Case 1:14-cv-06004-WHP Document 23 Filed 11/25/14 Page 1 of 17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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EDUARDO LAGUERRE, as Member of
THE LEAGUE OF UNITED LATIN AMERICAN
CITIZENS, INC., and Individually,

INDEX NO. 14-cv-6004

Plaintiffs,

-against-

THIRD AMENDED
COMPLAINT

THE LEAGUE OF UNITED LATIN AMERICAN

CITIZENS, INC., MARGARET MORAN AND
MANUEL ESCOBAR,

Jury Trial Demanded

Defendants.
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Plaintiff, EDUARDO LAGUERRE, as a Member of THE LEAGUE OF UNITED
LATIN AMERICAN CITIZENS, INC., and individually (Plaintiff"), complaining of the
defendants herein by and through his attorneys, Cesar A. Fernandez of the Law Office of Cesar
A. Fernandez, P.C. and Baldomero Garza III of the Law Office of Baldo Garza, P.L.L.C. as and
for his Second Amended Complaint against THE LEAGUE OF UNITED LATIN AMERICAN
CITIZENS, INC., MARGARET MORAN, MANUEL ESCOBAR, JOHN DOE and JANE DOE
(collectively Defendants), respectfully alleges upon knowledge as to himself and his own
actions and upon information and belief as to all other matters as follows:
NATURE OF CASE
1.

This is a civil action to: (a) restrain the individual defendants as directors,

members and officers of THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS, INC.,
("LULAC"); (b) permanently enjoin them from exercising any power for or on behalf of
LULAC, including, but not limited to, the illegal use of certain promulgated Rules; (c) hold the

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Defendants liable for any loss, waste or damages resulting from their malfeasance, misfeasance,
or nonfeasance; and (d) for the costs and disbursements of this action and for such other relief as
the court deems proper.
PRELIMINARY STATEMENT
2.

Plaintiff is a member of LULAC, which is a non-profit corporation organized and

existing pursuant to the laws of the State of Texas with subchapters incorporated and organized
under the laws of the State of New York. Defendants, upon information and belief, are all Texas
residents.
3.

Presently, the New York LULAC subchapter and the National LULAC have a

principal place of business at 286 Alexander Avenue, Bronx, New York, which is the location
wherein all board meetings are held, unless otherwise agreed to by LULAC's District Board.
4.

Plaintiff is a Member and a Director of LULAC and represents over ten percent

interest in LULAC's membership. LULAC is the nation's largest and oldest civil rights
volunteer-based organization that empowers Hispanic Americans and builds strong Latino
communities. National LULAC is headquartered in Washington, DC, with 1,000 councils around
the United States and Puerto Rico.
5.

The LULAC organization is formed by creating councils. Local councils do local

community service. A council is formed by eleven persons who pay dues and submit a charter
application. When chartered, they are licensed to use the LULAC logo and represent itself as a
LULAC council. Each council is granted four voting delegates to each convention (more if the
Council has more members).
6.

Three or more councils form a District. The District is managed by the District

Director and District Board of Directors. Each State may have one or more districts. Each State

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must have ten Councils to have a voting State Director. The Districts in the State are managed by
the State Director and State Board of Directors.
7.

The National Assembly is the supreme authority of LULAC, consisting of

delegates from the local councils. The LULAC National Assembly convenes once per year,
generally, during the month of July. The 2014 National Assembly, the 85th such meeting, took
place at the New York Hilton Midtown in New York, New York.
8.

The LULAC Executive Committee is composed of the national officers elected at

the annual meeting of the LULAC National Assembly and manages the business of the
organization between the meetings of the National LULAC Board of Directors.
The thirteen officers, eleven of whom are elected at the annual meeting of the LULAC National
Assembly, include the (1) National President, (2) National Vice President for Women, (3)
National Vice President for Youth, (4) National Treasurer, (5) National Vice President for
Elderly, (6) National Vice President for Young Adults, (7) National Vice President for the
Farwest, (8) National Vice President for the Southwest, (9) National Vice President for the
Midwest, (10) National Vice President for the Northeast and (11) National Vice President for the
Southeast; (12 )one of whom is elected by the LULAC Youth and serves in the capacity on the
National Executive Committee as the National President for Youth; and (13) the Immediate Past
National President of LULAC.
9.

