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September 28, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Eunice Rodriguez and Nicholas Mancuso, members of the Executive Board of City Employees Union Local 237, are suing Local 237, its current president Carl Haynes and the International Brotherhood of Teamsters ("IBT"), for interfering with plaintiffs' joint campaign for union office and for misappropriating Local 237's resources to assist Haynes in his re-election campaign. Each plaintiff alleges five causes of action against the defendants: (a) subjecting plaintiffs to unequal treatment in violation of the Labor Management Reporting and Disclosure Act ("LMRDA") Section 101(a)(1);*fn1 (b) suppressing plaintiffs' freedom of speech in violation of LMRDA § 101(a)(2);*fn2 (c) improperly imposing disciplinary action in violation of LMRDA § 101(a)(5),*fn3 and in breach of the IBT Constitution and Local 237 By-Laws,*fn4 thereby asserting claims under the Labor-Management Relations Act ("LMRA") Section 301;*fn5 (d) failing to convene a trial board to hear the purported charges against Haynes, in breach of the IBT Constitution, thereby asserting claims under LMRA § 301;*fn6 and (e) misappropriating union assets in violation of sections 722 and 723 of the New York Labor Law.*fn7 Haynes and Local 237 (collectively "defendants") now move to dismiss the Complaint, arguing that this Court lacks subject matter jurisdiction over the LMRDA claims, that plaintiffs have failed to exhaust their remedies as required by the LMRA, and that plaintiffs have failed to meet statutory prerequisites to filing suit under the New York Labor Law.*fn8 For the reasons set forth below, defendants' motion to dismiss is granted in its entirety.


  Local 237 represents approximately 23,000 workers employed by New York City and other public bodies.*fn9 The individuals in this action are all members of the union's Executive Board. Haynes has served as President since 1993,*fn10 Rodriguez serves as the Recording Secretary and as a Business Representative, and Mancuso serves as the Secretary-Treasurer.*fn11 By September 2003, Rodriguez had declared her intention to seek nomination for the presidency and Mancuso declared his intention to seek re-election as Secretary-Treasurer, each candidate announcing his or her support for the other's campaign.*fn12

  The Complaint alleges that Haynes, along with union members loyal to him, engaged in what plaintiffs describe as three categories of "dirty tricks" purportedly designed to secure Haynes' presidency and to hinder plaintiffs' joint election campaign.*fn13 The first category involves the use of union resources, including the employment of union funds and certain Local 237 employees, to operate Haynes' re-election campaign.*fn14 The second category includes numerous instances of "harassment and retaliation,"*fn15 including allegations that two Local 237 employees followed Rodriguez in an unmarked van,*fn16 that Rodriguez was ordered to report all of her activities to Citywide Division Director Gregory Floyd,*fn17 that Floyd "engaged in a partisan political attack" on Rodriguez's candidacy during a time reserved for strictly union matters,*fn18 and that Haynes circumvented Mancuso's role as Secretary-Treasurer by having other officers sign checks.*fn19 Finally, plaintiffs allege that the "penultimate dirty trick" occurred following an incident on April 7, 2004. That day, plaintiffs and several of their supporters distributed campaign literature at Metropolitan Hospital, a Local 237 represented bargaining unit location, to union members as they entered and left the building. At approximately 11:15 p.m. that evening, Haynes supporter Robert Brown accused plaintiffs of engaging in improper campaigning at the hospital, and the next day, at an Executive Board meeting, Haynes told plaintiffs that they were being given "formal warnings" for their conduct, which purportedly violated the IBT Constitution and Local 237 By-Laws. Plaintiffs deny that their conduct breached the terms of either document.*fn20

  Throughout the year leading up to this lawsuit, plaintiffs wrote a barrage of letters and memoranda to "the powers that be," including Haynes, IBT's president James Hoffa, Jr., and the Independent Review Board, apprising them of the alleged "dirty tricks."*fn21 One such letter, dated October 28, 2003, and entitled "Charges," was sent to Hoffa with a statement of five charges against Haynes:
(1) misuse of the newsletter; (2) permitting Local 237 employees to campaign for him while on union and employer time using union and employer assets; (3) permitting Local 237 employees to harass and stalk Rodriguez including an allegation that a union vehicle was being used for surveillance of Rodriguez; (4) permitting Local 237 employees to falsify time sheets; and (5) permitting campaign meetings to be held at the union headquarters.*fn22
The letter requested an "immediate investigation of these five charges."*fn23 Similarly, Mancuso sent Haynes a memorandum on March 3, 2004, requesting a "full scale externally controlled investigation of the complaints. . . ."*fn24 Aside from Haynes responding by memorandum to one of Mancuso's accusatory letters,*fn25 no action was taken by any of the defendants in response to plaintiffs' many letters and memoranda.*fn26


  A. Rule 12(b)(1)

  "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."*fn27 When the defendant challenges the legal sufficiency of the plaintiff's jurisdictional allegations, the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff.*fn28 However, "where evidence relevant to the jurisdictional question is before the court, `the district court . . . may refer to [that] evidence.'"*fn29 Therefore, "[i]n resolving the question of jurisdiction, the [] court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists."*fn30 The consideration of materials extrinsic to the pleadings does not convert the motion into one for summary judgment.*fn31

  B. Rule 12(b)(6)

  "Given the Federal Rules' simplified standard for pleading, `[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'"*fn32 Thus, a plaintiff need only plead "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."*fn33 Simply put, "Rule 8 pleading is extremely permissive."*fn34

  At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'"*fn35

  The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."*fn36 When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual allegations in ...

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