AVERHART v. COMMUNICATION WORKERS OF AMERICA et al

Filing 49

MEMORANDUM OPINION. Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/2/2012. (gxh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JESSE AVERHART,

Civil Action No. 10-6163 (AET)

Plaintiff,
v.

MEMORANDUM OPINION

CWA LOCAL 1033, et al.,
Defendants.

BONGIOVANNI, Magistrate Judge
Currently pending before the Court is Plaintiff Jesse Averhart’s (“Plaintiff”) motion
seeking leave to file an Amended Complaint [Docket Entry No. 39]. Defendants CWA Local
1033 and Rae Roeder (the “Local Defendants”) oppose the motion [Docket Entry No. 44].
Defendants Lawrence Cohen, Communications Workers of America, Hetty Rosenstein, and
Christopher Shelton (the “CWA Defendants”) have also filed an opposition [Docket Entry No.
46]. The Court has fully reviewed the papers submitted in support of, and in opposition to,
Plaintiff’s motion. The Court considers Plaintiff’s motion without oral argument pursuant to
FED .R.CIV .P. 78. For the reasons set forth below, Plaintiff’s motion is DENIED.
I.

Background and Procedural History
In October, 2010, Plaintiff filed his Complaint against Defendants in State Court alleging

violations of the Communications Workers of America Union Constitution (“CWA
Constitution”) as well as violations of the Labor-Management Reporting and Disclosure Act
(“LMRDA”). The matter was removed to Federal Court in November, 2010. The parties have
engaged in discovery and Plaintiff was twice granted an extension to the deadline for filing a

motion to amend [Docket Entry Nos. 24 & 38]. On November 21, 2011, Plaintiff filed the
present motion [Docket Entry No. 39] seeking leave to file an Amended and Supplemental
Complaint.
Plaintiff’s original Complaint alleges three causes of action. The first cause of action
involves Defendants’ alleged violation of the CWA Constitution for failing to organize
unorganized members pursuant to Article XIII, § 9 of the CWA Constitution. The second cause
of action alleges that Defendants failed to fully disclose financial disbursements of the union
dues as required by Article XIII, § 9 and § 11 of the CWA Constitution. Finally, Plaintiff’s third
cause of action alleges that Defendants failed to provide secret ballot voting for the election of
officers in violation of Article XIII, § 9 of the CWA Constitution and in violation of Title IV of
the LMRDA, 29 U.S.C. § 481. Plaintiff sought damages in the form of declaratory judgments
and injunctive relief.
Plaintiff now seeks to amend his Complaint to “nam[e] defendants in their official and
individual capacities”; to “allege facts justiciable pursuant to the Declaratory Judgment Act, 28
U.S.C. §§2201-02”; to “add a demand for a jury trial”; to “allege facts and claims for violation of
Title I, Bill of Rights of Members of Labor Organization, 29 U.S.C. §§411-415”; to “supplement,
to add relief for compensatory and punitive damages”; to “supplement, to add relief for attorney
fees”; and to provide a “clarification of allegations and relief requested.” Plaintiff’s
Memorandum in Support of Motion, Docket Entry No. 39-1, *4.
In his Memorandum, Plaintiff explains that the Court’s ruling on his Motion to Remand,
dated March 8, 2011, alerted him of his rights under the LMRDA and, presumably, prompted
him to file this motion. Plaintiff’s Memorandum, at *5. Plaintiff provides a brief description of
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the history of the case. Plaintiff states that the Defendants’ actions during the 2005 and 2008
elections, of which he complained in his original Complaint, were repeated during the 2011
election. Id. at *8. Plaintiff explains that he is seeking to amend and supplement his Complaint
prior to the 2015 election as a preventative measure. Id. at *9.
Plaintiff argues that his amendments should be permitted under FED .R.CIV .P. 15(c).
Plaintiff states that the events which form the basis of his Amended Complaint began in 2005
and continued through 2011, thus he asserts that he meets the requirements of Rule 15(c)(1)(B).
He again states that it was the Court’s ruling on his Motion to Remand which informed him that
his Complaint contained a claim which fell under federal jurisdiction. Id. at *10.
Plaintiff also argues that he fulfills the requirements of Rule 15(c)(1)(C).1 He states that
the proposed defendants would not be prejudiced by their addition to this claim because they had
constructive notice of this lawsuit because they shared an attorney with the original defendants
and because they share and identity of interest with the original defendants. Id. at *10-11.
Plaintiff further asserts that there has been no undue delay, bad faith or dilatory motive on
his part which would preclude his amendments. He also asserts that there would not be any
prejudice to defendants if his motion is granted. Id. at *11. Finally, Plaintiff argues that he should
be entitled to supplement his Complaint under Rule 15(d) and that he is entitled to a jury trial. Id.
at *12, 13-15.

