22-1097 Marsalisi 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 MARSALISI,

Plaintiff-Appellant,

v. No. 22-1097

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 Marsalisi 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”) and

state-law claims 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

Marsalisi 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,

(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.,

, 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,

(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.,

, 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, Marsalisi and the District Council

have each fully briefed the issues on appeal. And the merits issue—whether the

district court erred when it dismissed Marsalisi’s LMRDA claims—is a legal issue

we review de novo. See Vaughn v. Phoenix House New York Inc.,

(2d Cir. 2020). We are therefore “adequately informed” and conclude that the

district court’s error was harmless. McGinty,

.

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

Marsalisi’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

(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,

(1982); see also Franza v. Int’l Bhd. of

Teamsters, Loc. 671,

(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,

. Marsalisi’s amended complaint alleges that he

was terminated as an investigator with the District Council’s Office of the

Inspector General, which is a position of employment with the union. The

amended complaint does not allege any loss of union membership rights; in fact,

the complaint states that Marsalisi was a member of the union at the time it was

filed. For that reason, Marsalisi’s termination from his position as investigator is,

without more, not actionable under § 101(a)(2).

Marsalisi 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

5 was part of purposeful and deliberate attempt … to suppress dissent within the

union.” Maddalone, 152 F.3d at 184 (quoting Schonfeld v. Penza,

(2d Cir. 1973)). In such a “rare” and “unusual” circumstance, we require “clear and

convincing proof” of the union’s attempt to suppress dissent. Cotter v. Owens,

(2d Cir. 1985); see Maddalone, 152 F.3d at 184. Marsalisi 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,

(2d Cir. 1988).

The amended complaint makes the conclusory allegation that the District

Council’s leadership has routinely retaliated against union “dissidents.” App’x 26

(¶ 146). But it provides only two examples of retaliation, and neither supports

Marsalisi’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

Marsalisi. Maddalone is not probative of whether there was a scheme to suppress

6 dissent here. Second, the amended complaint points to a related case brought

against the District Council by Peter Corrigan, who was terminated from his job

as a business agent with the union. The amended complaint says Corrigan was

terminated from his position as business agent for “a whole range of issues.”

App’x 27 (¶ 149). But such general allegations are insufficient to establish a

connection to the retaliation against Marsalisi—who was allegedly fired for

seeking to root out union corruption—much less that there was a scheme to

suppress dissent. For these reasons, Marsalisi has failed to state a § 101(a)(2) claim

either under Finnegan or Maddalone.

Marsalisi’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.

. Like § 101(a)(2), Congress intended

§ 609 to protect “rank-and-file union members—not union officers or employees[]

as such.” Finnegan,

. “[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 Marsalisi’s termination as an investigator does not “impinge

7 upon the incidents of [his] union membership,” his termination from that position

without more does not support a § 609 claim. Id. at 438.

III

Marsalisi’s amended complaint also seeks relief under § 215 of the New

York Labor Law. Given that the district court had dismissed all of Marsalisi’s

federal claims, the district court did not abuse its discretion by refusing to exercise

supplemental jurisdiction over the state-law claim. That dismissal for lack of

subject matter jurisdiction was a dismissal without prejudice. See generally

Carnegie-Mellon Univ. v. Cohill,

(1988); Miller v. Brightstar Asia,

Ltd.,

(2d Cir. 2022) (“A dismissal for lack of jurisdiction must be

without prejudice rather than with prejudice.”) (quoting Donnelly v. CARRP,

, 57 (2d Cir. 2022)); Fed. R. Civ. P. 41(b) (noting that “a dismissal … for lack

of jurisdiction” does not “operate[] as an adjudication on the merits”).

Accordingly, the district court’s dismissal left Marsalisi free to pursue his state-

law claim in state court.

8 * * *

We have considered each of Marsalisi’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

9