Opinion
98 Civ. 0517 (LAP), 98 Civ. 1137 (LAP)
March 15, 2002
MEMORANDUM AND ORDER
Before me are two actions by the same plaintiffs arising out of the same facts. As will be detailed below, the present complaint in 98 Civ. 0517 alleges some twenty-one defamatory statements by Minnesota Teamsters Public and Law Enforcement Employees' Union Local 320 (the "Local"), Harold Yates, its trustee, the International Brotherhood of Teamsters (the "IBT"), the Independent Review Board ("IRB") and Ronald Carey, then-IBT General President. The present complaint in 98 Civ. 1137 asserts claims for constructive discharge (Count I), violation of due process (Count II) and violations of ERISA (Counts III and IV) against these same defendants and against the Central States Southeast and Southeast Area Pension Fund ("Central States" or the "Fund"). After plaintiffs availed themselves of a final opportunity to amend their complaints, defendants have moved to dismiss both complaints. For the reasons set forth below, those motions are granted in part and denied in part.
BACKGROUND
Plaintiffs filed a complaint in Minnesota federal court dated May 2, 1997, charging the Local, Yates, the IBT, Carey and Central States with constructive discharge and ERISA violations.
Plaintiffs thereafter filed a complaint dated May 8, 1997, charging the Local, Yates and the IBT with defamation and amended that complaint on or about May 30, 1997. In a June 16, 1997 Order, pursuant to the previously issued All Writs Order, see United States v. International Brotherhood of Teamsters ("IBT") ("All Writs Order"), 728 F. Supp. 1032 (S.D.N.Y.), aff'd, 907 F.2d 277 (2d Cir. 1990), plaintiffs were enjoined from proceeding with these actions in any court other than the Southern District of New York. The Court of Appeals affirmed the order. See United States v. IBT, 175 F.3d 1009 (2d Cir. 1999). Pursuant to the June 16, 1997 Order, plaintiffs filed in this Court an amended complaint charging defamation (the "0517 Compl.") and a separate amended complaint charging constructive discharge, due process violations, and ERISA violations (the "1137 Compl.").
Defendants moved to dismiss on a variety of grounds, and the Local, Yates, Carey and the IBT (collectively, the "Union defendants") moved for sanctions under Rule 11 of the Federal Rules of Civil Procedure. Because the motions are framed as Rule 12 motions to dismiss, the facts recited herein are drawn predominantly from plaintiffs' complaints.
Pursuant to International Audiotext Network, Inc. v. American Tel. Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)), I have considered the following documents on this motion to dismiss:
1. Findings and Recommendations of Hearing Panel (the "Panel Findings") (attached as Exhibit 7 to the Declaration of Barry I. Levy dated April 20, 2001 (the "Levy Decl.")), which reflect the hearing that forms the basis of plaintiffs' due process claim, together with the procedural actions that followed (Levy Decl., Exs. 8 and 13);
2. By-laws of the Minnesota Teamsters Public Law Enforcement Employees' Union, Local No. 320 (the "By-laws") (Levy Decl., Ex. 9), referred to in Paragraph 40 of the 1137 Complaint.
FACTS
Plaintiffs Robert Weisenburger and Lawrence Bastian were president and vice president, respectively, of the Local from 1971 to May 3, 1995. (0517 Compl. ¶ 5; 1137 Compl. ¶ 9). In February 1994, Jack Mogelson, the Secretary of the Local, filed an action against Ronald Carey, then-president of the IBT; the other officers of the Local joined Mogelson as vocal opponents of Carey. (0517 Compl. ¶¶ 6-7; 1137 Compl. ¶¶ 10-11). At various times between April 11, 1994 and May 3, 1995, the IBT, through Carey and/or the IRB, initiated investigations into the financial affairs of the Local and its officers, including plaintiffs. (0517 Compl. ¶ 8; 1137 Compl. ¶ 12). Plaintiffs allege that "[b]ased on representations that the charges would be dropped, [they] resigned on May 3, 1995." (0517 Compl. ¶ 9; 1137 Compl. ¶ 14; see also 1137 Compl. ¶ 13 ("representations and assurances were made to the plaintiffs that if they resigned as officers and business agents no charges would be brought.")). Plaintiffs allege in the 1137 Complaint that their resignations under these circumstances constituted constructive discharge. (1137 Compl. ¶¶ 16-18).On or about May 3, 1995, on the basis of alleged financial irregularities, the IBT, through Carey, placed the Local into receivership under trustee Harold Yates, an action that plaintiffs assert had an adverse impact on their professional stature. (0517 Compl. ¶ 10). Beginning on or about May 3, 1995, the IBT, Carey, and Yates caused the dissemination and publication of various allegedly false and defamatory statements regarding financial irregularities at the Local which implied that plaintiffs had embezzled money, committed crimes and violated the Local's by-laws. (Id. ¶¶ 13-14). Plaintiffs allege that defendants' statements diminished the esteem, respect, goodwill or confidence in which plaintiffs are held and that, as a direct and proximate result of defendants' actions, plaintiffs suffered damage to their reputations, mental anguish and distress. (Id. ¶¶ 16-17).
