DISPOSITION:  [*1]  Counts two and three of the amended complaint dismissed as pre-empted. Count four, Mrs. Fasciana's loss of consortium claim, dismissed.

 

PROCEDURAL POSTURE: Defendants moved the court to dismiss plaintiffs' claims of defamation and loss of consortium.

 

OVERVIEW: Plaintiffs originally filed their action in state court. Defendants removed the action to the court on the grounds that plaintiffs' claims of defamation, arising under a labor contract, were preempted by the Labor Management Relations Act (LMRA). Defendants also moved to dismiss the claims on the same grounds. The court held that the LMRA did, indeed, preempt plaintiffs' state law claims, because they could not be resolved without interpretation of the labor contract. The defamatory statements alleged organized crime control of the labor union in violation of labor contract provisions. The veracity of that statement could not be evaluated without interpreting the contract itself. There was also evidence of a labor contract duty to publish the statements. Plaintiffs' state-law defamation claims, therefore, were preempted and could not stand. As a result, the loss of consortium claim, derived from the preempted claim, also could not survive.

 

OUTCOME: Court dismissed plaintiffs' claims; fact that defamation claims required interpretation of labor contract and that there may have been duty to publish allegedly defamatory statements under labor contract meant that federal law preempted state law claims, which also required dismissal of any derivative claims, such as loss of consortium.

 
CORE TERMS: pre-empted, labor contract, state-law, defamation, pre-emption, loss of consortium claim, allegedly defamatory, defamatory, derivative, duty, loss of consortium, organized crime, law firm, interpreting
 

 Civil Procedure : Federal Magistrates : Pretrial Orders

Pursuant to 28 U.S.C.S. § 636(b)(1), a federal district court must make a de novo determination of those portions of the magistrate's report and recommendation to which objections have been made.

 Labor & Employment Law : Collective Bargaining & Labor Relations : Enforcement

See 29 U.S.C.S. § 185(a).

 Labor & Employment Law : Collective Bargaining & Labor Relations : Enforcement

In the context of disputes under a labor contract, the United States Supreme Court has stated that complete preemption of a plaintiff's state-law claims under 29 U.S.C.S. § 185 of the Labor Management Relations Act will be found only where resolution of the state-law claim is inextricably intertwined with consideration of the terms of the labor contract, or where the rights and obligations created under state-law do not exist independently of the labor contract.

 Labor & Employment Law : Collective Bargaining & Labor Relations : Enforcement

In the context of the preemption of state law claims under the Labor Management Relations Act, Plaintiff may bring a state-law tort action against an employer, even where he could have brought a similar claim on a provision in the labor contract, so long as the state claim does not require interpretation of the labor contract. Likewise, the fact that the state-law analysis involves attention to the same factual considerations as a determination under that labor contract does not mandate preemption. A state-law claim will only be completely preempted where it cannot be resolved without interpretation of the labor contract.

 Labor & Employment Law : Collective Bargaining & Labor Relations : Enforcement

In situations where a labor contract impose a duty upon a defendant to make statements that are alleged to be defamatory, courts have repeatedly held that plaintiff's state defamation claims are pre-empted by 29 U.S.C.S. § 185(a) of the Labor Management Relations Act.

 Labor & Employment Law : Collective Bargaining & Labor Relations : Enforcement

In the context of preemption of state law claims under 29 U.S.C.S. § 185(a) of the Labor Management Relations Act, where loss of consortium claim is derivative of a pre-empted claim, loss of consortium claim cannot survive.

COUNSEL: For IGNATIUS FASCIANA, CHARLOTTE E. FASCIANA, plaintiffs: Eugene Tenney, The Law Office of Eugene C. Tenney, Esq., Buffalo, NY.
 
For ARTHUR A. COIA, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, ROBERT D. LUSKIN, COMEY, BOYD & LUSKIN, DANIEL A. BRAUN, JOHN J. CURRAN, defendants: Mark R. Uba, Lawrence J. Vilardo, Connors & Vilardo, Buffalo, NY.

