Kehoe v. International Alliance of Theatrical Stage Employees

Filing 46

ORDER denying without prejudice 29 Motion to Dismiss. Accordingly, it is ORDERED that Plaintiff file his amended complaint in this action on or before March 15, 2017. Defendants are further ORDERED to move or otherwise respond to the amended compl aint on or before April 17, 2017. If Defendants file a renewed motion to dismiss, the Court will set a schedule for the remaining briefing. Defendants' motion to dismiss is DENIED WITHOUT PREJUDICE to its renewal. The Clerk of Court is directed to terminate the motion at docket entry 29. (Signed by Judge Katherine Polk Failla on 2/13/2017) Copies Mailed By Chambers. (cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JOSEPH M. KEHOE,
:
:
:
Plaintiff,
:
v.
:
:
INTERNATIONAL ALLIANCE OF
:
THEATRICAL STAGE EMPLOYEES,
:
MOVING PICTURE TECHNICIANS,
:
ARTISTS, AND ALLIED CRAFTS OF THE
:
UNITED STATES, ITS TERRITORIES AND :
CANADA (IATSE), MATTHEW LOEB,
:
JAMES B. WOOD, MICHAEL BARNES,
:
J. WALTER CAHILL, THOM DAVIS,
:
ANTHONY DEPAULO, DAMIAN PETTI,
:
MICHAEL F. MILLER JR., JOHN T.
:
BECHMAN JR., DANIEL E. DITOLLA,
:
JOHN R. FORD, JOHN M. LEWIS, CRAIG P. :
CARLSON, WILLIAM E. GEARNS JR., AND ;
PHIL LoCICERO,
:
:
Defendants. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
February 13, 2017
DATE FILED: ______________

15 Civ. 5110 (KPF)
ORDER

KATHERINE POLK FAILLA, District Judge:
In 2012 and 2013, Plaintiff Joseph M. Kehoe found himself embroiled in
several disciplinary proceedings administered by his union, Local 21 of the
International Association of Theatrical Stage Employees (“IATSE”). In
December 2013, Plaintiff brought a civil action in the United States District
Court for the District of New Jersey against the local and international IATSE
organizations, certain officers in each, outside counsel to the local union, and a
company to which Plaintiff had provided services as a IATSE member. See
Kehoe v. Int’l Assoc. of Theatrical Stage Emp. Local 21, et al., No. 2:13-cv-

07805-JLL-JBC (D.N.J.) (opened December 23, 2013) (the “D.N.J. Action”).
There, Plaintiff raised claims under the Labor-Management Relations Act, 29
U.S.C. §§ 141-197 (the “LMRA”); the Labor-Management Reporting and
Disclosure Act, 29 U.S.C. ch. 11 (the “LMRDA”); and 42 U.S.C. § 1983. Several
of Plaintiff’s claims were dismissed against several of the defendants in orders
issued on January 9, 2014, and February 20, 2015. (D.N.J. Dkt. #2, 63). In
an opinion and an order dated May 20, 2016, United States District Judge Jose
L. Linares granted summary judgment in favor of the remaining defendants.
See Kehoe v. Int’l Assoc. of Theatrical Stage Emp. Local 21, et al., No. 2:13-cv07805-JLL-JBC, 2016 WL 2944071 (D.N.J. May 20, 2016) (“Kehoe I”). The May
20 order granting summary judgment is now on appeal to the United States
Court of Appeals for the Third Circuit.
While the D.N.J. Action was pending, Plaintiff brought the instant
lawsuit, naming as Defendants IATSE International, its president, and
individuals the Court understands to comprise the General Executive Board of
IATSE International. Defendants have moved to dismiss the action, citing
procedural and pleading defects. Plaintiff opposes the motion and, in the
alternative, seeks leave to file an amended complaint. In light of Plaintiff’s pro
se status, the Court denies without prejudice Defendants’ motion to dismiss
and grants Plaintiff’s application for leave to file an amended complaint.

2

Plaintiff is cautioned, however, to heed the remainder of this Order, where the
Court addresses certain issues with Plaintiff’s current pleading. 1
Federal Rule of Civil Procedure 8 requires, among other things, that a
pleading set forth “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8. Plaintiff’s Complaint, however, is
terse to the point of being uninformative, containing six counts set out over
four pages of text. (See generally Complaint (“Compl.,” Dkt. #2)). Plaintiff
makes reference to certain decisions of IATSE International and its officers in
July 2013 and January, February, and March 2014, and attempts to relate
those decisions to earlier decisions made by IATSE Local 21, but provides far
too little detail concerning either set of events — and, perhaps more
importantly, how the conduct of each Defendant named in the Complaint
violated any of Plaintiff’s rights. 2

1

For convenience, the Court will refer to Defendants’ Memorandum of Law in Support of
Their Motion to Dismiss as “Def. Br.” (Dkt. #30), Plaintiff’s Memorandum in Opposition
as “Pl. Opp.” (Dkt. #34), and Defendants’ Reply Memorandum of Law as “Def. Reply”
(Dkt. #41).