On or about September 12, 1995, a hearing was conducted on union charges against plaintiffs at which, plaintiffs allege, they were "denied an attorney, were denied documents and copies of audits and reports that would aid in their defense, were denied a right to appear and present evidence and were denied an opportunity to cross-examine and in all respects were denied a full and fair hearing." (1137 Compl. ¶ 18). In or about February 1996, the Panel Findings were issued. (Id. ¶ 19). The Panel Findings recommended principally that plaintiffs be suspended from holding IBT office for two years and that they reimburse the Local for certain amounts, including for magazine subscriptions paid for by the Local that were found to be for personal use. (Panel Findings at 31-32). Plaintiffs further allege that the IBT denied them the right to appeal the decision at the 1996 IBT convention. (1137 Compl. ¶¶ 21-22).
Although plaintiffs state that these alleged violations occurred at a September 12, 1995 hearing "convened by the IRB" (1137 Compl. ¶ 18), they apparently refer to the hearing conducted on that date by an internal union panel pursuant to a recommendation by the IRB. See Panel Findings at 1.
Accordingly, plaintiffs seek an order setting aside the decision. (Id. ¶ 23).
Plaintiffs also allege that, although they were eligible to participate in the Fund and the Local was required to contribute to the Fund on their behalf, their applications to participate in the Fund were denied by Central States in 1976 and 1978. (Id. ¶¶ 25-26). Plaintiffs charge that Central States thereby violated ERISA and that they are entitled to vesting and full contributory credit from 1976. (Id. ¶¶ 27-28). Likewise, plaintiffs allege that when Central States agreed, on or about June 2, 1992, to cover plaintiffs as members of a "new" group and/or a "new bargaining unit," it misled plaintiffs because the Local had been participating in the Fund since 1976. (Id. ¶¶ 29-30). In response to a letter Mogelson sent to Central States on or about April 8, 1996, on behalf of himself and plaintiffs, Central States responded in a December 11, 1996 letter that they were not entitled to additional credit or relief. (Id. ¶¶ 33-34).
Plaintiffs allege that Central States thereby breached its fiduciary duty to them and violated ERISA. (Id. ¶¶ 36-37).
Although paragraph 36 states that "[t]his conduct on the part of the Defendants was a breach of fiduciary duty," no conduct is alleged against any defendant other than Central States in Count III, and, therefore, I assume Count III to be a claim only against Central States.
Finally, plaintiffs allege that at the time of the their resignation, the Local by-laws required the Local to continue to pay their health premiums because they had more than twenty years continuous service, but that the Local and Yates terminated those benefits, violating their fiduciary duty to plaintiffs under ERISA. (Id. ¶¶ 41-42).
The Union defendants moved to dismiss pursuant to Rule 12(b)(6) and for Rule 11 sanctions. Defendant Central States moved to dismiss the complaint pursuant to Rule 12(b)(6).
For the reasons set forth below, defendants' motions are denied in part and granted in part.
The Union defendants also move to dismiss the complaints as to the IRB pursuant to Rule 12(b)(5) on the grounds that plaintiffs failed to serve the IRB in accordance with Rule 4(m). Plaintiffs have neither expressed any opposition to this motion nor claimed to have served the IRB. Accordingly, the Union defendants' motion to dismiss the complaints as to the IRB is granted. In addition, by agreed order dated January 16, 2001, Central States was dismissed as a party.
