Leonardis v. Burns Intern. Sec. Services, Inc.

• Citation: 808 F. Supp. 1165
• Decision Date: 18 November 1992
• Docket Number: Civ. A. No. 92-2374 (AJL).
• Parties: Albert LEONARDIS and Mario Zecca, Plaintiffs, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

808 F. Supp. 1165

Albert LEONARDIS and Mario Zecca, Plaintiffs, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant.

Civ. A. No. 92-2374 (AJL).

United States District Court, D. New Jersey.

November 18, 1992.

COPYRIGHT MATERIAL OMITTED

Albert Leonardis, pro se.

Sidney Altner, Edison, NJ, for plaintiff Mario Zecca.

Mary E. Tracey, Peter O. Hughes, Shanley & Fisher, P.C., Morristown, NJ, for defendant.

OPINION

LECHNER, District Judge.

Currently before the court is the motion of defendant Burns International Security Services ("Burns") for partial summary judgment pursuant to Fed.R.Civ.P. 56(b) to dismiss the first, third and fourth counts of the complaint (the "Complaint"), filed 21 April 1992, by plaintiffs Albert Leonardis ("Leonardis") and Mario Zecca ("Zecca") (collectively, the "Plaintiffs").¹

Jurisdiction appears to be appropriate pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 185(a). For the reasons that follow, the motion for partial summary judgment is granted in its entirety.

Facts

Burns, a New Jersey corporation with its principal place of business in Edison, New Jersey, is in the business of providing private security guard services. Burns 12(G) Stmt., ¶ 5; Complaint at 1. Plaintiffs are both residents of New Jersey. Complaint at 1. Plaintiffs were employed by Burns as security guards. Burns 12(G) Stmt., ¶ 2; Zecca 12(G) Stmt., ¶ 2; Leonardis 12(G) Stmt., ¶ 2. As employees of Burns, the Plaintiffs were also members of the Guards and Securities Local 1412 of the Laborer's International Union of North America ("Local 1412"). Burns 12(G) Stmt., ¶ 1; Zecca 12(G) Stmt., ¶ 1; Leonardis 12(G) Stmt., ¶ 1.

A collective bargaining agreement (the "Collective Bargaining Agreement") is currently in effect between Burns and Local 1412. Burns 12(G) Stmt., ¶ 3; Zecca 12(G) Stmt., ¶ 1; Leonardis 12(G) Stmt., ¶ 3. Pursuant to Article 17 ("Article 17") of the Collective Bargaining Agreement, Burns "agreed to assume all liability for suits brought against its employees resulting from acts committed within the scope of their employment." Burns 12(G) Stmt., ¶ 4; Zecca 12(G) Stmt., ¶ 4; Leonardis 12(G) Stmt., ¶ 4.

From 1986 until March 1991, Burns had an agreement with the New Jersey Sports and Exposition Authority (the "Sports Authority") to provide security guard services at the Meadowlands Sports Complex (the "Meadowlands"), including the Brendan Byrne Arena, located in East Rutherford, New Jersey. Complaint at 1-2; Answer (the "Answer"), filed 29 June 1992, at 1. On 28 September 1989, the Plaintiffs were working for Burns as security guards at the Meadowlands, during a hockey game. Burns 12(G) Stmt., ¶ 5; Zecca 12(G) Stmt., ¶ 5; Leonardis 12(G) Stmt., ¶ 5. During their employment, Plaintiffs and other security guards were involved in an altercation (the "Altercation") with two patrons of the Meadowlands. Burns 12(G) Stmt., ¶ 6; Zecca 12(G) Stmt., ¶ 6; Leonardis 12(G) Stmt., ¶ 6. Charges against numerous Burns security guards, including the Plaintiffs, were filed by the patrons. Zecca Moving Brief at 3.

On 14 October 1989, in an unrelated incident (the "14 Oct. 1989 Incident"), a Meadowlands patron was found dead following a Grateful Dead concert at the Meadowlands. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. Speculation apparently followed in the news media that a Burns security guard may have been involved in the incident. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. No one was ever arrested in connection with the 14 Oct. 1989 Incident. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. According to Plaintiffs, the Sports Authority commenced an investigation into the manner in which Burns provided security services to the Meadowlands and, as a result of the investigation, the contract between Burns and the Sports Authority was terminated. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3.

Plaintiffs allege that, as a "ripple effect" flowing from the 14 October 1989 Incident, the Bergen County Prosecutor's office decided to vigorously pursue criminal charges against the Burns security guards involved in the Altercation. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. In any event, in July 1990, Plaintiffs and several other guards were indicted on charges of aggravated assault and robbery under New Jersey State law. Burns 12(G) Stmt., ¶ 7; Zecca 12(G) Stmt., ¶ 7; Leonardis 12(G) Stmt., ¶ 7.

Meanwhile, on 17 November 1989, Burns issued a written memorandum (the "Burns Memo") to those employees assigned to work at the Meadowlands. Zecca 12(G) Stmt., ¶ 14; Leonardis 12(G) Stmt., ¶ 14; see Moving Brief, Ex. A (copy of Burns Memo). The Burns Memo recognized that "currently 10 part-time security officers are charged with aggravated assault." Moving Brief, Ex. A. It also set forth conditions for the reimbursement of attorneys' fees and related costs incurred in the defense of criminal assault charges arising out of activities in connection with employment. Zecca 12(G) Stmt., ¶ 14; Leonardis 12(G) Stmt., ¶ 14.

