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JONES v. LOCAL 520

October 5, 1981

JAMES JONES, ET AL., PLAINTIFFS,
v.
LOCAL 520, INTERNATIONAL UNION OF OPERATING ENGINEERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Foreman, Chief Judge:

  ORDER

This case is currently before the Court pursuant to a remand from the Seventh Circuit Court of Appeals, Jones v. Local 520, 603 F.2d 664 (7th Cir. 1979), cert. denied 444 U.S. 1017, 100 S.Ct. 669, 62 L.Ed.2d 647 (1981). Plaintiff, by leave of Court, has filed a third amended complaint. There are numerous motions concerning the viability of plaintiffs' third amended complaint, and the Court shall consider them in a manner designed for efficient resolution.

First, the following motions are hereby GRANTED: (1) Motion to Adopt, filed June 5, 1981, by the State of Illinois; (2) Motion to Adopt, filed June 11, 1981, by Reese Construction Co.; (3) Motion to Adopt, filed June 11, 1981, by Charles Mahoney Co.; (4) Motion to Adopt, filed June 12, 1981, by Calhoun County Construction Corp.; and (5) Motion to Adopt, filed June 15, 1981, by Rust Construction Co. The foregoing motions concern the desire of respective counsel to adopt in opposition to plaintiffs' third amended complaint the memoranda lodged in opposition to plaintiffs' second amended complaint. Since these motions are now granted, the Court is in a position to consider the sufficiency of plaintiffs' third amended complaint.

Remaining before the Court are the following motions: (1) Motion to Dismiss, filed March 27, 1981, by the State of Illinois; (2) Motion to Dismiss or Strike, filed March 27, 1981, by Hoeffken Brothers; (3) Motion to Strike and to Make More Definite, filed April 8, 1981, by Keeley Brothers; (4) Motion for Dismissal, filed April 9, 1981, by Local 520; (5) Motion to Dismiss, filed April 16, 1981, by Helmkamp Excavating; (6) Motion to Dismiss, filed April 15, 1981, by H. H. Hall Construction Co.; (7) Motion to Dismiss or Strike, filed April 17, 1981, by Charles Mahoney Co.; (8) Motion to Dismiss, filed April 20, 1981, by Calhoun County Contracting Corp.; (9) Motion to Dismiss, filed April 20, 1981, by Reese Construction Co.; (10) Motion to Dismiss, filed April 22, 1981, by Rust Construction Co.; (11) Motion to Strike Portions of Count I of Third Amended Complaint, filed June 5, 1981, by Keeley Brothers; (12) Motion to Dismiss Third Amended Complaint, filed June 9, 1981, by Local 520; (13) Motion to Strike Count I of Third Amended Complaint, filed June 13, 1981, by Hoeffken Brothers; and (14) Motion to Dismiss Third Amended Complaint, filed June 19, 1981, by H.H. Hall.

The original complaint sought to enforce certain rights allegedly arising from a preferential hiring agreement with defendants (Count I) and a consent decree entered into by defendant Local 520 (Count II). The Court of Appeals reversed this Court's dismissal of those two counts for failure to state a claim upon which relief could be granted under 42 U.S.C. § 1981. The Court of Appeals stated that:

  "the agreements create third party beneficiary
  rights in the white and black operating engineers
  who stand to benefit from the operation of the
  referral plan . . . In particular, the complaint
  alleges that the contractors have deprived the
  blacks of their beneficiary rights by accepting
  whites who are masquerading as minority group
  members to satisfy the 20 percent requirement. We
  find these allegations of a racially motivated
  deprivation of beneficiary rights sufficient to
  maintain an action under § 1981."
  "As grounds for dismissing Count II, the court
  also held that a `consent decree may not be
  attacked in a new case prior to seeking a remedy
  in the previous case.' Here, however, the
  appellants are seeking not to attack the consent
  decree, but to recover on the basis of
  beneficiary rights it confers."