2

An example of conclusory pleading that would not satisfy Rule 8 is contained in
Count 6:
Matthew Loeb, by ignoring the Constitution and Bylaws of both
IATSE and IATSE Local 21, and by ignoring the applicable Federal
Laws cited in this Complaint and by ignoring the charges against
the Executive Board of IATSE Local 21 that was sent to him by the
Plaintiff informing him of the same as well as of other violations
and harassment taken against him by Michael Stas and the
Executive Board of Local 21 has directly and purposefully caused
the deprivation of the Plaintiffs federally protected rights and
privileges thus causing the Plaintiff financial and emotional
damages past present and future.
(Compl., Part III.C, Count 6).

3

In his opposition to Defendants’ motion to dismiss, Plaintiff seeks leave
to amend “if necessary to properly state a claim and correct fatal errors” (Pl.
Opp. 9), and makes reference to his pro se status (id. at 8-9). It is true that the
principle that a “court should freely give leave [to amend a pleading] when
justice so requires,” Fed R. Civ. P. 15(a)(2), is particularly applicable to pro se
plaintiffs, see Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003). Additionally,
the Second Circuit has cautioned that “[a] pro se complaint should not be
dismissed without the court granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a valid claim might be
stated.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal
quotation marks omitted).
The Court cannot exclude the possibility that Plaintiff can plead a viable
cause of action relating to conduct by IATSE International and its General
Executive Board, and that is why it is granting leave to amend. That said, the
Court harbors a degree of skepticism towards Plaintiff’s chances of pleading
certain claims. To add flesh to the skeletal allegations in the Complaint, the
Court has reviewed a number documents in the D.N.J. Action, including
Plaintiff’s amended complaint in that action; the motions to dismiss and the
district court’s orders resolving same; and the motions for summary judgment,
the exhibits submitted in connection therewith, and Judge Linares’s May 20,
2016 decision. See generally Kehoe I. In so doing, the Court has gained deeper
understanding of the context for Plaintiff’s current claims. It also has amassed
a substantial evidentiary record from which it can now observe that many of
4

Defendants’ arguments for dismissal have traction, and are certainly not the
“mud” or “joke[s]” that Plaintiff derides them to be. (See Pl. Opp. 26). The
Court discusses some of these arguments here, so that Plaintiff will have
guidance in amending his complaint.
A preliminary question is whether any claims may be brought against
Defendants IATSE International or Matthew Loeb. These two defendants were
named in Plaintiff’s complaint and amended complaint in the D.N.J. Action,
and were dismissed from the action on February 25, 2015, for (as Plaintiff
concedes, see Pl. Opp. 12, 14) failure to state a claim. 3 What Plaintiff appears
not to perceive is that these dismissals were with prejudice, i.e., they operated
as a decision on the merits as to these two Defendants. See generally Fed. R.
Civ. P. 41(b) (“Unless the dismissal order states otherwise, a dismissal under
this subdivision (b) and any dismissal not under this rule ... operates as an
adjudication on the merits.”).
This fact dovetails with the critical issue of the preclusive effect, if any, to
be given the D.N.J. Action. Plaintiff acknowledges that the “causes of action
stem originally from the same set of incidents,” but maintains that “the causes

3

See D.N.J. Dkt. #63 at 7 n.10:
On the other hand, Plaintiff’s claims against Defendants IATSE
International and Loeb are entirely conclusory. The sole allegation
in the Amended Complaint against these Defendants is that, on
Plaintiff’s appeal of the local union’s ruling, “Loeb quoted and used
evidence not on the record.” (Am. Compl. ¶ 40). This sole
conclusory allegation is insufficient to state a claim against these
Defendants. The Court has previously dismissed Plaintiff’s
pleadings for failure to state facts related to each Defendant
sufficient to state a claim.

5

of action are not the same and the defendants are not the same.” (Pl. Opp. 7
(emphasis in original)). He further explains that the conduct addressed in the
instant matter had not occurred at the time he filed the amended complaint in
the D.N.J. Action. (Id. at 12-13). Defendants counter that Plaintiff’s claims in
this case are entirely precluded, under a theory of either res judicata or
collateral estoppel. (Def. Br. 9-14).
A not-insubstantial argument can be made that several of Plaintiff’s
claims are barred by res judicata. “Under the doctrine of res judicata, or claim
preclusion, a final judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have been raised in that
action.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014)
(emphasis omitted) (quoting St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir.
2000)); see generally Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc.,
779 F.3d 102, 107 (2d Cir. 2015) (discussing claim and issue preclusion). “To
prove the affirmative defense[,] a party must show that [i] the previous action
involved an adjudication on the merits; [ii] the previous action involved the
plaintiffs or those in privity with them; [and] [iii] the claims asserted in the
subsequent action were, or could have been, raised in the prior action.”
Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 285 (2d Cir. 2000).
Comparing this action to the D.N.J. Action, the Court finds the first two
elements to be satisfied; Plaintiff’s arguments in opposition focus on the third
element. The Second Circuit instructs district courts to resolve the third
element by evaluating whether the second suit involves “the same claim — or
6

