Capitano vs Laborers International Union

COUNSEL: ROBERT H. PERK, ESQ., Buffalo, New York, for Plaintiff.

LAWRENCE J. VILARDO and MARK R. UBA, of Counsel, CONNORS & VILARDO, LLP, Buffalo, New York, for Defendants.

RICHARD N. GILBERG and TAMIR W. ROSENBLUM, of Counsel, COHEN, WEISS and SIMON, New York, New york, for Defendants.

JUDGES: LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.

OPINIONBY: LESLIE G. FOSCHIO

OPINION: REPORT AND RECOMMENDATION

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

JURISDICTION

This case was referred to the undersigned on June 17, 1998 by the Hon. Richard J. Arcara for Report and Recommendation of all dispositive motions. It is presently before the court on Defendants' motion to dismiss the complaint or, alternatively, for summary judgment filed September 30, 1998 (Docket Item No. 18).

BACKGROUND

Plaintiff, Peter Capitano ("Capitano"), commenced this action in New York Supreme Court, Erie County, on December 10, 1996 against Defendants Laborers' International Union of North America ("LIUNA"), Attorney Robert D. Luskin ("Luskin"), and the [*2] law firm of Comey, Boyd and Luskin ("Comey, Boyd"), alleging numerous counts of defamation. Defendants removed the action to federal court on January 17, 1997 on the basis that Capitano's claims were pre-empted by the Labor Management Relations Act ("LMRA"). On January 30, 1997, Capitano moved to remand the action to state court. The court, finding that Counts One and Seven were completely pre-empted by LMRA § 301 and commenting that the balance of the causes of action likely were also preempted, denied the motion to remand on March 27, 1998. Decision and Order filed March 27, 1998 (Docket Item No. 13) at 20-21, 26.

On September 30, 1998, Defendants moved to dismiss the complaint for failure to state a claim or, alternatively, for summary judgment, filing in support a Statement of Undisputed Facts (Docket Item No. 19), Defendants' Memorandum of Law in Support of Motion to Dismiss or for Summary Judgment (Docket Item No. 20) ("Defendants' Memorandum") and the Declaration of Robert D. Luskin, Esq. (Docket Item No. 21) ("Luskin Declaration"). n2 Capitano's response, filed November 16, 1998 (Docket Item No. 24), consists of the Affidavit of Robert H. Perk ("Perk Affidavit"), Plaintiff's [*3] Response to Defendants Statement and a Memorandum of Law ("Plaintiff's Memorandum"). On December 4, 1998, Defendants filed Defendants' Reply Memorandum of Law in Support of Motion to Dismiss or for Summary Judgment (Docket Item No. 25) ("Defendants' Reply"). Oral argument was deemed unnecessary.

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n2 Defendants' Notice of Motion and supporting papers were filed under seal as a precautionary measure as Exhibit M to the Luskin Declaration contains portions of the transcripts of hearings from a disciplinary proceeding held before LIUNA's Independent Hearing Officer ("IHO"), as LlUNA's rules pertaining to disciplinary hearings requires such transcripts remain confidential.

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Based on the following, Defendants' motion, treated as a motion to dismiss for failure to state a claim, should be GRANTED.

FACTS n3

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n3 Taken from the pleadings and motion papers filed in this action.

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Capitano was a member and officer of the Local 210 chapter of Laborers' International Union of North America ("Local 210"). In response to the perceived influence organized crime had over LIUNA and its local chapters, such as Local 210, LIUNA's constitution was amended on January 18, 1995 by its General Executive Board ("GEB") with the adopting of an Ethics and Disciplinary Procedure ("the EDP") and the Ethical Practices Code ("the EPC"). n4 The EDP was a reform measure intended to remove the influence of organized crime in the affairs of LIUNA and was precipitated by advice that the federal government intended to commence a civil action under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1961 et seq., against LIUNA. Other reforms included creation of three new officers positions within LIUNA responsible for investigating, prosecuting, and adjudicating charges of wrongdoing within the international union and its associated local unions. Those positions include (1) the LIUNA Inspector General, (2) the GEB Attorney and (3) the Independent Hearing Officer ("IHO").

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n4 Copies of the EDP and the EPC are attached as Exhibits A and B, respectively, to the Luskin Affidavit.

