The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Richard Hoffman Corporation ("Hoffman") sued Integrated
Building Systems, Inc. ("Integrated") and the Village of Glendale Heights
("Village") for violations of the Sherman Antitrust Act, 15 U.S.C. § 1
et seq., the Illinois Antitrust Act, Ill.Rev.Stat. ch. 38 § 60-3, and
for breach of the duty of good faith. Presently before the Court are
Integrated's motion to dismiss and the Village's motion to dismiss. For
reasons set forth below, Integrated's motion is denied; the Village's
motion is granted.
Motions to dismiss for failure to state a claim should not be granted
unless it appears beyond doubt that a plaintiff can prove no set of facts
in support of its claim entitling it to relief. Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In antitrust
cases, caution with respect to motions to dismiss is particularly
important, since proof of a violation may well rest largely with the
alleged conspirators. Hospital Building Co. v. Trustees of Rex Hospital,
425 U.S. 738, 746, 96 S.Ct. 1848, 1853, 48 L.Ed.2d 338 (1976). Using
these standards, we consider the parties' arguments.
Interstate Commerce Nexus
The Village claims that Hoffman has failed to plead sufficient
allegations to satisfy the jurisdictional requirements of a Sherman Act
claim. The Sherman Act prohibits "[e]very contract, combination . . . or
conspiracy, in restraint of trade or commerce among the several states.
. . ." 15 U.S.C. § 1. This language defines both the conduct
proscribed by the statute and its jurisdictional reach. Crane v.
Intermountain Health Care, Inc., 637 F.2d 715, 720 (10th Cir. 1980). We
are therefore called upon to decide whether the Village's conduct had a
sufficient relationship with interstate commerce to subject it to
regulation. The interstate commerce requirement is satisfied by showing
that the challenged activity occurred in interstate commerce or if the
activity is wholly local in nature, by a showing that interstate commerce
was substantially affected. Hospital Building Co. v. Trustees of Rex
Hospital, 425 U.S. 738, 743, 96 S.Ct. 1848, 1851, 48 L.Ed.2d 338 (1976).
Hoffman's complaint declares that "the materials used in the
construction of the recreational center (Sports Hub) and to be used in
the construction and remodeling of the Village of Glendale Heights
recreational center were, and will be, provided for by interstate
commerce." In response to the Village's motion, Hoffman filed an
affidavit listing materials required by project specifications which are
manufactured in states other than Illinois to support its assertion that
there is a sufficient interstate commerce nexus for jurisdictional
purposes. The Village emphasizes that its activities are intrastate, that
operation of the recreation building is a purely local matter, that
Integrated is an Illinois corporation and that the construction contract
will be carried out in Illinois.
In McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 100
S.Ct. 502, 62 L.Ed.2d 441 (1980), the Supreme Court addressed the
pleading requirements to establish an interstate commerce nexus:
[t]o establish the jurisdictional element of a Sherman
Act violation it would be sufficient for petitioners
to demonstrate a substantial effect on interstate
commerce generated by respondents' brokerage
activity. Petitioners need not make the more
particularized showing of an effect on interstate
commerce caused by the alleged conspiracy to fix
commission rates, or by those other aspects of
respondents' activity that are alleged to be
unlawful. The validity of this approach is confirmed
by an examination of the case law. If establishing
jurisdiction required a showing that the unlawful
itself had an effect on interstate commerce,
jurisdiction would be defeated by a demonstration that
the alleged restraint failed to have its intended
anticompetitive effect. This is not the rule of our
cases. See American Tobacco Co. v. United States,
328 U.S. 781, 811, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575
(1946); United States v. Socony-Vacuum Oil Co.,
310 U.S. 150, 225, n. 59, 60 S.Ct. 811, 846, 84 L.Ed.
Id. at 242-43, 100 S.Ct. at 509. The Ninth Circuit has interpreted
McLain to mean that the alleged antitrust violations need not affect
interstate commerce, as long as defendants' business activities,
independent of the violations, affect interstate commerce. Western Waste
Services Systems v. Universal Waste Control, 616 F.2d 1094; 1097 (9th
Cir. 1980), cert. denied, 449 U.S. 869, 101 S.Gt. 205, 66 L.Ed.2d 88
(1980). Other circuits have adopted a narrower reading of McLain. E.g.,
Cordova & Simonpietri Insurance Agency, Inc. v. Chase Manhattan Bank,
649 F.2d 36 (1st Cir. 1981). The Seventh Circuit, however, recently
declined to choose between the different interpretations of McClain.
Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1282
(7th Cir. 1983).
In any event, jurisdiction must be determined on a case-by-case basis,
examining the relevant economic facts presented by a particular case.
Heille v. City of St. Paul, Minnesota, 671 F.2d 1134, 1136 (8th Cir.
1982). In affirming the district court's holding that a plaintiff failed
to demonstrate an interstate commerce nexus, the court in Heille noted
that neither party purchased nor sold a service or product in interstate
commerce. Id. at 1137. The present case is clearly distinguishable, since
Hoffman asserts that specifications for the recreation building call for
products manufactured outside of Illinois. There can be no doubt that the
allegations involving interstate commerce in Hoffman's complaint are
perfunctory. But in refusing to adopt a particular view of McLain, the
Seventh Circuit clearly cautioned against the dismissal of antitrust
[d]ismissals in antitrust cases should not be granted
lightly. An action should not be dismissed unless it
appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which will
entitle him to relief. In antitrust cases, dismissals
prior to giving the plaintiff an opportunity for
discovery should be granted very sparingly. The impact
the defendants' activities may have upon interstate
commerce is a question of fact not normally
susceptible of determination without scrutiny of the
proof that may be offered.
Bunker Ramo, 713 F.2d at 1282 (citations omitted). Therefore, we cannot
conclude at the present stage of this litigation that Hoffman will be
unable to prove any set of facts in support of its claim entitling it ...