MURDOCK

v.

AMERICAN MARITIME OFFICERS UNION NATIONAL EXECUTIVE BOARD

Charles Murdock, Plaintiff, ) ) v. ) ) Civil Action No. 19-62687-Civ-Scola American Maritime Officers Union ) National Executive Board and Paul ) Doell, Defendants. )

Order on Motion to Reopen and File Supplemental Complaint This matter is before the Court upon the Plaintiff Charles Murdock’s motion to reopen and motion for leave to file a first supplemental complaint (ECF No. 47.) The Defendants opposed the motion (ECF No. 50), and the Plaintiff filed a reply in support (ECF No. 53). For the reasons set forth below, the Court grants the Plaintiff’s motion to reopen the case and grants in part the motion for leave to file a first supplemental complaint. (ECF No. 47.)

1. Background

While lacking the same stylized savagery, Murdock’s allegations against his union colleagues could be summed up as Father Barry summed up the union bosses’ violence in On the Waterfront—“that’s a crucifixion.” Indeed, Murdock alleges that the Defendants: “stripped” him of his title and duties, “smeared” him with “unsourced conspiracy theories,” sought to “wrongfully arrest[]” him, and ultimately “rigged” an election to force him out. (See ECF No. 47-1 at ¶¶ 15, 29, 119, 129.) Rhetoric aside, Murdock alleges that since 2018, Paul Doell, the American Maritime Officers Union’s National President, has targeted Murdock and campaigned to remove him from the Union. (ECF No. 47-1 at ¶¶ 2, 14–95.) Murdock was the elected Secretary-Treasurer of the Union; he was first elected in 2015, re-elected in 2018, but removed in June 2021. (Id. at ¶¶ 1, 96–97.) While the parties are familiar with the facts, the Court will briefly review the facts as alleged in Murdock’s supplemental complaint. Murdock’s and Doell’s disagreements, as two elected officers in the Union, go back to 2015. (Id. at ¶ 14.) But it was not until 2018 that Doell “stripped” Murdock of many of his constitutionally-defined duties,¹ justifying these actions on false statements concerning Murdock’s job performance. (Id. at ¶¶ 15–16.) Following his 2018

2. Legal Standard

Murdock’s motion for leave to file a supplemental complaint is subject to the discretion of the Court. See Fed. R. Civ. P. 15(d). A court may deny leave to supplement where the supplement would be futile. See Campbell v. City of Trussville, No. 2:19-cv-01739-CLM, 2021 WL 1610617, at *4 (N.D. Ala. Apr. 26, 2021) (citing Laurie v. Ala. Court of Crim. Appeals, 256 F. 3d 1266, 1274 (11th Cir. 2001)). Supplemental pleadings are futile where the pleadings are “subject to dismissal.” Hall v. United Ins. Co. of Am., 367 F. 3d 1255, 1262–63 (11th Cir. 2004)).

Therefore, courts generally hold that where supplemental pleadings fail to state a claim under Rule 12(b)(6), those pleadings are futile. See In re Burlington Coat Factory Sec. Litig., 114 F. 3d 1410, 1434 (3d Cir. 1997); Glassman v. Computervision Corp., 90 F. 3d 617, 623 (1st Cir. 1996) (citing³ Moore’s Federal Practice ¶ 15.08, at 15–81). Both parties treated this motion as a motion to dismiss the entire complaint. (ECF No. 50 at 3; ECF No. 53 at 4.) Therefore, the Court will review the sufficiency of the complaint as supplemented under Rule 12(b)(6).

3.

Analysis As proposed in the supplemental complaint, Plaintiff brings nine causes of action, including seven claims under Title I of the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 411, and two breach-ofcontract claims. Before the Court walks through each claim, a brief summary of Title I of the LMRDA, 29 U.S.C. § 411, would be helpful. Title I is often called the “Bill of Rights of Members of Labor Organizations.” See Sheet Metal Workers’ Int’l Ass’n v. Lynn, 488 U.S. 347, 352 (1989). Indeed, Congress intended it to provide union members with rights “paralleling certain rights guaranteed by the Federal Constitution.” Id. In essence, the gravamen of the statute is straightforward—“ensuring that unions are democratically governed and responsive to the will of their memberships.” Id. (cleaned up). For this reason, the rights guaranteed by Title I seek to protect “rank-and-file members—not union officers or employees.” Finnegan v. Leu, 456 U.S. 431, 436–37 (1982).

