agreement in the Maryland action. In its response to
defendants' motion, plaintiff has agreed not to pursue its
requests for injunctive and declarative relief. Therefore, the
first six requests for relief in Section VII of plaintiff's
complaint will be stricken.
Defendants next address Premier's request for damages. They
contend that although Premier has not articulated its theory of
damages, in defendants' view, the only damages Premier can
claim are the contributions it made to the industry fund.
According to defendants' records Premier never made any
contributions. Nonetheless, simultaneous with the filing of
their present motion, defendants have filed an offer of
judgment for any amounts Premier can show it paid into the
fund. Consequently, say defendants, the only remaining
requested relief at issue is the costs and attorneys' fees
incurred in defense of the collection actions.
This argument fails for two reasons. First, Premier does not
concede that its only measure of damages is the fees it paid
into the industry fund. Second, Rule 68 does not require that
Premier accept defendants' offer of judgment. Rule 68 states
that the offer may be accepted by written notice served within
ten days of the date the offer is made. If the offer is not
accepted, it is deemed withdrawn. Defendants filed the offer of
judgment on March 7, 1984. To date plaintiff has not responded
to defendants' offer. Therefore, since the offer is deemed
withdrawn, the question of this element of plaintiff's damages
remains an issue in the case.
Defendants next argue that Premier has failed to state a
claim for which relief can be granted based on the costs and
attorneys' fees incurred in defending the collection actions.
This is so, defendants contend, because plaintiff's claim for
such relief ignores defendants' constitutional rights of
assembly and petition recognized under the Noerr-Pennington
doctrine. This court agrees.
The Noerr-Pennington doctrine is the result of the holdings
in three Supreme Court cases, Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct.
523, 5 L.Ed.2d 464 (1961); United Mine Workers v. Pennington,
381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965); and
California Motor Transport v. Trucking Unlimited, 404 U.S. 508,
92 S.Ct. 609, 30 L.Ed.2d 642 (1972). In the last of these,
California Motor Transport, the Supreme Court squarely held
that the right of access to the courts is protected by the
First Amendment. California Motor Transport, 404 U.S. at
510-511, 92 S.Ct. at 611-612. However, while recognizing a
litigant's first amendment right of access to the courts, the
Supreme Court also recognized an exception to the
Noerr-Pennington doctrine — litigation which is abusive of the
adjudicative process is not protected. Id., 404 U.S. at
511-513, 92 S.Ct. at 612-613; see also Hydro-Tech Corp. v.
Sundstrand Corp., 673 F.2d 1171, 1176 n. 6 (10th Cir. 1982).
This exception to Noerr-Pennington has become known as the
"sham" litigation exception.
The Supreme Court left unclear the precise contours of the
sham exception.*fn4 Nor has the Seventh Circuit articulated a
general definition of sham litigation. MCI Communications v.
American Tel. & Tel. Co., 708 F.2d 1081, 1156 (7th Cir. 1983).
However, in a recent extensive discussion of the sham
exception, the Seventh Circuit analogized sham litigation to
the common law torts of malicious prosecution and abuse of
process. Grip-Pak, Inc. v. Illinois Tool Works, Inc.,
694 F.2d 466 (7th Cir. 1982) cert. denied, 461 U.S. 958, 103 S.Ct. 2430,
77 L.Ed.2d 1317 (1983). While the Grip-Pak panel failed to
define sham litigation, the opinion does hold that in order for
litigation to be immunized from the antitrust
laws under the Noerr-Pennington doctrine, the litigation must
be undertaken with a good faith belief in its merit and for the
purpose of obtaining a favorable judgment. Id. at 472.
Application of the Grip-Pak standard to this case reveals
that Premier has failed to state a claim. In an attempt to
establish a claim based on the collection actions Premier's
(1) NECA, its officers, local NECA chapter officers
and Trustees of the NEIF have instituted actions of
law against plaintiff to enforce Article Six of the
National Agreement, including but limited to the
following actions of law against plaintiff. . . .
Complaint, ¶ 15(1). The complaint then cites the three state
court collection actions brought against Premier by some of the
defendants. Nowhere does Premier allege that these state court
actions were undertaken without a good faith belief in the
merits of the claims or without a purpose to win a favorable
judgment. In fact, it would be difficult for Premier to make
such an allegation — the gravamen of Premier's complaint is
that, by implementing Article Six, the defendants attempted to
get electrical contractors, who were not members of NECA, to
pay into the industry fund. It would make little sense to
contend on the one hand that defendants conspired to require
non-members of NECA to pay into the fund, and on the other hand
to argue that the defendants were unconcerned with the outcome
of the collection actions that were the means by which
defendants attempted to enforce Article Six.
