Rodonich v. House Wreckers Union, Local 95

• Decision Date: 01 November 1993
• Docket Number: No. 82 Civ. 5583 (JMC).,82 Civ. 5583 (JMC).
• Citation: 837 F. Supp. 550
• Parties: Joseph RODONICH, Alex Chotowicky, Wasyl Lawro and Harry Diduck, Plaintiffs, v. HOUSE WRECKERS UNION, LOCAL 95 OF LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, Laborers' International Union of North America, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

837 F. Supp. 550

Joseph RODONICH, Alex Chotowicky, Wasyl Lawro and Harry Diduck, Plaintiffs, v. HOUSE WRECKERS UNION, LOCAL 95 OF LABORERS' INTERNATIONAL UNION OF NORTH AMERICA Laborers' International Union of North America, et al., Defendants.

No. 82 Civ. 5583 (JMC).

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

November 1, 1993.

COPYRIGHT MATERIAL OMITTED

Wendy Sloan, Hall & Sloan, New York City, for plaintiffs.

Edward J. Groarke, Colleran, O'Hara & Mills, Garden City, NY, for defendant Local 95.

Michael Barrett, Theodore T. Green, and Laurence E. Gold, Connerton, Ray & Simon, Washington, DC, for defendant Laborers' Intern. Union.

MEMORANDUM AND ORDER

CANNELLA, District Judge.

Plaintiffs' motion for substitution of Edward T. Markunas, executor of the estate of Harry Diduck, as party plaintiff in place of the deceased Harry Diduck is granted. Fed. R.Civ.P. 25(a). Plaintiffs' motion for attorneys' fees and costs is denied.

BACKGROUND

The plaintiffs, Joseph Rodonich, Alex Chotowicky, Wasyl Lawro, and Harry Diduck, seek an award of attorneys' fees against the Laborers' International Union of North America ("LIUNA"), and costs against both LIUNA and House Wreckers Union Local 95 of Laborers' International Union ("Local 95") in connection with their prosecution of the instant action.

Plaintiffs commenced suit against LIUNA, Local 95, and individual defendants on August 23, 1982 in the Southern District of New York. In their complaint plaintiffs alleged that the defendants engaged in a scheme to suppress dissent within Local 95 and unlawfully disciplined them in violation of sections 101(a)(1), (2), (5), 609 and 610 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. §§ 411(a)(1), (2), (5), 529, 530 (1982) ("LMRDA"), section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982) ("LMRA"), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (1982) ("RICO"), and LIUNA's constitution.

Prior to trial, the Court granted LIUNA summary judgment on plaintiffs' claim that LIUNA breached its constitution in contravention of § 301(a) of the LMRA, dismissing the state law contract claim as preempted by federal labor law. See Rodonich v. House Wreckers Union Local 95 of Laborers' International Union of North America, 624 F.Supp. 678 (S.D.N.Y.1985). Following trial, the jury returned a verdict in favor of plaintiffs Rodonich, Chotowicky, and Lawro against Local 95, and entered final judgment in accordance therewith on March 14, 1986. The Court entered final judgment dismissing plaintiffs' claims against LIUNA and dismissing all claims of plaintiff Diduck. Diduck's motion for judgment notwithstanding the verdict was denied by the Court on May 21, 1986. See Memorandum and Order, 82 Civ. 5583 (JMC) (S.D.N.Y. May 21, 1986). Plaintiffs appealed the dismissal of their claims against LIUNA. LIUNA, Local 95, and the individual defendants cross-appealed from the judgment.

On appeal, the Second Circuit affirmed the dismissal of all claims against LIUNA, except those asserted by Diduck. See Rodonich v. House Wreckers Union Local 95, 817 F.2d 967, 970 (2d Cir.1987). The Second Circuit reversed the dismissal of the complaint as to Diduck, and remanded the case to the district court for entry of a directed verdict in favor of Diduck both as against Local 95 and LIUNA, and for further proceedings on the issue of damages. See id., at 976. The Second Circuit affirmed the district court's decision as to LIUNA's cross-appeal regarding the statute of limitations, and plaintiffs' claim regarding the instruction on emotional distress. See id. at 976-78.

The Court approved a settlement of Diduck's claims on July 5, 1989, pursuant to which LIUNA agreed to immediately pay Diduck $20,000, and Local 95 agreed to pay an additional $20,000 within six months. Diduck's motion for sanctions and post-settlement interest based on untimely payment of the settlement proceeds was denied by the Court on July 8, 1991. See Memorandum and Order, 82 Civ. 5583 (JMC) (S.D.N.Y. July 8, 1991). Plaintiffs' motion for declaratory and injunctive relief was also denied by the Court. See id. Plaintiffs' motion for reargument of their application for equitable relief was denied by the Court on March 3, 1992. See Memorandum and Order, 82 Civ. 5583 (JMC) (S.D.N.Y. Mar. 3, 1992).

