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FREIBURGER v. EMERY AIR CHARTER

June 1, 1992

WILLIAM P. FREIBURGER, ALFRED R. HEIKKINEN, JAMES A. McLAUGHRY, LARRY A. SLOCUM, and VINCE L. TERREL, Plaintiff,
v.
EMERY AIR CHARTER, INC., Defendant.



The opinion of the court was delivered by: PHILIP G. REINHARD

 Introduction

 William P. Freiburger, Alfred R. Heikkinen, James A. McLaughry, Larry A. Slocum, and Vince L. Terrel, plaintiffs, filed a five-count amended complaint against Emery Air Charter, Inc., defendant. Count I claims that plaintiffs were terminated for participating in union organizing activity in violation of the Railway Labor Act, 45 U.S.C. ยง 151(a)(2). Counts II through V are supplemental state claims. Count II alleges retaliatory discharge based on plaintiffs' union organizing activity. Count III is brought solely by McLaughry and alleges retaliatory discharge based on McLaughry's refusal to falsify Federal Aviation Administration (FAA) documents for defendant. Count IV is also brought solely by McLaughry and alleges breach of contract. Count V is brought solely by Freiburger and alleges defamation.

 Defendant has filed a motion to dismiss and to strike. The motion appears to be brought pursuant to both Fed.R.Civ.P. 12(b)(6) and Fed.R.Civ.P. 12(b)(1). Defendant contends that plaintiffs have failed to state a claim as to Counts II through V. Defendant also contends that this court lacks jurisdiction over Counts III through V. Defendant's motion to strike is directed at plaintiff's request for punitive damages and a demand for a jury trial in Count I.

 Facts

 Plaintiffs are all former employees of defendant. According to plaintiffs, no collective bargaining agreement existed between plaintiffs and defendant. On September 8, 1990, plaintiffs participated in efforts to elect the International Brotherhood of Teamsters as their collective bargaining representative. On January 25, 1991, defendant learned of plaintiffs' union activities and discharged plaintiffs.

 Plaintiff McLaughry also alleges that John C. Emery approached him and requested him to sign FAA documents certifying that he had performed certain training when he had, in fact, not performed such training. McLaughry alleges that his refusal to falsify the FAA records resulted in his termination.

 According to plaintiff McLaughry, on December 27, 1988, he entered into an employment contract with defendant. This employment agreement was to run indefinitely. On January 25, 1991, Emery told McLaughry that he was terminated as a result of economic problems.

 Plaintiff Freiburger also alleges that after he was terminated, he was offered employment with Crescent Aviation on July 15, 1991. On July 11, 1991, John Georgen, an agent of defendant, spoke with Jay Kiernan, the chief pilot of Crescent Aviation. Georgen told Kiernan that Freiburger was involved in a lawsuit with defendant involving unionizing defendant's employees and that "it was a mistake to hire him." On August 5, 1991, Georgen telephoned Kiernan and informed him that Freiburger would "most likely push a union on Crescent Aviation, that plaintiff [Freiburger] was a troublemaker and the main instigator in the lawsuit against [defendant], and that if he knew that . . . Kiernan was going to have hired the plaintiff [Freiburger] he would have called the Vice-President of Crescent Aviation William Schmid, to have overridden the poor decision to hire such a person."

 Contentions

 Defendant contends that Counts II through V should be dismissed for failure to state a cause of action pursuant to Fed.R.Civ.P. 12(b)(6). Defendant also contends that Count II is preempted by federal law. Defendant contends that Counts III through V, all supplemental state claims, should be dismissed for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) because these actions and the count which gives this court jurisdiction do not evolve from a common nucleus of operative facts. Finally, defendant contends that plaintiffs' request far punitive damages and a jury trial in Count I should be stricken.

 Plaintiffs contend that they have adequately stated a claim in Counts II through V. Plaintiffs also contend that this court has supplemental jurisdiction of Counts III through V because the actions involve a common nucleus of operative facts. Finally, plaintiffs contend that their requests for punitive damages and a jury trial are proper.

 Discussion

 A. 12(b)(1) Motion

 Defendant's motion to dismiss is based on Fed.R.Civ.P. 12(b)(6) and 12(b)(1). There are important distinctions between a motion to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). See Shockley v. Jones, 823 F.2d 1068, 1072-73 (7th Cir. 1987). Because Fed.R.Civ.P. 12(b)(1) challenges the jurisdiction of the court, it must be addressed first. See Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986).

 There are two types of challenges to jurisdiction which may be made: first, a facial attack that the allegations of jurisdiction in the pleadings are facially insufficient to demonstrate the existence of jurisdiction; and second, a factual attack challenging the truth of the jurisdictional facts plaintiff alleged in the pleadings. 2A Moore's Federal Practice P 12.07[2. - 1] at 12-46 -47. In the first type of jurisdictional challenge, the standard applied to a 12(b)(1) motion is similar to the standard applied to a 12(b)(6) motion, Brown v. Keystone Consolidated Industries, Inc., 680 F. Supp. 1212, 1215 (N.D. Ill. 1988); namely, the court must take all of plaintiff's allegations as true and must view them, along with all reasonable inferences therefrom, in the light most favorable to plaintiff, Orchard Hills Cooperative Apartments, Inc. v. Resolution Trust Corp., 779 F. Supp. 104, 106 (C.D.Ill. 1991); 2A Moore's Federal Practice P 12.07[2. - 1] at 12-46 -47. In the second type of jurisdictional challenge, the court may look beyond the face of the plaintiff's complaint to resolve the factual dispute, Rennie v. Garrett, 896 F.2d 1057, 1057-58 (7th Cir. 1990), and weigh the conflicting ...


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