The National LULAC Board of Directors is composed of all members of the

National LULAC Executive Committee, plus all State Directors of State LULAC organizations
and all living former National Presidents of LULAC. The National LULAC Board of Directors
manages the business of the organization in the interim between the annual meetings of the
LULAC National Assembly.

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10.

The LULAC National Assembly meets one time per year, as noted previously, to

elect its national officers, who serve one year terms in office, with a term limit of 4 terms per
office. According to the LULAC constitution, it is unconstitutional to serve more than 4 years
in one office.
JURISDICTION AND VENUE
11.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1332, as this is a

civil action where in Plaintiff is seeking over $75,000.00 in damages and is between citizens of
different States.
12.

Venue is appropriate in this Court pursuant to 28 U.S.C. 1391(b)(ii), as a

substantial part of the actions comprising the claims for relief occurred within this judicial
district.
BACKGROUND FACTS
13.

LULAC held its 2014 National Convention July 8 through July 12, 2014 at the

New York Hilton, 1335 Avenue of the Americas, New York, NY 10019.
14.

The meeting of the LULAC National Assembly was scheduled for Saturday, July

12, 2014.
15.

In preparation for the National Assembly meeting, the LULAC Executive

Committee appointed LULAC members to serve on Committees that prepare the business
agenda for the National Assembly.
16.

One of the Committees appointed was the Rules Committee.

17.

The purpose of the Rules Committee is to propose rules to be used by the

LULAC National Assembly in conducting the anticipated Saturday, July 12, 2014 national
meeting.

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18.

Any such proposed rules must comport with the LULAC Constitution,

Bylaws and Protocol.

19.

The proposed rules require presentment to the LULAC National Board of

Directors for submission to the LULAC National Assembly in the conventions opening
session. The opening session was to be held on Saturday, July 12, 2014 at the New York Hilton
Midtown, 1335 Avenue of the Americas, New York, NY 10019.
20.

One month prior to the LULAC National Assembly meeting, the proposed

rules were posted online on the LULAC website.

21.

The proposed rules were read aloud to the LULAC National Assembly during

the start of its annual meeting at the New York Hilton Midtown on or around 10:30 AM on
Saturday, July 12, 2014, as required.
22.

After reading the proposed rules, the National Assembly is permitted to vote on

whether to adopt them as the rules to be used by the LULAC National Assembly in the
administration of their annual meeting. The National Assembly may also choose to amend or
reject the proposed rules. Amendment or rejection of the proposed rules require a 2/3s vote of
the delegate members of the LULAC National Assembly.
23.

Rule 12 and Rule 21 of the proposed rules clearly violate the LULAC

Constitution, Bylaws and Protocol.

24.

Rule 12 states:

Challenges to any election must be issued to the National Legal Advisor immediately after
the outcome is announced and before another election has begun. It shall take a two-thirds
vote to overturn any ruling made by the National Legal Advisor.(Emphasis added).
25.

However, the National Legal Advisor is not permitted to make such a ruling

under the LULAC Constitution, Bylaws and Protocol.

26.

The LULAC Constitution, Bylaws and Protocol, Article VI, Organizational

Structure, Section 8, The Local Council, f. Meetings, 2. States that:

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(2) Meetings shall be conducted according to the established Ritual and Order of Business
in the Bylaws, and Robert's Rules of Order, as revised, shall apply in all matters and
situations not covered by the National, State, District or Local Council Constitution and
Bylaws, resolutions, policies or accepted custom.
27.