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On January 18, 1995, Robert D. Luskin, Esq., one of LIUNA's attorneys, was appointed GEB Attorney with authority to initiate and impose supervision and trusteeship upon subordinate bodies of LIUNA, including local unions like Local 210, and to take disciplinary action against individual LIUNA members for violations of LIUNA's EDP and the LIUNA constitution. Pursuant to his authority as GEB Attorney, Luskin, on January 18, 1995, initiated trusteeship proceedings against Local 210 by sending letters of notice to Local 210's officers and members, along with a Complaint for Trusteeship which was also filed with the LIUNA Independent Hearing Officer. n5 The Complaint for Trusteeship alleges that for at least the past twenty-five years, the Buffalo family of La Cosa Nostra ("LCN") organized crime syndicate "has exercised a substantial if not dominating influence over the Local 210's affairs." Complaint for Trusteeship, PP 1-3. Members and associates of LCN had been placed and served as officers and employees of Local 210 and its affiliated funds, and their wives and sisters had been hired as clerical workers. Complaint for Trusteeship, P 4. The Complaint for Trusteeship further alleges [*6] Capitano is among the "members and associates" of LCN who exercised control over Local 210 for the benefit of LCN rather than for Local 210's members. Complaint for Trusteeship, P 4.

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n5 A copy of the Complaint for Trusteeship is attached as Exhibit C to the Complaint.

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Luskin also filed disciplinary charges ("Disciplinary Charges") against members and officers of LIUNA, including Capitano. n6 The Disciplinary Charges were essentially based on the same grounds on which the Complaint for Trusteeship is based, i.e., improper influence by organized crime. Charges II and V of the Disciplinary Charges respectively allege Capitano committed conduct "barred" under the EDP by being an associate of LCN, and by knowingly associating with members of LCN.

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n6 A copy of the Disciplinary Charges is attached as Exhibit F to the Complaint.

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The core of [*7] Capitano's Complaint is that the statements made by or on behalf of Defendants in the Complaint for Trusteeship and the Disciplinary Charges regarding alleged organized crime affiliations and influences constitute false and defamatory statements about Capitano which were published to third parties. The Complaint contains twelve causes of action, summarized as follows:

A. Count One

In Count One of the Complaint, Capitano alleges the statements contained in the Complaint for Trusteeship, including statements that Capitano was among the members and associates of the LCN who exercised control over Local 210 for the benefit of LCN rather than Local 210's members, are false and defamatory per se as they were made by Defendants with malice, and were published by Defendants to third parties, including members and non-members of LIUNA, and the Buffalo area media. (Complaint, PP 10-23).

B. Counts Two and Three

In Counts Two of the Complaint, Capitano alleges that statements contained in a letter dated December 11, 1995, written by Luskin to the officers and members of Local 210, are false and defamatory per se as they were made with malice and were published [*8] to third parties including members and non-members of LIUNA. n7 (Complaint, PP 24 - 33). Statements in that letter refer the recipients to the Complaint for Trusteeship for "a more detailed recitation of the evidence of organized crime influence" within Local 210. Complaint, Exhibit B at 1. Readers of the letter are also advised that Luskin, as GEB Attorney, found it necessary to appoint a trustee to take control of Local 210 to remove the influence of organized crime. Id.

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n7 A copy of the December 11, 1995 letter is attached as Exhibit B to the Complaint.

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Capitano makes essentially identical allegations in Count Three of the Complaint as to statements in a December 11, 1996 letter, written by Luskin to the members of Local 210. n8 (Complaint, PP 34- 43). That letter stated that a formal trusteeship process had been commenced to rid Local 210 of the influence of organized crime in accordance with the LIUNA constitution. Complaint, Exhibit A at 1-2.

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n8 A copy of the December 11, 1996 letter is attached as Exhibit A to the Complaint.

