Dunlop-McCullen v. Local 1-S, AFL-CIO-CLC

149 F.3d 85, 1998 WL 388969
CourtCourt of Appeals for the Second Circuit
DecidedMay 7, 1998
DocketDocket No. 97-7850
StatusPublished
Cited by21 cases

This text of 149 F.3d 85 (Dunlop-McCullen v. Local 1-S, AFL-CIO-CLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunlop-McCullen v. Local 1-S, AFL-CIO-CLC, 149 F.3d 85, 1998 WL 388969 (2d Cir. 1998).

Opinion

PARKER, Circuit Judge.

James Dunlop-McCullen, pro se, appeals from a judgment of the United States District Court for the Southern District of New York (Peter K. Leisure, Judge) denying him leave to file a verified complaint pursuant to 29 U.S.C. § 501(b). We vacate the judgment and remand to the district court for proceedings consistent with this opinion.

I. BACKGROUND

On January 13, 1997, Dunlop-McCullen sought leave to file verified complaint pursuant to § 501(b) of the Labor-Management Reporting and Disclosure Act (“LMRDA”) of 1959, 29 U.S.C. § 501(b), against Local 1-S, AFL-CIO-CLC (the “Union” or the “Local”) and seven union officials: Joseph Pascarella, President; Margaret Samuels, Executive Vice President; Gail Rogers, Administrator; Gus Selino, Trustee; Charles Diggs, Trustee; William Malysko, Sergeant at Arms; and Dina Pizzingrillo, member and Associate Shop Steward (collectively “Defendants”). In his application to the district court, Dun-lop-McCullen, chairperson of the Union’s Executive Board, contended that defendants had breached their fiduciary duties by wastefully and improperly spending the Union’s [87]*87money, and that his formal complaint within the Union about these breaches had remained unresolved after four months. Plaintiff sought an accounting, compensatory damages and various other equitable relief.

On March 7, 1997, Magistrate Judge Douglas F. Eaton, to whom the case had been referred, issued a Report and Recommendation (“Report”) advising that Dunlop-McCullen be denied leave to file the verified complaint because “the plaintiff himself has wasted union funds, and therefore lacks the clean hands necessary for a plaintiff to pursue an equitable action” of an accounting. Report at 1. Judge Eaton pointed to the fact that Dunlop-McCullen had brought a prior pro se action against the union and two of the same officials sued in the instant action (Pascarella and Samuels), which the district court dismissed by summary judgment in favor of the defendants. Judge Eaton stated that in the prior ease “the union mailed [Dunlop-McCullen’s] campaign literature at a cost of $1,601.50” and after his unsuccessful campaign for union officer he “avoided paying this [campaign] debt [to the Union] by filing [for] personal bankruptcy.” Report at 2. Furthermore, Judge Eaton noted that this Court had affirmed the grant of summary judgment in the previous case and taxed appellate costs in favor of the union in the amount of $1,037.76, which “[a]s far as [he could] tell, plaintiff ha[d] not paid.” Report at 2. As a result, Judge Eaton found:

[P]laintiff has.not shown a reasonable likelihood of success, because he lacks the clean hands which a court of equity requires for a plaintiff to pursue an action for an accounting. As noted above, he has cost the union $1,601.50, plus $1,037.76, plus thousands of dollars in legal fees. If his allegations had any merit, there should be a plaintiff who could come to the court of equity with clean hands, and whose past conduct would give some assurance that he or she truly represented the interests of the union members.

Report at 3. In support of his contention that plaintiff requires “clean hands” to proceed, Judge Eaton analogized a section 501(b) action against a union to a “derivative action against a corporation,” in which similar equitable considerations have been applied to a plaintiff seeking to sue. Report at 3.

On March 28, 1997, Dunlop-McCullen filed a verified objection to the Report, essentially alleging that: (1) the Report unfairly “prejudged” his case without any relevant evidence; (2) as an officer of the Union, he was obliged to bring the instant action or violate his duty to the Union members; (3) the prior case concerned different allegations and should not have been relied upon by Judge Eaton to determine likelihood of success in the instant case; and (4) defendants, not plaintiff, have unclean hands because “Plaintiff has not refused to pay the judgment [of costs] but there are mitigating circumstances concerning what the defendants, Local 1 — S[,] owes the plaintiff.” As to the last objection, plaintiff explained that a Bankruptcy court ordered Local 1-S to pay him $800 in damages “because of their wanton and willful violations of the Automatic Stay Provision” and he indicated that he would be willing to pay the difference in the two judgments.

In response to Dunlop-McCullen’s objections, the Union contended that Dunlop-McCullen’s application should have been denied because the Union’s internal Trial Committee was already conducting an investigation into the same issues he raised in his verified complaint. The Union also addressed Dunlop-McCullen’s allegations of its officials’ financial impropriety in some detail. In reply to the Union’s response, Dunlop-McCullen argued that the Union’s attorney could not represent the Union officers based on a conflict of interest. Further, he contended that the Trial Committee was an inadequate forum to pursue his claims under the LMRDA and the Union’s constitution and he countered the Union’s arguments dismissing Dunlop-McCullen’s allegations.

In a memorandum order, Judge Leisure made a de novo determination, as required by 28 U.S.C. § 636(b)(1). He determined that the Report was “legally correct and proper.” Dunlop-McCullen v. Local 1-S, AFL-CIO-CLC, No. 97 Civ. 0195, 1997 WL 272396, at *1 (S.D.N.Y. May 21, 1997). The district court held that Dunlop-MeCullen’s [88]*88objections to the Report were “not relevant to the question whether leave should be granted to file the instant action.” Id. The court found that the Report permissibly relied upon the decision in Dunlop-McCullen’s previous ease “only to the extent of its finding that plaintiff had filed for personal bankruptcy in order to avoid paying a debt to the Union and that plaintiff had caused the Union to incur legal fees (including the costs of an appeal ... which he apparently never paid).” Id. Further, the district court found that the defendants’ unclean hands were “not relevant to the question whether plaintiff lacks unclean hands.” Id. The district court quoted the Report in calling for a plaintiff in this case (as opposed to Dunlop-McCullen) whose “past conduct would give some assurance that he or she truly represented the interests of the union members.” Id. (quoting Report at 3). Moreover, the district court found that the Report did not unfairly “prejudge” plaintiffs case because the district court was “statutorily required to render an evaluation of the case” and “in light of the equitable doctrine of unclean hands and its effect on plaintiffs likelihood of success’— plaintiffs objections [were] not persuasive.” Id. at *2. Finally, the district court refused to reach the issue of the Union attorney’s conflict of interest finding that the issue was moot because Dunlop-McCullen was denied leave to serve his complaint. Id. On June 24, 1997, judgment was entered pursuant to the district court’s order. Dunlop-McCullen filed a timely notice of appeal.

II. DISCUSSION

On appeal, Dunlop-McCullen contends that the district court erred in determining that he had unclean hands barring him from suing under § 501(b).

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Bluebook (online)
149 F.3d 85, 1998 WL 388969, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlop-mccullen-v-local-1-s-afl-cio-clc-ca2-1998.