaint must allege facts
which, assumed to be true, confer a judicially cognizable right of
action." York v. Association of the Bar of the City of New
York, 286 F.3d 122, 125 (2d Cir. 2002).
There is no authority for holding a union's attorney liable for
violating the LMRDA where the challenged conduct consisted of providing
legal advice and otherwise performing the responsibilities of a lawyer. A
union member's free speech and due
process rights are enforceable pursuant to 29 U.S.C. § 412,
which has been interpreted as providing a right of action against
individuals as well as labor organizations, but only where the individual
defendant is an "officer or agent [of the union] acting in his official
capacity." Thompson v. New York Central Railroad Co.,
361 F.2d 137, 145 (2d Cir. 1966). This is consistent with the intent of the
LMRDA "to curb the power of overweening union officials." Morrissey,
544 F.2d at 24.
Although a union's lawyer may in some respects be its "agent" under
general agency law, it is highly unlikely that either Congress or the
Second Circuit in Thompson intended to extend LMRDA liability
to persons functioning as legal counsel. First, in the labor context, the
term "agent" generally means someone who exercises union authority, such
as the Business Agents here who were members of the Executive Committee
of Local 1-2. Second, in interpreting the LMRDA, "[c]ourts fashion
federal law consistent with the aims of the statute, but taking guidance
from state common law." Guzman v. Bevona, 90 F.3d 641, 649 (2d
Cir. 1996) (citation omitted). And here, state law counsels against
imposing liability on lawyers: "[u]nder New York law an attorney cannot
be held liable to third parties for injuries caused by services performed
on behalf of a client or advice offered to that client, absent a showing
of fraud, collusion, or a malicious or tortious act." Herrick Co. v.
Vetta Sports, Inc., No. 94 Civ. 0905, 1996 WL 691993, at *18
(S.D.N.Y. Dec. 3, 1996) (citations omitted); see Hayles v. Advanced
Travel Management Corp., No. 01 Civ. 10017, 2004
WL 26548, at *13 (S.D.N.Y. Jan. 5, 2004); Four Finger Art
Factory, Inc. v. DiNicola, No. 99 Civ. 1259, 2001 WL 21248, at *7
(S.D.N.Y. Jan. 9, 2001); Burger v. Brookhaven Medical Arts Building,
Inc., 131 A.D.2d 622, 624, 516 N.Y.S.2d 705, 708 (2d Dep't 1987);
Kline v. Schaum, 174 Misc.2d 988, 989-90, 673 N.Y.S.2d 992,
993 (App. Term 2d Dep't 1997).
The cases cited by the plaintiffs are not to the contrary. Some involve
lawsuits where, although an attorney was named as a defendant, the claims
were dismissed and no finding was made as to whether a union lawyer could
be liable under the LMRDA merely for performing duties as counsel.
See, e.g., Bentivegna v. Fishman, 172 L.R.R.M. (BNA)
2723, No. 02 Civ. 4028, 2002 WL 1586957, at *15 (S.D.N.Y. July 17, 2002)
(claims dismissed for lack of standing); Local 1150, International
Brotherhood of Teamsters v. Santa Maria, 162 F. Supp.2d 68, 71, 81
n.9 (D. Conn. 2001) (lack of standing, failure to state claim; court
explicitly declines to reach issue of attorney as agent of union). In
other cases, the attorney was found to be potentially liable for actions
taken in a capacity other than that of counsel. See, e.g.,
Peterson v. Kennedy, 771 F.2d 1244, 1257-59 (9th Cir. 1985)
(attorney performed function of union official in collective bargaining);
Morrisey v. Curran, 483 F.2d 480, 484 (2d Cir. 1973) (attorney
sued in capacity as trustee of pension fund).
In this case, the acts attributed to Mr. Davis were all, with one
possible exception, attorney services provided to a client: drafting an
affidavit, drafting disciplinary charges, serving as
counsel to a disciplinary board, and providing representation in
court. The allegation that Mr. Davis' role may have been tainted by a
conflict of interest does not alter the fact that it was still the role
of an attorney and not that of a union official with authority to act for
The only instance in which Mr. Davis is alleged to have acted outside
his capacity as counsel is when he purportedly directed Executive Board
members to circulate a leaflet describing the charges against the
dissidents. But this claim is not actionable in any event. In order to be
found liable under the LMRDA, a defendant's acts must have had the
purpose or effect of stifling the free speech of union members.
Guzman, 90 F.3d at 648-49. Facilitating the expression of one
viewpoint, however, does not by itself constitute obstruction of other
viewpoints or the quashing of free discourse. Therefore, the plaintiffs
have failed to state a cause of action against Mr. Davis under the LMRDA.
For similar reasons, the claim that Mr. Davis tortiously interfered
with the Union by-laws, and therefore is subject to injuction under the
LMRA, must fail. Many of the cases that stand for the general principle
that a lawyer is not liable to third parties for services performed on
behalf of a client also hold more specifically that the lawyer is not
responsible for tortious interference with contract. See
Hayles, 2004 WL 26548, at *13; Four Finger Art Factory,
2001 WL 21248, at *7-8; Herrick Co., 1996 WL 691993, at *18;
Kline 174 Misc.2d at 989-90, 673 N.Y.S.2d at 993. Accordingly,
all claims against Mr. Davis must be dismissed.
Motion for Sanctions
Finally, Mr. Davis moves for sanctions. Pursuant to Rule 11, an
attorney who signs a pleading certifies, among other things, that "the
claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new
law." Fed.R.Civ.P. 11(b)(2). Accordingly, an attorney engages in
sanctionable conduct if he has advanced a claim but "failed . . . to
suggest any reason that he could have achieved success under
existing precedents, and . . . has failed to advance any reasonable
argument . . . to extend, modify or reverse the law as it stands."
Gurary v. Winehouse, 235 F.3d 792, 798 (2d Cir. 2000) (quoting
Eastway Construction Corp. v. City of New York, 762 F.2d 243,
254 (2d Cir. 1985) (internal quotation marks omitted). The test is an
objective one, and the good faith of counsel is irrelevant. See
Gurary, 235 F.3d at 797 (Rule 11(b)(2) eliminates "empty-head,
pure-heart" defense); Safe-Strap Co. v. Koala Corp.,
270 F. Supp.2d 407, 411 (S.D.N.Y. 2003) (subjective bad faith not required for
By these standards, the claims against Mr. Davis are not sanctionable.
Just as there is no legal authority clearly supporting the plaintiffs'
theory, so there is no precedent clearly rejecting it. Mr. Davis did not
cite a single case squarely holding that an attorney may not be held
liable as an agent of a union under the LMRDA or the LMRA for the duties
he performs as counsel. Thus, plaintiffs' counsel did not seek to modify
reverse existing law. At most, he argued for the establishment of
new law. Although his contentions are ultimately unpersuasive, they are
not frivolous, and no sanctions are warranted.
For the reasons set forth above, plaintiffs' motion to amend the
Complaint is granted, defendant Ronald Davis' motion to dismiss the
claims against him is granted, and Mr. Davis' motion for sanctions is
© 1992-2004 VersusLaw Inc.