candidate for BUFA office. Far from treating him unfairly or in violation of union by-laws, the undisputed facts establish that his concerns and objections to BUFA's administrators' alleged failure to follow prescribed procedures were, in fact, heeded and followed. When plaintiff protested the reopening of nominations for the vice-presidency as a violation of union by-laws, BUFA consulted the central office, found that plaintiff's interpretation was correct and requested Acierno's withdrawal.
Undisputed facts indicate that decisions regarding the 1991 election were made without regard to plaintiff's race or nationality and were made in a good faith effort to adhere to union by-laws.
Defendants are, therefore, entitled to summary judgment on plaintiff's Title VII claim.
Civil Rights Claims
Plaintiff's civil rights claims fail for the same reason. Again, there is no evidence to support plaintiff's allegations of discrimination or failure to accord him equal protection under the Fourteenth Amendment. The undisputed facts establish that BUFA and Dalton conducted the 1991 election fairly and even handedly. There is nothing in the record to suggest that plaintiff was treated any differently than any other candidate for BUFA office or was not accorded any right or privilege due him as a BUFA member running for elective office.
Plaintiff's section 1983 and 1985 claims fail on another ground as well. An essential element of all section 1983 claims is proof that the defendants are state actors or conspired with state actors to deprive the plaintiff of rights, privileges, or immunities guaranteed by the Constitution or the laws of the United States. Dennis v. Sparks, 449 U.S. 24, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980) and Pokrandt v. Shields, 773 F. Supp. 758, 765 (E.D.Pa. 1991). Here, there is no proof that BUFA or Dalton qualify as state actors.
Although plaintiff alleges a section 1981 claim in the introductory paragraphs of his complaint, no facts are alleged which even remotely support such a claim. Before the 1991 amendments to the Civil Rights Act, section 1981
applied only to racial discrimination in the making or enforcement of private contracts and, the United States Supreme Court has held, "cannot be construed as a general proscription of racial discrimination in all aspects of contract relations . . ." Patterson v. McLean Credit Union, 491 U.S. 164, 176, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), abrogated by Civil Rights Act of 1991.
The 1991 amendments expanded the scope of section 1981 to encompass claims relating to the right to make and enforce contracts, sue, be parties to a lawsuit, give evidence, and enjoy "the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens". 42 U.S.C. § 1981, as amended.
The 1991 Civil Rights Act (the Act) became effective November 21, 1991. The election about which plaintiff complains was conducted in April, 1991. The statute, as amended, therefore applies to his claims only if the 1991 amendments are given retroactive effect.
Retroactivity of the 1991 Act is an open question which has yet to be decided by the United States Supreme Court. Compare: Bradley v. Richmond School Board, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974) and Bowen v. Georgetown University, 488 U.S. 204, 208, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988) with Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 837, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990). The retroactivity issue has plagued the federal courts since the Act's passage. Despite innumerable decisions on the issue by federal courts across the country, no clear consensus has emerged. Not only are the circuits divided, but, in many instances, district courts within a circuit are divided on the issue. See: Savko v. Port Authority of Allegheny County, 800 F. Supp. 268, 270 (W.D.Pa. 1992) and Aiken v. Bucks Association for Retarded Citizens, Inc., 799 F. Supp. 522, 525-34 (E.D. Pa. 1992) and for discussions of conflicting authority on this issue. There is no Third Circuit authority on point, nor even a consensus among the courts of this district. Savko, supra at 270 n. 1.
Although the Supreme Court currently has a case before it which would resolve the retroactivity issue, Landgraf v. USI Film Products, 1993 WL 42997 (U.S.), 61 U.S.L.W. 3371,
and a decision is expected to issue before the close of the current term, no decision has yet been announced.
In any event, we need not resolve the retroactivity issue to decide defendants' motion. As stated above, plaintiff has not come forward with any evidence to substantiate allegations that he was discriminated against on the basis of race or national origin by the way in which the 1991 election of BUFA officers was conducted. Plaintiff does not even allege the existence of a contractual relationship or any other basis for the section 1981 claim asserted. All of his claims pertain to the manner in which the election of BUFA officers was conducted. Such claims do not give rise to a section 1981 claim under either the pre-1991 or post-1991 version of the statute.
Based on all of the foregoing, we will grant defendant's motion for summary judgment on all claims.
Plaintiff's motion for leave to amend
Rather than respond to the substantive matters raised by defendants' motion for summary judgment, plaintiff has filed a belated motion for leave to amend his complaint to add an additional count. Fed. R. Civ. P. 15(a). Plaintiff's motion was not filed until June 15, 1993, long after defendants filed and briefed their summary judgment motion. Plaintiff filed an amended motion June 17, 1993. Plaintiff seeks to add a count to his complaint alleging the violation of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 401, et. seq. Plaintiff states no justification in his motion or amended motion for the belated filing of this new claim.
Although Rule 15(a) provides that leave of court to amend the pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a), the right to amend a complaint is not without limits. Leave should be freely given only in the absence of any apparent or declared reason "such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1982).
This case is currently scheduled for trial in September, 1993. Discovery was to have been concluded by June 1, 1993 and all dispositive motions filed on or before June 15, 1993. Permitting plaintiff to amend his complaint to add an entirely new claim at this late date would require us, in fairness to the defendants, to re-open discovery, re-open the period for filing dispositive motions, and delay the scheduled trial date. This would be grossly unfair to the defendants, particularly since plaintiff offers no justification for failing to assert his LMRDA claim in the first instance.
Plaintiff's motion will be denied as untimely, and as unduly prejudicial to the defendants. See: Mulcahy v. Fiamingo, No. 87-1278, slip op. at 3-4 (M.D.Pa. Feb. 10, 1989), ( LEXIS, 1989 U.S. Dist. LEXIS 2193), (Kosik, J.) and Kurz v. Mairone, No. 86-5587, slip op. at 2-3, 1988 U.S. Dist. LEXIS 13967, (E.D.Pa. Dec. 12, 1988). As noted above, plaintiff filed no opposition papers to defendants' summary judgment motion. Rather than defend the viability of the claims he asserted originally and on the basis of which this case has been litigated for the past seven months,
plaintiff now seeks to "shift horses in midstream" and assert an entirely different claim. His belated attempt would be unduly prejudicial to the defendants, who have conducted discovery and litigated this entire matter on the assumption that the claims in this case are those asserted in the original complaint, only to find out at the eleventh hour that plaintiff intends to introduce an entirely different claim. There is no excuse or justification for plaintiff's attempt to fend off summary judgment with a newly asserted claim, and we will deny his motion as untimely, lacking in good faith, and unduly prejudicial to the defendants.
James F. McClure, Jr., United States District Judge
ORDER - June 30, 1993, Filed
June 30, 1993
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. Defendants' motion for summary judgment (Record Document No. 10) is granted.
2. Judgment is entered against plaintiff and in favor of both defendants on all claims.
3. Plaintiff's motion for leave to file an amended complaint (Record Document No. 16) and plaintiff's amended motion (Record Document No. 17) are denied.
4. The Clerk of Court is directed to close this file.
James F. McClure, Jr., United States District Judge