nucleus of operative facts — as the first suit” as determined by the following
three indicia: “[i] whether the underlying facts are related in time, space, origin,
or motivation; [ii] whether the underlying facts form a convenient trial unit; and
[iii] whether their treatment as a unit conforms to the parties’ expectations.”
Channer v. Dep’t of Homeland Sec., 527 F.3d 275, 280 (2d Cir. 2008) (internal
quotations omitted); see also Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108
(2d Cir. 2000). Reviewing Plaintiff’s allegations within this framework, the
Court notes — without finally deciding the issue — that the events underlying
Counts 1, 4, 5, and 6 of the instant action would seem to fall within the same
nucleus of operative facts as the D.N.J. Action. 4
A second potential basis of preclusion is collateral estoppel. Collateral
estoppel, or “issue preclusion … forecloses ‘successive litigation of an issue of
fact or law actually litigated and resolved in a valid court determination
essential to the prior judgment, even if the issue recurs in the context of a
different claim.’” Schwartz v. HSBC Bank USA, N.A., 160 F. Supp. 3d 666, 674
(S.D.N.Y. 2016) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). “For
collateral estoppel to apply, four elements must be satisfied: ‘[i] the issues of
both proceedings must be identical, [ii] the relevant issues were actually
litigated and decided in the prior proceeding, [iii] there must have been full and

4

By contrast, Counts 2 and 3, involving events that postdate Plaintiff’s amended
complaint in the D.N.J. Action, would seem not to be subject to claim preclusion. See
Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 383 (2d Cir. 2003) (“Claims arising
subsequent to a prior action need not, and often perhaps could not, have been brought
in that prior action; accordingly, they are not barred by res judicata regardless of
whether they are premised on facts representing a continuance of the same ‘course of
conduct.’” (citations omitted)).

7

fair opportunity for the litigation of the issues in the prior proceeding, and
[iv] the issues were necessary to support a valid and final judgment on the
merits.” Id. (internal quotation marks omitted) (quoting Cent. Hudson Gas &
Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir. 1995)). 5
The Court advises Plaintiff that issue preclusion may foreclose him from
challenging, in this litigation, issues that were finally decided in the D.N.J.
Action. These include, but may not be limited to, Judge Linares’s conclusions
that the disciplinary sanctions imposed on Plaintiff and/or the process by
which these sanctions were imposed (at least at the Local 21 level) did not
amount to (i) a generalized violation of Title I of the LMRDA; (ii) improper
disciplinary procedures under 29 U.S.C. § 411(a)(5); (iii) an improper
infringement of Plaintiff’s right to free speech under 29 U.S.C. § 411(a)(2); or
(iv) a breach of contract (namely, the Constitution and Bylaws of IATSE) in
violation of the LMRDA. See Kehoe I, 2016 WL 2944071, at *12-23. As a
practical matter, the operation of issue preclusion may limit Plaintiff’s claims to
the precise acts taken by IATSE International or the individual officers named
as Defendants — which only underscores the importance of more detailed
pleading of Plaintiff’s claims.

5

Plaintiff also misperceives the significance of the pendency of his appeal to the Third
Circuit. (See Pl. Opp. 14). As the Supreme Court recently concluded, “a judgment’s
preclusive effect is generally immediate notwithstanding any appeal.” Coleman v.
Tollefson, 135 S. Ct. 1759, 1764 (2015) (citing Clay v. United States, 537 U.S. 522, 527
(2003) (“Typically, a federal judgment becomes final for ... claim preclusion purposes
when the district court disassociates itself from the case, leaving nothing to be done at
the court of first instance save execution of the judgment”)).

8

The Court declines at this time to weigh in on Defendants’ challenges to
the merits of Plaintiff’s Complaint. Instead, it seeks only to advise Plaintiff of
the various issues that he should consider in his amended pleading.
Accordingly, it is ORDERED that Plaintiff file his amended complaint in this
action on or before March 15, 2017. Defendants are further ORDERED to
move or otherwise respond to the amended complaint on or before April 17,
2017. If Defendants file a renewed motion to dismiss, the Court will set a
schedule for the remaining briefing.
Defendants’ motion to dismiss is DENIED WITHOUT PREJUDICE to its
renewal. The Clerk of Court is directed to terminate the motion at docket entry
29.
SO ORDERED.
Dated:

February 13, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

Sent by First Class Mail to:
Joseph M. Kehoe
34 Comstock Street
New Brunswick, NJ 08901

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