London v. Polishook, Docket No. 98-9127

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtSHADUR
Citation189 F.3d 196
Parties(2nd Cir. 1999) STEVEN LONDON and THE NEW CAUCUS, Plaintiffs-Appellants, v. IRWIN POLISHOOK, Defendant-Appellee
Decision Date01 August 1998
Docket NumberDocket No. 98-9127

Page 196

189 F.3d 196 (2nd Cir. 1999)
STEVEN LONDON and THE NEW CAUCUS, Plaintiffs-Appellants,
v.
IRWIN POLISHOOK, Defendant-Appellee.
Docket No. 98-9127
August Term, 1998
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
Argued May 3, 1999
Decided Aug. 13, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) dismissing plaintiffs' claims for lack of subject matter jurisdiction. On appeal plaintiffs contend (1) that because the jurisdictional issue was closely intertwined with the merits of plaintiffs' claims, the district court erred by dismissing on jurisdictional grounds before the case had reached the summary judgment or trial stage and (2) that the district court's substantive analysis of the subject matter jurisdictional issue was in error as well. Although we do not agree that the district court had to defer decision of the jurisdictional issue until the case itself was ripe for disposition via summary judgment or trial, we hold that the district court failed to give adequate consideration to plaintiffs' submissions as to jurisdiction, so that the court's substantive analysis was flawed.

Judgment VACATED and action REMANDED.

Page 197

LAUREN ESPOSITO, Kennedy, Schwartz & Cure, New York, NY (Arthur Schwartz, Kennedy, Schwartz & Cure, New York, NY) for Plaintiffs-Appellants.

HANAN B. KOLKO, Vladeck, Waldman, Elias & Englehard, P.C., New York, NY (Irwin Bluestein, Vladeck, Waldman, Elias & Englehard, P.C., New York, NY) for Defendant-Appellee.

Before: CABRANES and SACK, Circuit Judges, and SHADUR,*. District Judge.

SHADUR, District Judge:

The New Caucus a political faction within Professional Staff Congress ("Congress") and its leader Steven London (purely for convenience we will refer to both plaintiffs as "New Caucus," spoken of in the singular) appeal from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) dismissing New Caucus' claims for lack of subject matter jurisdiction. They contend (1)that because the jurisdictional issue was closely intertwined with the merits of New Caucus' claims, the district court erred by dismissing on jurisdictional grounds before the case had reached the summary judgment or trial stage and (2) that the district court's substantive analysis of the subject matter jurisdictional issue was in error as well.

Although we do not agree that the district court had to defer decision of the jurisdictional issue until the case itself was ripe for disposition via summary judgment or trial, we hold that the district court failed to give adequate consideration to plaintiffs' submissions as to jurisdiction, so that the court's substantive analysis was flawed. We therefore vacate the judgment of dismissal and remand for further proceedings consistent with this opinion.

Background

Congress is a labor union representing employees of the City University of New York ("CUNY") and the Research Foundation of CUNY ("Research Foundation"). 1 On June 23, 1998 Congress and CUNY reached a tentative accord as to a new collective bargaining agreement, and Congress sent a letter to its members advising them that the agreement would be submitted to Congress' Executive Council and Delegate Assembly for consideration. On July 7, 1998 the Executive Council met and voted to recommend to the Delegate Assembly that the proposed agreement be ratified. Later that day the Delegate Assembly voted to approve the agreement and to recommend ratification to the union membership. Congress then began to prepare a mailing to its members describing the agreement and containing a secret ballot for the ratification vote.

On July1, 1998 New Caucus had sent Congress a letter seeking the opportunity to send a mailing to Congress' members before the ratification vote. New Caucus said it would pay for the mailing, but it asked that Congress make mailing labels available. When Congress denied that request, on July 14, 1998 New Caucus filed the complaint in this action and moved for a preliminary injunction and temporary restraining order. New Caucus claims that Congress violated Labor Management Reporting

Page 198

and Disclosure Act §411(a)(1)2 by refusing to permit New Caucus to use the mailing list to provide union members with information about the upcoming vote. New Caucus sought to bar Congress' own distribution of the ratification ballots until it granted New Caucus permission to use the mailing list.

