United States District Court, S.D. New York
JOSEPH M. KEHOE, Plaintiff,
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS, AND ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES AND CANADA IATSE, MATTHEW LOEB, JAMES B. WOOD, MICHAEL BARNES, J. WALTER CAHILL, THOM DAVIS, ANTHONY DEPAULO, DAMIAN PETTI, MICHAEL F. MILLER JR., JOHN T. BECHMAN JR., DANIEL E. DITOLLA, JOHN R. FORD, JOHN M. LEWIS, CRAIG P. CARLSON, WILLIAM E. GEARNS JR., AND PHIL LoCICERO, Defendants.
KATHERINE POLK FAILLA, District Judge
and 2013, Plaintiff Joseph M. Kehoe found himself embroiled
in several disciplinary proceedings administered by his
union, Local 21 of the International Association of
Theatrical Stage Employees (“IATSE”). In December
2013, Plaintiff brought a civil action in the United States
District Court for the District of New Jersey against the
local and international IATSE organizations, certain officers
in each, outside counsel to the local union, and a company to
which Plaintiff had provided services as a IATSE member.
See Kehoe v. Int'l Assoc. of Theatrical Stage Emp.
Local 21, et al., No. 2:13-cv- 07805-JLL-JBC (D.N.J.)
(opened December 23, 2013) (the “D.N.J. Action”).
There, Plaintiff raised claims under the Labor-Management
Relations Act, 29 U.S.C. §§ 141-197 (the
“LMRA”); the Labor-Management Reporting and
Disclosure Act, 29 U.S.C. ch. 11 (the “LMRDA”);
and 42 U.S.C. § 1983. Several of Plaintiff's claims
were dismissed against several of the defendants in orders
issued on January 9, 2014, and February 20, 2015. (D.N.J.
Dkt. #2, 63). In an opinion and an order dated May 20, 2016,
United States District Judge Jose L. Linares granted summary
judgment in favor of the remaining defendants. See Kehoe
v. Int'l Assoc. of Theatrical Stage Emp. Local 21, et
al., No. 2:13-cv-07805-JLL-JBC, 2016 WL 2944071 (D.N.J.
May 20, 2016) (“Kehoe I”). The May 20
order granting summary judgment is now on appeal to the
United States Court of Appeals for the Third Circuit.
the D.N.J. Action was pending, Plaintiff brought the instant
lawsuit, naming as Defendants IATSE International, its
president, and individuals the Court understands to comprise
the General Executive Board of IATSE International.
Defendants have moved to dismiss the action, citing
procedural and pleading defects. Plaintiff opposes the motion
and, in the alternative, seeks leave to file an amended
complaint. In light of Plaintiff's pro se
status, the Court denies without prejudice Defendants'
motion to dismiss and grants Plaintiff's application for
leave to file an amended complaint.
is cautioned, however, to heed the remainder of this Order,
where the Court addresses certain issues with Plaintiff's
current pleading. Federal Rule of Civil Procedure 8
requires, among other things, that a pleading set forth
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P. 8.
Plaintiff's Complaint, however, is terse to the point of
being uninformative, containing six counts set out over four
pages of text. (See generally Complaint
(“Compl., ” Dkt. #2)). Plaintiff makes reference
to certain decisions of IATSE International and its officers
in July 2013 and January, February, and March 2014, and
attempts to relate those decisions to earlier decisions made
by IATSE Local 21, but provides far too little detail
concerning either set of events - and, perhaps more
importantly, how the conduct of each Defendant named in the
Complaint violated any of Plaintiff's
opposition to Defendants' motion to dismiss, Plaintiff
seeks leave to amend “if necessary to properly state a
claim and correct fatal errors” (Pl. Opp. 9), and makes
reference to his pro se status (id. at
8-9). It is true that the principle that a “court
should freely give leave [to amend a pleading] when justice
so requires, ” Fed R. Civ. P. 15(a)(2), is particularly
applicable to pro se plaintiffs, see Davis v.
Goord, 320 F.3d 346, 352 (2d Cir. 2003). Additionally,
the Second Circuit has cautioned that “[a] pro
se complaint should not be dismissed without the court
granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim
might be stated.” Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010) (internal quotation marks omitted).
Court cannot exclude the possibility that Plaintiff can plead
a viable cause of action relating to conduct by IATSE
International and its General Executive Board, and that is
why it is granting leave to amend. That said, the Court
harbors a degree of skepticism towards Plaintiff's
chances of pleading certain claims. To add flesh to the
skeletal allegations in the Complaint, the Court has reviewed
a number documents in the D.N.J. Action, including
Plaintiff's amended complaint in that action; the motions
to dismiss and the district court's orders resolving
same; and the motions for summary judgment, the exhibits
submitted in connection therewith, and Judge Linares's
May 20, 2016 decision. See generally Kehoe I. In so
doing, the Court has gained deeper understanding of the
context for Plaintiff's current claims. It also has
amassed a substantial evidentiary record from which it can
now observe that many of Defendants' arguments for
dismissal have traction, and are certainly not the
“mud” or “joke[s]” that Plaintiff
derides them to be. (See Pl. Opp. 26). The Court
discusses some of these arguments here, so that Plaintiff
will have guidance in amending his complaint.
preliminary question is whether any claims may be brought
against Defendants IATSE International or Matthew Loeb. These
two defendants were named in Plaintiff's complaint and
amended complaint in the D.N.J. Action, and were dismissed
from the action on February 25, 2015, for (as Plaintiff
concedes, see Pl. Opp. 12, 14) failure to state a
claim. What Plaintiff appears not to perceive is
that these dismissals were with prejudice, i.e.,
they operated as a decision on the merits as to these two
Defendants. See generally Fed. R. Civ. P. 41(b)
(“Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not
under this rule ... operates as an adjudication on the
fact dovetails with the critical issue of the preclusive
effect, if any, to be given the D.N.J. Action. Plaintiff
acknowledges that the “causes of action stem originally
from the same set of incidents, ” but
maintains that “the causes of action are not the same
and the defendants are not the same.” (Pl. Opp. 7
(emphasis in original)). He further explains that the conduct
addressed in the instant matter had not occurred at the time
he filed the amended complaint in the D.N.J. Action.
