Scopo v. Laborers' International Union of North America et al

Filing 39

MEMORANDUM AND ORDER: For the reasons stated above, the motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) are GRANTED. Scopo's motion for leave to amend is DENIED. The Clerk of Court is directed to enter judgment accordingly and to close this case. Ordered by Chief Judge Carol Bagley Amon on 3/6/2013. (fwd for judgment) (Fernandez, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------)(
RALPH J. SCOPO,
NOT FOR PUBLICATION
MEMORANDUM & ORDER
11-cv-3991 (CBA)

Plaintiff,
-againstLABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, LABORERS'
LOCAL 6A CONCRETE WORKERS, and BRUCE
MOUW, in his official and individual capacity,

FILED

IN~$fl.o.N.Y

u.s. OIS I"''"' I

* MAR 06 2013 *
BROOKLYN OFFICE

Defendants.

---------------------------------------------------------)(
AMON, Chief United States District Judge.
INTRODUCTION

Plaintiff Ralph J. Scopo commenced the above-captioned action on August 18, 2011 against
Laborer's International Union of North America ("LIUNA"), Laborers' Local 6A Concrete
Workers ("Local 6A"), and Bruce Mouw in his official and individual capacities. 1 The action
arises out of Scopo's removal from various union posts subsequent to LIUNA's implementation
of a trusteeship over Local 6A. Scopo initially asserted violations of 42 U.S.C. § 1983, § 301 of
the Labor Management Relations Act ("LMRA"), and various state torts. He filed an amended
complaint on December 21, 2011, which did not include the § 301 claims. All defendants now
move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the
motions are granted.

1
On February 8, 2013, the Court approved a stipulation and discontinuance with prejudice against defendants
Cement and Concrete Workers Council and Alex Castaldi. Additionally, at oral argument, Scopo's counsel
conceded that Scopo has no remaining claims against Local6A. (Tr. of Oral Arg. at 32.) Local6A's motion to
dismiss is therefore granted.

BACKGROUND
1 Scopo 's History at Local 6A

Ralph Scopo, a resident of Suffolk County, is the son of Ralph Scopo, Jr. and the grandson of
Ralph Scopo, Sr. Am. Compl.

~~

4, 18-19. His father and grandfather are reputed members of an

organized crime family. Am. Compl.

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19. Scopo claims that although he has "maintain[ed] a

father/son familial relationship with his father, he has never engaged in, or conducted illegal
activities or business with his father or his father's purported associates." Am. Compl.
Scopo became a member of Local 6A in the fall of 1988. Am. Compl.
general construction laborer for fourteen years. Am. Compl.

~

~

~

20.

23. He worked as a

24. Between 2001 and 2008,

Scopo attained several leadership positions within the union hierarchy. Am. Compl.

~~

35, 38,

42, 46, 47, 49. As far as can be gleaned from the amended complaint, Scopo held each of these
positions until early-20 11, at which time LIUNA assumed trusteeship over Local 6A and
removed Scopo from his positions. Am. Compl.

~~

22, 107, 111; see Slevin Decl. ex. 14, 15.

II. DOJ and LIUNA 's Efforts to Eradicate Corruption

The amended complaint alleges that LIUNA is both party to an agreement with and subject
to a consent decree in favor of the United States of America. Both are allegedly for the purpose
of eliminating from LIUNA and its subordinate entities the "corrupting influence of any member
of organized crime." Am. Compl.

~59,

62. The amended complaint does not fully illuminate the

background of this alleged agreement, but it is generally a matter of public record. In 1994, the
Department of Justice ("DOJ") concluded that LIUNA had been infiltrated by members of
organized crime. Serpico v. LJUNA, 97 F.3d 995, 996 (7th Cir. 1996). DOJ drafted a complaint
alleging violations of the Racketeer Influenced and Corrupt Organizations Act, and it warned
LIUNA that it would file the complaint unless LIUNA took corrective action. !d. at 996-97.
2

In response, LIUNA "amended [its] constitution to include an 'Ethics and Disciplinary
Procedure.'" This amendment "created an administrative mechanism for the investigation and
prosecution of allegations of' knowing association with a member of organized crime.
Panczykowski v. LIUNA, 2 F. App'x 157, 159 (2d Cir. 2001). LIUNA appointed four

independent officers to administer this procedure. LIUNA Mem. in Supp. at 3. Apparently
satisfied, DOJ entered into an agreement with LIUNA in 1995 in which it promised not to file its
complaint for 90 days, but reserved the right to file a consent decree after that time authorizing
court officers to oversee LIUNA. !d. at 3-4.