On July 15, 1998, one day after the complaint was filed and without a hearing on the matter, the district court issued an order denying the requested relief and dismissing the claims for lack of subject matter jurisdiction. Dismissal was predicated on the premise that jurisdiction was wanting because Congress, as a labor union assertedly representing only employees of public employers, is not governed by the Act. New Caucus brought this appeal on the grounds stated at the outset of this opinion.

Standard of Review

In our review of a district court's determination of subject matter jurisdiction pursuant to Fed. R. Civ. P. ("Rule") 12(b)(1), we examine factual findings for clear error and legal conclusions de novo (Woodward Governor Co. v. Curtiss-Wright Flight Sys., Inc., 164 F.3d 123, 126 (2d Cir. 1999)). This appeal involves both types of evaluation.

Subject Matter Jurisdiction

Section 412 confers federal jurisdiction on suits by persons whose...

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58 practice notes
  • First Capital Asset Management v. Brickellbush, No. 00 CIV. 5597(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 29, 2002
    ...11. Dar El-Bina Eng'g & Contracting Co. v. Republic of Iraq, 79 F.Supp.2d 374, 385 (S.D.N.Y.2000) (quoting London v. Polishook, 189 F.3d 196, 198 (2d Cir.1999), in turn quoting Careau Group v. United Farm Workers of Am., AFL-CIO, 940 F.2d 1291, 1293 (9th Cir. 1991)); see also Kamen v. Am. T......
  • Rosse v. United States, No. 1:14–cv–00816 (MAD/RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 22, 2015
    ...matter jurisdiction is upon the plaintiff. See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir.1999) ; London v. Polishook, 189 F.3d 196, 199 (2d Cir.1999) ; LaFrancis, 66 F.Supp.2d at 337. When making determinations of jurisdictional facts that are in dispute, the Court may look to......
  • Cromer Finance Ltd. v. Berger, No. 00 CIV. 2284(DLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 17, 2001
    ...the standard "applicable to a motion for summary judgment" and dismiss only where "no triable issues of fact" exist. London v. Polishook, 189 F.3d 196, 198-99 (2d Cir.1999) (citation omitted); see also Europe and Overseas Commodity Traders, S.A. v. Banque Paribas London, 147 F.3d 118, 121 n......
  • City of New York v. Milhelm Attea & Bros., Inc., No. 06-CV-3620(CBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 30, 2008
    ...is proper by a preponderance of the evidence. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir.2002); see also London v. Polishook, 189 F.3d 196-99 (2d Cir.1999) ("[I]t is the affirmative burden of the party invoking [federal subject matter] jurisdiction ... to proffer the necessary factual p......
  • Request a trial to view additional results
58 cases
  • First Capital Asset Management v. Brickellbush, No. 00 CIV. 5597(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 29, 2002
    ...11. Dar El-Bina Eng'g & Contracting Co. v. Republic of Iraq, 79 F.Supp.2d 374, 385 (S.D.N.Y.2000) (quoting London v. Polishook, 189 F.3d 196, 198 (2d Cir.1999), in turn quoting Careau Group v. United Farm Workers of Am., AFL-CIO, 940 F.2d 1291, 1293 (9th Cir. 1991)); see also Kamen v. Am. T......
  • Rosse v. United States, No. 1:14–cv–00816 (MAD/RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • May 22, 2015
    ...matter jurisdiction is upon the plaintiff. See Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir.1999) ; London v. Polishook, 189 F.3d 196, 199 (2d Cir.1999) ; LaFrancis, 66 F.Supp.2d at 337. When making determinations of jurisdictional facts that are in dispute, the Court may look to......
  • Cromer Finance Ltd. v. Berger, No. 00 CIV. 2284(DLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 17, 2001
    ...the standard "applicable to a motion for summary judgment" and dismiss only where "no triable issues of fact" exist. London v. Polishook, 189 F.3d 196, 198-99 (2d Cir.1999) (citation omitted); see also Europe and Overseas Commodity Traders, S.A. v. Banque Paribas London, 147 F.3d 118, 121 n......
  • City of New York v. Milhelm Attea & Bros., Inc., No. 06-CV-3620(CBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 30, 2008
    ...is proper by a preponderance of the evidence. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir.2002); see also London v. Polishook, 189 F.3d 196-99 (2d Cir.1999) ("[I]t is the affirmative burden of the party invoking [federal subject matter] jurisdiction ... to proffer the necessary factual p......
  • Request a trial to view additional results

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