Roberts Rules of Order, as revised, details how LULAC should address

election and voting issues in the absence of any such issues addressed by the LULAC Bylaws
and/or Constitution, states:
Division of the Assembly. Whether or not the chair pauses to say, "The ayes seem to have it ...,"
any member (without a second) has the right require that a voice vote (or even a vote by a show
of hands) be retaken as a rising vote, so long as he does not use the procedure as a dilatory tactic
when there clearly has been a full vote and there can be no reasonable doubt of the result. A vote
taken by rising at the demand of a member is called a Division of the Assembly, or simply "a
division." A member can demand division from the moment the negative votes have been cast
until the result or the vote has been announced or immediately thereafter (see pp. 408-9).
To do so, the member, without obtaining the floor, calls out the single word "Division!" or "I
call for [or demand] a division," or "I doubt the result of the vote." The chair must then
immediately take the rising vote. Either the chair on his own initiative or the assembly by a
majority vote can order such a vote to be counted. If a division appears doubtfully close and the
chair does not order a count, a member, as soon as the chair has announced the result, can rise
and address the chair and is entitled to preference in recognition for the purpose of moving that
the vote be counted. If such a motion is made and is seconded, the chair puts the question (by
a voice vote) on whether a count shall be ordered. lf a count is ordered, the chair takes the
doubtfully close vote again by a counted rising vote. (For additional information regarding
Division of the Assembly and motions related to voting, see 29 and 30)
28.

Because the LULAC Constitution, Bylaws and Protocol is silent on the process

and the votes needed to challenge the call out of the outcome of a vote in an election or on a
vote on a specific issue, Roberts Rules is followed.
29.

Contrary to Roberts Rules of Orders, Rule 12 does not permit the challenge of

the outcome of a vote. A challenge to a call of the vote by the Election Judge would have to first
call the vote on any issue being voted on by the members of the LULAC National Assembly.
30.

Such rules are not permitted under the LULAC Constitution, Bylaws and Protocol

and are outside of the provisions of Roberts Rules of Order. The enforcement of such rules
requires an amendment of the LULAC Constitution, Bylaws and Protocol, which has not
occurred here.
31.

Amending the LULAC Constitution, Bylaws and Protocol, like amending most

organizational constitution, involves a very rigorous procedure, which is laid out in the LULAC
Constitution, Bylaws and Protocol. No LULAC members, committee, board or group has the

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authority to unilaterally add language to voting procedures that are governed by the LULAC
Constitution, Bylaws and Protocol.
32.

Because of the proposed rules, Plaintiff sought and was granted a TRO in New

York Supreme Court, Bronx County. Plaintiffs objective was to prevent the effect of giving
unfettered control to a small group within LULAC who would use Rule 12 and Rule 21 for their
own benefit, rather than LULAC as a whole.
33.

This is not the first instance of Rule 12 being used, or a similar such rule, to

illegally disenfranchise a group of members. This tactic was used at the LULAC National
Assembly that had convened in Las Vegas, Nevada in 2013.
34.

The LULAC Constitution, Bylaws and Protocol describes the role of the National

Legal Advisor at Article VIII, National Officers, Section 9, Duties and Responsibilities of the
National Officers, g. Legal Advisor:
( 1) To represent the League in all legal matters in which it may be involved or have an
interest;
(2) To interpret and render an opinion on matters arising with regard to the LU LAC
Constitution and Bylaws, Resolutions and/or Policies when requested by any member.
Council, or officer of the League. The National Assembly may by a two-thirds majority
reverse an opinion of the Legal Advisor in those cases wherein it is believed that
he/she has acted in a biased manner or contrary to the spirit of the provision in
question;
(3) To cooperate with the National Secretary in preparing and maintaining up to date
the volume which contains all resolutions, amendments, policies duly adopted and
enforce;
(4) To counsel with Legal Advisors of subordinate entities, including LULA Youth,
as requested.
35.

The LULAC Constitution, Bylaws and Protocol do not contain language that

allows the National Legal Advisor to have the ability to second guess the call of the outcome of
any vote announced by the Election Judge of the LULAC National Assembly
36.

The Rules Committee has no authority to arbitrarily and capriciously create a

role for the National Legal Advisor to second guess the call of the outcome of any vote
announced by the Election Judge of the LULAC National Assembly. In creating such a role, the
Rules Committee was illegally enacting legislation related to the conduct of the LULAC
National Assembly, which is an ultra-virus act beyond the scope laid out in the LULAC

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Constitution, Bylaws and Protocols.
37.