DISCUSSION I. Defamation
With respect to the defamation claim set out in the 0517 Complaint, the union defendants argue that the majority of the allegedly defamatory statements complained of are barred by Minnesota's two-year limitations period. See Minn. Stat. § 541.07(1).The statements complained of in paragraphs 13(a) through 13(f), 13(h) through 13(m), and 13(o) through 13(s) of the 0517 complaint were first complained of in the pleading filed on or about February 23, 2001 (docket no. 2). Each of those allegedly defamatory statements is said to have been published in 1995 or 1996 — clearly beyond the applicable two-year statute of limitations. I am puzzled by plaintiffs' response which asserts that the limitations period should be tolled because the complaint states that the defamation "continued thereafter." (Pls.' Mem. at 4 (citing Mellett v. Fairview Health Servs., No. CX-00-608, 2000 WL 1376544 (Minn.Ct.App. Sept. 26, 2000) (declining to apply the continuing tort doctrine to a defamation claim), rev'd on other grounds, 634 N.W.2d 421 (Minn. 2001))).
Even if the continuing tort doctrine were applicable to a defamation claim, the complaint fails to list a single allegedly defamatory statement that occurred or "continued" after March 19, 1996. Accordingly, the defamation claim is dismissed as time-barred with respect to the statements set out in paragraphs 13(a) through 13(f), 13(h) through 13(m), and 13(o) through 13(s) in 98 Civ. 0517. Likewise, because plaintiffs' May 8, 1997 complaint first complained of the statement quoted in paragraph 13(g), alleged to have appeared on May 4, 1995, that portion of the defamation claim is also barred by the statute of limitations.
The three remaining statements, quoted in paragraphs 13(n), (t), and (u), which appeared on August 5, 1995, March 19, 1996, and April 3, 1996, respectively, were raised in a timely fashion as paragraphs XI(b), (c) and (d) in the amended complaint filed in the District of Minnesota on or about May 30, 1997. (Levy Decl., Ex. 3). Accordingly, plaintiffs' complaints as to those paragraphs are not time-barred. All three statements, however, were attributed to a spokesperson for Carey; therefore, the Local and Yates are dismissed from 98 Civ. 0517. Accordingly, the defamation claim survives only against the IBT.
The 0517 Complaint misstates the date of publication, but the actual article is attached. The discrepancy is not material to the analysis.
Plaintiffs informed the Court by letter dated February 19, 2001, that the only defendants named in the defamation charge are the Local, Yates, and the IBT.
In paragraph 13(n) of the 0517 Complaint, plaintiffs complain of an August 5, 1995 article in the Star Tribune discussing union charges brought against Mogelson and plaintiffs.
In response to Mogelson's denial of the charges, Craig Merrilees, a "Carey spokesman," was quoted as saying: "People who break the law and steal money from members of the union are aggressively prosecuted regardless of their political affiliations."
In paragraph 13(t), plaintiffs complain of a March 19, 1996 article in the Star Tribune that describes the union panel decision against plaintiffs and, in response to Mogelson's criticism of the action, quotes Nancy Stella, "a spokeswoman for Carey's office," as saying: "This is a pure corruption issue."
In paragraph 13(u), plaintiffs complain of an April 3, 1996 article in the White Bear Press that states:
"According to Nancy Stella, a spokesman for Teamsters general president Ronald Carey's office, Local 320 has a provision that only part-time officers can receive stipends for attending union meetings. Stella said Weisenburger, a full-time officer, received the stipend in addition to his salary. She said this was `double dipping.'"
Plaintiffs go on to allege that "[t]he statements of the Defendants which were published were untrue and were defamatory either directly or by innuendo. The context of the statements and the language used implied that Plaintiffs had embezzled money, committed crimes, and had violated the Local 320 By-laws." (0517 Compl. ¶ 14).
Although defendants do not argue to the contrary, I note as a preliminary matter that a jury could find the statements to be defamatory of plaintiffs. The statements accuse the plaintiffs of unsavory — and possibly criminal — conduct in connection with their holding of union office and, in context, could be found to be of and concerning plaintiffs. See Schlieman v. Gannett Minnesota Broadcasting, Inc., 637 N.W.2d 297, 306 (Minn.Ct.App. 2001) (affirming district court's jury instructions stating that defamatory statement at issue must "actually refer" to the plaintiff and that "[a] statement is `of and concerning' the plaintiff if, when read in the context of the entire publication, it refers to the plaintiff"); Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 n. 3 (Minn. 1996) (statements falsely impugning criminal activity are defamatory per se and harm to reputation is presumed).
Defendants move to dismiss the defamation charges against the remaining defendant, the IBT, on the grounds of qualified privilege because, they argue, the statements concerned a matter of "common interest" or "public interest." (Defs.' Mem. at 8-9).