Moreover, as much as Title I seeks to ensure a vibrant democracy within unions, Section 411 was also enacted with deference to the “well established[] policy against government interference with the internal affairs of unions.” Dolan v. Transp. Workers Union of Am., 746 F. 2d 733, 739–40 (11th Cir. 1984); Ackley v. W. Conference of Teamsters, 958 F. 2d 1463, 1475 (9th Cir. 1992) (“Congress sought to provide certain basic and fundamental rights to union members, while at the same time avoiding undue judicial interference with the mechanics of union self-governance.”). With this background in mind, the Court will address the legal sufficiency of each claim. A. Claims under 29 U.S.C. § 411(a)(1) (Counts² and⁵) Section 411(a)(1) guarantees all members of a labor organization “equal rights and privileges” to participate within the organization in certain enumerated ways. See 29 U.S.C. § 411(a)(1). In particular, the statute protects equal rights “to nominate candidates, to vote in elections or referendums . . . to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings,” subject to “reasonable rules and regulations” in the organization’s constitution or bylaws. Id. Plainly, Section 411(a)(1) is “no more than a command that members . . . shall not be discriminated against” in union politics. See Calhoon v. Harvey, 379 U.S. 134, 139 (1964). Indeed, Section 411(a)(1) does not concern itself with the removal of officers if the officer’s membership is not affected. See Rutledge v. Aluminum, Brick and Clay Workers Int’l Union, 737 F. 2d 965, 968 (11th Cir. 1984); see also Lux v. Blackman, 546 F. 2d 713, 716–17 (7th Cir. 1976) (“[Section 411(a)(1)] has nothing to do with the removal of officers, regardless of the nonregularity of their removal.”). Murdock’s second cause of action alleges that the Defendants’ stripping of his duties in 2018 constituted a “constructive discharge” and violated Section 411(a)(1) “because it nullifie[d] the results of a properly conducted election.” (ECF No. 47-1 at ¶¶ 106, 108.) Similarly, Murdock’s fifth cause of action alleges a violation of Section 411(a)(1) when the Defendants cancelled the June 7, 2021 membership meeting and substituted it with a remote vote to take place on June 30, 2021. (Id. at ¶ 123.) First, Count⁵ fails to state a claim. Murdock does not (and cannot) allege that Section 411(a)(1) guarantees any specific type of ratifying vote, whether remote or in person. Rather, Murdock merely protests that the June 30, 2021 vote was a “rushed and flawed recall election referendum process.” (ECF No. 47-1 at ¶ 123.) But as Murdock has not alleged that Defendants discriminated against any class of union members in the June 30, 2021 vote, Count⁵ cannot stand. See Ackley, 958 F. 2d at 1473 (holding that there was no Section 411(a)(1) violation where all union members received “the same type and amount of information” and had “identical rights to speak”). While Murdock appears to believe that in-person deliberations are required, Section 411 does not “authorize the federal courts to determine in every case what procedures best ensure union democracy.” See id. at 1478. In this case, as alleged, Union members received equal information and equal rights to vote in the June 30, 2021 ratification.