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C. Counts Four and Five

Capitano alleges in both Counts Four and Five that Defendants made various defamatory statements against him in two separate articles published in the January/February 1996 issue of The Laborer, a bi-monthly publication published by LIUNA with a circulation consisting of thousands of members and non-members in the United States and Canada. (Complaint, PP44-56 (Count Four), 57-68 (Count Five)). Specifically, Count Four pertains to statements contained in an article entitled "Report of the GEB Attorney," Complaint, P45 and Exhibit D, and Count Five pertains to statements contained in an article entitled "Inspector General's Report." Complaint, P 58 and Exhibit E. According to Capitano, the subject of both articles is the action taken by Luskin in initiating proceedings for imposition of a trusteeship on Local 210, based on the belief of Luskin and the Inspector General that Local 210 was dominated by members of LCN who violated the LIUNA constitution by engaging in, inter alia, "financial improprieties," "discriminatory use of job referrals" and "evisceration of union democracy." Complaint Exhibit E at 16. Although neither article specifically [*10] refers to Capitano by name, Capitano maintains Defendants intended that the statements contained in those articles to be understood as referring to Capitano. Complaint, PP 48, 62. Capitano further asserts such statements were made with malice. Complaint, PP 54, 67.

D. Count Six

Capitano alleges as his sixth cause of action that on February 23, 1996, Luskin, in his capacity as GEB Attorney, held a press conference that was broadcast on television and radio and published by The Buffalo News and other print media, where he stated to third parties including members of the Buffalo media, "I stand behind every word in that Complaint for Trusteeship. We were prepared to prove it and would be prepared to prove it now if we needed to do it." Complaint, P 69-81. According to Capitano, such statement is false and defamatory per se, was intended to refer to him and was spoken with malice. Complaint, PP 74-78.

E. Count Seven

As his seventh cause of action, Capitano alleges that on June 14, 1996, Defendants published the Disciplinary Charges to third persons, including members of the Buffalo Media. Complaint, PP 82-92. Capitano is charged in the Disciplinary [*11] Charges with being an associate of LCN (Disciplinary Charge II), and with knowingly associating with LCN members or associates. (Disciplinary Charge V). According to Capitano, the statements contained in the Disciplinary Charges are false, defamatory per se and were made by Defendants with malice. Complaint, PP 88-91.

F. Count Eight

In Count Eight of the Complaint, Capitano alleges that Defendants authorized one Daniel A. Braun to make the following statement with regard to the Disciplinary Charges to The Buffalo News:

These are the people who we feel have played a part in the corruption of Local 210 . . . .This is another step in removing those influences from the Local. We know that the U.S. Justice Department is closely monitoring everything we do, and if they aren't satisfied with the steps we're taking, they can take control of the international.

Complaint, PP 93-96.

Capitano further claims such statements were intended to be understood as referring to him, are false, defamatory per se and were made with malice. Complaint, PP 97-106.

G. Count Nine

Capitano alleges as his ninth cause of action that the following defamatory [*12] statement about him was made by Defendants and published in the November/December 1996 issue of The Laborer:

Buffalo. We previously reported that the GEB Attorney filed charges against 28 members and former officers of Local 210, Buffalo, New York, whom we had identified as members of associates of the Buffalo family of La Cosa Nostra. n9

Complaint, PP 107-111.

According to Capitano, such statement was intended to refer to him, is false, defamatory per se and was made by Defendants with malice. Complaint, P P 112- 18.

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n9 A copy of this article is attached as Exhibit I to the Complaint.

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H. Count Ten

In his tenth cause of action, Capitano claims that Defendants published copies of the Complaint for Trusteeship, the December 11, 1995 letter and the December 11, 1996 letter to various members of the Buffalo new media resulting in public broadcast of statements contained therein in the print media and on television and electronic media. Complaint, PP 119-23. Capitano further [*13] maintains such actions were taken by Defendants with malice and with actual knowledge that the statements contained in those documents were false, or with reckless disregard as to whether such statements were false or not. Complaint, PP 124 -27.

I. Count Eleven

Capitano claims in his eleventh cause of action that as a result of Defendant's conduct and publications as alleged in Counts One through Ten, which Capitano characterizes as intentional, wanton and reckless actions, he has suffered severe emotional distress and exacerbation of a physical injury, i.e., cancer. Complaint, PP 128-32.

J. Count Twelve

Count Twelve of the Complaint does not state a separate cause of action but, rather, is a demand for damages based on the claims alleged in Counts One through Eleven of the Complaint. Complaint, PP 133-35.