The Rules Committee, all members appointed by defendant Moran

promulgated an illegal rule in Rule 12, which violates the provisions of LULAC Constitution,
Bylaws and Protocol and Roberts Rules of Order, as revised.
38.

Margaret Moran knew that to reject any of the 21 rules proposed by her Rules

Committee, the LULAC National Assembly would need a 2/3rds vote to do so.
39.

As a result, Plaintiffs only solution was to seek judicial intervention by way of

a Temporary Restraining Order.

40.

Rule 21 was another illegal rule proposed by Margaret Morans Rules

Committee. The object of that rule was to call for a mandatory impeachment hearing for any
LULAC delegate at the meeting of the LULAC National Assembly who got out of hand, that
is, raised his/her voice or did not behave in a proper manner.
41.

The LULAC Constitution has provisions for impeachment hearings. Such

hearing normally require the drawing up of charges, providing proper notice, then having a
hearing before the National LULAC Board of Directors.
42.

Rule 21 was a type of Rule that would have required an amendment to the

LULAC Constitution, Bylaws and Protocol. No such amendment has been voted on or enacted.
43.

The TRO issued by the New York State Supreme Court of Bronx County was

served onto Defendants before 12 noon on Saturday, July 12, 2014 at the New York Hilton
Midtown Hotel. Election Judge, Luis Vera, a known crony of Margaret Moran, made an
announcement to the gathered delegates of the LULAC National Assembly. He announced that
legal documents had just been served on several LULAC officers and that he was going to
gather with their attorneys to review the documents. He instructed the assembly to adjourn and
reconvene after lunch at 2:30 in the afternoon.
44.

At approximately 2:15 P.M, Luis Vera, not waiting for all the delegates to return

from their lunch recess, and arbitrarily announced that he and defendant Moran were cancelling
the convention meeting of the LULAC National Assembly. At the time, most of the delegates

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who were opposed to Margaret Morans slate of candidates were returning to the assembly hall.
Delegates who were supporting Margaret Morans slate of candidates did not return. Upon
information and belief, Margaret Moran informed the delegates supporting her slate of
candidates not to return from the lunch recess because she was going to cancel the meeting of
the LULAC National Assembly.
45.

Rather than follow the State issued TRO, requiring her to refrain from using

Rule 12 and Rule 21, Margaret Moran arbitrarily and unilaterally decided to cancel the meeting
of the LULAC National Assembly. She did not put the matter of canceling the meeting of the
LULAC National Assembly up for a vote, she merely discussed it with her attorneys, Luis
Vera, her appointed Election Judge, and Manuel Escobar, National Legal Advisor, and
unilaterally and arbitrarily capriciously cancelled the meeting of the LULAC National
Assembly.
46.

Defendants knew that the opposition had a majority of the delegates at the

meeting of the LULAC National Assembly on that Saturday, July 12, 2014, and such, they
were going to lose the elections.
47.

Rather than just leave the New York Hilton Midtown Hotel without conducting

business, the delegates who formed the opposition to Margaret Moran and her slate of
candidates continued with the meeting of the LULAC National Assembly.
48.

The meeting of the LULAC National Assembly had not been adjourned.

49.

Roberts Rules of Order require that meetings of established organizations

conclude a meeting via the process of adjournment. A motion to adjourn is a privileged motion.
Once made, it has to be voted on. A simple majority vote adjourns all meetings.
50.

As soon as Margaret Moran had Luis Vera announce that she cancelled the

meeting of the LULAC National Assembly, she and Mr. Vera left the dais. Their decision to
merely walk away without discussing the ramifications of such a decision with the rest of the
National Assembly was arbitrary and capricious and in violating a standing court order was
illegal.

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51.
Officers who were opposed to Margaret Morans slate of candidates proposed
that the delegates who could stay should stay to continue the meeting of the LULAC National
Assembly. Belen Robles was selected by a vote of the delegates who stayed to serve as the
Presiding Officer. A Secretary was proposed and appointed to record the minutes of the
meeting.
52.

