Merola v. National R. Passenger Corp., No. 86 Civ. 2900 (MGC).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: Siff, Rosen & Parker, P.C. by Mark S. Landman, Amy Gallent, New York City, for defendants
• Citation: 683 F. Supp. 935
• Parties: Anthony MEROLA, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, Ernest R. Frazier, Sr., Robert L. Strempek and Raymond C. Ingalls, Defendants.
• Docket Number: No. 86 Civ. 2900 (MGC).
• Decision Date: 12 February 1988

683 F. Supp. 935

Anthony MEROLA, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Ernest R. Frazier, Sr., Robert L. Strempek and Raymond C. Ingalls, Defendants.

No. 86 Civ. 2900 (MGC).

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

February 12, 1988.

683 F. Supp. 936

Altier, Wayne & Klein by Raymond Val Wayne and Sam Polur, New York City, for plaintiff.

Siff, Rosen & Parker, P.C. by Mark S. Landman, Amy Gallent, New York City, for defendants.

OPINION

CEDARBAUM, District Judge.

This is an action brought under 42 U.S.C. § 1983 and New York State law alleging false arrest and imprisonment, malicious prosecution and illegal wiretapping. The plaintiff, Anthony Merola, was a sergeant on the police force of the National Railroad Passenger Corporation ("Amtrak"). He seeks damages from defendants Amtrak; Ernest R. Frazier, Sr., an Amtrak police officer; Robert L. Strempek, Chief of the New York Division of the Amtrak Police Department; and Raymond C. Ingalls, Amtrak's Chief of Police. This action was instituted in New York State Supreme Court, and was removed to this court.

The defendants now move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), or in the alternative for summary judgment. They contend first that the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., gives exclusive jurisdiction over this dispute to the arbitration boards that it establishes, and that therefore this court lacks jurisdiction. In the alternative, they contend that the complaint fails to state a claim under § 1983 because insufficient "state action" is alleged. For the reasons discussed below, defendants' motion is denied.

BACKGROUND

The facts as alleged in the complaint are as follows. Merola, himself a police sergeant for Amtrak, was arrested on November 2, 1984, at the Midtown South Precinct of the New York City Police Department by defendant Frazier. Merola was charged

683 F. Supp. 937

with violating N.Y. Penal Law § 265.10(7), which prohibits the unlawful disposition of firearms. He was booked, photographed and fingerprinted, and given an Appearance Ticket directing him to appear in Criminal Court on November 20, 1984. In all, he was compelled to remain in police custody for approximately seven hours

On November 20, 1984, Merola was charged by information in Criminal Court with having unlawfully disposed of a firearm in or about October 1983 at Pennsylvania Station in New York City, in violation of N.Y. Penal Law § 400.00(16). After numerous adjournments for the purpose of obtaining corroborating affidavits, which had been requested by the Court, the criminal complaint and information were dismissed on March 15, 1985.

During this period, Amtrak was conducting its own investigation, which led to Merola's dismissal from the Amtrak police on May 30, 1985. The complaint in this case is silent concerning the investigation and dismissal, except for the allegation that the defendants wiretapped Merola's telephone conversations. However, defendants have submitted to the Court a copy of an award of Public Law Board No. 3962, which decided an appeal of Merola's dismissal. According to the Board's decision, Merola is alleged to have sold a loaded handgun in late 1983 or early 1984 in the Amtrak Police Locker Room in Penn Station. The departmental charges against him included the sale of the handgun, the arrest, his failure to assist in a criminal investigation of shootings in Penn Station involving a handgun of the same caliber as the one he had sold, his imperilling of the safety of Amtrak employees and patrons by selling the gun, and his failure to take enforcement action against the buyer of the handgun, whose possession of it was unlawful. An investigative hearing was held, and Merola was dismissed. The dismissal was upheld by the Public Law Board.¹

Merola instituted this action in March 1986. The first three counts of his complaint seek monetary relief under 42 U.S.C. § 1983. They allege false arrest and false imprisonment, malicious prosecution, and illegal wiretapping, all in violation of Merola's rights under the Fourth and Fourteenth Amendments. The fifth count of the complaint seeks damages for common law malicious prosecution. The fourth count seeks damages for common law false arrest and false imprisonment. Defendants have moved to dismiss the fourth count as barred by the New York statute of limitations. At oral argument of the motion to dismiss, plaintiff's counsel agreed to withdraw this count.

DISCUSSION

A. The RLA and This Court's Jurisdiction

Defendants' motion to dismiss for lack of jurisdiction is brought under Rule 12(b)(1). Defendants have submitted to the Court one significant document outside the pleadings —the Public Law Board award. The Court may consider matters outside the pleadings without converting a Rule 12(b)(1) motion into one for summary judgment. Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006, 1010-11 (2d Cir.1986); Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir.1976). I note that Merola has had ample time to submit material outside the pleadings in opposition to the motion, and that facts concerning jurisdiction are not peculiarly within the knowledge of defendants. See Kamen, 791 F.2d at 1011.

The RLA has been interpreted to separate employment disputes into different categories. See Independent Union of

683 F. Supp. 938

Flight Attendants v. Pan American World Airways, Inc., 789 F.2d 139, 140-41 (2d Cir.1986) (per curiam). Exclusive jurisdiction over "minor" disputes, "which involve grievances over the `meaning or proper application of a particular provision' in an existing collective bargaining agreement," id. at 140, quoting Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945), is vested in the labor-management adjustment boards created by the statute, Flight Attendants, 789 F.2d at 141, or in a Public Law Board chosen by the parties. See 45 U.S.C. § 153 First (i) and Second; Atchison, Topeka and Santa Fe Ry. Co. v. Buell, ___ U.S. ___, 107 S.Ct. 1410, 1414, 94 L.Ed.2d 563 (1987). The jurisdiction of the federal courts over these disputes is limited to the narrow judicial review of the required railway arbitration proceedings. See Andrews v. Louisville & N.R. Co., 406 U.S. 320, 325, 92 S.Ct. 1562, 1565-66, 32 L.Ed.2d 95 (1972); Watts v. Union Pacific R. Co., 796 F.2d 1240, 1243 & n. 3 (10th Cir.1986)

In enacting this statutory scheme:

Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements. The Adjustment Board was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Congress considered it essential to keep these so-called "minor" disputes within the Adjustment Board and out of the courts.

Buell, 107 S.Ct. at 1414 n. 9 (citations omitted), quoting Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978).

In order to ensure that litigants not be able to avoid the exclusive jurisdiction of the Adjustment and Public Law Boards by clever pleading, courts have declined to assume jurisdiction over claims of wrongful discharge, Andrews, or of intentional infliction of emotional distress arising out of a discharge, see Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.), cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). They have also refused to consider claims arising out of non-termination disputes where the employee's rights arise solely out of the employment contract itself. E.g., American Federation of Railroad Police (AFRP) v. National Railroad Passenger Corp. (Amtrak), 832 F.2d 14,...