However, even if such a privilege is applicable here, the privilege "could be defeated if defendants published the defamatory statement with malice, i.e.[,] in bad faith, recklessly, or out of ill will or improper motive," and "[s]uch a determination depends upon further discovery." Price v. Viking Press, Inc., 625 F. Supp. 641, 650 (D.Minn. 1985); cf. Stuempges v. Parke, Davis Co., 297 N.W.2d 252, 257 n. 3 (Minn. 1980) (holding that "once the defendant has demonstrated the existence of a conditional privilege, the burden shifts to plaintiff to prove that the privilege has been abused, which is generally a question for the jury" and that "[t]hus, we need not consider appellant's contention that the trial court erred by not holding as a matter of law that Jones' statements were conditionally privileged"). Indeed, defendants noted that "[u]nder Minnesota law, the publication of a statement, even if defamatory, does not result in liability if the statement is conditionally privileged and the privilege is not abused." (Defs.' Mem. at 7-8 (emphasis added)). While defendants have asserted the conditional privileges on this motion to dismiss, they make no argument on what they concede is the second prong of the claimed privileges, viz., that the privileges have not been abused. Accordingly, defendants' motion to dismiss the 0517 Complaint against the IBT based on the statements cited in paragraphs 13(n), (t), and (u) is denied.
While defendants have argued privilege on this motion, should the action proceed, they will no doubt also present the old-fashioned defense of truth. A review of the Panel Findings, which notes that "[t]he critical facts are not in dispute," (Levy Decl., Ex. 7, at 7), indicates that that defense might well prevail. Accordingly, I caution plaintiffs that should I determine at a later date that this claim is without basis in fact, I will entertain defendants' renewed motion for sanctions under Rule 11 and/or Section 1927.
II. Constructive Discharge
With respect to the constructive discharge claim, Count I in 98 Civ. 1137, plaintiffs apparently concede that there is no basis in the complaint for a claim of constructive discharge; instead, plaintiffs now argue that the claim "might better be called a promissory estoppel claim." (Pls.' Mem. at 18 n. 16). Regardless of what it is called, however, this claim must be dismissed.Under Minnesota law:
[T]here are three elements to a promissory estoppel claim. The plaintiff must prove that: (1) the employer made a clear and definite promise to the employee; (2) the promisor intended that the promisee rely on the promise and reasonable reliance occurred to the promisee's detriment; and (3) the promise must be enforced to prevent injustice.
Kattke v. Independent Order of Foresters, No. Civ. 00-276 (ADM/AJB), 2001 WL 557599, at *2 (D.Minn. May 22, 2001) (citations and quotations omitted). Here, as in Kattke, "[t]he [complaint] is devoid of a promise, let alone a `clear and definite' promise." Id. at *3. "In the employment context, this element requires a specific promise made by the employer." Id. (citations and quotations omitted). Plaintiffs have failed to identify a single statement attributed to their employer — or, for that matter, to any of the defendants — that constituted a specific promise. "Moreover, [plaintiffs'] conclusion that [`representations and assurances were made'] is insufficient absent specific statements communicated to [them]." Id.; see 1137 Compl. ¶ 13. "As a result, [plaintiffs'] promissory estoppel claim fails for a lack of a specific `clear and definite' promise." Kattke, 2001 WL 557599, at *3.
III. Due Process
The union defendants also move to dismiss plaintiffs' claim that they were denied due process at the union hearing. (Count II in 98 Civ. 1137). Plaintiffs allege that they were denied: (1) an attorney; (2) certain documents related to the charges brought against them; (3) the right to appear and present evidence; (4) an opportunity to cross-examine witnesses; and (5) the right to appeal the findings of the union at the convention. (1137 Comp. ¶¶ 18, 22).
Because the hearing was conducted by a union tribunal (Panel Findings at 1 n. 2), the procedural adequacy of that hearing is to be measured under the standard governing federal court review of internal union disciplinary proceedings. See 29 U.S.C. § 411(a)(5); see also, e.g., Georgopoulos v. IBT, 942 F. Supp. 883, 889 (S.D.N.Y. 1996), aff'd, 116 F.3d 1472 (2d Cir. 1997).
In enacting the Labor-Management Reporting and Disclosure Act (the "LMRDA"), Section 101(a)(5), Congress imposed "only a handful of basic procedural components" to due process, and I am cognizant that "courts are not to intrude upon internal union disciplinary actions except to uphold these minimum standards." Georgopoulos v. IBT, 942 F. Supp. 883, 894-95 (S.D.N.Y. 1996) (citations omitted), aff'd, 116 F.3d 1472 (2d Cir. 1997); see also United States v. IBT, 964 F.2d 1308, 1312-13 (2d Cir. 1992).
