Pleadings is denied. Plaintiffs, however, may not rely on defendant Trades Council as a non-labor organization to remove any agreements it made with labor from the exemptions to the antitrust laws.
C. Summary Judgment
Defendant Local 150 brings this Motion for Summary Judgment and makes three arguments in support thereof. First, defendant argues that the statutory exemptions, set out at 15 U.S.C. § 17 and 29 U.S.C. §§ 52, 104, 105 and 113, apply to bar plaintiffs' claims. Second, Local 150 argues that a collective bargaining agreement existed between it and Imperial and, thus, plaintiffs' allegations are insufficient based on MARBA, 675 F.2d at 888-90, and 29 U.S.C. § 158(e). Lastly, defendant argues that the non-statutory exemption applies to the facts of this case to bar plaintiffs' claims. These arguments fail and defendant's Motion for Summary Judgment must be denied.
First, plaintiffs have alleged sufficiently specific allegations of a conspiracy between Local 150 and certain non-labor entities and individuals to render the statutory exemption inapplicable. See MARBA, 675 F.2d at 886 (recognizing exception to labor anti-trust exemption for agreement between labor and non-labor entity). In paragraphs 17i-n of the Corrected Fourth Amended Complaint, plaintiffs allege that Local 150 agreed with (1) employees and agents of A&B Crane Company to cease doing business at the Carol Stream job site, (2) Curtis Leafblad of Chicago Gypsum Floors to refrain from doing business with Imperial or work on any other job in DuPage County where non-union contractors were working, (3) Robert Zimmerman of Hoge, Warren & Zimmerman to not do business with Imperial, and (4) Arlis Roberts to not do business with Cleveland and Imperial. Corrected Fourth Amended Complaint, at pp. 15-17, P 17i-n. These allegations are sufficient to invoke the exception to the statutory exemption. Defendant Local 150 offers no other evidence in support of its argument. Therefore, this argument must fail.
Defendant's next argument similarly fails. Defendant argues that even if plaintiffs have alleged an agreement, the allegations are not sufficient to support a claim because any agreement was made pursuant to a collective bargaining agreement and plaintiffs have not alleged the five Pennington factors required to lift the exemption for collective bargaining agreements. See MARBA, 675 F.2d at 888-89 (setting forth the five requirements). However, plaintiffs do not need to make these allegations. Plaintiffs dispute that they were ever subject to a collective bargaining agreement with Local 150. In support of the existence of a collective bargaining agreement, Local 150 asserts that agents of Imperial sought such an agreement and entered into it on behalf of Imperial. Local 150's Brief in Support, at pp. 3-5. Plaintiffs dispute this and cite excerpts of deposition testimony of those parties Local 150 asserts were Imperial's agents. Plaintiffs' Response in Opposition, at pp. 1-5. This deposition testimony raises legitimate questions as to the authority of any purported agents and principals privy to the agreement and the effect of any such agreement. These genuine issues of material fact as to the existence of a collective bargaining agreement preclude a finding of summary judgment on this ground. See Imperial, 729 F. Supp. at 1215 (finding that there is a genuine issue of material fact as to whether Isom, the signatory to the agreement, "was capable of binding Imperial to a contract with Engineers Local 150").
Lastly, defendant's argument that the non-statutory exemption applies must fail. The non-statutory exemption to the anti-trust laws for labor agreements is based on national labor policy and depends mainly on whether the agreement "was a direct restraint on the business market, as opposed to an indirect restraint that would follow naturally from the elimination of competition over wages and working conditions." MARBA, 675 F.2d at 892 (citing Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 95 S. Ct. 1830, 44 L. Ed. 2d 418 (1975)). The Corrected Fourth Amended Complaint here alleges a direct restraint on the business market. In Connell, the Supreme Court found that the non-statutory exemption did not apply in a factually similar situation. Connell alleged that it was coerced by the defendant union into agreeing that it would only hire subcontractors which were parties to the union's multi-employer collective bargaining agreement. Connell, 421 U.S. at 619-20, 95 S. Ct. at 1833. The Supreme Court held that this agreement imposed a "direct restraint on the business market" and, thus, was not entitled to the non-statutory exemption. Connell, 421 U.S. at 625, 95 S. Ct. at 1836. The allegations here are very similar and also allege a direct restraint on the business market. As such, the non-statutory exemption argument does not support defendant's motion. Therefore, for all the foregoing reasons, defendant's Motion for Summary Judgment is denied.
D. Motion to Strike Insufficient Affirmative Defenses from Defendants' Answers
Plaintiffs Cleveland and Imperial move this court, pursuant to FED. R. CIV. P. 12(f), to strike the affirmative defenses set out in the defendants' Answers because they are "redundant" and "immaterial", and because they are not adequately pled under FED. R. CIV. P. 8(c) with specific factual allegations. Defendants Trades Council, Local 96 and Local 701 (hereinafter "Consolidated Defendants" for purposes of this motion) respond by arguing that plaintiffs' motion is untimely and disfavored, that granting the motion will not assist the court by narrowing the issues and, in any case, that their affirmative defenses are properly pleaded. Defendant Local 150 did not respond to the motion.