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Throughout his brief, Plaintiff refers to Rule 15(c)(3) and its sub-parts and asserts that he
fulfills their requirements. The Court notes that FED .R.CIV .P. 15(c)(3) does not exist following
the amendment of the Federal Rules of Civil Procedure in 2007. However, there is sufficient
explanation provided in Plaintiff’s brief for the Court to infer that Plaintiff means to refer to Rule
15(c)(1)(C).
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The Local Defendants oppose Plaintiff’s motion. The Local Defendants first argue that
Plaintiff’s Proposed Amended Complaint is essentially a re-write and bears little semblance to
the original Complaint. The Local Defendants assert that the Proposed Amended Complaint
contains broad and conclusory allegations and fails to establish a cause of action.
The Local Defendants also argue that Plaintiff’s proposed amendment to name thirty-nine
(39) new, individual defendants in their individual and official capacities is prejudicial to those
proposed defendants. Specifically, the Local Defendants point out that Plaintiff has simply
identified the proposed defendants, but has not provided any factual basis for their involvement
in this lawsuit other than their status as board and committee members.
The Local Defendants assert that Plaintiff is barred by the statute of limitations from
adding causes of action against the proposed defendants relating to the 2005 and 2008 elections.
Defendants argue that the claims against the proposed defendants cannot “relate back” under
15(c)(1)(C) as Plaintiff suggests, because there was never any confusion as to the proposed
defendants’ identities, nor has their identities been discovered, since the time Plaintiff filed the
original Complaint. The Local Defendants further argue that Plaintiff has not exhausted all his
remedies under the CWA Constitution as required under the LMRDA.
The CWA Defendants have filed a letter in support of the Local Defendant’s opposition
to Plaintiff’s motion. The CWA Defendants reiterate that Plaintiff’s proposed Amended
Complaint is, in essence, an entirely new Complaint. The CWA Defendants point out that
Plaintiff does not identify the specific changes that he seeks to make, which places the burden on
defendants and on the Court to determine the details and nature of his amendments. The CWA
Defendants also state that allowing Plaintiff to amend his Complaint as proposed will cause
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undue delay.
Similar to the Local Defendants, the CWA Defendants argue that Plaintiff’s motion
should be denied because the amendments are futile. With respect to Plaintiff’s First, Second
and Third causes of action, the CWA Defendants assert that Plaintiff has only made broad
allegations; thus, the CWA Defendants state that Plaintiff has failed to state a cause of action.
With respect to Plaintiff’s Fourth cause of action, the CWA Defendants assert that the proposed
amendments are unduly prejudicial to the CWA Defendants because Plaintiff has failed to list
any specific facts to support his legal claims and because Plaintiff has failed to attribute any
action or inaction to the CWA Defendants which would provide them with notice as to the
reasons behind their inclusion in Plaintiff’s claim.
The CWA Defendants further assert that Plaintiff’s proposed amendments, as they relate
to the 2005 and 2008 causes of action, are barred by the statute of limitations. Finally, the CWA
Defendants assert that Plaintiff failed to amend in a timely manner and has not provided a
sufficient explanation for his delay.
Plaintiff has filed a Reply brief. In it, he argues that Defendants’ futility argument must
fail because Plaintiff has sufficiently pled his claims. Plaintiff asserts that a six (6) year statute of
limitations should apply to his breach of fiduciary duty claims, citing Balliet v. Fennel, 368 N.J.
Super. 15, 21 (App. Div. 2004). Plaintiff’s Reply, Docket Entry No. 48, *11. Plaintiff also
appears to suggest that the Court should grant him an “equitable exception to the statute of
limitations,”citing Lopez v. Sawyer, 62 N.J. 267, 272 (1973) and Podobnik v. United States
Postal Service, 409 F.3d 584 (3rd Cir. 2005). Reply at *12. Plaintiff explains that he exercised
“reasonable diligence in discovering and pursuing claims under the LMRDA;” therefore, he
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argues that the statute of limitations should be tolled. Id. Further, Plaintiff asserts that
Defendants “actively misled” Plaintiff and that Plaintiff “detrimentally relied” upon Defendants’
conduct such that Plaintiff should be entitled to equitable estoppel tolling the statute of
limitations under Miller v. Miller, 97 N.J. 154, 163 (1984). Reply at *13. Plaintiff cites a number
of other cases which he alleges supports his equitable estoppel argument. Id. at *14.
Plaintiff also raises the Continuing Violation Doctrine and the Continuing Tort Doctrine
in support of his general assertion that the statute of limitations does not preclude him from
adding claims relating to the 2005 and 2008 elections. Id. at *14-15. The Court notes that these
are new arguments which Plaintiff cannot raise in a Reply certification.
With respect to Defendants’ arguments that Plaintiff has not exhausted his remedies
under the CWA Constitution as required by the LMRDA, Plaintiff asserts that the Court should
excuse his failure to exhaust internal remedies and he discusses the three factors addressed by the
courts in Clayton v. Intern. United Auto. Workers, 451 U.S. 679, 688 (1981) and Johnson v.
General Motors, 641 F.2d 1075, 1078 (2d Cir. 1981). Reply at *16-17.
Finally, Plaintiff broadly asserts that the exhaustion of remedies requirement is “not
applicable to Title V claims where it has been held ‘that there is no mandatory exhaustion of
internal remedies requirement in suits brought under Section 501 of the LMRDA’.” Reply at *17;
citing Purcell v. Keane, 277 F.Supp. 252 (E.D. Pa 1967); Sabolsky v. Budzanoski, 457 F.2d 1245
(3d Cir. 1972).