DISCUSSION

I. Substitution of Edward T. Markunas

Plaintiffs move to substitute Edward T. Markunas, executor of the estate of Harry Diduck, as party plaintiff pursuant to Rule 25(a) of the Federal Rules of Civil Procedure. The motion is unopposed. See Letter to the Court from Michael Barrett, dated July 26, 1993.

The survivorship of federal labor law claims is a matter of federal law. See Mallick v. International Brotherhood of Electrical Workers, 814 F.2d 674, 676 (D.C.Cir. 1987). The District of Columbia Circuit Court of Appeals, in deciding the survivorship of a claim brought under section 201 of the LMRDA, observed that the federal courts "should formulate a federal rule of decision that best serves the goals which underlie the federal right of action itself." Id., at 677. The court reasoned that a federal court in deciding survivorship must strive to implement the will of Congress. See id. The Court identified deterrence as the goal underlying union member suits under section 201. See id. The court reasoned that the rights inhering in Title II — the right of union member access to full information concerning union financial and administrative practices and procedures — were rights shared equally by all union members, and thus enforceable by any of the union members. See id., at 677-78. Therefore, the court noted, the identity of the particular plaintiff suing under section 201 was of no import, as the same duty was owed by the union to all of its members. See id., at 678. Accordingly, the court permitted substitution of other union members as plaintiffs. See id., at 679.

In enacting Title I, Congress intended "to curb the autocratic rule of some union leaders by assuring union members of equal rights to participate in union affairs and the rights to speech and assembly and by preventing suppression of these rights through abuse of the union's disciplinary powers." Rosario v. Amalgamated Ladies Garment Cutters' Union, Local 10, I.L.G.W.U., 605 F.2d 1228, 1239 (2d Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980). In the Court's view, such purpose is furthered through survivorship of Diduck's claim brought pursuant to section 102 of the LMRDA.

Federal Rule of Civil Procedure 25(a) provides for substitution of proper parties by the court when a party dies and his claim survives his death. The Court grants plaintiffs' motion to so substitute Edward T. Markunas in place of the deceased Harry Diduck.

II. Motion for Attorneys' Fees and Costs

Plaintiffs contend that they are entitled to attorneys' fees and costs¹ under the common benefit doctrine. Defendant asserts that attorneys' fees are not justified under a common benefit theory since plaintiffs were not prevailing parties,² and moreover, failed to render a substantial benefit to the membership of the international union through their prosecution of the instant suit.

The common benefit doctrine is an equitable exception to the prohibition against the shifting of attorneys' fees. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980). It has its origins in the common fund theory, a device whereby courts permitted the creator of a common fund to seek reimbursement for his attorneys' fees from the beneficiaries who participated in the proceeds of the fund without contributing to the cost of the litigation. See id. The common fund doctrine, the purpose of which was to prevent the unjust enrichment which would result from the participation in the proceeds of a fund by persons who did not incur litigation costs, may thus be characterized as a restitutionary rule. See id.

In Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), the United States Supreme Court extended this rationale to allow fee-shifting where a suit vindicated a common interest through the conferral of a benefit, as opposed to the preservation, increase, or procurement of a fund. See Hall v. Cole, 412 U.S. 1, 5-6 n. 7, 93 S.Ct. 1943, 1946-1947 n. 7, 36 L.Ed.2d 702 (1973). The plaintiffs in Mills sued under section 14(a) of the Securities Exchange Act of 1934 to establish the liability of the defendant corporation for an unlawful merger.³ The Mills Court held that attorneys' fees were recoverable by the prevailing plaintiffs "where the litigation has conferred a substantial benefit on the members of an ascertainable class, and where the court's jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the costs proportionately among them." Mills, 396 U.S. at 393-94, 90 S.Ct. at 626.

In Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702, the United States Supreme Court expressly sanctioned use of the common benefit doctrine in suits brought pursuant to section 102 of the LMRDA. See id. at 9, 93 S.Ct. at 1948. The plaintiff in Hall was expelled from the union due to an alleged violation of a union rule prohibiting "deliberate or malicious vilification with regard to the execution or the duties of any office or job." Id., at 3, 93 S.Ct. at 1945. The district court made a finding that the plaintiff's free speech rights delineated in section 101(a)(2) of the LMRDA had been infringed, and accordingly, ordered the plaintiff permanently reinstated and awarded attorneys' fees, although denying plaintiff's damages claims. See id. The Supreme Court affirmed the award of attorneys' fees, reasoning that

When a union member is disciplined for the exercise of any of the rights protected by Title I, the rights of all members of the union are threatened. And, by vindicating his own right, the

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