On July 1, 1993 the Employer sold the Village Theatre to a successor within the meaning of the Agreement. The parties agree and stipulate that the Employer has failed to comply with the terms and conditions of the agreement by not informing the successor of the existence of the Agreement or requiring that the purchaser accept the obligations set forth in the Agreement. On July 9, 1993 the Employer repudiated the Agreement. Union 110 claims that it is entitled to damages resulting from loss of employment, wages, benefits and seniority by employees covered by the Agreement. Union 110 now has brought this action to collect these damages from the Employer.
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 to the amount in controversy or without regard to the citizenship of the parties.