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II.

Standard of Review
According to FED .R.CIV .P. 15(a), leave to amend the pleadings is generally given freely.

See Foman v. Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000). Nevertheless, the Court may deny a motion to amend where there is “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of the amendment.” Id. However, where there is an absence of
undue delay, bad faith, prejudice or futility, a motion for leave to amend a pleading should be
liberally granted. Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004)
Where a party seeks to make an amendment after the statute of limitations has passed,
that party must also establish that the amendment is appropriate under FED .R.CIV .P. 15(c). Rule
15(c) sets forth the circumstances under which an amendment “relates back” to the date of the
timely filed original pleading. If an amendment “relates back” under Rule 15(c), it is considered
timely even though it was filed outside the application limitations period. Krupski v. Costa
Crociere S.p.A, 130 S.Ct. 2485, 2489 (2010).
With respect to proposed claims, Rule 15(c)(1)(B) states that an amendment to a pleading
relates back to the date of the original pleading when “the amendment asserts a claim or defense
that arose out of the conduct, transaction or occurrence set out - or attempted to be set out - in the
original pleading.” FED .R.CIV .P. 15(c)(1)(B). When the proposed amendment seeks to change or
add a party, the Rule provides that the amendment relates back when “Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint,
the party to be brought in by amendment: (i) received such notice of the action that it will not be
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prejudiced on the merits; and (ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s identity.” FED .R.CIV .P.
15(c)(1)(C).
The Supreme Court has held that “relation back under Rule 15(c)(1)(C) depends on what
the party to be added knew or should have known, not on the amending party’s knowledge of its
timeliness in seeking to amend the pleading.” Krupski, 130 S.Ct. at 2490. In Krupski the
Supreme Court concluded that the most important factor to consider is whether the newly named
defendant had some form of notice that they might be a named party. When evaluating whether
potential defendants received notice within Rule 4(m)’s 120-day period, the Third Circuit has
held that notice is sufficient when a party has a reasonable expectation of being named a
defendant after learning about the litigation through some informal means. See Singletary v.
Penn. Dept. Of Corrections, 266 F.3d 186, 195 (3d Cir. 2001). Furthermore, “the notice received
must be more than notice of the event that gave rise to the cause of action, it must be notice that
the plaintiff has instituted the action. Id. (citing Bechtel v. Robinson, 886 F.2d 644, 652 n.12 (3d
Cir. 1989)).
In Singletary, the Third Circuit applied the “identity of interest” method for determining
whether the defendant had notice; this test looks at whether the newly named party and the
previously named defendant are “so closely related in their business operations or other activities
that the institution of an action against one serves to provide notice of litigation to the other.” Id.
at 198 (citing 6A Charles A. Wright et al., Federal Practice and Procedure § 1499, at 146 (2d
ed. 1990)). Another method of imputing notice to a proposed defendant is via the “shared
attorney” method, under which the defendant to be added is deemed to have received timely
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notice of the plaintiff’s claims because that person is currently being represented by an attorney
who represents an originally named defendant. See Singletary, 268 F.3d at 198.

