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Joseph Rowan, Jr v. Laborers International Union of North America and Local 6a of the

August 3, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Joseph Rowan, Jr. commenced this action against defendants Laborers International Union of North America ("LIUNA") and Local 6A of the Laborers International Union of North America ("Local 6A") asserting that his expulsion from membership in Local 6A violated his rights under Section 101 of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411 ("LMRDA"). Presently before the Court is defendants' motion, made pursuant to Federal Rule of Civil Procedure 12(b)(6), seeking to dismiss the Amended Complaint. For the reasons set forth below, defendants' motion is granted. Plaintiff will, however, be granted leave to move to amend his pleading to the limited extent articulated below.


The following facts are drawn from the allegations in the Amended Complaint as well as the documents incorporated by reference therein and the documents of which the Court may take judicial notice,*fn1 and are presumed true for purposes of this motion.

LIUNA and the MTDC

In the early 1990's, the United States Department of Justice ("DOJ") began an investigation into alleged corrupt practices involving LIUNA and one of its constituent district councils, the Mason Tenders District Council of New York and Long Island (the "MTDC").*fn2 As a result of these investigations, the government entered into separate settlements with LIUNA and with the MTDC. According to plaintiff, "the intent of these settlements was, inter alia, to provide for internal mechanisms for the searching out and removal of criminal elements from the respective organizations." (Am. Compl. ¶ 7.) Specifically, in December 1994 the government and the MTDC entered into a Consent Decree, approved by the United States District Court for the Southern District of New York, which provided for, inter alia, the appointment of two Court officers: a Monitor and an Investigations Officer. See United States v. Mason Tenders Dist. Council of Greater N.Y., 1994 WL 742637, at *3 (S.D.N.Y. Dec. 27, 1994). Michael Chertoff was appointed by the Court to serve as Inspections Officer (Am. Compl. ¶ 8) and had the following duties: "[T]o investigate and to prosecute any proscribed acts that either have occurred since January 1, 1982 or occur in the future at any time prior to the expiration of the Consent Decree, and to propose appropriate sanctions for such conduct." Mason Tenders Dist. Council, 1994 WL 742637, at *6.*fn3

Plaintiff Enters Into the MTDC Settlement

At some point prior to July 1997, plaintiff belonged to Local 66, a local LIUNA-affiliated union that was a member of the MTDC. The Investigations Officer brought an initial set of charges of misconduct against plaintiff in July 1997, and brought an additional set of charges in January 1998. According to plaintiff, those charges were "brought against him as part of a 'witch hunt' to force him to rescind his nomination for elected office in Local 66, so the candidate favored by the Investigations Officer would be elected unopposed." (Am. Compl. ¶ 10.)

Plaintiff ultimately agreed to settle these charges and entered into a written agreement (the "MTDC Settlement") that required him "to resign 'from all membership, employment, or other positions held with the MTDC and any local union affiliated with the MTDC, including Local 66.'" (Id. ¶ 12.) In the MTDC Settlement, plaintiff admitted the following facts:

In or around 1990, Rowan participated in operating an illegal book-making operation on a union job site, accepting wagers on sporting events totaling in excess of $5,000 from one or more members of Local 66 at the Huntington Resource Recovery Plant [j]ob site in Huntington, New York.

In or around 1990, Rowan was a "no-show" worker, receiving wage and benefit payments for work he did not perform at the Home Depot job site in Commack, New York for L. Epstein, Inc., a contractor with a signed collective bargaining agreement with Local 66.

On or about February 8, 1994, Rowan organized a group of Local 66 members to proceed to a construction site for the purpose of causing physical damage to the construction site, which purpose was carried through and resulted in excess of several thousand dollars.

In or about January 1998, Rowan attempted to influence witnesses to the incident referred to [ ] above to give false testimony at depositions before representatives of the Investigations Officer. (Am. Compl. ¶ 16.)

Plaintiff's Affiliation with Local 6A

In approximately August 2005, plaintiff joined Local 6A*fn4 and was a member in good standing at all times until his expulsion. Plaintiff asserts that the Local 6A Constitution incorporated the provisions of LIUNA's Constitution and By-Laws (the "Constitution"). (Am. Compl. ¶ 22.) Plaintiff further asserts that the Constitution contained numerous provisions that were "mandated by the Government as part of the settlement reached in connection with [the DOJ's] investigation into the allegations of corruption by the officers of [LIUNA]." (Id. ¶ 23.)

In approximately February 2009, LIUNA's Special Counsel brought written disciplinary charges against plaintiff based upon his admissions of misconduct made in the MTDC Settlement, and sought plaintiff's expulsion from Local 6A. The charges alleged that plaintiff engaged in "barred conduct" by committing the following acts of racketeering: (1) operating an unlicensed book-making operation ("Charge One"), (2) causing damage to a construction site in Glen Cove, New York ("Charge Two"), and (3) "harassing" witnesses to the vandalism at the Glen Cove construction site in an attempt to "change their testimony" ("Charge Three"). (Id. ¶ 25.)