LIUNA has provided documentation that the

agreement was extended three times. Slevin Decl. ex. 8-10. It also claims, contrary to the
allegations in the amended complaint, that there is currently no agreement in effect and that no
consent decree was ever entered, but that it has elected voluntarily to continue its efforts to
eradicate the corruptive influence of organized crime. LIUNA Mem. in Supp. at 4, 14.
Ill The Trusteeship Allegations and Scopo 's Removal

On December 21, 2010, Special Counsel filed a trusteeship complaint against Local 6A.
Slevin Decl. ex. 11; Am. Compl.

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27. Scopo has not provided that complaint, but LIUNA has,

and the Court takes judicial notice of the fact of the allegations contained therein. The trusteeship
complaint alleged, in relevant part, that Dino Calabro, a Colombo family captain, controlled
Local 6A through Colombo family soldier (and plaintiffs father) Ralph Scopo, Jr. Slevin Decl.
ex. 11

~~

23-24. It further alleged that Scopo had accompanied Scopo, Jr. to a meeting with

Calabro regarding Local 6A, and that in 2008 Scopo was installed as Business Manager of Local
6A because Scopo, Jr. was suspicious of Frank Agnello, Scopo's predecessor. !d. ~~ 27, 30-34.
The complaint accused the Colombo family-through Scopo and other crime family associates

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who had been installed in positions throughout Local6A's ranks--of running schemes involving
vacation pay and the diversion of funds earned from worksite food stands. !d. ~~ 39-54.
Scopo denies any wrongdoing. The central allegation in his amended complaint is that
"LIUNA sought to remove [him] from the Board and the other aforementioned positions held
with LIUNA, Local 6A and the [Cement & Concrete Workers District Council ("District
Council")] solely because he is the son of Ralph Scopo, Jr., an alleged Colombo crime family
member." Am. Compl.

~

75.

According to Scopo, defendants took several steps towards this end. One of these, of course,
was the initiation of allegedly baseless trusteeship proceedings. At some point-Scopo has not
provided the date, but it appears to have been February 7, 2011, Slevin Decl.

~

12-LIUNA sent

a letter to members of Local 6A giving notice of the impending trusteeship hearing and
describing the trusteeship complaint, including the allegations against Scopo. Am Compl.

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86.

Scopo claims that these allegations were false, and that they were designed to tum Local 6A
members against him. Am. Compl.

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89-91. Scopo also alleges that he was harassed by Bruce

Mouw, the Lead Investigator for LIUNA. He alleges that Mouw "sent FBI agents to his home
with a fake subpoena in order to scare him into talking," Am. Compl.

~

92, and that Mouw called

him several times before the trusteeship hearing in an attempt to harass him, Am. Compl.

~

115.

In early-March 2011, the Laborers' Independent Hearing Officer ("IHO") held a trusteeship
hearing. Am. Compl.

~

100; Slevin Decl. ex. 14, at 2. Mouw and FBI Agent Scott Curtis testified

at the hearing, apparently relating evidence obtained from witnesses who were cooperating with
two federal prosecutions of Colombo family members. !d. at 5-7. Soon after the hearing, the IHO
held that a trusteeship was necessary to eliminate the influence of organized crime from Local

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6A. !d. at 32. As a result of the trusteeship, Scopo was removed from all positions within the
union. Am. Compl.

