Commer v. McEntee

• Citation: 145 F.Supp.2d 333
• Decision Date: 22 May 2001
• Docket Number: No. 00 CIV 7913 RWS.,00 CIV 7913 RWS.
• Parties: Roy COMMER, Plaintiff, v. Gerald MCENTEE, John Seferian, the American Federation of State, County and Municipal Employees, District Council 37, AFSCME, Stanley Hill, Martin Lubin, Mark Shaplo, Robert Meyer, Ralph Pepe, Louis Albano, Robert Mariano, Uma Kutwal, Michelle Keller, John Does 1-30, and Rudolph Giuliani, as Mayor of the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 333

145 F.Supp.2d 333

Roy COMMER, Plaintiff, v. Gerald MCENTEE, John Seferian, the American Federation of State, County and Municipal Employees, District Council 37, AFSCME, Stanley Hill, Martin Lubin, Mark Shaplo, Robert Meyer, Ralph Pepe, Louis Albano, Robert Mariano, Uma Kutwal, Michelle Keller, John Does 1-30, and Rudolph Giuliani, as Mayor of the City of New York, Defendants.

No. 00 CIV 7913 RWS.

United States District Court, S.D. New York.

May 22, 2001.

Roy Commer, Staten Island, NY, Plaintiff Pro Se.

Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox by Barry I. Levy, Gina M. Fonseca, New York City, for Defendants Gerald McEntee, John Sefarian, AFSCME International, AFSCME District Council 37, Robert Mariano, Uma Kutwal, Michelle Keller and Ralph Pepe.

Stillman & Friedman by John B. Harris, New York City, for Defendant Stanley Hill.

Michael D. Hess, Corporation Counsel of the City of New York by Stephen Kitzinger, Assistant Corporation Counsel, New York City, for Defendant Rudolph Giuliani.

OPINION

SWEET, District Judge.

The defendants Gerald McEntee ("McEntee"), John Seferian ("Seferian"), American Federation of State, County and Municipal Employees International ("AFSCME"), AFSCME District Council 37 ("District 37"), Robert Mariano ("Mariano"), Uma Kutwal ("Kutwal"), Michelle Keller ("Keller") and Ralph Pepe ("Pepe"), have moved pursuant to Rules 12(b)(1), 12(b)(6) and 56, Fed.R.Civ.P., to dismiss the complaint of pro se plaintiff Roy Commer ("Commer") or grant summary judgment. Defendants Louis Albano ("Albano"), Robert F. Meyer ("Meyer") and Stanley Hill ("Hill") seek to join in the motion and defendant Rudolph Giuliani ("Giuliani"), has moved for dismissal on other grounds. For the reasons set forth below, the motion is granted as to all defendants.¹

Commer has frequently resorted to the courts in his battle to unhorse the union leadership of his local union (Local 375 of District 37 of AFSCME ("Local 375")) and to cure abuses which he has perceived to exist. See, e.g. Commer v. District Council 37, 990 F.Supp. 311 (S.D.N.Y.1998) (challenging amendments to union constitution and seeking certification of his election); Commer v. Keller, et al., 64 F.Supp.2d 266 (claiming that he was suspended in violation of his rights to freedom of speech and association, as guaranteed by federal labor law and union constitution); Commer v. The City of New York, et al., 1999 WL 673046 (S.D.N.Y.) (alleging that Defendants breached the union constitution when they failed to seek ratification of an agreement between the union and the City of New York by the union membership, and that the ratification of a subsequent agreement by the union membership was improper). While certain abuses appear to have been established (see Juan Gonzalez, No Rush to Reform Union, Daily News, Jul. 18, 2000, at 17; Maureen Fan, Ousted Union Big Seeks Fund Probe, Daily News, Nov. 5, 1998, at 20; Steven Greenhouse, Union Made Little Effort to Police Itself, N.Y. Times, Oct. 18, 1998, at B7; Dave Saltonstall and Paul Schwartzman, Aside for Probe, Daily News, Nov. 29, 1998, at 7), Commer has failed in this instance to meet the requirements of a successful action under § 101(a)(2) and § 501 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 411(a)(2) and 501, as well as § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185.

The Parties

Commer is a member of Local 375 and previously the president of Local 375.

District 37 is the regional governing body of AFSCME and is comprised of several dozen local unions, including Local 375.

AFSCME is an international union.

McEntee is president of AFSCME.

Seferian is chairperson of the AFSCME Judicial Panel.

Kutwal is currently acting president of Local 375 and was at all relevant times previously the first vice-president of Local 375.

