Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

GOSLING v. ACE HARDWARE CORP.

August 9, 1985

BERNARD GOSLING, PLAINTIFF,
v.
ACE HARDWARE CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Getzendanner, District Judge:

MEMORANDUM OPINION AND ORDER

This federal labor case is before the court on plaintiff Bernard Gosling's motion to dismiss defendant's counterclaim and for a more definite statement of count VII of that counterclaim. Also before the court is defendant's motion to join additional parties and to serve an additional third-party defendant. Defendant and third-party plaintiffs also move to dismiss voluntarily count VII of their counterclaim. For the reasons stated below, plaintiff's motion to dismiss is granted in full and his motion for a more definite statement is moot. Defendant's motion to join and serve additional parties is denied and the motion voluntarily to dismiss count VII is granted.

The present motions grew out of Gosling's filing a five-count second amended complaint against defendant International Brotherhood of Teamsters, Local 705 ("Local 705"). Gosling had filed the original complaint on January 5, 1984, charging his employer with breach of the collective bargaining contract in violation of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185,*fn1 and Local 705 with breach of its duty of fair representation, as well as of other provisions of federal labor and state law. According to Gosling, his troubles with his employer and with Local 705 arose out of his membership in Teamsters for a Democratic Union ("TDU"), which he describes as a democratic reform group challenging the policies of Local 705 officers.

In retaliation against Gosling for his participation in this dissident activity and his exercise of his rights to free expression under the federal constitution and provisions of federal labor law, Gosling alleges that Local 705 repeatedly refused to process his grievances and induced his employer to violate the collective bargaining contract. In addition, Gosling was severely beaten by Local 705 officials when he arrived at the union hall on October 3, 1983, having been promised by Local 705 officials that he would receive a hearing on one of his grievances on that date. During the beating, Gosling's documents were seized, he was told he would be expelled from the union, and ten persons struck and grabbed him. These allegations are contained in Gosling's original and first amended complaints.

On December 20, 1984, Gosling appeared at the Local 705 union hall to attend a regularly scheduled meeting and to hand out TDU literature with Aaron Kesner. When Gosling tried to enter the hall, he encountered at least two Local 705 officers or agents who were stationed at the door handing out identification cards to the incoming members. The two officials stopped Gosling and Kesner at the door and, without provocation or other cause and with the approval of Local 705 and its principal officers, assaulted and beat Gosling by "striking and beating him in the eye, head, neck, chest, leg and groin, choking and kicking him, and causing profuse bleeding from his eye." (Second Amended Complaint ¶ 55.) As a result of this beating, Gosling suffered "serious injury to his eye, face, neck, back and leg, disfigurement of his face, neurological and other physical injuries, pain and suffering and acute emotional and psychological distress, which has been manifested in various physical symptoms." (Id. at ¶ 56.)

Soon after this December 20, 1984 event, Gosling moved to amend his pleadings to add a claim based on the most recent assault and battery by Local 705 members. Count V of the current pleadings, Gosling's second amended complaint, contains these allegations. Local 705 answered, and filed a seven-count counterclaim in which it named Gosling as a counterdefendant and attempted to join Aaron Kesner as a third-party defendant. Moreover, the counterclaim added three additional parties as third-party plaintiffs, union members James Colgan, Carmen Levato, and John Palumbo. In the counterclaim, Local 705 attempts to state claims against Gosling and Kesner for their actions in initiating criminal proceedings against those whom they considered responsible for the 1984 beating. According to Local 705, in doing this, Gosling and Kesner violated Local 705's and its officers' rights under federal labor and state tort law.

Motion to Dismiss

In counts III and IV of the counterclaim, Local 705 repeats the allegations of malicious prosecution against Gosling and Kesner that are contained in the third-party complaint of Colgan, Levato, and Palumbo at counts I and II. Those allegations, in pertinent part, are as follows:

    On or about December 20, 1984,
  counterdefendants, acting individually and in
  concert, instituted or caused to be instituted in
  the Circuit Court of Cook County, Illinois,
  without probable cause or proper motive, criminal
  proceedings for battery . . . based on
  allegations in ¶¶ 28-32 of counterdefendant
  Gosling's second amended complaint.
    On April 10, 1985, after a trial in which
  counterdefendants were the only persons to
  testify in support of the charges, the criminal
  proceedings were finally terminated by judgments
  of not guilty.

(Counterclaim, count I at ¶¶ 5-6.) These counts must be dismissed for failure to state a claim for two independent reasons. First, Local 705 has never been a subject of a criminal complaint or proceeding initiated by Gosling; Gosling complained about the actions of Levato, Palumbo, and Colgan. Local 705 admits as much but argues that since its agents and representatives were prosecuted, it also has standing to state a malicious prosecution claim. As support for this novel argument, Local 705 cites Caspers v. Chicago Real Estate Board, 58 Ill. App.2d 113, 117, 206 N.E.2d 787 (1st Dist. 1965). In that case, the Court assumed in dictum that a principal shareholder and president of a corporation could state a claim for malicious prosecution where the offending suit was maintained against the corporation. Even assuming that Caspers is a holding on that issue (the dismissal of the suit was upheld for different reasons), Caspers involved a case where the plaintiff was an "alter ego" of the corporation, and for that reason it is entirely different from this case. Here, Local 705 has not even attempted to allege that three of its union officers were its alter ego.

Local 705's malicious prosecution claim must fail for a second reason. In Illinois, a claim for malicious prosecution must allege facts tending to show:

  (1) the commencement or continuance of an
  original criminal or civil judicial proceeding by
  the defendant; (2) the termination of the
  proceeding in favor of the plaintiff; (3) the
  absence of probable cause for such proceeding;
  (4) the presence of malice; ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.