Three counters were appointed to count the delegates present. The count was

825 delegates present. The LULAC Constitution, Bylaws and Protocol requires that a meeting
of the LULAC National Assembly have 1/3 of the original delegates counted to be present to
maintain a quorum. Taking the earlier count at about 10:45 AM that Saturday morning, a
delegate count of 1,625, as had been reported, the assembly needed 542 delegates to maintain a
quorum. The presence of 825 delegates created a quorum of 51%, more than enough to
maintain the minimum needed of 1/3 to maintain a quorum.
53.

The order of business conducted by Belen Robles, a former National President

of LULAC, now serving as the Presiding Officer of this LULAC National Assembly, was to
proceed with the election of national officers. Margaret Morans candidate for National
President, Roger Rocha, was nominated and received 5 votes. Maggie Rivera was nominated
for the office of National President by the opposition and received over 800 delegate votes.
54.

The following officers were duly elected by the LULAC National Assembly at

the meeting in New York, on Saturday, July 12, 2014:

Maggie Rivera, National President
Elsie Valdes, VP for Women
Ana Estrada, VP for Youth
Stanley de la Cruz, VP Young Adults
Luz Arce, VP for Elderly
Juan Carlos Lizardi, Treasurer
Baldo Garza, VP Southwest
Darryl Morin, VP Midwest
Benigno Diaz, VP Farwest
Ivonne Quinones, VP Southeast
Ralina Cardona, VP Northeast
55.

San Juan, PR was selected by the LULAC National Assembly for the National

LULAC Convention site for 2017.

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56.
Voting on amendments to the LULAC Constitution, Bylaws and Protocol and
resolutions was tabled for future proceedings.
57.

The LULAC National Assembly met for the 85th year in its history and legally

elected the aforementioned national officers.

58.

Voting on its national officers is a right granted the members of the LULAC

National Assembly by provisions of its Constitution, Bylaws and Protocol, by the laws that
govern non-profits organizations in Texas, Business Organization Codes, and in most state of
the union, including the Not-for-Profit Corporations laws of the State of New York.
59.

The Defendants illegal and fraudulent acts during the election, including,

misappropriation of over $100,000.00 in LULAC funds in order to pay for the travel expense
of her voters, turning off the lights, calling hotel security and intimidating the delegates, were
meant to deny the members of LULAC, represented through their delegates to the meeting of
the LULAC National Assembly held in New York City on Saturday, July12, 2014, the right
to elect the national officers of LULAC.
60.

In furtherance of their illegal conspiracy, on July 17, 2014, Luis Vera, the

person who served as the Election Judge in the New York meeting of the LULAC National
Assembly, filed a temporary restraining order, in effect maintaining the status quo and keeping
them in office pending the resolution of this matter. The matter is now being litigated under
2014-CI-11299, Elia Mendoza, et al, v Eduardo Laguerre, et al, in the 131st District Court of
Bexar County, Texas.
61.

Presently, the Texas TRO, which is vigorously being challenged, as it is

baseless and without merit, has allowed Margaret Moran to continue to serve as President
until the convention scheduled for Salt Lake City, Utah in July 2015. However, per the
LULAC Constitution, Margaret Moran and three other National Officers who vote with her on
the National Executive Committee, are termed out officers, having served a full 4 years in the
national offices they hold.
62.

The LULAC Constitution, Bylaws and Protocol prohibits termed out officers

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from serving for more than 4 years in the same office, at all levels of the organization.
63.

The LULAC Constitution, Bylaws and Protocol at Article VIII, National

Officers, Section 6, Tenure of Elected Office, states:

c. A National Officer may serve in the same office for four terms, consecutively or
intermittently, if duly elected to such office, but in no case may an officer be elected to the
same office for more than four one-year terms. Any move to draft or otherwise impose on
the League a person who has exhausted his eligibility to hold the same office for more
than the stipulated terms shall be deemed a gross violation of this Constitution.

64.

The LULAC Constitution, Bylaws and Protocol at Article VIII, National Officers,

Section 6, Tenure of Elected Officer, b. states:

b. In case of failure of the National Assembly to convene for any reason, or in case of
failure of the National Assembly to have the established quorum to transact business,
the duly elected and appointed National Officers shall continue in office until such time
as the National Assembly convenes or is qualified to elect new officers.
65.