The First Hearing Before the IHO

A hearing on plaintiff's disciplinary charges was held on April 17, 2009 before Independent Hearing Officer Peter F. Vaira (the "IHO"). The Special Counsel introduced into evidence plaintiff's factual admissions made in the MTDC Settlement. The Special Counsel also had one witness available at the hearing on standby: Bill Davidson ("Davidson"), who had been employed as a United States Department of Labor ("DOL") Special Agent assigned to assist the Investigations Officer at the time plaintiff entered into the MTDC Settlement, but who had left the DOL and was working for LIUNA as of February 2009. However, the Special Counsel did not call Davidson to the stand; in fact, no witnesses were called by either side. (Am. Compl. ¶ 65-70.)

On July 23, 2009, the IHO rendered a written decision sustaining plaintiff's expulsion from Local 6A. Specifically, the IHO determined that plaintiff's resignation from Local 66 as part of the MTDC Settlement actually constituted an expulsion from that local within the meaning of Article III, Section 1(g) of LIUNA's Constitution. As such, the IHO concluded, LIUNA's Constitution required plaintiff to obtain permission of the General Executive Board before he joined Local 6A in August 2005. (Decl. of Patrick J. Slevin, Esq., dated Oct. 7, 2011 ("Slevin Decl.") Ex. 4 at 8-9.) Because plaintiff had not done so, the IHO decided that plaintiff was barred from becoming a member of Local 6A and, accordingly, his membership was revoked. (Id. at 9.) The IHO did not discuss or make any findings as to the merits of Charges One, Two, or Three.

The First Appeal

Plaintiff appealed the IHO's decision to LIUNA's Appellate Officer ("AO") and, on August 2, 2010, a Special Hearing Officer was appointed for the purpose of conducting an appellate hearing. (Am. Compl. ¶¶ 30-33.) The hearing was held on August 27, 2010 and on October 5, 2010 the AO issued a written order vacating the IHO's decision. (Id. ¶¶ 33-35.) The AO concluded that the idea that plaintiff had failed to comply with the requirements of Article III, Section 1(g) of the Constitution, which had been raised sua sponte by the IHO, had not been included in any of the three disciplinary charges lodged against him. Thus, the AO determined that plaintiff had not received prior notice of that allegation of misconduct as required under the LMRDA and, therefore, it could not serve as grounds for his expulsion. (See Slevin Decl., Ex. 5 at 9.) The AO remanded the matter for further proceedings. (Id.)

Further Proceedings Before the IHO

The case returned to IHO Vaira on remand. Plaintiff moved to preclude the Special Counsel from calling any witnesses or submitting any further evidence on remand, and the Special Counsel cross-moved for permission to supplement the record with Davidson's testimony. (Slevin Decl., Ex. 6 at 2.) By written decision dated November 23, 2010, the IHO denied the Special Counsel's motion to supplement the record and directed the parties to "file summary memoranda regarding the proof and the charges." (Id. at 3.)

In its legal brief submitted to the IHO, the Special Counsel withdrew Charges One and Two, noting that although they "'might have been proven through the introduction of additional evidence,' . . . there was insufficient proof presented at the original hearing on April 17, 2009 to sustain" those charges. (Slevin Decl., Ex. 7 at 10.) With respect to Charge Three, the IHO concluded, in a written opinion dated January 5, 2011, that the Special Counsel had proven its case by a preponderance of the evidence, finding: "The conduct admitting in Rowan's [MTDC] Stipulation and Settlement proves the conduct alleged in Charge Three." (Id. at 19.)

The Second Appeal

Plaintiff appealed the IHO's January 5, 2011 decision, and the appeal was fully briefed and argued as of March 14, 2011. (Am. Compl. ¶ 42.) On July 21, 2011, the AO issued a written order affirming the IHO's January 5, 2011 decision. (Slevin Decl., Ex. 8.) Although the Amended Complaint was filed the same day,*fn5 it contains no allegations regarding the July 21, 2011 decision of the AO and, in fact, alleges that "No decision has been rendered on the Appeal." (Am. Compl. ¶ 42.) The present motion to dismiss followed.*fn6

The Amended Complaint

The Amended Complaint asserts five causes of action, all stemming from plaintiff's allegations that he "has been denied due process in the context of his being expelled from membership in [LIUNA] and Local 6A." (Am. Compl. ¶¶ 49, 55, 58, 75.) Plaintiff seeks injunctive relief, "compensatory damages in the amount of $1.00, plus compensation for all lost health benefits," punitive damages, and attorneys' fees. (Id. ¶¶ 83-87.)


I. Legal Standard

Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard ...

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