CORE TERMS: venue, pendent, forum-selection, peace, labor organization, judicial economy, federal district, strong public policy, cause of action, defendants rely, state law, encouraging, arbitration, contractual, convenience, industrial, leadership, violating, inclusive, litigate, contest, pendant, lawsuits, cure, Relations Act, years earlier, splitting, defeat, belongs, deter

COUNSEL:  [*1] 

For JOHN SERPICO, individually as member of Local 8, Laborers' International Union of North America and in his official capacity as Second Vice President of the Laborers International Union of North America 1950 W. Erie Street, Chicago, ILlinois. plaintiff: Matthias A. Lydon, Howard Michael Pearl, Dan K. Webb, Brian Mason Montgomery, Winston & Strawn, Chicago, IL.
 
For LABORERS INTERNATIONAL UNION OF NORTH AMERICA, ARTHUR A COIA, in his official capacity as General President of the Laborers' International Union of North America, 905 16th Street, NW, Washington, DC, 20006, ROLLIN P VINALL, in his official capacity as General Secretary-Treasurer of the Laborers' International Union, 700 NE Loop 820, Suite 210, Hurst, TX, MASON M WARREN, in his official capacity of First Vice President of the Laborers' International Union of North America, 620 Sunbeam Avenue, Sacramento, CA 95314, VERE O HAYNES, in his official capacity as Third Vice President of the Laborers' International Union of North America, 475 Ledyard Street, Hartford, Connecticut U06114, ENRICO MANCINELLI, in his official capacity as Fifth Vice President of the Laborers' International Union of North America, 44 Hughson Street, South, Hamilton, Ontario, Canada L8N 2A7, CHUCK BARNES, in his official capacity as Sixth Vice President of the Laborers' International Union of North America, Plaza 600, Room 1302, Sixth & Steward Streets, Seattle, Washington 98101, JACK - WILKINSON, in his official capacity as Seventh Vice President of the Laborers' International Union of North America 10521-C, Braddock Road, Fairfax, Virginia 22032, MICHAEL QUEVEDO, in his official capacity as Eight Vice President of the Laborers' International Union of North America, 4399 Santa Anita Avenue, Suite 204, El Monte, California 91731, ARMAND E SABITONI, in his official capacity as Tenth Vice President of the Laborers' International Union of North America, 226 South Main Street, Providence, Rhode Island 02903, Who Constitute the General Executive Board of the Laborers' International Union of North America, GEORGE R GUDGER, in his official capacity as Eighth Vice President of the Laborers' International Union of North America 5845 Live Oak Parkway, Suite B1 Norcross, Georgia 33093, defendants: Robert Eliot Shapiro, Gayle L. Yeatman, Barack, Ferrazzano, Kirschbaum & Perlman, Chicago, IL.

JUDGES: James B. Zagel, United States District Judge

OPINIONBY: James B. Zagel

OPINION: MEMORANDUM OPINION AND ORDER

A single series of events occurring over the last several months has generated at least five lawsuits against the Laborers' International Union of North America and members of its General Executive Board, in their official capacities. In a nutshell, the plaintiffs allege that, in order to avoid a civil suit prepared for filing in this district by the United States Attorney and charging the union, its Board members, and others with violating the Racketeering Influenced and Corrupt Organizations Act, the Board breached its fiduciary duties, the union constitution, and various rights of union members. One of these cases originated in the District of Columbia and has been disposed of there, for now. The other four are here, with the defendants contesting venue. Federal Rule of Civil Procedure 12(b)(3); 28 USC §§ 1404(a) & 1406(A).

In one case, five of Chicago locals plus a member of each charge the defendants with breach of contract, 29 USC § 185(a), and breach of fiduciary obligations, 29 USC § 501. In another, a local in Buffalo, New York and one of its members assert the same causes  [*2]  of action. The defendants do not contest venue for the § 501 claims, nor do they deny that venue lies here under § 185(c)(2), but they argue that a forum-selection clause in the union constitution limits venue for the § 185(a) claims to the District of Columbia.