Therefore, Section 411(a)(1) is satisfied.³

June 7, 2021 in-person vote was attended by “over 40 members,” while it appears that 855 members voted in the June 30, 2021 remote vote. (ECF No. 47-1 at ¶ 129; ECF No. 50-1 at ¶ 11.) Murdock asserts that forty members is the “usual” size for an in-person meeting. (ECF No. 47-1 at ¶ 129.) Accepting that as true, it appears that such low in-person attendance is because the Union serves merchant marine officers, many of whom are at sea throughout the year. (Id. at ¶¶ 3, 85.) While it is not the Court’s place to adjudicate the exact procedures to use, the Court does not believe democracy to be so fickle as to require in-person votes, particularly where many members may be at sea and cannot attend in-person events on dry land. counsels “noninterference with unions’ internal affairs.”⁴ See Dolan, 746 F. 2d at 740. For these reasons, the Court dismisses Counts² and 5. B. Claims under 29 U.S.C. § 411(a)(2) (Counts¹ and⁶) Section 411(a)(2) protects the “freedom of speech and assembly” for union members, namely, “the right to meet and assemble freely with other members, and to express any views, arguments, or opinions; and to express at meetings . . . views, upon candidates in an election . . . or upon any business properly before the meeting.” 29 U.S.C. 411(a)(2). These rights are subject to the union’s right to “adopt and enforce reasonable rules.” Id. Section 411(a)(2) assures that “union members are free to discuss union policies and criticize the leadership without fear of reprisal.” United Steelworkers v. Sadlowski, 457 U.S. 102, 112 (1982). Murdock’s first cause of action alleges that the Defendants retaliated against him because of his speech in opposition to Doell. (ECF No. 47-1 at ¶ 100.) Murdock’s sixth cause of action alleges that the Defendants illegally disregarded the June 7, 2021 vote and denied Murdock and other union members the “opportunity to communicate or deliberate about” the June 30, 2021 vote in retaliation for Murdock’s protected speech against Doell and the Board. (Id. at ¶ 126.) First, Count⁶ fails to state a claim. Beyond conclusory allegations, Murdock alleges no facts as to Count⁶ concerning how his and other members’ rights to communicate and deliberate in advance of the June 30, 2021 vote were infringed. Rather, Murdock only complains that the June 30, 2021 referendum did not provide “adequate” information to members and did not provide members their “right to an informed in-person vote.” (ECF No. 47-1 at ¶ 94; ECF No. 53 at 10 n.2.) However, Murdock provides no allegations that members were completely barred or chilled from discussing or deliberating, whether through virtual or in-person means. And Section 411(a)(2) does not mandate that any specific information be provided to members in advance of a vote, nor does it demand a right to in-person discussions. See Rodriguez v. Serv. Emps. Int’l, 755 F. Supp. 2d 1033, 1047 (N.D. Cal. 2010) (holding that “allegations that the union leadership did not provide adequate information for its members to make an informed decision, did not adequately publicize the place and time of the ratification vote and framed the choice in a manner that discouraged members from opposing ratification are not actionable under

Moreover, Murdock has not alleged sufficient facts to support his claim that the Defendants ignored a valid vote of the membership on June 7, 2021. Rather, Murdock alleges that: because Defendant Doell had failed to pay his dues by February 22, 2021, and because the third member of the National Executive Committee died in March 2021, Murdock was the only member of the Committee in June 2021 and therefore he was permitted to chair a vote of the membership on June 7, 2021. (ECF No. 47-1 at ¶¶ 86–91.) Mindful of the Court’s duty of “noninterference with unions’ internal affairs,” the Court cannot sanction Murdock’s conclusory allegations that he was the only Committee member in good standing on June 7, 2021 and that therefore he was authorized to single-handedly preside over the ratification of his own impeachment. See Dolan, 746 F. 2d at 740. In any event, Murdock only alleges that Doell was not in good standing as of February 22, 2021, not June 7, 2021. (ECF No. 47-1 at ¶ 88.) Absent allegations permitting an inference that the June 7, 2021 was a valid vote of the membership, Murdock has not alleged a claim that the Defendants ignored a valid membership vote in violation of Section 411(a)(2). Last, contrary to Murdock’s position, Lynn does not compel a different result. See Lynn, 488 U.S. at 347. As the Court stated in its June 30, 2021 order, Lynn is not applicable here, as the union members voted to ratify Murdock’s impeachment on June 30, 2021. (ECF No. 46.) Therefore, union members here have not been “denied the representative of their choice” and there is no comparable chilling of speech as in Lynn; rather, members chose to ratify the impeachment of Murdock.⁵ (ECF No. 47-1 at ¶ 96); see Gilvin v. Fire, 259 F. 3d 749, 761 (D.C. Cir. 2001) (“Removing an officer by a vote of the union’s membership . . . represents the expression of democracy, not its subversion.”) (emphasis in original).