III. Analysis
In this case, Plaintiff wishes to add both new causes of action and additional defendants.
Plaintiff certifies that he submits this motion in good faith and the Court finds that it was filed in
a timely manner and without undue delay. Despite the age of the docket, neither party argues
that significant discovery has been exchanged and, indeed, the record reflects that the parties
have not engaged in discovery on any substantial level. In addition, this motion was filed within
the time parameters of the scheduling order in this case, due to Plaintiff having twice successfully
applied for an extension for the deadline for filing a motion to amend.
However, Plaintiff’s proposed amendments, as they relate to the 2005 and 2008 elections,
are clearly beyond the applicable statute of limitations of 2 years under the LMRDA. In his
moving papers, Plaintiff states that the proposed amendments “relate back” to the occurrences
described in his original Complaint and, as such, Plaintiff asserts that the amendments should be
permitted pursuant to Rule 15(c)(1). In his Reply Certification, Plaintiff also argues that the
Court should apply a six year statute of limitations due to his breach of fiduciary duty claims or,
in the alternative, that the statute of limitations in this case should be tolled because of the
Continuing Violation Doctrine, Continuing Tort Doctrine or for various equitable reasons. See
Plaintiff’s Reply, Docket Entry No. 48, *11-14. As noted above, the Court will not entertain
these arguments because Plaintiff raises them for the first time in his Reply Certification.
Therefore, Plaintiff’s sole basis for his argument permitting the amendments pertaining to the
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2005 and 2008 elections beyond the statute of limitations period is his assertion that the proposed
amendments meet the relation back standards set forth in Rule 15(c)(1). Thus, the Court will
analyze the appropriateness of his amendments under Rule 15(c)(1).
A. Proposed Additional Defendants - Rule 15(c)(1)(C)
The most important factor to consider in determining whether the relation back standard
has been met as related to newly proposed parties is whether the newly named defendant had
some form of notice that it might be a named party. Krupski, 130 S.Ct. at 2489-90; Rule
15(c)(1)(C)(i). Plaintiff broadly asserts that the proposed defendants had sufficient notice and
will not be prejudiced by their addition to the Complaint because they shared an attorney with the
original defendants and because there exists an “identity of interest” between the proposed and
existing defendants. Plaintiff’s Reply at *11. Plaintiff does not provide any specific facts or
additional details which support these assertions. There does not appear to be any information,
either in Plaintiff’s brief in support of his motion or in his Proposed Amended Complaint, which
indicates that the proposed defendants have any connection to Plaintiff’s claims or to the original
defendants other than their statuses as elected officials or representatives in the CWA Union and
the Local 1033. There is no information presented which supports Plaintiff’s assertion that the
proposed defendants, whose locations are scattered across the country, actually shared an
attorney with the original defendants. Further, in light of the vague descriptions of the proposed
defendants and the complete absence of any factual allegations which would implicate their
involvement with the original defendants’ alleged actions, there is nothing before the Court
which could suggest that the proposed and existing defendants are “so closely related in their
business operations or other activities that the institution of an action against one serves to
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provide notice of litigation to the other.” Singletary at 198.
Presumably, Plaintiff’s argument is that the proposed defendants’ statuses as “individual
leaders” of the CWA Union and the Local 1033 afforded them sufficient notice of this action to
satisfy the requirements of Rule 15(c)(1)(C)(i). Plaintiff’s Memorandum at *10. However, given
the sheer quantity of persons who may fit this vague description, the Court finds that “such a
sweeping description lacks the appropriate specificity required to give reasonable notice.” Cruz,
898 F.Supp at 1100. Further, the proposed defendants whom Plaintiff asserts are “individual
leaders” include District Vice Presidents, Sector Vice Presidents, Area Directors, Treasurers,
Supervisors of various levels, Secretaries, Administrative Clericals, and general members of the
Local Election Committee. See Plaintiff’s Proposed Amended Complaint at *2-6. There is
nothing before the Court which would suggest that any of these alleged “individual leaders”
share any nexus of interest with the original defendants due to their statuses in the CWA or the
Local and, thus, Plaintiff has not established that the proposed defendants had any sort of notice
of this litigation. The Court further notes that Plaintiff did not even provide a general description
in the Original Complaint, such as “John Does,” which would have signaled that he intended to
name additional defendants in the future. For the reasons discussed above, the Court finds that
Plaintiff has not satisfied the requirements of Rule 15(c)(1)(C)(i).
Having established that the requirements of Rule 15(c)(1)(C)(i) have not been met, it is
unnecessary to address Rule 15(c)(1)(C)(ii); however, the Court will provide a brief discussion.
Rule 15(c)(1)(C)(ii) permits relation back when the proposed defendant “knew or should have
known that the action would have been brought against it, but for a mistake concerning the
proper party’s identity.” Here, there is nothing before the Court which could indicate that
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Plaintiff made a mistake regarding the identities of the proposed defendants. Plaintiff selectively
chose his named defendants in the original Complaint and the identities of the defendants he
seeks to add by way of this motion were certainly discoverable at that time. Thus, Plaintiff has
not met the standard of relation back under 15(c)(1)(C)(ii).
Given the absence of notice to the proposed defendants and the lack of factual allegations
describing how the proposed defendants allegedly violated the LMRDA, the Court finds that
permitting Plaintiff to amend his Complaint in order to add these defendants would be unduly
prejudicial.

