The opinion of the court was delivered by: JAMES H. ALESIA
Before the court are four motions of the various parties: defendant International Union of Operating Engineers, Local 150's ("Local 150") Motion for Summary Judgment, defendants Laborers' International Union of North America, Local 96's ("Local 96"), International Brotherhood of Electrical Workers AFL-CIO, Local 701's ("Local 701") and DuPage County Building and Construction Trades Council's ("Trades Council") Renewed Motion for Partial Judgment on the Pleadings and Motion to Dismiss Guy Cleveland as A Party Plaintiff, and plaintiff Imperial Construction Management Corporation's ("Imperial") Motion to Strike Insufficient Affirmative Defenses from Defendants' Answers. Each will be discussed in turn.
In a January, 1990 Order, Judge Rovner, to whom this case was previously assigned, denied defendants' motion for dismissal or summary judgment on plaintiffs' Third Amended Complaint because disputed issues of material fact as to the purposes of defendants' picketing and the meaning of the March 25, 1985 agreement existed. The court also made clear that it could not find, as a matter of law, that the defendants were entitled to the benefit of the statutory and nonstatutory exemptions to the antitrust laws. Furthermore, the court held that although plaintiffs sufficiently pled an agreement between Imperial and the union defendants to avoid the statutory exemption, plaintiffs' general allegations of a conspiracy with non-labor entities could not stand in the absence of more specificity. Imperial, 729 F. Supp. at 1210-11 and 1217. Subsequently, plaintiffs filed their Corrected Fourth Amended Complaint in order to, among other things, plead their conspiracy allegations more specifically. All the defendants have answered this Corrected Fourth Amended Complaint and submitted Affirmative Defenses. It is the allegations asserted in this Complaint and these Answers to which the present motions are directed.
A. Motion to Dismiss Guy Cleveland as A Party Plaintiff
In this motion, defendants seek to have Guy Cleveland ("Cleveland") dismissed as a party plaintiff pursuant to FED. R. CIV. P. 12(b)(6). Defendants argue that he lacks standing under 15 U.S.C. § 15 because he failed to allege that he sustained damages distinct from those suffered by Imperial, of which Cleveland is the sole shareholder. Cleveland disputes this, saying he is a proper party to sue under the antitrust laws and that he has alleged personal injury distinct from any damages borne by Imperial. Because defendants have not shown that it is beyond doubt that Cleveland can prove no set of facts in support of his claim which would entitle him to relief, we will deny defendants' motion. See Cruz v. Beto, 405 U.S. 319, 322 (1972); Rothner v. City of Chicago, 929 F.2d 297, 302 (7th Cir. 1991).
In the Corrected Fourth Amended Complaint, Cleveland makes the following allegations with respect to injury to himself as distinct from Imperial:
Plaintiff Guy Cleveland, at all material times herein, was an independent and sole owner of Imperial and engaged in construction consultant work and was engaged in commerce and an industry affecting commerce within the meaning of Sections 2 and 7 of the Sherman Act (15 U.S.C. §§ 2, 7).
In return for die removal of all present and future pickers [sic] from the immediate area of the Stratford Inn, Carol Stream, Illinois, I, Guy Cleveland, agree to use only labor that is covered by a signed agreement with an AFL-CIO affiliated Local Union on all future building projects in DuPage County, Illinois. The buildings now in place, this date, will be completed with any labor Mr. Guy Cleveland, of the Imperial Construction Company desires.
Imperial and Guy Cleveland, plaintiffs have suffered and continue to suffer substantial damages to their business and property in an amount in excess of $ 600,000 in lost contract opportunities for other building projects in and about DuPage County, Illinois . . .
Corrected Fourth Amended Complaint, at pp. 3, 17 and 34, PP 4, 17m-n, and 43.
In support of its position, defendants argue that any picketing activity was directed at Imperial and not Cleveland and that, in any case, injury to a stockholder or executive is too remote to support an anti-trust action. Defendants' Motion to Dismiss Guy Cleveland, at pp. 2-3 (citing Southwest Suburban Bd. of Realtors, Inc. v. Beverly Area Planning Ass'n, 830 F.2d 1374, 1378 (7th Cir. 1987); Loeb v. Eastman Kodak Co., 183 F. 704, 709 (3d Cir. 1910); In re Industrial Gas Antitrust Litig., 681 F.2d 514, 519 (7th Cir. 1982); National Indep. Theatre Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 608 (11th Cir. 1984); and Reibert v. Atlantic Richfield Co., 471 F.2d 727, 730-31 (10th Cir. 1973)). Cleveland responds that, while these cases represent the law of anti-trust standing, they are inapplicable because his anti-trust injury was direct and not sustained derivatively through Imperial.
He relies mainly on the agreement of March 25, 1985 which, he argues, shows "the market restraint in DuPage County in two parts, one imposed upon Cleveland and one upon Imperial, with Cleveland signing as an undesignated agent." Plaintiff's Response, at pp. 2-3. Cleveland further argues that the injury provision of the Sherman Act, 15 U.S.C. § 15(a), is interpreted broadly and that the Supreme Court, in Associated General Contractors, Inc. v. California State Council of Carpenters, 459 U.S. 519 (1983), set out the test for anti-trust standing which favors the plaintiff.
Under Associated General and its progeny, the factors relevant in determining standing under the ...