GOLDBERG, Circuit Judge:
The dispute in this case arises from plaintiff Fernandez-Montes' assertion that as a member of his union, the Allied Pilots Association ("APA"), he has a right to obtain copies of certified verbatim transcripts or audiotapes of certain union meetings. Although the union makes audiotapes of its meetings, it is not required to do so by its own constitution and bylaws or by any federal law. The union claims that the audiotapes are made solely to facilitate the preparation of minutes (which are sent to all union members). Although the union refuses to acknowledge that union members have a right of access to the audiotapes, in practice the union does permit all union members to come to its offices and listen to the audiotapes on the union's audio equipment.
The APA is required by the Labor Management Reporting and Disclosure Act of
The APA's constitution and bylaws provide that all members are entitled to receive minutes of union meetings. Plaintiff acknowledges that he has a right to attend meetings and obtain minutes of meetings, but insists that he should not have to attend meetings in order to learn all the details of what transpires at the meetings. In addition to complaining of the expense and time involved in attending meetings, plaintiff insists that he has difficulty comprehending what is said at meetings because English is not his native tongue.
Prior to filing suit, plaintiff made a demand for access as of right to the audiotapes, and specifically requested that personal copies be made at his expense. This demand was refused by the union. Plaintiff then filed this law suit in the United States District Court for the Northern District
In his complaint, plaintiff did not specifically point to anything in the union's minutes which made him suspect that any of the union's LM Reports might be inaccurate, false or misleading. He did suggest, however, that he was worried by the lack of "specifies" in the minutes of a meeting at which allegations of misconduct against one of APA's officers were discussed. He also contended that at some of the meetings in question, matters were discussed pertaining to the union constitution. However, he did not say why the minutes would not suffice for the purpose of verifying that the union was doing what it claimed to be doing in its LM Reports to the Secretary of Labor.
The union's answer asserted as an affirmative defense that the plaintiff had not stated a claim upon which relief could be granted. Later, the union moved for dismissal on the same ground. The district court denied the motion.
After the district court issued the order denying the motion to dismiss, the case was transferred from Judge Mahon to Judge McBryde. On Sept. 4, 1991, approximately two years after plaintiff had filed suit, a pretrial conference was held before Judge McBryde. At the close of the pretrial conference, Judge McBryde stated his intention to "withdraw" Judge Mahon's denial of the union's earlier motion to dismiss the original complaint, and to grant that motion. Later that same day, Judge McBryde dismissed plaintiff's entire amended complaint. Judge McBryde's order did not say whether the dismissal was with prejudice.
The plaintiff requested the court to vacate or reconsider the order dismissing the amended complaint. The plaintiff characterized the order as one granting summary judgment, and claimed that the order was in error for failure to comply with Fed. R.Civ.P. 56, which requires ten days notice and an opportunity to respond prior to the grant of summary judgment for an opposing party.
On Nov. 15, 1991, Judge McBryde issued an order in response to plaintiff's motion to vacate or reconsider. Judge McBryde made it clear that:
Plaintiff appeals, contending that he stated a claim under sections 411 and 431(c) of the LMRDA, and was improperly denied notice and an opportunity to respond to what he characterizes as the court's sua sponte entry of summary judgment for defendants. We have jurisdiction pursuant to 28 U.S.C. § 1291.
I. WHETHER JUDGE MCBRYDE'S ORDER AMOUNTED TO SUMMARY JUDGMENT, TRIGGERING THE REQUIREMENTS FOR NOTICE AND AN OPPORTUNITY TO RESPOND UNDER FED.R.CIV.P. 56
At the pretrial conference, Judge McBryde stated that he was "withdrawing"
The fact that plaintiff arrived at the pretrial conference without any reason to think that the motion to dismiss the § 431(c) claim would be revived and reconsidered is immaterial, for he previously had notice and an opportunity to respond to that motion. Plaintiff claims that even if there was no summary judgment in this case, he should have been given notice and an opportunity to respond to Judge McBryde's intention of revisiting the question whether plaintiff had failed to state a claim upon which relief could be granted under § 431(c). We do not agree. Plaintiff had notice and an opportunity to respond, and did respond, when defendants initially filed their motion for dismissal based on plaintiff's failure to state a claim. He was not entitled to fresh notice and an opportunity to reargue his position, despite the fact that the case was transferred from one judge to another. Judge McBryde was fully capable of reviewing the motions and briefs filed in connection with the initial motion to dismiss, and presumably also had access to a transcript or audiotape of the hearing on the motion to dismiss. That being so, Judge McBryde, like Judge Mahon before him, was in a position to consider the best arguments plaintiff could muster once given notice that his § 431(c) claim
Peterson v. Hopson, 306 Mass. 597, 603, 29 N.E.2d 140 (1940).