The LIUNA constitution specifies that "venue to litigate any action arising out of contractual rights allegedly premised upon the Union Constitution . . . shall exist only in the Federal District Court for the District of Columbia." "The law is clear: where venue is specified with mandatory or obligatory language, the clause will be enforced." Paper Express Ltd. v Pfanken Maschinen GmbH, 972 F.2d 753, 757 (7th Cir 1992). Still, the plaintiffs say I ought not enforce it because it violates public policy as expressed in 29 USC §§ 185(c)(2) and 411(a)(4).

In M/S Bremen v Zapata Off-Shore Company, 407 U.S. 1, 15, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972), the Supreme Court cited Boyd v Grand Trunk Western R. Co., 338 U.S. 263, 265, 70 S. Ct. 26, 94 L. Ed. 55 (1949), as a case in which "strong public policy" precluded enforcement of a contractual choice-of-forum clause. Boyd found this public policy not in the relevant venue provision, but in its conjunction with a distinct  [*3]  provision expressly prohibiting "any contract . . . the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act." 338 U.S. at 265. See also ECC Computer Centers of Illinois, Inc. v Entre Computer Centers, Inc., 597 F. Supp. 1182, 1184 (N D Ill 1984) (Will) (refusing to enforce forum-selection clause where applicable Illinois statute expressly prohibited agreements designating venue out of state). Similarly, § 185(c)(2) establishes venue in this district for the plaintiff's contract claims, and § 411(a)(4) provides that "no labor organization shall limit the right of any member thereof to institute an action in any court . . . irrespective of whether or not the labor organization or its officers are named as defendants or respondents in such action." The Ninth Circuit recently described this provision as "worded in the most inclusive terms" and declined to "read any limitations" into it. Moore v Local 569, Int'l B'hood of Electrical Workers, 53 F.3d 1054, (9th Cir 1995) (fee-shifting provision in a collective bargaining agreement held to violate § 411(a)(4) as a "real deterrent to the assertion of rights").  [*4] 

The defendants attempt to overcome the statute's inclusive terms begins by demonstrating Congressional concern over union retaliation against members who sue. This shows, they say, that "Congress merely intended to protect access to the courts, not to guarantee access to any court." (emphasis in brief) If this means that retaliatory discipline deters litigation, while venue restrictions merely affect the site, then the defendants miss the point that a forum-selection clause, by depriving the union member of a preferred and otherwise available forum, may impose costs that deter litigation. But this is not the extent of their argument.

Section 411 belongs to the Labor-Management Reporting and Disclosure Act Labor-Management Relations Act and was enacted to secure a degree of union democracy by providing union members with certain fundamental rights. Section 412, also part of the LMRDA, imposes stricter venue limitations than those applicable to contract claims under § 185, which belongs to the Labor-Management Relations Act, enacted twelve years earlier. According to the defendants, "it would defy common sense and defeat the presumption of reasonable legislative judgment to conclude  [*5]  that in enacting the LMRDA, Congress sought to restrict the location in which union members could sue to vindicate their most basic rights, while at the same time expressing a strong public policy judgment that union constitutions could not restrict the location in which locals or individual members could bring less significant claims under the LMRA."

For the argument's sake, I accept the defendants' premise that the eighty-sixth Congress did not specifically intend to make § 411 apply to union members' suits against their unions under § 185, and their invitation to construe § 411 "in light of the objectives Congress sought to achieve." Marshall v Local 1010, United Steelworkers of America, 664 F.2d 144, 150 (7th Cir 1981). I accept also their contention that Congress gave union members certain rights against their unions in § 411 in order "to further the Act's primary objective of ensuring that unions would be democratically governed and responsive to the will of their memberships." Finnegan v Leu, 456 U.S. 431, 436, 102 S. Ct. 1867, 72 L. Ed. 2d 239 (1982). See also Marshall, 664 F.2d at 150 ("One objective Congress sought to achieve with the LMRDA was to 'prevent, discourage, and make unprofitable'  [*6]  improper conduct by union officials. . . . Congress was [] interested in curbing abuse by 'entrenched' union leadership and encouraging challenges to such leadership.") But I see no tension between that objective and the application of § 411(a)(4) to suits in which members allege that the union has violated its own constitution, particularly where, as here, the violation consists of contravening democratic process requirements. Compare Marshall, 664 F.2d at 152 (rejecting the Secretary of Labor's literal interpretation where the requested remedy "would have the perverse result of encouraging and rewarding deliberate violations of the LMRDA election rules"); Wirtz v Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 88 S. Ct. 643, 19 L. Ed. 2d 705 (1968) (rejecting the respondent's interpretation because it "would immunize a proved violation from further attack and leave unvindicated the interests protected by [29 USC] § 401").

