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United States District Court, S.D. New York

March 10, 2004.


The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


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); Smith v. CPC International, Inc., 104 F. Supp.2d 272, 274 (S.D.N.Y. 2000). Page 7

 C. Discussion

  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: Page 8


(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. Page 9

  Motion to Dismiss

 A. Background

  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., ¶ 12).

  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 the LMRDA.

 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 law, as Page 10 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).

 C. Discussion

  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 Page 11 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 Page 12 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 Page 13 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 Local 1-2.

  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. Page 14

  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 sanctions).

  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 or Page 15 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 denied.



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