Opinion
01 Civ. 4260 (RWS)
September 6, 2002
ROY COMMER, Plaintiff Pro Se, Staten Island, NY.
BARRY I. LEVY, ESQ., GINA M. FONSECA, ESQ., SHAPIRO, BEILLY, ROSENBERG, ARONOWITZ, LEVY FOX, New York, NY, Attorney for Defendant.
OPINION
Plaintiff pro se Roy Commer ("Commer") has moved to amend his complaint. For the following reasons, that motion is denied, with leave to replead.
Facts
The relevant facts and parties are discussed in greater detail in Commer v. AFSCME, No. 01 Civ. 4260, 2001 WL 1658191 (Dec. 27, 2001) ("Commer II") and Commer v. AFSCME, No. 02 Civ. 4260, 2002 WL 844346 (S.D.N.Y. May 2, 2002) ("Commer III"), familiarity with which is presumed.
Prior Proceedings
Commer filed his original complaint on May 18, 2001, asserting that American Federation of State, County and Municipal Employees ("AFSCME") International violated Sections 101 and 464 of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S. § 411(a)(2) ("LMRDA"). Commer requested that he be reinstated to his position as President of Local 375, and all other positions within AFSCME. He also sought an order dissolving the administratorship imposed upon DC 37 by AFSCME International.
On December 27, 2001, Commer's § 101 claim was dismissed, but summary judgment was denied as to the § 464 claim. Commer II, 2001 WL 1658191.
On February 26, 2002, the administratorship was dissolved and new officers were installed for DC 37. As a result, on May 2, 2002, Commer's remaining § 464 claim was dismissed as moot. Commer III, 2002 WL 844346, at *1-2. However, Commer was given the opportunity to move to amend his complaint to assert a viable claim. Id. at *2.
On June 3, 2002, Commer filed his motion for leave to amend his complaint and attached a proposed amended complaint. Commer continues to seek relief under §§ 101 and 464 despite this Court's earlier dismissals of those claims. He also appears to posit a cause of action pursuant to LMRA § 501.
Discussion I. Standard of Review
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Leave to Amend Is Denied, But Commer May So Move Again
Rule 15(a) of the Federal Rules of Civil Procedures provides that the district court should freely grant leave to amend. Fed.R.Civ.P. 15(a). However, a district court may properly deny leave to amend when amendment would be futile or when there is no merit to the proposed amendments. Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999); Hunt v. Alliance North American Gov't Income Trust, Inc., 159 F.3d 723, 728 (2d Cir. 1998).
Commer has essentially repleaded the same complaint. He has not overcome the hurdles discussed in Commer II and Commer III with regard to his claims pursuant to §§ 101 and 464. For the same reasons discussed in those decisions, these claims are dismissed. While Commer has cited several cases that hold oppositely of the ruling in Commer III with regard to his § 464 claim, e.g. Atlanta Federal and City Serv. Emp. Local Union 554 v. S.E.I.U., 441 F.2d 1115 (5th Cir. 1971), he has failed to cite any controlling authority to that effect.
The only difference is that he has apparently added a claim pursuant to § 501 against 180 John Does, and explicitly seeks the appointment of a monitor to oversee the affairs of DC 37 and Local 375. The latter claim explicitly does not involve AFSCME, as the organization has not been involved with DC 37 or Local 375 since February 26, 2002. Further, Commer does not make clear why AFSCME should or can be held liable for the actions of the 180 John Does. As a result, the move to amend on these grounds must be denied. See, e.g., National Union Fire Ins. Co. of Pittsburgh, PA v. Hicks, Muse, Tate Furst, Inc., No. 02 Civ. 1334, 2002 WL 1313293, at *4 (S.D.N.Y. June 14, 2002) (dismissing claim by insurer against insured pursuant to Rule 12(b)(6) where the coverage dispute and relief requested under the policy were between the insurer and a subsidiary of the defendant that was not named as defendant, rather than between the insurer and the defendant).
Although it was not clear in his complaint, Commer stated in his reply memorandum that he was asserting this claim against the 180 John Does, not against AFSCME: "Plaintiff never intended to place a 501 against an organization before this Court." Reply Mem. at 4. Commer was replying to AFSCME's argument that LMRDA § 501 does not provide a cause of action against labor organizations. E.g., Commer v. McEntee, 145 F. Supp.2d 333, 340 (S.D.N.Y. 2001).
In addition, Commer has failed to point out any portion of the LMRDA that would support such extraordinary relief, which, in any case, is inconsistent with the judicial policy that generally prohibits interference in internal union governance. E.g., Gurton v. Arons, 339 F.2d 371, 375 (2d Cir. 1964) ("General supervision of unions by the court would not contribute to the betterment of the unions or their members or the course of labor-management relations."); see also Bennett v. Saunders, 1999 WL 529539, at *2 (S.D.N.Y. July 2, 1999) ("Because courts have no special expertise in the operation of unions which would justify a broad power to interfere, the management and administration of unions is better left to union officials.").
Until such time as Commer seeks to move to amend his complaint to state something other than his previously dismissed claims pursuant to §§ 101 and 464 — and claims which are levied against AFSCME, as opposed to other defendants — his motion to amend will not be granted.
AFSCME suggests that Commer cannot in any case pursue claims against AFSCME because of unclean hands and because he lacks standing as he is no longer a member of the union. The first argument was rejected in Commer II, 2001 WL 1658191, at *5, and is rejected for the same reasons here. AFSCME's argument with regard to Commer's standing is appealing, but nonetheless is unavailing. AFSCME argues that Commer lacks standing as he is not a member of AFSCME International or any affiliated District Council or local union. Commer was a member at the commencement of this lawsuit, and is even now contemplating filing a complaint on the removal of membership rights. In any case, until Commer has successfully asserted a claim, it is impossible to determine whether it "affects [him] in a personal and individual way." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1 (1992).
Because Commer is a pro se plaintiff, however, leave will be granted once more to move to amend the complaint in accordance with the following directions. Given Commer's demonstrated dogged dedication to these lawsuits, there is no doubt that he will so move. Commer should keep in mind, however, that his pro se status does not insulate him from the ambit of Fed.R.Civ.P. 11(b). E.g. Malley v. New York City Bd. of Educ., 207 F. Supp.2d 256, 259 (S.D.N.Y. 2002). That rule provides that sanctions may be imposed where a pleading is based on "claims, defenses, and other legal contentions therein" that are not warranted "by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Fed.R.Civ.P. 11(b)(2).
Commer now has twice been told that this Court rejects his arguments pursuant to § 101 and § 464. Any assertion of these claims in an amended complaint based on essentially the same facts would not be "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Fed.R.Civ.P. 11(b)(2).
Conclusion
Commer's motion to amend is denied, but leave is granted to replead his motion to amend except to the extent that he seeks to plead the same §§ 101 and 464 claims.
It is so ordered.