The Burns Memo provided that, regardless of whether an employee was charged with simple or aggravated assault, Burns would "provide a lawyer to represent the employee at Burns' expense, as it has in the past." Moving Brief, Ex. A. It also provided:

Since aggravated assault charges grow out of the possible use of excessive force, your legal expenses will be paid directly by Burns up to the indictment by the Grand Jury. Upon indictment, you can retain the lawyer of your choice, and will be responsible for your legal expenses. If you are acquitted (found innocent) Burns will pay for all legal expenses incurred, unless Burns' own investigation indicates that you have violated Burns' policies and procedures.... The possible use of excessive, unnecessary and/or unreasonable force by any member of the security force cannot be tolerated.

Id. (emphasis deleted).

On 2 July 1990, Leonardis was notified by David Burton Brady ("Brady") that, because an indictment was forthcoming, Brady could no longer represent Leonardis in the Criminal Action.² Leonardis Opp. Brief, Ex. 1 (letter from Brady to Leonardis, dated 2 July 1992). Specifically, Brady stated:

I am notifying the Criminal Case Management Office that I am no longer representing you. As I indicated during our conversation, the policy on this matter is that Burns had retained me to represent you prior to the indictment. Once an indictment has been handed down, the policy is that the guard charged must retain his own counsel. That counsel will be reimbursed for all reasonable attorneys' fees at the conclusion of the case if there is an acquittal. If not, the responsibility for payment of the fees remains with yourself. I am sure this policy has been previously explained to you by representatives of Burns.

Id.

On 18 April 1991, following a jury trial in Bergen County Superior Court (the "Criminal Action"), Plaintiffs were acquitted of the indicted charges but, nevertheless, were convicted of the lesser included offense of simple assault. Zecca 12(G) Stmt., ¶ 8; Leonardis 12(G) Stmt., ¶ 8; Complaint at 2. Plaintiffs appealed their convictions. Burns 12(G) Stmt., ¶ 9. The appeal by Leonardis was denied. Zecca 12(G) Stmt., ¶ 9; Leonardis 12(G) Stmt., ¶ 9. The appeal by Zecca is pending. Zecca 12(G) Stmt., ¶ 9; Leonardis 12(G) Stmt., ¶ 9.

Plaintiffs allege that, in reliance on communications and representations by Burns, they did not consider a plea bargain or accept entry into New Jersey's Pre-Trial Intervention Program (the "PTI Program") and instead chose to go to trial. Zecca Opp. Brief at 4; Leonardis Opp. Brief at 3. Certain representations do appear to have been made by Burns' representatives.

For instance, on 25 July 1990, Claude E. White ("White"), the "Vice President — Law" for Burns, notified Thomas M. Kaczka ("Kaczka"), attorney for Leonardis, that "Burns will ... reimburse Mr. Leonardis for reasonable legal fees if he is acquitted of the charges concerning the above-referenced indictment." Leonardis Opp. Brief, Ex. 3 (letter from White to Kaczka, dated 25 July 1990). Moreover, on 20 September 1990, White notified Kaczka as follows:

Please be advised that Burns' Policy is to reimburse Mr. Leonardis if he is acquitted. Mr. Leonardis's plea bargaining would not be an acquittal and accordingly not entitle him to reimbursement of his reasonable legal expenses.

Should Mr. Leonardis enter a ... PTI Program there would be no adjudication on the merits of the charges. Therefore legal fees would not be reimbursed by Burns.

Id., Ex. 2 (Letter from White to Kaczka, dated 20 September 1990).

Subsequent to their conviction, Plaintiffs requested Burns to reimburse their legal expenses incurred in the Criminal Action.³ Burns 12(G) Stmt., ¶ 10; Zecca 12(G) Stmt.; ¶ 10; Leonardis 12(G) Stmt., ¶ 10. Burns refused to reimburse the Plaintiffs. Burns 12(G) Stmt., ¶ 10; Zecca 12(G) Stmt., ¶ 10; Leonardis 12(G) Stmt., ¶ 10.

On 16 September 1991 and 23 September 1991, Zecca and Leonardis respectively filed "step two" grievances (the "Step Two Grievances") under the Collective Bargaining Agreement, again seeking reimbursement of the Legal Expenses. Burns 12(G) Stmt., ¶ 11; Zecca 12(G) Stmt., ¶ 11; Leonardis 12(G) Stmt., ¶ 11; Complaint at 3. Burns denied the Step Two Grievances approximately one week later. Burns 12(G) Stmt., ¶ 12; Zecca 12(G) Stmt., ¶ 12; Leonardis 12(G) Stmt., ¶ 12; Complaint at 3. Local 1412 then refused Plaintiffs' requests to proceed to the next step of the grievance procedure. Burns 12(G) Stmt., ¶ 13; Zecca 12(G) Stmt., ¶ 13; Leonardis 12(G) Stmt., ¶ 13.

On 15 May 1992, Plaintiffs served the Complaint upon Burns. Notice of Removal ("Removal Notice"), filed 8 June 1992, ¶ 3. The Complaint alleges four counts for recovery. Count One (the "Independent Contract Claim") essentially alleges that, pursuant to the Burns Memo, Burns entered into a contract with the Burns guards at the Meadowlands, including Plaintiffs, which was...