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MOTION PICTURE PROJECTIONISTS & VIDEO TECHNICIANS

February 11, 1994

MOTION PICTURE PROJECTIONISTS & VIDEO TECHNICIANS, LOCAL 110, I.A.T.S.E. AND M.P.M.O OF THE UNITED STATES AND CANADA, Plaintiff,
v.
FRED CORPORATION, d/b/a VILLAGE THEATRE, Defendant.


MAROVICH


The opinion of the court was delivered by: GEORGE M. MAROVICH

Plaintiff Motion Picture Projectionists & Video Technicians, Local 110, I.A.T.S.E and M.P.M.O. of the United States and Canada ("Union") is a voluntary unincorporated labor organization representing motion picture projectionists employed by certain motion picture theatre owners in Chicago and its suburbs. Defendant Fred Corporation, d/b/a the Village Theatre, ("Employer") is a corporation with its principal place of business in Chicago, Illinois. Local 110 filed a Complaint against Defendant under Section 301 of the Labor Management Relations Act, 29 U.S.C. ยง 185(a) seeking damages of an unknown amount for breach of contract. Defendant now moves this Court to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Should the Court grant jurisdiction, Defendant moves to dismiss the Complaint for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, this Court grants Defendant's motion to dismiss.

 FACTUAL BACKGROUND

 Local 110 and the Employer entered into a collective bargaining agreement ("Agreement") which covered projectionists employed at the Village Theatre from September 1, 1988 to August 31, 1992. The Agreement provides that it remains in effect from year to year unless either party gives written notice of termination sixty to ninety days before the Agreement's expiration. Neither party gave notice of termination prior to July 3, 1993 and thus, the Agreement was extended for the periods September 1, 1992 through August 31, 1993 and September 1, 1993 through August 31, 1994. The Agreement further provides that it is binding on the Employer, Union and their successors, and if the Employer transfers any of its interest in the theatre, the successor shall be advised of the acceptance and obligations of the Agreement and be bound by its terms.

 For the duration of the Agreement the Village Theatre employed one full-time permanent projectionist, John Taturka. Over a three year period, four additional part-time projectionists alternatively substituted for the full-time projectionist while he was on layoffs directed by the Union. While substituting for Mr. Taturka, the part-time projectionists performed the same work, at the same hours and location, on the same equipment and received the same pay and benefits as the full-time projectionist. These lay-offs averaged a total of six weeks per year to provide employment and earnings for the part-time projectionists. In 1992, one part-time projectionist worked a total of eight weeks.

 DISCUSSION

 I. MOTION TO DISMISS UNDER 12(b)(1)

 As a preliminary matter, the Court wishes to address the issue of the permissible scope of our inquiry in deciding a motion under Fed. R. Civ. P. 12(b)(1), as opposed to Fed. R. Civ. P. 12(b)(6). Plaintiff argues that the Court is limited to the factual allegations of the Complaint and that if the Court relies on the affidavit of Robert Taylor the motion should be treated as one for summary judgment pursuant to Fed. R. Civ. P. 12(b). Plaintiff, however, appears to ignore the fact that Defendant's motion is brought under both 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted.

 It is true that when considering a motion to dismiss the Court must accept the well-pleaded factual allegations of the complaint as true and interpret all reasonable inferences in favor of the plaintiff. See, e.g., Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993). However, these statements standing alone do not reflect the extent of plaintiff's burden when faced with a motion, such as the one here, that attacks the factual basis for jurisdiction under Fed. R. Civ. P. 12(b)(1). Under these circumstances, it is well-settled that once defendant questions jurisdiction, the plaintiff cannot rest on the pleadings. See, e.g., NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 293 (7th Cir. 1992), cert denied, 113 S. Ct. 2334 (1993); Schaefer v. Transportation Media, Inc., 859 F.2d 1251, 1253-54 (7th Cir. 1988). As the Seventh Circuit noted in Capital Leasing, "the district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether subject matter jurisdiction exists. 999 F.2d at 191 (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979); see also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936); Rennie v. Garrett, 896 F.2d 1057, 1057-58 (7th Cir. 1990).

 In the present situation, however, it is not necessary for the Court to rely on the affidavit of Robert Taylor attached to the motion to dismiss. Both parties agree in their respective pleadings that there was only one permanent employee and only disagree as to the status of the substitute employees. Thus, in evaluating whether to grant the motion to dismiss, the Court does not rely on this affidavit.

 Scope of the Court's Subject Matter Jurisdiction

 Plaintiff claims that this district court has subject matter jurisdiction predicted on Section 301 of the 1947 Labor Management Relations Act. This section states, in part:

 
a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined by this chapter, or between any such labor organizations, may be brought in the district court of the United States having jurisdiction of the parties, without regard ...

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