Defendants maintain Luskin filed the Complaint for Trusteeship and Disciplinary Charges in accordance with § 3 of the EDP, Article IX, § 7 of the LIUNA constitution, and Title III of the LMRDA, 29 U.S.C. § 461 et seq. Defendants' Memorandum of Law in Support of Motion to Dismiss or for Summary Judgment filed September 30, 1998 (Docket [*14] Item No. 20) ("Defendants' Memorandum"), at 19. Further, Defendants assert that the EDP required Luskin, as GEB Attorney for Local 21O, to prepare for publication in The Laborer reports regarding his activities and progress made toward achieving the objectives and purposes of the EDP. Defendants' Memorandum at 19.

DISCUSSION

On a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, the court looks to the four corners of the complaint and is required to accept the plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808, 117 S. Ct. 50, 136 L. Ed. 2d 14 (1996); Hill v. City of New York, 45 F.3d 653, 657 (2d Cir. 1995).

The court is required to read the complaint with great generosity on a motion to dismiss. Yoder v. Orthomolecular Nutrition Institute, 751 F.2d 555 (2d Cir. 1985). The complaint may be dismissed only where "it appears beyond [*15] doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The issue is not whether a plaintiff is likely to prevail ultimately, "but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Weisman v. LeLandais, 532 F.2d 308, 311 (2d Cir.1976) (quoting Scheuer, supra, at 236).

Pursuant to Fed. R. Civ. P. 12(b), if matters outside the pleading are presented to and not excluded by the court, a party's motion to dismiss under Fed. R. Civ. P. 12(b)(6) shall be treated as one. for summary judgment and disposed of as provided by Fed.R.Civ.P. 56. However, where the party moving to dismiss has included in the motion papers information not found in the pleadings, provided the "plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the [*16] complaint the necessity of transforming a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated." Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992).

Defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim or, alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56. In support of their motion to dismiss under Fed.R.Civ.P. 12(b)(6) Defendants rely on the Complaint, public records established by prior related decisions, the LIUNA constitution, and certain other exhibits and transcripts that are part of the record in the case. Defendants' Memorandum at 20. The documents on which Defendants rely in their motion to dismiss have been incorporated into the Complaint either by incorporation in the text of the complaint (portions of Complaint for Trusteeship and Disciplinary Charges), incorporation by reference (LIUNA constitution and EDP), or as exhibits (Luskin letters dated December 11,1995 and December 11,1996, Complaint for Trusteeship, Disciplinary Charges, articles appearing in the January/February and November/December [*17] 1996 issues of The Laborer, and articles appearing in The Buffalo News). Therefore, as Capitano had actual notice of such documents and relied on them in framing the Complaint, Defendants' reliance on those documents does not require treating the motion to dismiss as a motion for summary judgment. See Cortec Industries, Inc., supra, 949 F.2d at 48. Accordingly, the court treats the instant motion only as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) rather than for summary judgment pursuant to Fed. R. Civ. P. 56.

1. Pre-emption

Defendants seek dismissal of all Capitano's claims on the basis that they have been completely pre-empted by LMRA § 301 ("§ 301"). Defendants' Memorandum at 21. Capitano's response in opposition to dismissal consists largely of a challenge to Judge Arcara's findings in his Decision and Order filed March 27, 1998 (Docket Item No. 13) ("the Decision and Order") denying Capitano's motion to remand this action to state court on the basis that Counts One and Seven are completely pre-empted by § 301. Plaintiffs Memorandum of Law, attached to Affidavit of Robert H. Perk filed November 16, 1998 (Docket Item No. 24) ("Plaintiff's [*18] Memorandum"), at 1. Capitano also asserts that his claims do not require interpretation of any labor contract provision or the LIUNA constitution but, rather, involve rights and obligations which are defined solely under New York common law of defamation. Plaintiff's Memorandum at 2-3.

Complete pre-emption under § 301 of a state law claim is required 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 (1977). That a union's constitution, such as the LIUNA constitution, is a labor contract within the meaning of § 301 is well settled. Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93. 101, 116 L. Ed. 2d 419, 112 S. Ct. 494 (1991); Int'l Bhd. of Teamsters v. Local Union Number 810, 19 F.3d 786, 791 (2d Cir. 1994); Shea v. McCarthy, 953 F.2d 29, 31 (2d Cir. 1992); Int'l Union of Operating Engineers Local Union No. 17 v. Lexo, 918 F. Supp. 69, 72 (W.D.N.Y. 1995). [*19] Accordingly, in the instant case, if Capitano's state law claims cannot be resolved without interpreting the LIUNA constitution, they are pre-empted by § 301.