Under the LMRDA, plaintiffs were entitled to "a full and fair hearing." 29 U.S.C. § 411(a)(5)(C). "The full and fair hearing requirement of the LMRDA incorporates the traditional concepts of due process." United States v. IBT ("Carey Hamilton"), 247 F.3d 370, 385 (2d Cir. 2001) (citations and internal quotations omitted). Thus, although "[n]ot all of the due process protections available in the federal courts apply to union disciplinary proceedings," the Court of Appeals has recognized that such proceedings must "adhere to the basic principles of due process." Id. (citations and internal quotations omitted).
Plaintiffs do not — and cannot — cite any authority in support of the proposition that they were entitled to counsel at the hearing because "[n]either the [LMRDA], nor the IBT Constitution, nor the Consent Decree provides that a member is entitled to the assistance of counsel at a disciplinary hearing." United States v. Boggia, 167 F.3d 113, 118 (2d Cir. 1999). Accordingly, that portion plaintiffs' due process claim is dismissed.
Likewise, there is no authority to support plaintiffs' claim that they were entitled to appeal the union's decision at the 1996 IBT convention. Because the charges against plaintiffs originated with the IRB, under the terms of the Consent Decree, the proper forum for plaintiffs' appeal of the union's decision was the IRB. (Consent Decree, ¶ G(e)-(g)). Because the provisions of the Consent Decree relating to the IRB are deemed incorporated into the IBT Constitution, (Consent Decree ¶ G(n); see United States v. IBT, 764 F. Supp. 787, 795 (S.D.N.Y.) ("no action taken by the IBT at the convention can undercut the provisions of this Consent Decree"), aff'd mem., Dkt. No. 91-6130 (June 7, 1991)), plaintiffs have no right under the IBT constitution to appeal the union panel's determination to the IBT Convention. Accordingly, that portion of their claim is dismissed.
Indeed, the IRB did review the decision and found the union's decision "to be not inadequate." (Levy Decl., Ex. 13). The Consent Decree also provides that the IRB's affirmance of the union's decision shall be "final and binding." (Consent Decree, ¶ G(k)). Here, the union's disciplinary decision was upheld by the IRB and thus became "final and binding" and could not be overturned by the IBT Convention.
As to plaintiffs' claims that they were denied "documents" and the "right to appear and present evidence and . . . cross-examine" at the hearing (1137 Compl. ¶ 18), I must accept those allegations as true on this motion pursuant to Fed.R.Civ.P. 12(b)(6). While the basic principles of due process might well include the right to appear, introduce evidence and cross-examine at a hearing, without additional specification, I cannot say at this time that plaintiffs can prove no set of facts sufficient to recover. Therefore, defendants' motion to dismiss that portion of plaintiffs' claim for denial of due process relating to alleged denial of documents and the right to appear, present evidence and cross-examine is denied.
I note that while the union decision itself states that Respondent Morris was not present at the hearing (Levy Decl., Ex. 7, at 2 n. 4), the clear inference to be drawn is that these plaintiffs were present. In any event, it is apparent that plaintiffs participated in the proceedings. (See, e.g., id. at 9 ("The respondents do not dispute that they each received numerous magazines and periodical subscriptions . . . ."); id. at 11 ("The respondents each had varying reasons why they contend that they were entitled to the compensation."). Also, the panel dealt with what is apparently plaintiffs' present claim of lack of documents and ability to cross-examine. At the September 12 Hearing, the panel dismissed plaintiffs' argument that they were denied due process as a result of the IBT's failure to comply with their request for certain documents "that were vital to their defense." (Panel Findings at 17). The panel found that plaintiffs could not "deny that they received copies of all 183 exhibits relied on by the IRB in recommending the proposed charges." (Id.). Further, the panel observed that the IBT Constitution "does not provide for any discovery prior to a hearing under Article XIX of the IBT Constitution nor is there any provision that could construe such a right." (Id.). Even if such a right existed, the panel held, the plaintiffs' request for documents was "irrelevant to the charges in this case." (Id.).
