     09-2684-cv
     Jacque v. Wirt

                          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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 14 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                JOSEPH M. McLAUGHLIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Harvey L. Jacque,
14                Plaintiff-Appellant,
15
16                    -v.-                                               09-2684-cv
17
18       Frank Wirt, David Alexander, Keith
19       Gause, Rochester Carpenters Local
20       Union 85,
21                 Defendants-Appellees.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                  Harvey L. Jacque, pro se, Rochester,
25                                       NY.
26
27       FOR APPELLEE:                   Larry Cary, Cary Kane LLP, New York,
28                                       NY.

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1
2        Appeal from a judgment of the United States District

3    Court for the Western District of New York (Telesca, J.).

4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the district court be

6    AFFIRMED.

7        Harvey Jacque appeals from a May 29, 2009 judgment of

8    the United States District Court for the Western District of

9    New York (Telesca, J.), dismissing his complaint against his

10   union and its officers.   The claims against the individual

11   defendants were dismissed under Federal Rule of Civil

12   Procedure 12(b)(6); the claims against the union were

13   dismissed on summary judgment.     We otherwise assume the

14   parties’ familiarity with the underlying facts, the case’s

15   procedural history, and the issues presented for review.

16       We review the district court’s 12(b)(6) decision de

17   novo.   Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d

18   Cir. 2002).   Jacque alleges that the individual defendants

19   made false statements that induced his employer to breach

20   the collective bargaining agreement, and asserts a state-law

21   tortious interference claim.     As the district court ruled,

22   this claim is preempted by § 301 of the Labor Management

23   Relations Act, 29 U.S.C. § 185.     See Anderson v. Aset Corp.,

24   416 F.3d 170, 171-72 (2d Cir. 2005) (per curiam).


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1        We affirm the grant of summary judgment to the union

2    defendant because Jacque did not exhaust his union remedies.

3    See Clayton v. Int’l Union, United Auto., Aerospace & Agric.

4    Implement Workers of Am., 451 U.S. 679, 682 (1981) (court

5    may require exhaustion).    Jacque failed to allege exhaustion

6    in his complaint, or in opposition to the motion for summary

7    judgment.   He first argued that he had exhausted the

8    internal union appeal process in pro se letters requesting

9    reconsideration.   The district court did not err in denying

10   those letter requests, particularly since Jacque was then

11   represented by counsel.    See Transaero, Inc. v. La Fuerza

12   Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (denial of

13   motion for reconsideration reviewed for abuse of

14   discretion); Ennis v. LeFevre, 560 F.2d 1072 (2d Cir. 1977)

15   (court was not required to consider pro se papers filed

16   while petitioner was represented by counsel).    And while

17   Jacque again submitted the purported letter in support of

18   his pro se motion for reconsideration after his counsel

19   withdrew, that motion remains pending and is therefore not

20   properly before this Court.    Finally, we reject Jacque’s

21   contention that he did exhaust his administrative remedies

22   by writing a letter to the union president, because the

23   district court has not had the opportunity to address that

24   argument.   See Singleton v. Wulff, 428 U.S. 106, 120-21

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1    (1976) (courts of appeal generally do not consider issues

2    raised for the first time on appeal).

3        We review for abuse of discretion the district court’s

4    decision not to excuse Jacque’s failure to exhaust.

5    Maddalone v. Local 17 United Bhd. of Carpenters & Joiners of

6    Am., 152 F.3d 178, 183 (2d Cir. 1998).   The district court

7    may excuse the failure to exhaust: [1] where union officials

8    are so hostile to the union member that he cannot hope for

9    fair treatment; [2] where the internal appeal procedures are

10   inadequate to address the union member’s complaints; or [3]

11   where the internal procedures would inordinately delay a

12   judicial hearing on the merits.   See id. at 186.   Jacque’s

13   arguments that the district court should have excused his

14   failure to exhaust because exhaustion would have been futile

15   or because union officials were so hostile to him that he

16   could not have expected fair treatment are based on

17   unsubstantiated and speculative allegations, and we find no

18   abuse of discretion.

19       Finding no merit in Jacque’s remaining arguments, we

20   hereby AFFIRM the judgment of the district court.
21
22                              FOR THE COURT:
23                              CATHERINE O’HAGAN WOLFE, CLERK
24




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