Despite the fact that analysis of the state law claim would require consideration of the same facts as would an analysis of the claim under the labor contract, so long resolution of the state law claim does not require interpretation of the labor contract, pre-emption under § 301 is not mandated. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). However, if resolution of any element of the state law claim requires interpretation of a labor contract, that claim is pre-empted under § 301. Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 407, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). In other words, "as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is 'independent' of the agreement for § 301 pre-emption purposes." Lingle, supra, at 410. Whether Capitano's defamation claims require interpretation of the LIUNA constitution depends on what is required to prove a defamation claim under New York law.

A defamation claim under New York law requires [*20] proof (1) of a defamatory statement of fact, (2) about or concerning the plaintiff, (3) published by the defendant to a third party, (4) causing the plaintiff injury. Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir. 1993).

Relevant to the court's analysis of whether Capitano's claims are pre-empted by § 301 is that the union proceedings on which the defamation claims are based were not commenced for the purpose of accusing Capitano of involvement in specific incidents of organized crime activity. Instead, such proceedings are predicated on the fact that Capitano's involvement with the LCN, either as a member or by knowingly associating with LCN members, while Capitano was a member of LIUNA, is a violation of the LIUNA constitution. LIUNA Constitution, EDP P 1.

Defendants assert Capitano's argument in opposition to the motion to dismiss is an attempt to seek reconsideration of the Decision and Order in which Judge Arcara found that Counts One and Seven and implied that Counts Two through Six and Eight through Ten are completely pre-empted by § 301 and accordingly denied remand. Defendants' Reply Memorandum of Law in Support of Motion to Dismiss or For [*21] Summary Judgment filed December 4, 1998 (Docket Item No. 25) ("Defendants' Reply") at 2-3. According to Defendants, if Capitano is unsatisfied with that decision, the proper avenue for relief is an appeal. Defendants' Reply at 3.

At the outset, the court notes that the findings contained in Judge Arcara's Decision and Order are now the law of this case.

Under the law of the case doctrine, a decision on an issue of law made at one stage of the case becomes binding precedent to be followed in subsequent stages of the same litigation. Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 7-8 (2d Cir.1996); Liona Corporation v. PCH Associates, 949 F.2d 585, 592 (2d Cir. 1991). The purpose of law of the case rules is "to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit." Liona Corp., supra, at 592 (quoting 18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE & PROCEDURE, § 4478, at 788 (1981). Therefore, the court's consideration of Defendants' motion to dismiss must be consistent with the findings contained in the Decision and Order denying remand.

Capitano, [*22] relying on Lingle, supra, argues that the rights and obligations of the parties to these defamation claims are defined solely under New York common law, the defamation claim is independent of any labor contract, including the LIUNA constitution, and thus not pre-empted by § 301. Plaintiffs Memorandum at 2. Capitano further maintains that in the "unlikely event" that reference to the LIUNA constitution, including the EDP or the EPC, is necessary to resolve the defamation claims, such reference is insufficient to support pre-emption under § 301. Id. Such reliance is misplaced.

For example, although Capitano argued in support of his motion to remand that his common law defamation claims could be resolved by defining criminal facilitation and accomplice liability under New York Penal Law, Judge Arcara held that from the circumstances and manner in which the terms "knowingly associate," "barred conduct" and "kickbacks" were used in the Disciplinary Charges, definitions assigned those terms under the LIUNA constitution was intended. Decision and Order at 19. Further, according to the Decision and Order, proof of the first element of Counts One and Seven, defamation [*23] claims, necessarily requires interpretation of the LIUNA constitution. Decision and Order at 15-16. Judge Arcara also found in the Decision and Order that the LIUNA constitution is a "labor contract" within the meaning of § 301, Defendants made the challenged publications while performing their duties under the LIUNA constitution, and such statements were required to be made. Decision and Order at 14, 22-23, 23-24. Such findings are now the law of this case. Thus, although Capitano continues to argue that these findings have no legal or factual support, Plaintiff's Memorandum at 1, Judge Arcara's findings are indisputably the law of this case and that issue may not be considered on the instant motion.