Nor do the defendants establish tension between this application of § 411 and the LMRA's objectives. They talk about Congressional intent to promote industrial peace, but do not explain how forum-selection clauses do so. Presumably, Congress thought the venue limitations it  [*7]  enacted were sufficient. Permitting unions to restrict venue further might promote a certain kind of peace--more of a cold war, perhaps--by making it more difficult for members to obtain adjudication, but I see no clear Congressional policy to promote the peace that comes from squelching disputes rather than resolving them. The cases on which the defendants rely, in which the Supreme Court upheld arbitration clauses in disputes between unions and employers--to which § 411 does not apply--offer no reason to conclude that forum-selection clauses are a "major factor in achieving industrial peace." United Steelworkers of America v Warrior and Gulf Navigation Co., 363 U.S. 574, 578, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). See also Nolde Brothers, Inc. v Local 358, Bakery & Confectionery Workers Union AFL-CIO, 430 U.S. 243, 97 S. Ct. 1067, 51 L. Ed. 2d 300 (1977), modified in part by Litton Financial Printing Div. v NLRB, 501 U.S. 190, 111 S. Ct. 2215, 115 L. Ed. 2d 177 (1991), as recognized in Cadillac Industries, Inc. v Amalgamated Clothing & Textile Workers Union, 775 F. Supp. 30, 32 n 3 (D P.R. 1991). Nor does such a conclusion follow from Baldini v Local 1095, Int'l Union, United Automobile, Aerospace and Agricultural Implement Workers of America,  [*8]  581 F.2d 145 (7th Cir 1978), or Newgent v Modine Manufacturing Co., 495 F.2d 919 (7th Cir 1974), both overruled in part by Rupe v Spector Freight Systems, Inc., 679 F.2d 685, 690 n 3 (7th Cir 1982), the other cases on which the defendants rely. Enforcing arbitration clauses and requiring union members to exhaust internal union procedures directly promote these important methods of dispute resolution. Forum-selection clauses serve no similar purpose.

Since United Ass'n of Journeymen v Local 334 United Ass'n of Journeymen, 452 U.S. 615, 101 S. Ct. 2546, 69 L. Ed. 2d 280 (1981), Congress has known that a union local can sue its international under § 185(a) for violating the union constitution, and since Wooddell v IBEW, Local 71, 502 U.S. 93, 112 S. Ct. 494, 116 L. Ed. 2d 419 (1991), it has known that this cause of action extends to union members. Yet the LMRA continues to provide broader venue for such claims than the LMRDA does for actions under Title I of that Act. More importantly, § 411(a)(4) precludes unions from correcting the apparent incongruity and makes Congress the exclusive source of limitations on a members' right to sue.

So venue lies here and in the District of Columbia for both counts in the complaints filed by the  [*9]  Chicago and Buffalo locals and their members. In addition to § 185 (contract) and § 501 (fiduciary obligation), John Serpico's complaint originally sought redress for violations of rights protected by Title I of the LMRDA, 29 USC § 411(a)(1) & (2), but these claims have now been settled and dismissed. The preceding analysis of venue for the § 185 and § 501 claims therefore serves for Serpico's case.

That leaves Richard Noreen's complaint, consisting of claims under § 501 and Title I. A LIUNA member, Noreen seeks relief on behalf of himself and others similarly situated against the Board members in good standing, the Washington D.C. law firm of Comey, Boyd & Luskin, and Robert Luskin, individually. As noted earlier, and without dispute, 29 USC § 412 determines venue for the Title I claim.

