Corrigan v. New York City Dist. Council of Carpenters and Joiners of Am. ( 2023 )


Menu:
  • 22-1090
    Corrigan v. New York City Dist. Council of Carpenters and Joiners of Am.
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    Rulings by summary order do not have precedential effect. Citation to a summary order
    filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
    Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
    document filed with this court, a party must cite either the Federal Appendix or an
    electronic database (with the notation “summary order”). A party citing a summary order
    must serve a copy of it on any party not represented by counsel.
    At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
    City of New York, on the 13th day of January, two thousand twenty-three.
    PRESENT:        Amalya L. Kearse,
    Rosemary S. Pooler,
    Steven J. Menashi,
    Circuit Judges.
    ____________________________________________
    PETER V. CORRIGAN,
    Plaintiff-Appellant,
    v.                                                         No. 22-1090
    NEW YORK CITY DISTRICT COUNCIL OF
    CARPENTERS AND JOINERS OF AMERICA,
    Defendant-Appellee. *
    ____________________________________________
    *   The Clerk of Court is directed to amend the caption as set forth above.
    For Plaintiff-Appellant:              Robert K. Erlanger, Erlanger Law Firm,
    PLLC, New York, NY.
    For Defendant-Appellee:               Gillian Costello, James M. Murphy, Spivak
    Lipton LLP, New York, NY.
    Appeal from a judgment of the United States District Court for the Southern
    District of New York (Marrero, J.).
    Upon due consideration, it is hereby ORDERED, ADJUDGED, and
    DECREED that the judgment of the district court is AFFIRMED.
    Plaintiff-Appellant Peter V. Corrigan appeals the judgment of the United
    States District Court of the Southern District of New York dismissing his claims
    under the Labor Management Reporting and Disclosure Act (“LMRDA”) against
    the New York City District Council of Carpenters and Joiners of America (the
    “District Council”). We presume the parties’ familiarity with the facts and
    procedural history.
    I
    Corrigan contends that the district court erred by construing the parties’
    exchange of letters as a motion to dismiss with full briefing. “The long-standing
    general rule is that a court may not dismiss an action without providing the
    2
    adversely affected party with notice and an opportunity to be heard.” Acosta v.
    Artuz, 
    221 F.3d 117
    , 124 (2d Cir. 2000). We have said that “the practice of
    construing pre-motion letters as the motions themselves” is inappropriate except
    in limited circumstances and that “parties must be afforded notice that the court
    is considering dismissal based solely on the arguments presented in pre-motion
    letters.” Int’l Code Council, Inc. v. UpCodes Inc., 
    43 F.4th 46
    , 54-55 (2d Cir. 2022).
    “[D]ismissal absent notice and an opportunity to be heard can itself be grounds
    for reversal,” but when the parties have “fully briefed all the questions raised on
    … appeal” and the issues are “predominantly of a legal nature,” the appellate
    court is “adequately informed to decide them.” McGinty v. New York, 
    251 F.3d 84
    ,
    90 (2d Cir. 2001). Citing McGinty, we have treated “a district court’s failure on this
    front as a form of harmless error.” Kapitalforeningen Lægernes Invest v. United Techs.
    Corp., 
    779 F. App’x 69
    , 70 (2d Cir. 2019).
    This court decided UpCodes in July 2022, several months after the district
    court’s decision in this case. Accordingly, the district court did not have the benefit
    of this court’s binding guidance on the practice of construing pre-motion letters as
    fully briefed motions. Because the district court did not give notice to the parties
    that it was considering dismissal based on the pre-motion letters, it erred. See
    3
    UpCodes, 43 F.4th at 54-55. Despite this error, Corrigan and the District Council
    have each fully briefed the issues on appeal. And the merits issue—whether the
    district court erred when it dismissed Corrigan’s LMRDA claims—is a legal issue
    we review de novo. See Vaughn v. Phoenix House New York Inc., 
    957 F.3d 141
    , 145
    (2d Cir. 2020). We are therefore “adequately informed” and conclude that the
    district court’s error was harmless. McGinty, 
    251 F.3d at 90
    .
    A district court does not necessarily err when it construes letters to be full
    briefs in appropriate circumstances. But we conclude that those circumstances are
    absent here, so there was error. Because the parties have fully briefed the issues on
    appeal and those issues are predominantly legal, the error was harmless.
    II
    Corrigan’s amended complaint sought relief under §§ 101(a)(2) and 609 of
    the LMRDA. The district court concluded that the amended complaint failed to
    state a claim under either provision because it did not adequately plead loss of
    union membership rights or a general scheme to suppress dissent. We agree.