Furthermore, upon information and belief, Defendants are presently

misappropriating earmarked LULAC funds for their own purposes, including, but not limited
to, paying for their attorney fees in various legal actions against them and availing themselves
of LULAC insurance coverage to pay for attorney fees without LULAC National Board of
Directors approval, as required.

FIRST CAUSE OF ACTION

66.

Plaintiffs repeat and reallege the allegations stated in Paragraphs 1 through 65

as though the same were fully set forth at length herein. Defendants unilateral cancellation of
the election violated both Section 22.160 of the Business Organization Code of the State of
Texas and Section 611 of the New York State Not For Profit Corporations Law and the LULAC
Constitution and By-Laws. Under Section 22.160 of the Business Organization Code of the
State of Texas:

VOTING OF MEMBERS. (a) Each member of a corporation, regardless of class, is

entitled to one vote on each matter submitted to a vote of the corporation's members,
except to the extent that the voting rights of members of a class are limited, enlarged,
or denied by the certificate of formation or bylaws of the corporation.
67.

Section 611 of the New York State Code for Not for Profit Corporations states:

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(b) Any member in good standing, otherwise eligible to vote, is entitled to vote at
any meeting of members, except that, if the certificate of incorporation or the bylaws so provide, the by-laws may provide or, in the absence of such provision, the
board may fix a date as the record date for the purpose of determining the
members entitled to vote at any meeting of members or any adjournment thereof,
or to express consent to or dissent from any proposal without a meeting, or for
the purpose of determining members entitled to receive any distribution or the
allotment of any rights, or for the purpose of any other action by the members.
Such record date shall not be more than fifty nor less than ten days before the
date of the meeting.
68.

The LULAC Constitution, Bylaws and Protocol makes clear that members have a

right to vote on matters of interest to and for the welfare of their Council or the League. LULAC
Const., art. 4, 1b (2)-(4).
69.

LULACs Bylaws further provide that voting at all conventions shall be by a

show of hands, roll call, or secret ballot. LULAC Bylaws, art. II, 8a; LULAC Constitution, art.
VIII, 5d.
70.

Unless specified otherwise in LULACs constitution, a simple majority vote of

certified delegates and voting officers prevails. LULAC Bylaws, art. II, 8d.
71.

Plaintiff sought and obtained a temporary injunction against Defendants in order

to uphold said order of election, to no avail. In fact, Defendants disregarded the specific order of
the State of New York Supreme Court of Bronx County and cancelled the meeting of the
LULAC National Assembly, denying 1,625 delegates represented by Plaintiff here the right to
vote on matters of interest to and for the welfare of LULAC.
SECOND CAUSE OF ACTION
72.

Plaintiffs repeat and reallege the allegations stated in Paragraphs 1 through 71 as

though the same were fully set forth at length herein.

73.

The acts and failures to act of defendants set forth herein were engaged in by

defendants in breach of their duty of diligence, care, and skill that an ordinarily prudent person
would exercise in similar circumstances, in violation of 717 of the New York Not-For-Profit
Corporation Law, general common law negligence, arbitrary and capricious.
THIRD CAUSE OF ACTION

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74.

Plaintiffs repeat and reallege the allegations stated in Paragraphs 1 through 73 as

though the same were fully set forth at length herein.

75.

The acts and failures to act of defendants set forth herein were engaged in by

defendants in breach of their duty of loyalty to LULAC and engaged in prohibited self-dealing
transactions in violation of 715 and 717 of the New York Not-For-Profit Corporation Law
and under general common law principles and illegal.
FOURTH CAUSE OF ACTION
76.

Plaintiffs repeat and reallege the allegations stated in Paragraphs 1 through 75 as

though the same were fully set forth at length herein.

77.

The acts and failures to act of defendants set forth herein were engaged in by

defendants in a grossly negligent manner in violation of 716 and 719 of the New York NotFor-Profit Corporation Law, common law principles, and arbitrary and capricious.
FIFTH CAUSE OF ACTION
78.

Plaintiffs repeat and reallege the allegations stated in Paragraphs 1 through 77 as

though the same were fully set forth at length herein.

79.