B. Proposed Additional Claims
Plaintiff seeks to add new claims relating to the 2011 elections as well as additional
claims which he asserts relate back to the 2005 and 2008 elections. Defendants oppose these
amendments primarily on the basis of futility. Therefore, prior to a Rule 15(c) relation back
analysis, the Court will analyze the claims under the more lenient Rule 15(a) standard for
amendment.
1. Rule 15 (a) - Futility
As set forth above, the Court finds that there has been no undue delay, bad faith or
dilatory motive on the part of the movant, or repeated failure to cure deficiencies by amendments
previously allowed. The Court must next determine whether the proposed amendments are futile
as Defendants allege.
The CWA Defendants first point out that 29 U.S.C. §415, which Plaintiff references in
his first three causes of action in his Proposed Amended Complaint, pertains only to section 105
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of the LMRDA; however, Plaintiff identifies both section 105 and section 101. Courts must
construe submissions by pro se plaintiffs broadly. Haines v. Kerner, 404 U.S. 519, 520-21
(1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Therefore, where Plaintiff has
referred to section 101 of the LMRDA, the Court shall construe it as a reference to 29 U.S.C.
§411, which is the corresponding United States Code.
The CWA Defendants also argue that Plaintiff’s broad allegations in his first, second and
third causes of action (that Defendants failed to investigate alleged wrongdoings, that Defendants
failed to organize unorganized members and that Defendants failed to adopt reasonable rules) do
not state a cause of action under 29 U.S.C. §415 or 29 U.S.C. §411. Indeed, 29 U.S.C. §415
requires that the labor organization inform its members concerning the provisions of the Act and
29 U.S.C. §411 sets forth members’ bill of rights. Therefore, the allegations in Paragraphs 147
to 156, which relate to Defendants’ alleged failure to investigate alleged wrongdoings, to
organize unorganized members and to adopt reasonable rules, are not specifically relevant to
alleged violations of 29 U.S.C. §415 or 29 U.S.C. §411 and do not give rise to a cause of action
within the meaning of 29 U.S.C. §412. Therefore, Plaintiff’s first three causes of action in his
Proposed Amended Complaint must fail as futile.
Similarly, the majority of the allegations set forth in Plaintiff’s fourth proposed cause of
action do not state a claim under 29 U.S.C. §501. 29 U.S.C. §501(a) sets forth the fiduciary
responsibilities of officers of labor organizations. Much of Paragraphs 157 to 161 relates to the
CWA Defendants’ alleged failure to have internal controls and procedures to prevent fiduciary
breaches, their alleged failure to conduct audits upon request, and their alleged failure to adopt
reasonable rules. Even if these broad allegations are taken as true, they do not state a claim under
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29 U.S.C. §501. The Court could, in an abundance of leniency, interpret Plaintiff’s statements as
assertions that there had in fact been a breach in fiduciary duty under 29 U.S.C. §501(a) by
reading “permitting exorbitant spending” and “permitting improper use of union assets” to mean
“actual” exorbitant spending and “actual” improper use of union assets. However, as Defendants
point out, these are sweeping assertions which Plaintiff has not supported with specific factual
allegations. As such, Plaintiff has failed to state a claim and his fourth cause of action must fail
as futile.
Further, 29 U.S.C. §501(b) mandates that no suit against an officer of a labor organization
may be brought in federal court for a violation 29 U.S.C. §501(a) without leave of the court
obtained upon verified application and for good cause shown. Plaintiff has not filed said verified
application. Assuming that this motion constitutes such an application, the application is denied
for failure to provide a sufficient factual basis.
The only remaining claim, therefore, is Plaintiff’s fifth proposed cause of action for
common law breach of fiduciary duties and breach of contract rights. In liberally construing his
pro se submission, Plaintiff has set forth facts throughout the entirety of his Proposed Amended
Complaint which, when taken as true, could establish common law violations.