With regard to Count One, Judge Arcara found that whether the publication of the Complaint for Trusteeship to third persons constitutes defamation depends on interpreting the meaning of "knowingly associate" and "kickback" as well as determining whether the financial transactions described in the Complaint for Trusteeship are of the type deemed improper under the LIUNA constitution, a labor contract within the meaning of § 301. Decision and Order at 17. Thus, determination of the veracity [*24] of the alleged defamatory statements asserted thereunder is dependent upon interpretation of the LIUNA constitution and Count One, rendering Count One pre-empted by § 301. Id.

A similar finding was made as to Count Seven in which Capitano asserts that the publication of the Disciplinary Charges to third persons, including members of the Buffalo news media, constitutes defamation. Complaint, PP 82-92. Again, proof of the veracity of the allegedly defamatory statements in the Disciplinary Charges has been determined to require interpretation of the LIUNA constitution, Decision and Order at 18- 19, and is the law of the case.

It is also the law of this case that all of Capitano's defamation claims "involve allegations that Local 210 has been controlled by members or associates of the LCN who have violated various provisions of the LIUNA Constitution . . .." Decision and Order at 21. With regard to the remaining defamation counts in the Complaint, Judge Arcara stated "that the issue of whether [Capitano] has it fact violated various provisions of the LIUNA Constitution, including the issue of whether he was a member or associate of the LCN, will necessarily require interpretation [*25] of the LIUNA Constitution itself." Decision and Order at 21 (emphasis added). Therefore, Judge Arcara implicitly determined that ail Plaintiff's causes of action based on defamation have been pre-empted under § 301, Decision and Order at 21, and the instant motion must be decided in accordance with that finding. However, as it was not necessary to determine whether federal question jurisdiction existed with regard to the remaining claims to find Defendants' removal of the action to this court was proper, Judge Arcara refrained from finding Counts Two, Three, Four, Five, Six, Eight, Nine, Ten and Eleven were also pre-empted. The court therefore turns to this question.

Counts Two and Three also require interpretation of the LIUNA constitution. Specifically, both Counts Two and Three are predicated on allegedly defamatory statements made in letters written by Defendant Luskin to officers and members of Local 210 regarding evidence that Local 210 has come under the influence of organized crime, necessitating the need for formal trusteeship proceedings as specified in the Complaint for Trusteeship. Complaint, Exhibit A at 1-2, and Exhibit B at 1. Whether the Complaint for Trusteeship [*26] was necessary turns on whether there is evidence that Capitano violated various provisions of the LIUNA constitution. Accordingly, the court's determination of whether such statements are defamatory is inextricable intertwined with resolution of whether the Complaint for Trusteeship was filed in accordance with the LIUNA constitution. Counts Two and Three are, therefore, pre-empted by § 301.

Counts Four and Five allege defamation based on Defendants' publication of articles in the January/February 1996 issue of The Laborer. Complaint, P P44-56 (Count Four), 57-68 (Count Five). Count Four is predicated on the publication of an article entitled Report of the GEB Attorney which contains statements detailing the steps taken by Luskin, as GEB Attorney, with regard to the trusteeship proceedings commenced to remove the influence of organized crime from Local 210. Complaint, Exhibit D at 15. As to Count Five, the article entitled Inspector General's Report specifies that the Complaint for Trusteeship alleges that

organized crime has exercised control over Local 210 through such means as preferential and discriminatory use of job referrals, manipulation and subversion of [*27] the collective bargaining process, financial improprieties, evisceration of union democracy, and the use of job sites for LCN-controlled commercial and criminal activity.

Complaint, Exhibit E at 16.