However, Premier argues that Noerr-Pennington and its sham
exception are relevant only to determining whether particular
conduct is violative of the antitrust laws. Since it has
already been determined, the argument goes, that Article Six
violates Section 1 of the Sherman Act, the only issue is
whether the costs and fees incurred in defending the collection
actions constitute damages recoverable under the Clayton Act.
Here it seems that Premier is not claiming that the collection
actions violated the Sherman Act, but rather, that the costs of
defending those actions are merely damages which resulted from
defendants implementation of Article Six, which does violate
the Act. This argument is without merit.
Premier attempts to circumvent Noerr-Pennington and the sham
exception by labeling the collection actions antitrust damages
rather than antitrust violations. Yet Premier presents no
explanation of why this labeling makes any difference. In this
court's view, it does not matter whether the litigation is seen
as itself violative of the antitrust laws or as an outgrowth of
other acts which are violative of the antitrust laws. In either
instance, defendants' first amendment rights would be burdened
by imposing treble damages as a penalty for undertaking
litigation. Preservation of the first amendment interests which
underlie the Noerr-Pennington doctrine must require a showing
that the litigation falls within the sham exception, regardless
of whether the plaintiff alleges that the litigation is itself
an antitrust violation or that the costs of defending against
litigation are damages recoverable under the antitrust laws.
To support its argument, Premier has cited a string of
Seventh Circuit cases involving patent infringement suits. See,
e.g., Locklin v. Day Glo Color Corp., 429 F.2d 873 (7th Cir.
1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 582, 27 L.Ed.2d
632 (1971); Hazeltine Research, Inc. v. Zenith Radio Corp.,
388 F.2d 25 (7th Cir. 1967) aff'd in part and rev'd in part,
395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Dairy Foods,
Inc. v. Dairy Maid Products Co-operative, 297 F.2d 805 (7th
Cir. 1961). These cases hold that the cost of defending a
patent infringement claim can be recovered in a treble damage
antitrust action brought against the patentee. However, all of
these cases were decided before the California Motor Transport
decision, which first applied Noerr-Pennington to litigation,
and which decision finally explained that the Noerr-Pennington
doctrine is specifically based on the first amendment. As one
commentator has suggested, to the extent any of these patent
cases can be seen as sanctioning damage awards for litigation
without a showing of sham, their continued validity is doubtful
after California Motor Transport. See, Fischel, Antitrust
Liability for Attempts to Influence Government Action: The
Basis and Limits of the Noerr-Pennington Doctrine, 45
U.Chi.L.Rev. 80, 111-114 (1977).*fn5
Accordingly, since Premier has made no allegations that the
collection actions fall within the sham exception to the
Noerr-Pennington doctrine, Premier's attempt to recover for its
costs and attorney's fees in defending those actions fails to
state a claim. Of course, the court recognizes that dismissal
of a claim under Rule 12(b)(6) is proper only if "it appears
beyond doubt that plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80
(1957). However, this court agrees with that line of cases
which holds that it is appropriate to dismiss a claim, such as
Premiers, on a 12(b)(6) motion, if the complaint does not
adequately allege the elements of the sham litigation
exception. Preliminary dismissal is necessary because of the
chilling effect which a treble damage claim can have on a
defendants' exercise of his or her first amendment rights. See
e.g. Hydro-Tech Corp. v. Sundstrand Corp., 673 F.2d 1171, 1177,
n. 8 (10th Cir. 1982) ("when the discovery burdens of antitrust
cases are combined with the threat of treble damages, the
prospect of defending an antitrust action can become a most
potent weapon to deter the exercise of First Amendment
rights"); Franchise Realty Interstate Corp. v. San Francisco
Local Joint Executive Bd. of Culinary Workers, 542 F.2d 1076,
1083 (9th Cir. 1976), cert. denied, 430 U.S. 940, 97 S.Ct.
1571, 51 L.Ed.2d 787 (1977) ("the danger that the mere pendency
of the action will chill the exercise of First Amendment rights
requires more specific allegations than would otherwise be
required"). In sum, Premier's claim for its costs and
attorney's fees incurred in defending the three collection
actions is dismissed pursuant to Rule 12(b)(6) Fed.R.Civ.P.
MOTIONS OF LOCAL UNION 461 AND LOCAL UNION 176
Defendant Local Union 461 has moved to dismiss the complaint,
on the basis of failure to state a claim. In the alternative,
Local 461 asks for summary judgment in its favor. In support of
its motion this defendant has submitted the affidavit of John
Marion, business manager and secretary of Local 461, as well as
Local 461's Answers to Interrogatories. Since the court has
considered these submissions, which are outside the pleadings,
the motion will be treated as one for summary judgment.