~

105.
DISCUSSION

I. Standard of Review Under Fed. R. Civ. P. 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move for dismissal on the
ground that the complaint "fail[ed] to state a claim upon which relief can be granted." In
reviewing a 12(b)(6) motion, a court must accept all factual allegations in the complaint as true
and must draw all reasonable inferences in favor of the plaintiff. Kittay v. Kornstein, 230 F.3d
531, 537 (2d Cir. 2000). Although a reviewing court is generally restricted to the allegations in
the complaint, "[i]n certain circumstances, the court may permissibly consider documents other
than the complaint in ruling on the motion under Rule 12(b)(6)." Roth v. Jennings, 489 F.3d 499,
509 (2d Cir. 2007). Among these additional materials are "documents that the plaintiff either
possessed or knew about and upon which [he] relied in bringing the suit," Rothman v. Gregor,
220 F.3d 81, 88 (2d Cir. 2000), "matters of public record," Pani v. Empire Blue Cross Blue

Shield, 152 F.3d 67, 75 (2d Cir. 1998), and "documents filed in other courts," Kramer v. Time
Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991). When a court takes judicial notice of materials
such as the above, "it does so in order to determine what statements [they] contained ... but ...
not for the truth of the matters asserted." Roth, 489 F.3d at 509 (quotation marks omitted).
In order to survive a motion to dismiss, the complaint must allege "enough facts to state a
claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint need not include "detailed factual

5

allegations," but mere "labels and conclusions" will not suffice. Twombly, 550 U.S. at 555. The
"factual allegations must be enough to raise a right to relief above the speculative level." !d.
"[D]etermining whether a complaint states a plausible claim is context-specific, requiring the
reviewing court to draw on its experience and common sense." Iqbal, 556 U.S. at 679.
II. Claims Under 42 US. C. § 1983

Scopo's first two claims are for violation of 42 U.S.C. § 1983. His first§ 1983 claim is that
defendants violated his right to intimate association under the First Amendment when they
removed him from his union posts solely on the basis that he is the son of an alleged member of
organized crime. His second § 1983 claim is that he was denied his right to due process under the
Fifth Amendment when he was denied the opportunity to confront the cooperating witnesses
whose statements were introduced at the trusteeship hearing.
Defendants argue that Scopo cannot establish that defendants were state actors, as required to
make out a claim under§ 1983. United States v. International Broth. a/Teamsters, et al ("Senese
& Talerico"), 941 F.2d 1292, 1295-96 (2d Cir. 1991). As authority, they rely on Senese &

Telerico, a Second Circuit case with facts nearly identical to those alleged in the amended

complaint, which held that a union's imposition of sanctions pursuant to its own constitution, and
carried out by individuals not under government control, does not constitute state action. !d. at
1296-97. The Court agrees that Senese & Talerico controls this case, and Scopo's counsel
conceded at oral argument that he could not distinguish it. For the reasons stated upon the record
at oral argument, defendants' motion is granted as to the § 1983 claims. Tr. of Oral Arg. at 4-6.
III. State Law Tort Claims

Scopo also advances claims under New York state tort law. He alleges (1) tortious
interference with prospective economic advantage against LIUNA; (2) libel and slander per se
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against LIUNA; (3) abuse of process against LIUNA and Mouw; and (4) intentional infliction of
emotional distress against LUINA and Mouw. 2

A. Claims Against LIUNA and Mouw in His Official Capacity
Defendants argue that all claims against LIUNA and Mouw in his official capacity
(collectively "union defendants") are preempted by § 301 of the Labor Management Relations
Act, foreclosed by New York state's so-called Martin rule, or both.
Section 301 of the LMRA governs "[s]uits for violation of contracts between an employer
and a labor organization representing employees ... , or between any such labor organizations."
29 U.S. C. § 185(a). It is well-settled that "where the resolution of a state-law claim depends on
an interpretation of [a] collective-bargaining agreement, the claim is pre-empted" by this
provision. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994). This includes "claims
founded directly on rights created by collective-bargaining agreements, and also claims
substantially dependent on analysis of a collective-bargaining agreement." Caterpillar, Inc. v.

Williams, 482 U.S. 386, 394 (1987).
Several, if not all, of Scopo's state tort claims would require the Court to analyze LIUNA's
constitution, which qualifies as a contract between labor organizations under § 301. Wooddell v.