The panel also rejected plaintiffs' argument at the hearing that they were denied due process because "they were unable to cross-examine the IRB concerning conclusions they drew from certain facts as established by the evidence submitted by the IRB recommending charges." (Id. at 20). While acknowledging that there is "much latitude afforded all parties to an Article XIX proceeding as the goal is to develop as full a record as possible and get at the truth", the panel found that the evidence that the plaintiffs sought to cross-examine on was
their own sworn deposition before the IRB's chief investigator, documents taken directly from Local 320 files, many of which were created by the [plaintiffs], documents submitted on their behalf by their lawyer during the investigation of the charges and documents taken directly from publications that any person could purchase or obtain if they so desired.
(Id. at 21). Therefore, the panel held, "[n]o witnesses were necessary"; the plaintiffs were not questioning "the authenticity of the documents or that the documents did not in fact contain the information that the IRB relied on", but simply objected to "the conclusions drawn by the IRB." (Id.).
Although for the purposes of a motion to dismiss I must accept plaintiffs' conclusory allegations as true, I caution plaintiffs that, should I determine at a future proceeding that this claim is without basis in fact, I will entertain defendants' renewed motion for sanctions under Rule 11 and/or Section 1927.
IV. ERISA
In Count IV of the 1137 Complaint, plaintiffs claim:
"At the time of the plaintiffs' resignations, the union By-laws required that Defendant Local continue to pay the health premiums of all retirees with 20 continuous or more years [sic] of service. Since the plaintiffs both had over 20 years of continuous service that meant that they would receive such a benefit upon retirement.
After plaintiffs' resignations, defendant Yates and the Local took various improper actions to modify the compensation benefits of officers and agents of the Local, including but not limited to the termination of post retirement health insurance premium benefits meaning that the plaintiffs would no longer receive such benefits."
(1137 Compl. ¶¶ 40-41). Plaintiffs allege that these actions "constitute a violation of [defendants'] fiduciary duties owed to the plaintiffs." (Id. ¶ 42). Plaintiffs seek to recover "all damages alleged hereinbefore." (Id. ¶ 43).
Even assuming that the plaintiffs were able to proceed equitably pursuant to ERISA Section 502(a)(3)(B), see Devlin v. Empire Blue Cross Blue Shield, 274 F.3d 76, 89-90 (2d Cir. 2001), Count IV of the 1137 Complaint fails to state a claim upon which relief can be granted. While the complaint alleges that the provision regarding post-retirement health benefits is contained in the By-laws, a review of the By-laws discloses no such provision. (See Levy Decl., Ex. 9). Therefore, on the face of Count IV of the 1137 Complaint, plaintiffs have failed to state a claim upon which relief can be granted.
Because plaintiffs refer to and rely on those By-laws, I consider those By-laws on this motion to dismiss.
Plaintiffs implicitly acknowledge the absence of this provision in the By-laws through their assertion — in opposition to defendants' motion to dismiss — that the provision was actually implemented "at the general membership meeting on November 8, 1988 and was reflected in the minutes of the General Membership Meeting of that date." (Pls.' Mem. at 17 n. 13). Plaintiffs fail to provide any evidence in support of this assertion. Even if there were such evidence, however, it could not be properly considered part of the plan at issue here. See Moore v. Metropolitan Life Ins. Co., 856 F.2d 488, 493 (2d Cir. 1988) (written documents and presentations by employers outside the terms of a plan document or SPD may create a claim on "contract theory" but do not give rise to claim under ERISA); American Federation of Grain Millers v. International Multifoods Corp., 116 F.3d 976, 982 (2d Cir. 1997) (claim for retirement medical benefits based upon written representations that were set forth in collective bargaining agreement is enforceable only through LMRA § 301).
CONCLUSION
Accordingly, for the reasons set out above:
5. defendants' motion to dismiss the amended complaint in 98 Civ. 0517 is granted with the exception of the defamation claim against the IBT with respect to the statements quoted in ¶¶ 13(n), (t), and (u);
6. defendants' motion to dismiss Counts I (constructive discharge), II (due process violations), III and IV (ERISA) in the amended complaint in 98 Civ. 1137 is granted with the exception of that portion of Count II (due process) against the IBT based on the alleged denial to plaintiffs of the right to documents and to appear, present evidence and cross-examine at the union panel hearing;
7. defendants' motion to dismiss the complaints as to the IRB is granted; and
8. the Union defendants' motion for sanctions under Rule 11 is denied without prejudice to renewal at the conclusion of the action.
All other motions are denied as moot.
Counsel shall appear for a conference to discuss the steps required for resolution of the actions on April ___, 2002, at ___ in Courtroom 12A.
SO ORDERED.