    Section 101(a)(2) “protects union members from direct interference with
    union membership rights in retaliation for their expression of opinions concerning
    union activities.” Maddalone v. Loc. 17, United Bhd. of Carpenters & Joiners of Am., 152
    
    4 F.3d 178
    , 183 (2d Cir. 1998). The Supreme Court has explained that the LMRDA
    “protect[s] the rights of union members from arbitrary action by the union or its
    officers,” but it does not aim to “perpetuat[e] appointed union employees in
    office.” Finnegan v. Leu, 
    456 U.S. 431
    , 442 (1982); see also Franza v. Int’l Bhd. of
    Teamsters, Loc. 671, 
    869 F.2d 41
    , 47 (2d Cir. 1989) (noting that courts have routinely
    held the LMRDA protects against adverse actions that “directly affect or alter the
    union member’s rights qua member.”). Accordingly, the Supreme Court concluded
    that a plaintiff did not state a claim under § 101(a)(2) when he was terminated from
    his job as a business agent with the union but retained all his union membership
    rights. Finnegan, 
    456 U.S. at 440-41
    . Corrigan’s amended complaint alleges that he
    was terminated as a business agent—the same facts that were presented in
    Finnegan. For that reason, Corrigan’s termination from his position as business
    agent is, without more, not actionable under § 101(a)(2).
    Corrigan seeks to avail himself of an exception to Finnegan that this court
    has recognized: a § 101(a)(2) claim will lie “where the removal of a union officer
    was part of purposeful and deliberate attempt … to suppress dissent within the
    union.” Maddalone, 152 F.3d at 184 (quoting Schonfeld v. Penza, 
    477 F.2d 899
    , 904
    (2d Cir. 1973)). In such a “rare” and “unusual” circumstance, we require “clear and
    5
    convincing proof” of the union’s attempt to suppress dissent. Cotter v. Owens, 
    753 F.2d 223
    , 229 (2d Cir. 1985); see Maddalone, 152 F.3d at 184. Corrigan points to no
    factual allegations in his amended complaint that would plausibly suggest a
    scheme to retaliate against “union members who desire[] to exercise their rights.”
    Johnson v. Kay, 
    860 F.2d 529
    , 537 (2d Cir. 1988).
    The amended complaint makes the conclusory allegation that the District
    Council’s leadership has for several decades retaliated against members who
    didn’t “fall in line.” App’x 40 (¶ 223). But it provides only two examples of
    retaliation, and neither supports Corrigan’s claim that there was a deliberate
    scheme to suppress dissent. First, the amended complaint points out that the
    District Council was the defendant in Maddalone, which involved retaliation for
    exercising speech rights. But the facts at issue in Maddalone took place in 1994 and
    1995—more than two decades before the facts here. See Maddalone, 152 F.3d at 182.
    And the amended complaint provides no connection between the retaliation in
    Maddalone and the retaliation against Corrigan. Maddalone is not probative of
    whether there was a scheme to suppress dissent here. Second, the amended
    complaint points to a related case brought against the District Council by Peter
    Marsalisi, who was terminated from his job with the District Council’s Office of
    6
    the Inspector General. Marsalisi was allegedly terminated for “looking into
    matters that threatened [union leaders] and [their] cronies.” App’x 41 (¶ 225). In
    contrast, Corrigan was allegedly terminated from his position as business agent
    for opposing a proposal to lower wages. The amended complaint fails to show
    how the example of Marsalisi—which involves an entirely different basis for
    retaliation—supports the allegation that there was a scheme to suppress dissent.
    For these reasons, Corrigan has failed to state a § 101(a)(2) claim either under
    Finnegan or Maddalone.
    Corrigan’s LMRDA § 609 claim fails for similar reasons. Section 609
    prohibits a union from “disciplin[ing]” any of its members “for exercising any
    right to which he is entitled under the provisions of this chapter,” including the
    right to freedom of speech. 
    29 U.S.C. § 529
    . Like § 101(a)(2), Congress intended
    § 609 to protect “rank-and-file union members—not union officers or employees[]
    as such.” Finnegan, 
    456 U.S. at 437
    . “[D]iscipline” in § 609 therefore refers “only to
    retaliatory actions that affect a union member’s rights or status as a member of the
    union.” Id. Because Corrigan’s termination as a business agent does not “impinge
    upon the incidents of [his] union membership,” his termination from that position
    without more does not support a § 609 claim. Id. at 438.
    7
    *     *     *
    We have considered each of Corrigan’s arguments, which we conclude are
    without merit. For the foregoing reasons, we AFFIRM the judgment of the district
    court.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk of Court
    8