Similar to Counts Two and Three, whether such statements are defamatory depends on whether the Complaint for Trusteeship was filed and, thus, whether the trusteeship proceedings were commenced, in accordance with the LIUNA constitution. That determination cannot be made without interpreting various provisions of the LIUNA constitution, including the EDP which specifically provides for the use of the trusteeship proceeding to eradicate the influence of organized crime on local chapters of LIUNA. Additionally, resolution of Count Five requires interpretation of the terms "financial improprieties," "discriminatory use of job referrals," and "evisceration of union democracy" as defined in the LIUNA constitution. See EDP, Exhibit B to Luskin Declaration. Counts Four and Five can not be resolved without interpreting the LIUNA constitution, a labor contract as defined under § 301, and thus are pre-empted by § 301.

Whether Count Six in which Capitano alleges Luskin's statements [*28] to The Buffalo News and other print media on February 23, 1996, indicating Luskin's support for the Complaint for Trusteeship, constituted defamatory statements also depends on the interpretation of the LIUNA constitution. For example, whether the filing of the Complaint for Trusteeship was a violation of the LIUNA constitution depends on whether Capitano participated in conduct barred under the LIUNA constitution, including being a member or associate of the LCN, as defined under the LIUNA constitution. As Judge Arcara has already found with regard to Count One that a cause of action based on defamation which requires interpretation of the LIUNA constitution is pre-empted by § 301, so is Count Six also pre-emoted by § 301.

Similarly, Capitano's allegation in Count Eight that Daniel Braun's statements to The Buffalo News with regard to the Disciplinary Charges filed were defamatory necessarily depends on whether the publication of the Disciplinary Charges to third persons was defamatory. As stated, Judge Arcara has decided with regard to Count Seven that whether the publication of the Disciplinary Charges to third persons was defamatory is inextricably intertwined with an [*29] interpretation of the LIUNA constitution. Accordingly, the defamation claim asserted under Count Eight, as Count Seven, is pre-empted under § 301.

As with Count Six, resolution of Count Nine, in which Capitano asserts defamation based on the publication of statements, pertaining to the Disciplinary Charges filed against members and officers of Local 210, in an article entitled Report of the GEB Attorney which appeared in the November/December 1996 issue of The Laborer, also depends on the interpretation of the LIUNA constitution. n10 As stated, a fair reading of the Complaint as it refers to the underlying union proceedings demonstrates that the attribution in those proceedings of LCN involvement to Capitano was not for the purpose of accusing Capitano of organized crime activity. Rather, it is evident that Capitano was alleged to have violated the LIUNA constitution through such alleged involvement. Accordingly, the veracity of the statements contained in that article that charges have been filed "against 28 members and former officers of Local 210, Buffalo, New York, whom we have identified as members or associates of the Buffalo family of La Cosa Nostra," Complaint, Exhibit [*30] I at 30, cannot be determined without construing the meaning of "member" or "associate" as defined in the LIUNA constitution. As such, § 301 pre-empts Count Nine.

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n10 A copy of this article is attached as Exhibit I to the Complaint.

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Capitano's tenth cause of action, asserting defamation based on the publication of the Complaint for Trusteeship, the December 11, 1995 and December 11, 1996 letters to various members of the Buffalo new media also necessarily requires interpretation of the LIUNA constitution to determine the veracity of the alleged defamatory statements. The publication of such documents will not constitute defamation unless statements within those documents are defamatory. Weldy, supra, at 61. However, as discussed in connection with Counts One, Two and Three, whether those documents contain defamatory statements cannot be determined without construing the LIUNA constitution. Discussion, supra, at 16, 17. Accordingly, Count Ten is pre-empted by § 301.

All Capitano's state [*31] law defamation claims are, therefore, pre-empted by § 301. This finding is consistent with other courts which have considered similar issues. Stafford v. True Temper Sports, 123 F.3d 291, 296 (5th Cir. 1997) (holding state law defamation claims pre-empted under § 301 where alleged defamatory statements made in connection with investigation into appropriateness of dismissal under labor contract); Bagley v. General Motors Corp., 976 F.2d 919, 921 (5th Cir. 1992) (noting that holding a company liable for defamation based on statements made in connection with internal investigation and suspension procedures would render company unable to ever undertake such investigation); Naitram v. Local 2222 of the Int'l Bhd. of Elec. Workers, 982 F. Supp. 83, 86 (D. Mass. 1997). Compare Luecke v. Schnucks Market, Inc., 85 F.3d 356, 359-60 (8th Cir. 1996) (holding state law defamation claim not pre-empted by § 301 where resolution of defamation claim based on allegations that employers told others that discharged employee refused to take drug test after workplace accident did not require interpretation of labor contract to determine [*32] whether challenged statements were false, made with malice, or resulted in damages).