(Id. at 12-13). Defendants counter that
Plaintiff's claims in this case are entirely precluded,
under a theory of either res judicata or collateral
estoppel. (Def. Br. 9-14).
not-insubstantial argument can be made that several of
Plaintiff's claims are barred by res judicata.
“Under the doctrine of res judicata, or claim
preclusion, a final judgment on the merits of an action
precludes the parties or their privies from relitigating
issues that were or could have been raised in that
action.” TechnoMarine SA v. Giftports, Inc.,
758 F.3d 493, 499 (2d Cir. 2014) (emphasis omitted) (quoting
St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir.
2000)); see generally Marcel Fashions Grp., Inc. v. Lucky
Brand Dungarees, Inc., 779 F.3d 102, 107 (2d Cir. 2015)
(discussing claim and issue preclusion). “To prove the
affirmative defense[, ] a party must show that [i] the
previous action involved an adjudication on the merits; [ii]
the previous action involved the plaintiffs or those in
privity with them; [and] [iii] the claims asserted in the
subsequent action were, or could have been, raised in the
prior action.” Monahan v. N.Y.C. Dep't of
Corr., 214 F.3d 275, 285 (2d Cir. 2000).
this action to the D.N.J. Action, the Court finds the first
two elements to be satisfied; Plaintiff's arguments in
opposition focus on the third element. The Second Circuit
instructs district courts to resolve the third element by
evaluating whether the second suit involves “the same
claim - or nucleus of operative facts - as the first
suit” as determined by the following three indicia:
“[i] whether the underlying facts are related in time,
space, origin, or motivation; [ii] whether the underlying
facts form a convenient trial unit; and [iii] whether their
treatment as a unit conforms to the parties'
expectations.” Channer v. Dep't of Homeland
Sec., 527 F.3d 275, 280 (2d Cir. 2008) (internal
quotations omitted); see also Waldman v. Vill. of Kiryas
Joel, 207 F.3d 105, 108 (2d Cir. 2000). Reviewing
Plaintiff's allegations within this framework, the Court
notes - without finally deciding the issue - that the events
underlying Counts 1, 4, 5, and 6 of the instant action would
seem to fall within the same nucleus of operative facts as
the D.N.J. Action.
second potential basis of preclusion is collateral estoppel.
Collateral estoppel, or “issue preclusion …
forecloses ‘successive litigation of an issue of fact
or law actually litigated and resolved in a valid court
determination essential to the prior judgment, even if the
issue recurs in the context of a different claim.'”
Schwartz v. HSBC Bank USA, N.A., 160 F.Supp.3d 666,
674 (S.D.N.Y. 2016) (quoting Taylor v. Sturgell, 553
U.S. 880, 892 (2008)). “For collateral estoppel to
apply, four elements must be satisfied: ‘[i] the issues
of both proceedings must be identical, [ii] the relevant
issues were actually litigated and decided in the prior
proceeding, [iii] there must have been full and fair
opportunity for the litigation of the issues in the prior
proceeding, and [iv] the issues were necessary to support a
valid and final judgment on the merits.” Id.
(internal quotation marks omitted) (quoting Cent. Hudson
Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56
F.3d 359, 368 (2d Cir. 1995)).
Court advises Plaintiff that issue preclusion may foreclose
him from challenging, in this litigation, issues that were
finally decided in the D.N.J. Action. These include, but may
not be limited to, Judge Linares's conclusions that the
disciplinary sanctions imposed on Plaintiff and/or the
process by which these sanctions were imposed (at least at
the Local 21 level) did not amount to (i) a generalized
violation of Title I of the LMRDA; (ii) improper disciplinary
procedures under 29 U.S.C. § 411(a)(5); (iii) an
improper infringement of Plaintiff's right to free speech
under 29 U.S.C. § 411(a)(2); or (iv) a breach of
contract (namely, the Constitution and Bylaws of IATSE) in
violation of the LMRDA. See Kehoe I, 2016 WL
2944071, at *12-23. As a practical matter, the operation of
issue preclusion may limit Plaintiff's claims to the
precise acts taken by IATSE International or the individual
officers named as Defendants - which only underscores the
importance of more detailed pleading of Plaintiff's
Court declines at this time to weigh in on Defendants'
challenges to the merits of Plaintiff's Complaint.
Instead, it seeks only to advise Plaintiff of the various
issues that he should consider in his amended pleading.
Accordingly, it is ORDERED that Plaintiff file his amended
complaint in this action on or before March 15, 2017.
Defendants are further ORDERED to move or otherwise respond
to the amended complaint on or before April 17, 2017. If
Defendants file a renewed motion to dismiss, the Court will
set a schedule for the remaining briefing.
motion to dismiss is DENIED WITHOUT PREJUDICE to its renewal.
The Clerk of Court is directed to ...