JUDGES: HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT COURT.

OPINIONBY: RICHARD J. ARCARA

OPINION: DECISION AND ORDER

BACKGROUND

On or about June 12, 1997, plaintiffs Ignatius Fasciana ("Fasciana") and Charlotte Fasciana ("Mrs. Fasciana") filed a complaint in New York State court against defendants Arthur A. Coia, Laborers' International Union of North America ("LIUNA"), attorney Robert D. Luskin, the law firm of Comey, Boyd and Luskin, Daniel A. Braun and John J. Curran, Jr., alleging several counts of defamation and one count of loss of consortium. On or about September 18, 1997, plaintiffs filed an amended complaint in New York State court containing similar allegations.

On October 20, 1997, defendants  [*2]  filed a notice of removal of plaintiffs' claims to federal court on the ground that all of plaintiffs' claims are pre-empted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a). On November 18, 1997, plaintiffs moved to remand the case to state court. On June 15, 1998, this Court denied plaintiff's motion to remand finding that at least one of plaintiffs' claims (count one) was pre-empted under § 301 of the LMRA. The Court noted that plaintiffs' remaining claims also appeared to be pre-empted, but declined to decide the issue at that juncture. The Court then referred the case to Magistrate Judge Foschio for further proceedings.

Defendants thereafter filed a motion to dismiss the amended complaint and/or for summary judgment on the ground that all of plaintiffs' remaining claims are pre-empted. On September 7, 1999, Magistrate Judge Foschio filed a Report and Recommendation ("Report"), recommending that plaintiffs claims be dismissed.

Plaintiffs filed objections to the Report and defendants filed a response thereto. On November 23, 1999, the Court held oral argument on the objections.

DISCUSSION

Pursuant to 28 U.S.C. § 636  [*3]  (b)(1), this Court must make a de novo determination of those portions of the Report to which objections have been made. Upon a de novo review, and after reviewing the submissions and hearing argument from the parties, the Court finds that all of plaintiffs claims should be dismissed.

The instant dispute is one of several related actions filed by various members of Local 210, Laborers' International Union of North America ("Local 210") against defendants. n1 See Caci v. Laborers Int'l Union of North America, et al., 97-CV-0033A; Caci v. Laborers Int'l Union of North America, et al., 97-CV-0034A; Capitano v. Laborers Int'l Union of North America et al., 97-CV-0035A; Panzcyskowski v. Laborers Int'l Union of North America et al., 97-CV-0036A. As in each of the related actions, the amended complaint in this case sets forth numerous claims of defamation brought by a member and/or officer of Local 210, plaintiff Fasciana. The allegations in the amended complaint, which are discussed in detail in the Magistrate Judge's Report and in this Court's June 1998 Decision and Order, n2 are virtually identical to the allegations set forth in the related actions in that the  [*4]  defamation claims are based upon the same allegedly defamatory statements. As noted above, this Court has previously determined that count one of the amended complaint is pre-empted. Accordingly, the issue currently before the Court is whether plaintiff Fasciana's remaining defamation claims are also pre-empted.
 
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n1 The Court notes that defendants Coia, Braun and Curran are not named as defendants in some of the related actions. The remaining defendants, LIUNA, Luskin and the law firm of Comey, Boyd and Luskin, are all named as defendants in each of the related actions.

n2 Familiarity with this Court's June 1998 Decision and Order is presumed.
 
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The defendants allege complete pre-emption of counts two and three under § 301 of the LMRA. Section 301 of the LMRA provides:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court  [*5]  of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

 
29 U.S.C. § 185(a). The Supreme Court has stated that complete pre-emption of a plaintiff's state-law claims under Section 301 will be found only where resolution of the state-law claim is "inextricably intertwined" with consideration of the terms of the labor contract, or where the rights and obligations created under state-law do not exist independently of the labor contract. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985). Where resolution of plaintiff's state-law claim depends on interpretation of the labor contract, the claim is pre-empted. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 129 L. Ed. 2d 203, 114 S. Ct. 2239 (1994).