II. A. DISMISSAL OF PLAINTIFF'S § 431(C) CLAIM; "JUST CAUSE" AS FUNDAMENTAL ELEMENT OF A CAUSE OF ACTION UNDER § 431(c)
We review de novo the district court's dismissal of a complaint for failure to state a claim.
Despite this liberal standard, we find that plaintiff has failed to state a claim under § 431(c) which would be cognizable under any set of facts. This is because plaintiff has failed to demonstrate "just cause," an essential element of a claim under § 431(c). "Just cause" under § 431(c) refers to circumstances that would put a reasonable union member on notice that further investigation is warranted to assure that the union's LM filings with the Secretary of Labor (required under § 431) comport with the union's own records of its activities. Establishing "just cause" requires the union member to state what he wishes to verify in the LM Reports and how the particular union records he is requesting are expected to assist him in doing so. See, e.g., Local No. 1419, ILA, General Longshore Workers Union AFL-CIO v. Smith, 301 F.2d 791 (5th Cir.1962); Flaherty v. Warehousemen, Garage & Service Station Employees' Local Union No. 334, 574 F.2d 484 (9th Cir.1978); Mallick v. International Brotherhood of Electrical Workers, et al., 749 F.2d 771 (D.C.Cir.1984); Daniels v. National Post Office Mail Handlers, 454 F.Supp. 336 (E.D.Va.1978); McGinnis v. Local Union No. 710, International Brotherhood of Teamsters, 664 F.Supp. 1212 (N.D.Ill. 1987).
There are many cases affirming a union member's right to inspect and photocopy receipts and other union records necessary to verify the accuracy of the union's financial statements filed with the Secretary of Labor as required by § 431. See, e.g., Conley v. United Steelworkers of America, et al., 549 F.2d 1122 (7th Cir.1977); McGinnis, 664 F.Supp. 1212; Moran v. Walsh, 759 F.Supp. 1067 (S.D.N.Y.1991). The only case of which we are aware involving a union member's access to union records necessary to verify the union's constitution and bylaws is Daniels v. National Post Office Mail Handlers, 454 F.Supp. 336 (E.D.Va.1978). In Daniels, a member of a postal workers' union sought to compel release of minutes of meetings at which the union's constitution had been adopted. The postal worker brought claims under both sections 411 and 431, charging that the minutes were needed in order to ascertain that the constitution the union filed in its LM Report was the constitution the membership had voted to adopt. Although the court dismissed plaintiff's claims for lack of venue, the court noted that plaintiff had clearly demonstrated "just cause" under § 431:
454 F.Supp. at 338. Daniels is distinguishable from the instant case insofar as the postal worker in Daniels was able to establish "just cause" by pointing to a particular portion of the union's LM Report which he sought to verify, and by alleging that he had reason to believe the LM Report inaccurately represented the choice of constitution made by the membership.
Plaintiff's complaint states that he seeks access to audiotapes or transcripts of certain
The LMRDA does not require the union to audiotape its meetings or to keep on file certified transcripts of meetings. Unions are required to keep materials on file which would assist in verifying their filings with the Secretary of Labor under 29 U.S.C. § 431. Some unions may keep on file more information than others, because the records required to be maintained are not specified in excruciating detail in § 431. If union records that are kept voluntarily by the union to facilitate its internal operations (and only tangentially relate to matters addressed in the LM Reports) are accessible as of right, as plaintiff would have us hold, unions might well be discouraged from keeping more than a bare minimum of information on file. That is why the requirement of "just cause," while "minimal," see, e.g., Fruit and Vegetable Packers and Warehousemen Local 760 v. Morley, 378 F.2d 738, 744 (9th Cir.1967), demands the establishment of a direct connection between records sought to be accessed and the union's federal filings. If he is to survive a motion to dismiss for failure to state a claim, a plaintiff union member must make a showing of circumstances that would put a reasonable union member on notice of a possible discrepancy between the records required to be kept under sections 431 and 436. The union member must specify what he is seeking to verify in the LM Reports, and how he believes the records he is requesting will assist him. Under § 431, union members must come forth with more than bare, conclusory allegations that the comparison of audiotapes and LM Reports might reflect a discrepancy between the union's actual activities and its reports to the Secretary of Labor.