This section establishes venue "where the principal office of the labor organization is located;" all agree that is Washington, D.C. Section 412 also establishes venue "where the violation occurred." That phrase resembles "where the claim arose," which appeared in 28 USC § 1391(b) prior to its amendment in 1990, and was interpreted by the Supreme Court in Leroy v Great Western United Corp.,  [*10]  443 U.S. 173, 185-86, 99 S. Ct. 2710, 61 L. Ed. 2d 464 (1979). With that in mind, I turn to Noreen's reasons why the alleged Title I violations occurred in the Northern District of Illinois, some of which are borrowed from Serpico's brief.

First, Noreen says that the Union's statutory violations "harmed him as a member of [Union] Local 8 in Chicago." In Leroy, the Supreme Court refused to read "where the claim arose" as including any place a plaintiff feels the impact of a defendant's conduct: "Such a reading . . . is inconsistent with the underlying purpose of the provision, for it would leave the venue decision entirely in the hands of the plaintiff." Id at 186. Seven years earlier, then-District Judge A. Leon Higginbotham Jr. had reached a rather similar conclusion as to § 412. Rota v Brotherhood of Railway, Airline and Steamship Clerks, 338 F. Supp. 1176, 1183 (E D Pa 1972) ("the policy implications of plaintiff's position are extraordinary . . . to accept plaintiff's theory of venue would be to sanction and encourage multi-district litigation throughout our nation and in any federal district court where union members reside and feel aggrieved by a purported violation of the statute"). See also Philadelphia  [*11]  Musical Society, Local 77 v American Federation of Musicians, 812 F. Supp. 509 (E D Pa 1992) (distinguishing the violation from the result of the violation); Foster v Int'l Brotherhood of Boilermakers, 1987 U.S. Dist. LEXIS 7778, 1987 WL 16236 (N D Ill) (Holderman) (impact within district insufficient to establish venue for claims based on actions taken elsewhere), citing Rota, 338 F. Supp. 1176; Lodge No 42 v Int'l Brotherhood of Boilermakers, 324 F.2d 201 (6th Cir 1961).

Also, Noreen makes much of the involvement of the United States Attorney for this District. Although the Board took all actions complained of in Washington, D.C., Noreen characterizes these as ministerial acts based on events that occurred. But while the Board's motivation for acting in Washington, D.C. may have relevance to the fiduciary duty claim, it appears to have none for a claim under § 411. n1 Moreover, the press release issued in Chicago by the United States Attorney, announcing the Government's agreement with LIUNA, and the Government reservation of the right to file their case against LIUNA in this district, at best, have a tangential relationship to the § 411 claims. By contrast, all material events--the Board's  [*12]  actions--occurred in the District of Columbia.
 
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n1 Moreover, the defendants say that none of the negotiating or agreeing occurred here, that Government attorneys from this district travelled to Washington, D.C., and Serpico has not disputed that, despite the opportunity. Once a defendant challenges venue, courts in this district generally assign the burden of proof to the plaintiff. See, for example, Zughni v Pena, 851 F. Supp. 300, 302 (N D Ill 1994) (Aspen); First Financial Leasing Corp. v Hartge, 671 F. Supp. 538, 542 (N D Ill 1987) (Hart); Payne v Marketing Showcase, Inc., 602 F. Supp. 656 (N D Ill 1985) (Decker). Not all courts do, and a leading commentary criticizes the rule. 1A Moore's Federal Practice P 0.340[1.--4] at 4020 (Bender 1989) ("This result is often reached without distinguishing between jurisdiction and venue. With deference, we suggest that this [] line of authority is unsound, except in limited situations. The Rules, as we have seen, treat improper venue as an affirmative dilatory defense; and, to our mind, properly so, as a general proposition. Normally, it is not too much to require one who would abate an action because of a privilege personal to himself to establish his privilege."). Compare Wright, Miller, and Cooper, 15 Federal Practice & Procedure § 3826 at 259 (West, 1986) ("the better view, and the clear weight of authority, is that, when objection has been raised, the burden is on the plaintiff to establish that the district he chose is a proper venue"). But there is no contest here; no plaintiff questions the rule.
 
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So we have four lawsuits. In three, venue lies for all the claims. In one, venue lies for two out of three. No one suggests splitting the claims and judicial economy weighs heavily in favor of keeping the cases before one court; prudence requires an all-or-nothing result. That brings me to the question of pendent venue.

