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FARRELL v. HELLEN

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 Page 2 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

 A. Background

  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 Page 3 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 Page 4 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 Page 5 and Ms. Vella to elect Union officers were abridged. (Compl., ¶¶ 191-196).

  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., ¶¶ 269-270). Page 6

 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); ...


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