2. Rule 15 (a) - Prejudice
Having found that there was no undue delay, bad faith or dilatory motive on the part of
Plaintiff and having determined that Plaintiff’s fifth cause of action, when construed liberally,
may not fail as futile, the Court must now address the potential prejudice to Defendants in
permitting the amendment. In deciding whether to grant leave to amend under Rule 15(a)(2),
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“prejudice to the non-moving party is the touchstone for the denial of the amendment.” Bechtel
v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (quoting Cornell & Co., Inc. v. Occupational
Health and Safety Review Comm’n, 573 F.2d 820, 823 (3d Cir. 1978)). To establish prejudice,
the non-moving party must make a showing that allowing the amended pleading would (1)
require the non-moving party to expend significant additional resources to conduct discovery and
prepare for trial, (2) significantly delay the resolution of the dispute, or (3) prevent a party from
bringing a timely action in another jurisdiction. See Long v. Wilson, 393 F.3d 390, 400 (3d Cir.
2004). Delay alone, however, does not justify denying a motion to amend. See Cureton v. Nat’l
Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001). Rather, it is only where delay
becomes “‘undue,’ placing an unwarranted burden on the court, or...‘prejudicial,’ placing an
unfair burden on the opposing party” that denial of a motion to amend is appropriate. Adams v,
Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984).
As discussed above, Plaintiff’s fifth proposed cause of action, when construed liberally,
could state a claim for common law violations. However, it is unclear whether he seeks to bring
these charges against the CWA Defendants, the Local Defendants, or both. It is also unclear
which of the aforementioned allegations he asserts establish the common law violations. As
such, Defendants would have to expend significant resources and energy in defending
themselves. Further, without knowing precisely what is being alleged against them, Defendants
simply would not be able to construct an effective defense. As such, it would be unfair and cause
undue prejudice to Defendants to permit Plaintiff to proceed on the vague and ill defined claims
described in his fifth cause of action.

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3. Rule 15 (a) - Delay to Proceedings
The Court emphasizes that every effort was made to broadly interpret this pro se
submission. See Haines, 404 U.S. at 520-21; see also Day, 969 F.2d at 42. Indeed, certain
factual allegations contained in areas of Plaintiff’s Proposed Amended Complaint other than the
“causes of action” section could potentially establish causes of action under the statutes cited by
Plaintiff. In addition, the factual allegations contained in Plaintiff’s “causes of action” section
may, in fact, establish causes of action under another statute or under some other section of the
LMRDA not cited in Plaintiff’s Proposed Complaint. However, although the Court is to
construe pro se submissions broadly, it is not the Court’s responsibility to construct his
Complaint for him. A mix and match approach whereby the Court would apply Plaintiff’s
allegations with corresponding statutes may not result in an accurate Complaint, could result in
prejudice to Defendants and would not be an effective use of judicial resources. As written,
Plaintiff’s Proposed Amended Complaint is futile, even when viewed liberally.
Further, allowing Plaintiff to make the amendments as proposed would, as Defendants
assert, essentially constitute an entirely new Complaint. Although no significant discovery has
been exchanged, the case would effectively begin a new. Permitting such an amendment and
requiring Plaintiff to submit an Amended Complaint which complied with terms of the
corresponding Order would significantly delay these proceedings, would not promote judicial
economy and would in fact thwart the Court’s efforts to “secure the just, speedy and inexpensive
determination” of this action. FED .R.CIV .P. 1.

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C. Proposed Additional Claims - Rule 15(c)(1)(B)
In light of the fact that the Court has determined that Plaintiff’s amendments fail under
Rule 15(a), it is unnecessary for the Court to reach a Rule 15(c) relation back analysis. Even
assuming that all of Plaintiff’s proposed claims did, in fact, relate back to the 2005 and 2008
elections, they would still fail as either futile or unduly prejudicial.

III.

Conclusion
For the reasons stated above, Plaintiff’s motion seeking leave to file an Amended

Complaint in order add thirty-nine (39) additional defendants and five (5) new causes of action is
DENIED. An appropriate Order follows.

Dated: May 2, 2012
s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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