Briefly, John Marion's affidavit states that Local 461 never
engaged in the conduct of which it is accused in the sections
of the complaint relevant to it.*fn6 In response,
Premier does not dispute the facts as stated in John Marion's
affidavit. Nor does Premier come forward with any arguments or
evidence to suggest that a genuine issue of fact exists as to
Local 461's alleged involvement in the conspiracy to violate the
antitrust laws. Rather, Premier merely states that without
discovery, it cannot present by affidavit the facts necessary to
oppose the facts as stated by John Marion. Consequently, Premier
argues, the court should refuse to consider Local 461's motion
for summary judgment until other depositions have been taken and
other discovery has been had on these issues. The court finds
Premier's argument unpersuasive.
Rule 56(f) Fed.R.Civ.P. states that a court may refuse to grant
summary judgment if the party opposing the motion presents
affidavits stating why he cannot present by affidavit facts
essential to justify his opposition. If the court finds the
stated reasons sufficient, the court may order a continuance of
the motion to permit affidavits to be obtained, or depositions to
be taken, or other discovery to be had. See 6 J. Moore & J.
Wicker, Moore's Federal Practice, ¶ 56.24 (2d ed. 1982).
Apparently, Premier attempts to invoke the court's discretion
under Rule 56(f), even though plaintiff's request is stated in
its memorandum in opposition to the motion, rather than by
affidavit as required by the Rule.
The court will not rest its decision of this motion on
Premier's technical failure to properly invoke Rule 56(f).
Premier's request would still be inadequate even if it were
stated in the form of an affidavit. The court notes that
Premier's response to Local 461's motion was filed May 15, 1984,
more than three and a half years after Premier filed the first
complaint in this action. Premier gives no reasons why it has
been unable to conduct sufficient discovery in that three and a
half years. Moreover, it has now been more than a year since the
Local's motion was fully briefed, yet Premier has made no attempt
to file any affidavit to supplement its May 15, 1984, response to
the Local's motion. It should also be pointed out that in
Premier's status report filed on July 25, 1985, as a result of
this court's order, no mention is made of any additional
discovery necessary to respond to Local 461's motion. Premier
seems content to rest its opposition to the motion on the mere
recitation of the language of Rule 56(f) without setting forth
any facts upon which the court can conclude that plaintiff has
not had an adequate opportunity for discovery. This recitation is
not enough to invoke the court's discretion under Rule 56(f).
Since Local 461's submissions show that it has not been involved
in any way in the alleged antitrust conspiracy against Premier,
Local 461 is entitled to summary judgment in its favor and is
dismissed as a defendant from this lawsuit.
Next, Local Union 176 argues that it too is entitled to summary
judgment. In support of its motion, Local 176 contends that
plaintiff's only allegations of acts of Local 176 in furtherance
of the alleged conspiracy are that the Local refused, and
threatened to refuse, to refer electricians to plaintiff and
threatened to engage in slow downs and other forms of harassment.
See ¶ 15(n) of Second Amended Complaint. Local 176 points to the
affidavit of Michael Hughes, submitted by Premier in support of a
motion for preliminary injunction brought by Premier on February
24, 1981. Attached to the Hughes affidavit is a copy of an
opinion issued by the Appellate Court of Illinois, Third District
(1980), Colgan v.
Rae-Ann Electric Co., et al., 91 Ill. App.3d 386, 47 Ill.Dec. 227,
414 N.E.2d 1343 (1980) (consolidated). Local 176 further argues
that, in the Colgan decision, the Illinois Appellate Court ruled
that Local 176 had not engaged in any of the acts alleged in ¶
15(n) of the plaintiff's Complaint.
Premier responds that the allegations in Complaint ¶ 15(n) are
not the only acts of which Local 176 is accused. The court notes
that ¶ 15(h)(i) and (m) are also directed at the local union
defendants, including Local 176. These paragraphs allege acts
other than those in ¶ 15(n). Unlike Local 461, Local 176 has not
presented evidence to show that it has not engaged in the acts
complained of in the other subparagraphs of the complaint.
Therefore, even if Local 176 has not engaged in the conduct
described in ¶ 15(n), it has not addressed the other relevant
allegations of Premier's complaint and therefore cannot receive
summary judgment in its favor.
In summary, for the reasons stated above the court's ruling is
(1) Premier's motion for summary judgment based on collateral
estoppel is granted; defendants are barred from relitigating the
issue of whether Article Six of the National Agreement is a per
se violation of Section 1 of the Sherman Act;
(2) the motions of defendants' IBEW, NECA and Local Union 701
to strike Premier's request for injunctive and declarative relief
is granted; these defendants' motion to strike the general claim
for damages, however, is denied;
(3) the motion to dismiss the claim for attorney's fees and
costs incurred in defense of the collection actions is granted;
(4) the motion of Local Union 461 for summary judgment is
granted; Local 461 is dismissed from this action;
(5) Local Union 176's motion for summary judgment is denied.