Keller is executive committee chair of Local 375.

Mariano is treasurer of Local 375.

Albano is a former president of Local 375.

Hill is the former executive director of District 37.

Meyers is the former treasurer of District 37.

Giuliani is the Mayor of the City of New York.

Prior Proceedings

As previously set forth in this Court's opinion denying Commer's motion for injunctive relief, Commer v. McEntee, et al., 121 F.Supp.2d 388, 390 (S.D.N.Y.2000) ("Commer I"), familiarity with which is presumed, this action was initiated by the filing of a complaint in the Pro Se Clerk's office on October 18, 2000. The complaint alleges that the defendants imposed union discipline on Commer, by suspending him from union office and banning him from running for new office for a two-year period, in retaliation for speech activity protected under § 101(a)(2) of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(2). Jurisdiction is alleged pursuant to LMRDA § 102, 29 U.S.C. § 412.

The complaint may also be construed to challenge the defendants' interpretation of the Local 375 constitution under § 301 of the LMRA, 29 U.S.C. § 185. It is also alleged that certain of the defendants violated Section 501(6) of the LMRDA, 29 U.S.C. § 501(6), by failing to hold money and property of Local 375 for the benefit of its members.

The complaint followed certain disciplinary proceedings commenced in 1998 by Kutwal against Commer who was then serving as president of Local 375, having defeated an 18-year incumbent. Those proceedings culminated in the removal of Commer as president and the direction that he make certain payments to compensate Local 375 for unauthorized expenditures. These proceedings were ongoing in April 2000.

In November 2000, Commer sought an injunction to bar the defendants from suspending him as president and denying him the right to hold office or to be nominated for office. That motion was denied in Commer I.

The defendants then made the instant motion to dismiss Commer's complaint which was marked fully submitted on March 21, 2001.

Findings of Fact

The November opinion, Commer I, found facts with respect to the disciplinary proceedings which remain unchanged by the submissions on this motion and are not controverted.

By letter of December 3, 1999, Commer as president of Local 375 requested McEntee to conduct an investigation into seven matters which had been called to the attention of the administrator of District 37 who had been appointed by McEntee. These included vote fraud, improprieties in connection with the Professional Employees Legal Services ("PELS") fund, which was a group legal service plan, abuses relating to release time and expenses, ratification of certain agreements, and censorship of Local 375 newsletters. McEntee replied by letter of December 23, 1999, in effect denying the charges described by Commer and concluded by stating that "the fact that you are not satisfied with the outcome of those procedures does not mean that the outcome was incorrect or that further investigation on the part of the International Union is either warranted or required." No specifics of these allegations are found in Commer's complaint beyond the charge of a breach of fiduciary duty.

Prior to December 13, 1999, Local 375 represented employees in both the public and private sectors. On that date the group of WNYC employees disaffiliated from Local 375 which thereafter represented only public sector employees.

Conclusions of Law

Dismissal and Summary Judgment is Appropriate

Because the claims are disposed of on different grounds, the applicable standards are outlined first.

A. Motion to Dismiss

In reviewing a motion to dismiss under Rule 12(b)(6), a court must "accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993)). A pro se complaint is given liberal construction, (Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)), although pro se plaintiffs must still set forth allegations sufficient to state a claim. See Doyle v. Columbia-Presbyterian Medical Center, No. 97 Civ. 5487(HB), 1998 WL 430551 (S.D.N.Y. July 29, 1998). Dismissal is warranted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). "A complaint consisting merely of conclusory allegations unsupported by factual assertions cannot meet" the standard of Rule 12(b)(6). Mina Investment Holdings, Ltd. v. Lefkowitz, 51 F.Supp.2d 486, 489 (S.D.N.Y.1999) (citing DeJesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir.1996)).

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

When considering defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), all material factual allegations in the complaint must be accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.1992); Rubin v. Tourneau, Inc., 797 F.Supp. 247, 248 (S.D.N.Y.1992). The court must examine the substance of the allegations and any other evidence before it in resolving the jurisdictional dispute. Cargill Intern., S.A. v. M/T PAVEL DYBENKO, 991 F.2d 1012, 1019 (2d Cir.1993); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986); RAD Data Communications, Inc. v. Patton Electronics Co., 882 F.Supp. 351, 352 (S.D.N.Y.) (citations omitted), dismissed on other grounds, 64 F.3d 675 (Fed.Cir.1995). However, the Court will not draw inferences favorable to the party asserting jurisdiction. See Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925); Atlantic Mutual, 968 F.2d at 198.

C. Motion for Summary Judgment

Rule 56(c) of...