Plaintiff, along with 1,625 LULAC delegates, as represented by Plaintiff, paid

money to register their councils with LULAC so that they would be able to attend and vote at the
Local, District, State and National Convention.
80.

The money was paid to LULAC, Defendant here.

81.

Defendants illegally converted Plaintiffs property to their use with no benefit to

1,625 LULAC delegates, as represented by Plaintiff here, by canceling the meeting of the
LULAC National Assembly meeting in New York City on Saturday, 2014, and then obtaining a
temporary restraining order from the 131st Judicial District Court of Texas in Bexar County on
Friday, July 18, 2014, which ordered that governance of National LULAC should be in the hands
of the same people who governed National LULAC before the meeting of the LULAC National
Assembly. Defendants acted with such intent to injure plaintiff or so deliberately interfered with

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Plaintiffs rights as to make them liable for punitive damages.
SIXTH CAUSE OF ACTION
82.

Plaintiffs repeat and reallege the allegations stated in Paragraphs 1 through 81

as though the same were fully set forth at length herein.

83.

The duty of good faith and fair dealing is implied in every contract. The

Restatement (Second) Contracts, Section 205 states: "Every contract imposes upon each party a
duty of good faith and fair dealing in its performance and enforcement." The Uniform
Commercial Code (UCC) also imposes a duty of good faith. UCC Section 1-203 provides:
"Every contract or duty within the Act imposes an obligation of good faith in its performance
or enforcement." The UCC sets forth the extent of that obligation depending on the status
(merchant v non-merchant, etc.) of the contracting parties. Michigan Bar Journal November,
1997, 1190 Still Keeping the Faith: the Duty of Good Faith Revisited, Marc L. Newman.
84.

Defendants registered members including Plaintiff more than 30 days prior to

the State and National Conventions. Defendants took Plaintiffs money to form councils and for
individual memberships, requiring that members be able to demonstrate their membership at
conventions so as to participate therein.
85.

In return, those managing and controlling LULAC conventions, including

defendants, are required to act in good faith according to LULACs own Constitution,
Bylaws and Protocols.
86.

However, defendants failed to act in good faith and instead engaged in bad

faith, favoritism, cronyism and illegal economic coercion.

87.

As a result of defendants breach of the implied covenant of good faith and

fair dealing, plaintiffs were denied their right to vote at the meeting of the LULAC National
Assembly in New York City on Saturday, July 12, 2014.
DEMAND FOR JURY TRIAL
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury in this
action.

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PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands judgment against defendants as follows:
a.

a judgment declaring and certifying the results of the elections held on July

12, 2014, by the remaining 825 LULAC members, as valid;

b.

An order enjoining defendants from taking any acts of retaliation against

those who brought or participated in this lawsuit;

c.

Alternatively, a declaratory judgment ordering that the five national officers

who are termed out-that is, the National President, Immediate Past National President, National
Vice President for the Young Adult, National Vice President for the Farwest and National Vice
President for the Southeast be considered vacant positions that may be filled by the remaining
officers on the LULAC National Executive Committee who are not termed out of office.
d.

An order requiring defendants to account for all funds used and expended during

their tenure;
e.

For an Order enjoining defendants from continuing to violate LULACs

constitution and bylaws as set forth herein, including the use of Rule 12 and 21 in the
next elections;
f.

For an Order that defendants pay damages in the amount of no less that

$100,000.00;
g.

For an Order that defendants pay punitive damages to plaintiff;

h.

For reasonable attorney fees, costs and expenses of suit and for such other and

further relief as the Court deems just, equitable and proper.

Dated: New York, New York

November 24, 2014
Yours truly,

Law Office of Cesar A. Fernandez, P.C.

_______________________________________

Case 1:14-cv-06004-WHP Document 23 Filed 11/25/14 Page 17 of 17

Cesar A Fernandez (CF 8841)
Attorney for Plaintiffs 2298
First Avenue
New York, New York 10035
(212) 348-3334

BG

Law Office of Baldo Garsa P.L.LC.

_________________________________________
Baldomero Garsa,
6065 Hilcroft Avenue, Suite 616
Houston, Texas 77081