Second, as to Count¹, Murdock also fails to state a claim. Murdock alleges that the Defendants retaliated against his speech in opposition to the “stripping away” of his authority as Secretary-Treasurer. (ECF No. 47-1 at ¶ 100.) While the Eleventh Circuit has noted that “[a]ll speech by a member [or officer] is, in a sense, membership speech,” the court in Dolan held that an

Therefore, as Dolan recognized, the relevant inquiry is whether the action in question was taken as a member or as an officer. See Dolan, 746 F. 2d at 742. Murdock alleges that he sued the Defendants in this Court in October 2019 and that, consequently, the Defendants engaged in a campaign to not only remove him from his role, but also to interfere with his property and to accuse Murdock of unlawful behavior. (ECF No. 47-1 at ¶¶ 36–45.) Therefore, the Court holds that Murdock has adequately alleged Count⁴, as he alleges: that he filed suit, that the Defendants retaliated against him, constituting an impediment to his protected right to sue, and that he was subsequently subjected to an adverse action, namely, false accusations of illegal conduct. See Phillip v. Am. Fed. Gov’t Emps. AFL-CIO, No. 19-20122-Civ, 2019 WL 4540756, at *2 (S.D. Fla. Sept. 19, 2019) (Scola, J.) (setting forth the prima facie elements required to state a cause of action for retaliation under the LMRDA). Similarly, Murdock has sufficiently stated a claim under Section 411(a)(4) as to Count 7. Count 7 alleges that the Defendants retaliated against Murdock by imposing a biased impeachment trial and improperly procured an “unconstitutional and rigged referendum” on June 30, 2021 to ratify the impeachment. (ECF No. 47-1 at ¶ 129.) Murdock traces these events back to his initial filing of this suit in 2019 and alleges that his impeachment and subsequent bar from running for office was in retaliation for his suit. (See ECF No. 47-1 at ¶¶ 54, 64, 129.) As discussed further below, a bar from running for office qualifies as a cognizable adverse action for purposes of alleging retaliation. See Brittain v. Am. Fed. of Gov’t Emps., No. 3:20-cv-92-TJC- PDB, 2021 WL 2315005, at *4 (M.D. Fla. June 7, 2021).

Therefore, Murdock’s Count 7 suffices to allege a claim for retaliation under Section 411(a)(4).6 D. Claim under 29 U.S.C. § 411(a)(5) (Count 8) Section 411(a)(5) provides members of a union certain “safeguards against improper disciplinary action” and requires that a member receive “written specific charges,” a “reasonable time” to prepare a defense, and “a full and fair hearing” before the union acts to fine, suspend, expel, or otherwise discipline a member. See 29 U.S.C. § 411(a)(5). As with the other provisions discussed above, Section 411(a)(5) does not protect officers from suspension or removal as an officer, but it does apply to “disciplinary actions barring or suspending members from running for office.” Brittain, 2021 WL 2315005, at *4.

However, as held above, the Defendants have given no compelling reason as to why the Court should exercise its discretion to stay Count 9 and require Murdock to go back to the union. See NLRB, 391 U.S. at 426.

Therefore, Counts³ and 9 may go forward.

4.

Conclusion In total, the Court grants the Plaintiff’s motion to reopen the case and grants in part the Plaintiff’s motion to file a supplemental complaint. (ECF No. 47.) The Plaintiff’s complaint may proceed, but the Court dismisses Counts¹, 2, 5, and 6. The Court directs the Clerk to reopen this case. The Court orders the Defendants to answer the operative complaint by November 16, 2021. The Court further orders the parties to meet and confer and file a proposed scheduling report by November 19, 2021. Done and ordered at Miami, Florida, on November², 2021. 7 Robert N. Scola, Jr. United States District Judge