All that plaintiff has alleged is that one of the meetings' minutes were so elliptical that the minutes did not adequately inform those members who chose not to attend what had transpired at the meeting, not that they demonstrate a discrepancy between the union's federal filings and its actual behavior. Put another way, the primary focus of plaintiff's complaint is to seek a comparison of the minutes with the audiotapes, rather than a comparison of the minutes or the audiotapes with the union's federal filings. As such, it fails to state a claim under § 431.
B. DISMISSAL OF PLAINTIFF'S § 411 CLAIM; FAILURE TO PROVIDE NOTICE AND AN OPPORTUNITY TO RESPOND
At the pretrial conference, Judge McBryde stated his intention to "with-
Plaintiff contended that APA's unwillingness to provide copies of tapes of meetings meant that he had an unduly onerous burden placed upon his participation as a union member. Although he is permitted to attend union meetings, he claims that he has difficulty with the English language and needs the audiotapes in order better to comprehend what is said at union meetings and to verify union reports required to be filed with the Secretary of Labor under § 431(c). Plaintiff relies heavily on Daniels for the proposition that:
454 F.Supp. at 339. However, a close reading of the Daniels opinion indicates that the court did not consider § 411 to be a way around the just cause requirement of § 431(c), but instead that when a claim has been established under § 431(c) it may have been established under § 411 as well:
Id. (emphasis added). We are aware of no decision holding that despite the failure to establish just cause under § 431(c), a union member may access union records in order to enhance his ability to participate in union affairs. To fashion such a remedy, even in cases in which a union member has difficulty with English, would be to expand § 411 far beyond the purpose for which it was intended by Congress.
While § 411 contains general language regarding the union member's "right to participate" in union affairs, subject only to "reasonable" limits imposed by the union, § 411(a)(1) has been interpreted by the Supreme Court as being "no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote." Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292,
Mallick, 749 F.2d at 776 (quoting United Steelworkers v. Sadlowski, 457 U.S. 102, 111, 102 S.Ct. 2339, 2345, 72 L.Ed.2d 707 (1982)). The statutory right to participate does not guarantee access to all union information about which a union member might wish to be made aware, to discuss with other union members, or to have an opportunity to study at his leisure.
For the foregoing reasons, the decision of the district court is AFFIRMED.
"Every person required to file any report under this subchapter shall maintain records on the matters required to be reported which will provide in sufficient detail the necessary basic information and data from which the documents filed with the Secretary may be verified, explained or clarified, and checked for accuracy and completeness, and shall include vouchers, worksheets, receipts and applicable resolutions, and shall keep such records available for examination for a period of not less than five years after the filing of the documents based on the information which they contain."
29 U.S.C. § 431(c) provides in pertinent part: "Every labor organization required to submit a report under this subchapter shall make available the information required to be contained in such report to all of its members, and every such labor organization and its officers shall be under a duty enforceable at the suit of any member of such organization in any State court of competent jurisdiction or in the district court of the United States for the district in which such labor organization maintains its principle office, to permit such member for just cause to examine any books, records and accounts necessary to verify such report."
"Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, 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 such organizations' constitution and bylaws."
29 U.S.C. § 411(a)(2) provides:
"Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting, subject to the organization's established and reasonable rules pertaining to the conduct of meetings; Provided, That nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations."
When, as in the instant case, leave to amend has been sought and denied:
1B Moore's Federal Practice para. 0.409[1.-2] at 310 n. 13 (2d ed. 1992) (citations omitted). The denial or grant of leave to amend a complaint is reviewed under the abuse of discretion standard. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971). We cannot say that the district court's denial of leave to amend the complaint a second time was error.