Whether to invoke this exception to the general rule that "venue must be established as to each cause of action" is "a discretionary decision based on applicable policy considerations." Beattie v United States, 756 F.2d 91, 100, 103, 244 U.S. App. D.C. 70 (D.C. Cir 1985). These generally include judicial economy, convenience to litigants and witnesses, avoidance of piecemeal litigation, and fairness to the litigants. Id at 103.

The defendants' best argument against pendent venue is that courts have not applied it to defeat Congressional intent manifested in specific venue provisions such as § 412. See Bartel v Federal Aviation Administration, 617 F. Supp. 190 (D DC 1985) (H. Greene) (declining to apply pendent venue to either Title VII or Federal Tort Claims Act claims because each were governed by special venue limitations). Compare Beattie v United States, 756 F.2d 91, 244 U.S. App. D.C. 70 (DC  [*14]  Cir 1985) (applying pendent venue to claim governed by FTCA's special venue provision, 28 USC § 1402, where venue established for another claim governed by the same section), VMS/PCA Limited Partnership v PCA Partners Limited Partnership, 727 F. Supp. 1167, 1173-74 (N D Ill 1989) (Aspen) (applying pendent venue to state law claims within scope of 28 USC § 1391, the general venue statute); Firemen's Annuity & Benefit Fund of Chicago v Union Planters Nat'l Bank, 1987 U.S. Dist. LEXIS 4510, 1987 WL 4990 (N D Ill) (Nordberg) (applying pendent venue to RICO claim within the scope of § 1391); Wichita Federal Savings and Loan Ass'n v Landmark Group, Inc., 674 F. Supp. 321, 329 (D Kan 1987) (applying pendent venue to RICO and Commodities Exchange Act claims within the scope of § 1391); Egan v Duell, 1989 U.S. Dist. LEXIS 3919, 1989 WL 36206 (N D Ill) (Rovner) (applying pendent venue to RICO and state law claims, presumably within the scope of § 1391, although the court did not say so); Kramer v Pittstown Point Landings, Ltd., 637 F. Supp. 201 (N D Ill 1986) (Bua) (all claims within scope of § 1391).

And yet, the general venue provision at 28 USC § 1391 seems to express Congressional intent no less than special venue  [*15]  provisions in particular statutes. If pendant venue serves to cure inefficiency and unfairness created by the general statutory rule, I see no reason why it should not cure the same ills in cases governed by statutory exceptions. Splitting these cases would disserve judicial economy, and transferring all the cases to Washington, D.C. merely because one plaintiff has included one claim which otherwise could not be heard here seems unfair to the other plaintiffs. I will, therefore, apply the pendant venue doctrine to keep the four cases intact and before this court.

As far as transfer under 28 USC § 1404(a) is concerned, with Judge Sullivan's disposition of the Caivano case in the District of Columbia, a transfer would not especially promote the efficient use of judicial resources. And the parties' convenience seems unlikely to be enhanced, given their distribution between Washington, Chicago, and the rest of the United States. As for documents, in this day of photocopiers, overnight mail, and fax machines, their presence in one forum rather than another is not much of a factor. And since the defendants seem to have the closer connection to Washington, D.C., the greater share of any  [*16]  inconvenience resulting from the presence of documents there will be born by the parties who chose to litigate here.

The material events did all occur in Washington, D.C., and the defendants claim that "every individual who played a principal, constant role in the LIUNA-Government negotiations . . . lives and works in Washington and is therefore beyond [this] court's subpoena power, and they are not reliably accessible sources of proof." That may prove true, but as of now the defendants have not carried their admitted burden of showing that transfer under 1404 (a) is "clearly merited." My denial of their motion under 1404(a), however, is without prejudice to their raising the issue again after this case has developed further.

Conclusion

In each of the four cases, the defendants' motion to dismiss or transfer pursuant to 28 USC § 1406 (a) is denied. The motions to transfer pursuant to 28 USC § 1404 (a) are denied without prejudice.

Enter:

James B. Zagel

United States District Judge
 
Date: 2 August 1995