First, Rule 12(f) states that a motion to strike is to be made "within 20 days . . . or upon the court's own initiative at any time. . .". FED. R. CIV. P. 12(f). As such, we will not deny plaintiffs' motion as untimely. Next, defendants argue that motions to strike affirmative defenses for being redundant and immaterial are disfavored and should only be granted where no factual issues are raised or where they are clearly insufficient. Consolidated Defendants' Brief in Opposition, at p. 3 (citing Glenside West Corp. v. Exxon Co., USA, 761 F. Supp. 1100, 1114-15 (D.N.J. 1991)). We recognize that motions to strike defenses are generally disfavored. See Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989) ("Affirmative defenses will be stricken only when they are insufficient on the face of the pleadings. . . . Ordinarily, defenses will not be struck if they are sufficient as a matter of law or if they present questions of law or fact.") However, "the general rule that motions to strike are disfavored . . . [does not apply] where [granting the motion would] remove unnecessary clutter from the case." Heller, 883 F.2d at 1294. Thus, we must determine if the affirmative defenses add clutter or substance to this complex case. The following affirmative defenses will be stricken.
1. Lack of Factual Basis for a Conspiracy
This purported affirmative defense asserts that
The Plaintiffs' complaint fails to state a claim upon which relief can be granted since it lacks a factual basis for a conspiracy between the defendants and a non-labor entity.
This is not an affirmative defense which brings any substance to the litigation. Defendants have denied all substantive allegations made by plaintiffs in their Answers and have made this argument in numerous motions before this court. Judge Rovner, thus, has had prior occasion to rule on this argument and has held that it lacks merit. Therefore, it is ordered stricken.
2. Claim Splitting, Res Judicata and Estoppel
These defenses were ruled upon, against the defendants, in Judge Rovner's January, 1990 Order. Defendants argue, as part of their Answer that "this defense is raised in order to preserve such subjects for appeal." These defenses do not need to be raised again to be preserved for appeal. As such, they are stricken in order not to complicate the real remaining issues in the case.
3. Trades Council is a Labor Organization
As discussed above, we have held that defendant Trades Council is a labor organization for purposes of this case under 29 U.S.C. § 152(5). Therefore, this affirmative defense is stricken as moot.
4. Failure to State a Proper Cause of Action
Defendants argue here that "the complaint fails to state a proper cause of action for conspiracy as previously determined by this court [at] 729 F. Supp. at 1290-91." Consolidated Answer and Affirmative Defenses, at p. 15, P 18. This purported affirmative defense is stricken as cumulative, immaterial and misleading.
5. Failure to Comply with Rule 8(a)
Defendant Local 150 alone asserts this affirmative defense. It asserts:
Plaintiffs' allegations in Paragraphs 21 and 22 aforesaid contain references to allegations made in other pending litigation including, but not limited to Lowe Excavating Company v. IUOE, Local 150, case no. 88 CH 34 (Circuit Court, McHenry County). Such allegations fail to comply with Federal Rules of Civil Procedure, Rule 8(a), constitutes [sic] a basis for Imposition of sanctions pursuant to 28 U.S.C. Sec. 1927 and Federal Rules of Civil Procedure, Rule 11.
This is not an affirmative defense and fails to meet the pleading requirements of Rule 8(a) itself. See Heller, 883 F.2d at 1294 ("Affirmative defenses are pleadings and, therefore, are subject to all pleading requirements of the Federal Rules of Civil Procedure."). The court is directed to no authority disallowing references to allegations made in other litigation. Furthermore, arguing that some unidentified allegations fail to meet the standard of Rule 8(a) without any reasons offered does not itself meet the requirements of Rule 8(a). Finally, arguing improper pleading is the type of clutter which we believe does not belong as an affirmative defense even if well argued. It is, therefore, ordered stricken.
Therefore, Consolidated Defendants' affirmative defenses to the Corrected Fourth Amended Complaint numbered 3, 10, 16, 17 and 18, and Local 150's affirmative defenses to the Corrected Fourth Amended Complaint numbered 4, 10, 11 and 13 are ordered stricken.
For all the foregoing reasons, defendants' Motion to Dismiss Guy Cleveland as A Party Plaintiff, Renewed Motion for Partial Judgment on the Pleadings and Motion for Summary Judgment are denied. Plaintiffs' Motion to Strike Insufficient Affirmative Defenses is granted in part and denied in part. Defendant Local 150's affirmative defenses to the Corrected Fourth Amended Complaint numbered 4, 10, 11 and 13 are ordered stricken. The remaining defendants' affirmative defenses to the Corrected Fourth Amended Complaint numbered 3, 10, 16, 17 and 18 are ordered stricken.
Date: MAR 31 1993
JAMES H. ALESIA
United States District Judge