Int 'I Brotherhood of Elec. Workers, 502 U.S. 93, 99 (1991) (explaining that a union constitution
is the "most commonplace form of contract between labor organizations."). For example, the
Court could not determine whether the union defendants' removal of Scopo from his union
positions constituted tortious behavior without analyzing the LIUNA constitution's "Ethics and
Disciplinary Procedure" to determine the purposes or propriety of the union defendants' actions.
Indeed, at oral argument, counsel for Scopo conceded that "it may be" that the Court would need
2

Again, although Scopo initially brought the intentional infliction of emotional distress claim against Local 6A,
counsel conceded at oral argument that Scopo is no longer asserting this or any other claim against Local 6A. (Tr. of
Oral Arg. at 32).

7

to interpret the LIUNA constitution to determine whether Scopo's ouster was appropriate. Tr. of
Oral Arg. at 14-15.
Even if some of Scopo's state tort claims would not require interpretation of the LIUNA
constitution-and therefore are not preempted-those remaining claims are foreclosed by New
York's well-settled Martin rule. In Martin v. Curran, 303 N.Y. 276, 280 (1951), the New York
Court of Appeals explained that
[a] voluntary, unincorporated membership association is neither a partnership nor
a corporation. It is not an artificial person, and has no existence independent of its
members. No agency of one member for another is implied. A part of the
members of a voluntary organization cannot bind the others without their consent
before the act which it is claimed binds them is done, or they, with full knowledge
of the facts, ratify and adopt it. (quotation marks and citations omitted).
In other words, "suits against association officers, whether for breaches of agreements or for
tortious wrongs, [are limited] to cases where the individual liability of every single member can
be alleged and proven." !d. at 282. And although courts have questioned the wisdom of the
Martin rule, it remains the law in New York. See, e.g., Morrissey v. National Maritime Union of
America, 544 F.2d 19, 33 (2d Cir. 1976) (discussing Martin rule and acknowledging "we must

follow the law of New York as declared by its highest court, whatever our own views might
be"); R.M Perlman, Inc. v. New York Coat, Suit, Dresses, Rainwear & Allied Workers' Union,
789 F. Supp. 127, 131-32 (S.D.N.Y. 1992) (discussing and collecting cases); see also Goodman
v. Port Authority, No. 10-cv-8352, 2011 WL 3423800, *10 (S.D.N.Y. Aug. 4, 2011).

Scopo has not alleged the liability of every member of the union, and counsel conceded at
oral argument that he could not do so. Tr. of Oral Arg. at 33. Moreover, at oral argument
counsel was not able to offer any possible exception to the Martin rule that might permit Scopo's

8

claims to survive. 3 !d. Accordingly, any claims that are not preempted by § 301 are nevertheless
dismissed on the basis of the Martin rule.
For the reasons stated above and on the record at oral argument, either the doctrine of
preemption and/or the Martin rule disposes of all state law claims against the union defendants.
The Court therefore grants the motion to dismiss with respect to those claims and defendants.
B. Claims Against Mouw in His Individual Capacity

Scopo's only remaining claims are those asserted against Mouw in his individual capacity.
Mouw argues that Scopo has failed to state a claim upon which relief may be granted. The Court
agrees.
1. Abuse of Process
Scopo' s first claim against Mouw is for abuse of process. This claim is based upon the
unadorned allegation that on some unspecified date, "Mouw [], a retired special agent of the
Federal Bureau of Investigation (FBI), sent FBI agents to Plaintiffs home with a fake subpoena
in order to scare him into talking about the purported organized criminal activity within
LIUNA." Am. Compl. ,-r 92. At oral argument, counsel reiterated Scopo's understanding that the
subpoena was not real. Tr. of Oral Arg. at 20. To begin with, the Court is highly skeptical that
the use of a fake subpoena could constitute abuse of process when no actual process has ever
issued. Generally in the context of an abuse of process claim, "legal process means that a court
issued the process, and the plaintiff will be penalized if he violates it." Cook v. Sheldon, 41 F.3d

3

Perhaps the most well-established exception to the Martin rule was recognized by the New York Court of Appeals
in Madden v. Atkins, 4 N.Y.2d 283 (1958). Madden essentially held that the Martin rule is not applicable to a suit
claiming damages for wrongful expulsion pursuant to a union constitution. !d. at 296; Morrissey v. Nat'! Maritime
Union of Am., 544 F.2d 19, 33 (2d Cir. 1976). Even if Madden's exception would save from the Martin rule any of
Scopo's claims that are based on his removal from union positions-and the Court notes again that Scopo has not
made this argument-those sorts of claims would by definition challenge action taken "in accordance with the union
constitution," Madden, 4 N.Y.2d at 296. As such, they would require the Court to analyze LIUNA's constitution,
and are therefore plainly preempted by§ 301.