603 F.2d at 666. The thrust of the Court of Appeals' order is clear. Plaintiffs are not suing upon the agreement or to enforce the agreement or consent decree. Rather, they are suing under § 1981 for deprivation of third party beneficiary rights which those agreements confer upon them. The Court of Appeals thus views the right to receive third party beneficiary status benefits an interest subsumed under the "right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property . . ." 42 U.S.C. § 1981 (1980). In the third amended complaint, filed May 29, 1981, plaintiffs seek to enforce these third party beneficiary rights allegedly arising from (1) "An Agreement to Facilitate and Maintain Equal Employment Opportunity for Highway Construction in Madison and St. Clair Counties, effective June 4, 1973, is hereby incorporated into and made a party of this contract by reference," [hereinafter referred to as "the Agreement"] (Count 1); and (2) a consent decree entered into by Local 520 and the United States in United States v. International Union of Operating Engineers, Local 520, No. 69-C-9 (S.D.Ill.). Jurisdiction is alleged under 42 U.S.C. § 1981 and § 1983 and 28 U.S.C. § 1343(3). Against this background, the Court turns to the motions and contentions of the parties.

I. State of Illinois and IDOT.

First before the Court is the Motion to Dismiss Second Amended Complaint, filed March 27, 1981, by the Department of Transportation of the State of Illinois (IDOT) and the State of Illinois, which by motion allowed above applies against the third amended complaint. The State and IDOT have offered several grounds for dismissal, but in the Court's opinion, one not raised by the parties is dispositive. The State and IDOT have been named as parties in the third amended complaint, and the only relief requested from the State or IDOT is money damages. No injunctive relief is sought from them. The Eleventh Amendment bars a federal court from entertaining an action which seeks to impose a liability which must be satisfied from the general revenues of the state. Carey v. Quern, 588 F.2d 230, 233 (7th Cir. 1980); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). With respect to § 1983, the Supreme Court has held that "neither logic, the circumstances surrounding the adoption of the Fourteenth Amendment, nor the legislative history of the 1871 Act compel, or even warrant, a leap from this proposition [that the Civil Rights Act of 1871 ceded to the Federal Government many important powers previously considered within the exclusive province of the states] to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States." Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979). Them is nothing which would lead this Court to believe that under § 1981, which originated in the Civil Rights Act of 1866, see, Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), a different result should issue. However, since none of the parties have heretofore addressed the issue, plaintiffs are given twenty (20) days from receipt of this order to come forward and show cause why the State of Illinois and IDOT should not be dismissed from the lawsuit on sovereign immunity principles.

II. Hoeffken Brothers.

Second before the Court is the Motion to Dismiss, or in the Alternative, to Strike, filed March 27, 1981, by defendant Hoeffken Brothers and their Motion to Strike Count I of Third Amended Complaint, filed June 13, 1981. Defendant Hoeffken argues that the complaint be stricken or dismissed since: (1) the claims are barred by the two year statute of limitations; (2) plaintiffs have not pleaded facts indicating wrongdoing or responsibility for wrongdoing. Defendant Hoeffken's motions are DENIED. First, plaintiffs' claim is not barred by the statute of limitations. By express statement of the Court of Appeals for the Seventh Circuit, plaintiffs' claim is based upon third party beneficiary rights. Thus, employing in this § 1981 and § 1983 action the most analogous statute of limitations of the state where the alleged deprivation of civil rights occurred, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the ten (10) year statute of limitations applying to written contracts should apply. Ill.Rev.Stat., ch. 83, p. 17 (1979); see, Electrical Contractor's Ass'n v. A. S. Schulman Electric Co., 391 Ill. 333, 63 N.E.2d 392 (1945). However, as plaintiffs point out in their brief in opposition, even assuming that the five year statute of limitations applies to this § 1981 action, as the Court of Appeals has said, it generally does, Patterson v. General Motors Corp., 631 F.2d 476, 484 (7th Cir. 1980); Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1315 (7th Cir. 1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976), plaintiffs' allegations concern events transpiring since 1976. Thus, the five year statute, Ill.Rev. Stat., ch. 83, p. 16 (1979) shall not be violated by the newly added plaintiffs since five years have not transpired since December 31, 1976. Moreover, lack of information as to the precise dates is not fatal bearing in mind that this is a preliminary motion under Federal Rule of Civil Procedure 12(b), testing the viability of the claim only. Discovery by the parties shall further illuminate the precise dates of the alleged wrongdoing.

Second, it is not necessary that plaintiffs plead in Count I facts showing that Hoeffken initiated or was responsible for the wrongdoing which occurred. By alleging that Hoeffken and other contractors knew of the classification of whites as minorities and willingly accepted the misclassified whites, plaintiffs have stated a claim of direct discrimination by each contractor who so knowingly accepted the referrals. The Court of Appeals has already said that this states a claim upon which relief may be granted. Inasmuch as ...


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