However, the fact that the labor contract provides a remedy that plaintiff could pursue as an alternative to the state-law claim does not mean that pre-emption is required. See Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 229 (3d Cir. 1995) ("plaintiff may bring a state-law  [*6]  tort action against an employer, even where he could have brought a similar claim on a provision in [the labor contract], so long as the state claim does not require interpretation of the [labor contract.]"). Likewise, the fact that the state-law analysis involves attention to the same factual considerations as a determination under that labor contract does not mandate pre-emption. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). A state-law claim will only be completely pre-empted where it cannot be resolved without interpretation of the labor contract.

As previously determined in this Court's June 1998 Decision and Order, the LIUNA constitution is a labor contract within the meaning of Section 301 of the LMRA. Therefore, if resolution of plaintiff Fasciana's defamation claims requires interpretation of the terms of the LIUNA constitution, those claims are pre-empted.

The Court finds that plaintiff Fasciana's second and third claims of defamation are pre-empted under § 301 of the LMRA. In count two of his amended complaint, plaintiff Fasciana alleges that statements made by defendant Braun to  [*7]  The Buffalo News in June 1996 were defamatory. In count three, plaintiff alleges that statements made in the November/December 1996 issue of The Laborer were defamatory. Both statements involve allegations that Local 210 has been controlled or influenced by members or associates of organized crime in violation of the LIUNA constitution. In other words, the issue of whether the complaint for trusteeship was necessary and whether Local 210 has been influenced or controlled by organized crime members necessarily turns on whether plaintiff or others violated various provisions of the LIUNA constitution. This determination cannot be made without interpreting the LIUNA constitution itself. Because the veracity of the statements cannot be without interpreting the LIUNA constitution, counts two and three must be dismissed as pre-empted.

Furthermore, with respect to count three, that claim is also pre-empted because the labor contract imposed a duty upon defendant Luskin to publish the allegedly defamatory statements. As this Court stated in its June 1998 Decision and Order, in situations where, as here, the labor contract imposed a duty upon the defendant to make the statements that  [*8]  are alleged to be defamatory, courts have repeatedly held that plaintiff's defamation claims are pre-empted. See e.g. Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989); Peek v. Philadelphia Coca-Cola Bottling Co., 1997 U.S. Dist. LEXIS 10138, 1997 WL 399379 (E.D. Pa. 1997) (pre-emption found where allegedly defamatory statements "overwhelmingly related to conduct that formed the substance of plaintiff's grievance and arbitration proceedings"). See § 3 of the Ethics and Disciplinary Procedure n3 (providing that the General Executive Board Attorney, defendant Luskin, "shall prepare reports concerning his or her activities, the progress he or she is making towards achieving the objectives and purposes of the Disciplinary Procedure, to be published on a bimonthly basis in The Laborer.").
 
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n3 As noted in this Court's June 1998 Decision and Order, at 3, the Ethics and Disciplinary Procedure became part of the LIUNA constitution in January 1995.
 
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Having dismissed all of plaintiff Fasciana's defamation  [*9]  claims as pre-empted, the Court finds that dismissal of Mrs. Fasciana's derivative claim for loss of consortium (count four) is also required. See St. John v. Int'l Assn' of Machinists and Aerospace Workers, Local 1010, 139 F.3d 1214, 1217, n.1 (8th Cir. 1998) (where loss of consortium claim is derivative of a pre-empted claim, loss of consortium claim cannot survive).

CONCLUSION

For the reasons discussed above, in the Magistrate Judge's Report, and in this Court's June 1998 Decision and Order, the Court hereby dismisses counts two and three of the amended complaint as pre-empted. Count four, Mrs. Fasciana's loss of consortium claim, is also dismissed. The Clerk of the Court is hereby directed to enter judgment in favor of defendants and close the case.

IT IS SO ORDERED.

HONORABLE RICHARD J. ARCARA

UNITED STATES DISTRICT COURT
 
Dated: March 31, 2000