9

73, 80 (2d Cir. 1994) (quoting Mormon v. Baran, 35 N.Y.S.2d 906, 909 (Sup. Ct. 1942)); Bd. of
Educ. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers Assoc., Inc.,

38 N.Y.2d 397, 405 (1975) (to succeed on an abuse of process claim, "there must be regularly
issued process . . . compelling the performance or forebearance [sic] of some prescribed act");
Williams v. Williams, 23 N.Y.2d 592, 596 (1969) ("The gist of an action for abuse ofprocess lies

in the improper use of process after it is issued." (quotation marks omitted)). The use of a phony
subpoena seeks to compel action not through the improper manipulation of judicial authority, but
through misrepresentation and trickery. Since no actual process is alleged to have been issued,
Scopo cannot establish "unlawful interference with [his] person or property under color of
process," Williams, 23 N. Y.2d at 596.
In any event, as counsel for Scopo conceded at oral argument, Scopo declined to speak with
the FBI agents who allegedly appeared with the fake subpoena. Tr. of Oral Arg. at 20. That is, he
was not in fact compelled to do anything. It is well-settled that a plaintiff "must allege and prove
actual or special damages in order to recover" for abuse of process. See Bd of Educ. of
Farmingdale Union Free Sch. Dist., 38 N.Y.2d at 405; Jaquez v. DiMarzio, Inc. 216 F. Supp. 2d

139, 142 (E.D.N.Y. 2002); Beezhold v. Allegiance Healthcare Corp., No. 99-cv-299, 2000 WL
1092886, *4 (S.D.N.Y. Aug. 4, 2000). Special damages involve interference with person or
property "beyond the ordinary burden of defending a lawsuit." Jacques, 216 F. Supp. 2d at 142
(citing Engel v. CBS, Inc., 145 F.3d 499, 503 (2d Cir. 1998)). Because Scopo has not alleged any
interference with person or property resulting from the phony subpoena incident-at least not
beyond the formulaic recitation of "irreparable injury and monetary damages"-his claim fails.

10

2. Intentional Infliction of Emotional Distress

Scopo's second claim against Mouw is for intentional infliction of emotional distress in
connection with the alleged fake subpoena incident. To state a claim for intentional infliction of
emotional distress, a plaintiff must show "extreme and outrageous conduct." Stuto v. Fleishman,
164 F.3d 820, 827 (2d Cir. 1999). "Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in civilized society." !d. (quoting
Howell v. New York Post Co., 81 N.Y.2d 115, 122 (1993)). The Court finds that the alleged fake

subpoena incident does not come close to satisfying the above criteria. At most it involved sharp
dealing; it was certainly not "beyond all possible bounds of decency." Accordingly, the
intentional infliction of emotional distress claim against Mouw is dismissed.
IV Motion to Amend

Scopo has also requested leave to amend his amended complaint. Under Fed. R. Civ. P.
15(a), leave to amend should be denied "only for such reasons as undue delay, bad faith, futility
of the amendment, and perhaps most important, the resulting prejudice to the opposing party."
Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir. 2005)

(internal quotation marks omitted). At oral argument, counsel for Scopo enumerated the
allegations he would add to the amended complaint if granted leave to do so. None of the
proposed allegations would cure the defects discussed above. Accordingly, the Court denies the
motion for leave to amend on the ground of futility.

11

CONCLUSION
For the reasons stated above, the motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) are
GRANTED. Scopo's motion for leave to amend is DENIED. The Clerk of Court is directed to
enter judgment accordingly and to close this case.
SO ORDERED.
Dated: March--'--' 2013
Brooklyn, N.Y.

s/Carol Bagley Amon

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Chief United States District Judge

12