Count Eleven is not a defamation claim; instead, it raises a tort claim for intentional infliction of emotional distress. Complaint, PP 128-32. By predicating this claim on Defendants' conduct in publishing the allegedly defamatory statements, however, Capitano has conditioned liability on a finding that Defendants' conduct in publishing the statements challenged in Counts One through Ten constituted defamation. As Capitano's defamation claims are all pre-empted under § 301, his emotional distress claim is without any factual or legal basis independent of the pre-empted claims and, as such, should also be dismissed for failure to state a claim based on pre-emption. Stafford, supra, at 296 (holding both state law emotional distress and defamation claims pre-empted by § 301 where emotional distress claim "clearly would never have come into existence but for the original dispute" on which the defamation claim was based).

Finally, as stated, Judge Arcara found that Count Twelve does not state a separate cause of action but, rather, is a demand for damages. Decision and Order at 10, [*33] 21 n. 8. Accordingly, Count Twelve is insufficient to state a claim and should be dismissed.

To summarize, all of Capitano's causes of action require interpretation of the Complaint for Trusteeship which, as Judge Arcara found, Decision and Order at 14, is a labor contract within the meaning of § 301. That Capitano makes numerous references in his Complaint to the LIUNA constitution, the Complaint for Trusteeship and the Disciplinary Charges as well as to terms defined under the EDP, supports this finding. Complaint, PP 12-16, 25, 35, 41-42, 46, 53, 60, 66, 67, 71, 77, 78, 80, 85, 90, 91, 95, 102-104, 110, 116-17, 120-124 and Exhibits C and F. Accordingly, Counts One through Eleven require interpretation of a labor contract and are pre-empted by § 301.

As a careful reading of the Compliant reveals the absence of any allegation of a violation under the LMRA or the LIUNA constitution, the defamation claims, i.e., Counts One through Ten, and the emotional distress claim, Count Eleven, should be dismissed. Further,

although generally upon dismissing a complaint for failure to state a claim leave to amend should be provided, "where a plaintiff is unable to allege any fact sufficient [*34] to support its claim, a complaint should be dismissed with prejudice." Sluder v. United Mine Workers of America, Intern. Union, 892 F.2d 549, 550 (7th Cir) (affirming district court's dismissal with prejudice personal injury claim which could not be resolved without reference to labor contract deemed pre-empted under § 301 for failure to state a claim), cert. denied, 498 U.S. 810, 112 L. Ed. 2d 21, 111 S. Ct. 45 (1990). See Cortec Industries, Inc., supra, 949 F.2d at 48 (citing Spain v. Ball, 928 F.2d 61, 62-63 (2d Cir. 1991) (dismissing with prejudice plaintiff's claim under the Age Discrimination in Employment Act which, by its terms, applies only to persons over age 40 as plaintiff was only 35 years old when the alleged discrimination occurred)).

It is settled that no recovery for either defamation or emotional distress lies under the LMRA. Wooddell, supra, at 98 (holding "a suit properly brought under § 301 must be a suit either for violation of a contract between an employer and a labor organization representing employees in an industry affecting commerce or for violation of a contract between such [*35] labor organizations."). As such, Capitano will not be able to plead any facts supporting claims based on either defamation or emotional distress under the LMRA and the complaint should be dismissed with prejudice.

2. Privileges

Insofar as Defendants also seek dismissal of Capitano's claims based on alternative grounds including privilege and failure to plead the individual liability of every member of a voluntary association, i.e., LIUNA, Defendants' Memorandum at 30-39, as the court's finding that all of Capitano's claims are completely pre-empted by § 301 is dispositive of the entire case, there is no need to address the alternative grounds.

CONCLUSION

Based on the foregoing, Defendants' motion to dismiss (Docket Item No. 18) should be GRANTED and the action should be DISMISSED with prejudice.

Respectfully submitted,

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: September 7th, 1999

Buffalo, New York

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed [*36] with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).

Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendants.

SO ORDERED.

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: September 7th, 1999

Buffalo, New York