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Smart v. International Brotherhood of Electrical Workers

December 3, 2007


The opinion of the court was delivered by: Herndon, Chief Judge



Before the Court are two separate Motions to Dismiss: one filed by defendants Christopher Grant and Schuchat, Cook & Werner ("Schuchat"), the other filed by defendant International Brotherhood of Electrical Workers, Local 702 ("IBEW 702") (Docs. 13 &15, respectively). Plaintiff Ronald Smart d/b/a Paschall Electric ("Smart" or "Paschall Electric") has filed a single Response (Doc. 19), addressing both Motions. Plaintiff brings a three-count Complaint (Doc. 1): Count I against IBEW 702 for violation of the Illinois Antitrust Act, 740 ILL.COMP.STAT. 10/2; Count II against all Defendants for unwarranted prosecution; and Count III against defendants Grant and Schuchat, Cook & Werner for legal malpractice.

Because the Court finds Defendants' grounds for dismissal to be meritorious, it will grant the Motions for reasons discussed in this Order.


Plaintiff, operating as a sole proprietor, does business as Paschall Electric (Doc. 1, ¶ 1). Plaintiff alleges that on or about January 20, 2003, he submitted a proposal to do electrical work for John Stoecklin, at his place of business known as "Extreme Sports," located in Marion, Illinois (Id. at ¶¶ 6-7). Barnett Electric submitted a bid for the same job, estimating its costs at approximately $4,500.00 more than Plaintiff's (Id. at ¶ 9). Stoecklin accepted Plaintiff's bid (Id. at ¶ 8). Plaintiff further alleges that defendant IBEW 702 contacted Stoecklin and told him they would shut down the project if he used Plaintiff, a non union electrician, rather than a union electrician (Id. at ¶ 10). Additionally, Plaintiff alleges that IBEW 702 told Stoecklin that Ameren CIPS would not provide power hook up to his place of business if he continued to use Plaintiff (Id. at ¶ 11). Thus, Plaintiff complains that due to IBEW 702's alleged threats and coercion, Plaintiff lost the bid job and Stoecklin thereafter hired Barnett Electric to do the job instead (although Barnett was only paid the amount of Plaintiff's bid) (Id. at ¶¶ 11-14).

Several years earlier, in July 1998, Plaintiff executed a Letter of Assent, which authorized the Southern Division, Illinois Chapter of the National Electrical Contractor's Association ("NECA") to act as Plaintiff's collective bargaining representative (Doc. 1, Ex. D), thereby agreeing to comply with and be bound by all of the provisions of the current and subsequent approved labor agreements between NECA and IBEW 702. Plaintiff allegedly withdrew his membership with the Union (NECA and IBEW 702), in accordance with the Letter of Assent (Doc. 1, ¶ 17, Ex. D). Plaintiff wrote two letters to NECA, one dated March 1, 1999, and the other dated March 9, 1999, informing the Union of his intent to terminate his agreement with NECA and IBEW 702 and to withdraw his pension monies, as did his only employee, Robert D. Thompson (Id. at ¶¶ 17-18, Exs. E & G). Additionally, Plaintiff cancelled his membership to NECA (Id. at ¶ 19). Apparently, Plaintiff believes he properly complied with the membership termination procedure. However, Defendants state in their Motions that although Plaintiff ceased to pay the fringe benefit contributions after giving his membership termination notice, IBEW 702 informed Plaintiff that "he could not unilaterally cancel the agreement" (Doc. 14, p. 2; see also Doc. 1, Ex. J). Defendant Grant, an attorney employed by Schuchat, wrote a letter, dated March 6, 2003, to Timothy Akbar of the Equal Employment Opportunity Commission ("EEOC"), in response to a charge Plaintiff filed with the EEOC against IBEW 702 (Doc. 1, Ex. J). Grant explained that although Plaintiff believed he could terminate his membership contract with NECA at any time, the current contract did not expire until August 31, 2002 (Id.). Grant further stated in the letter that Plaintiff "gave up his membership in the Union in 1999" (Id.).

In fact, IBEW 702 had previously filed a grievance against Plaintiff seeking remedy for Plaintiff's alleged breach of the collective bargaining agreements, for his failure to pay working dues and fringe benefit contributions after March 1999. Plaintiff was found guilty of not paying fringe benefits by the Joint Labor Management Grievance Committee and an award was issued in IBEW 702's favor on September 2, 1999 (Id.). According to Defendants, this decision is what prompted Plaintiff to file a charge with the EEOC (Id.). His EEOC charge was followed by a federal lawsuit against IBEW 702, stating a claim of race discrimination under Title VII and Section 1981 and also seeking to set aside the arbitration award (Id.). See Smart v. Internat'l Brotherhood of Electrical Workers, Local 702, Case No. 99-cv-956-DRH (S.D. Ill.) (Doc. 48). IBEW 702 counterclaimed to enforce the arbitration award. Summary judgment was granted in favor of IBEW 702; this decision was affirmed by the Seventh Circuit on appeal. See Smart v. Internat'l Brotherhood of Electrical Workers, Local 702, 315 F.3d 721 (7th Cir. 2002).

IBEW 702 and various IBEW-NECA benefit funds filed suit in federal court to collect Plaintiff's unpaid benefits. See Roan v. Smart, Case No. 03-cv-4065-DRH. Ultimately, a partial default judgment was entered against Plaintiff as he failed to file an answer or other responsive pleading (Case No. 03-4065, Docs. 16 & 17). Although Plaintiff subsequently filed a Rule 55(c) Motion for Relief from Default Judgment and a further Rule 60(b) Motion to Set Aside Judgment, the Court denied both motions, finding no evidence of good cause to vacate the default (Case No. 03-4065, Docs. 15 & 28). On April 26, 2004, the Court granted IBEW 702 a full default judgment against Plaintiff for unpaid benefit contributions, interest, attorneys' fees and costs (Case No. 03-4065, Doc. 31). Thereafter, on May 14, 2004, Plaintiff filed for Chapter 13 bankruptcy. See In re Smart, Case No. 04-bk-41142 (S.D. Ill.).


Although there are two separate Rule 12(b)(6) Motions to Dismiss, the Court will address them together in a single Order, as many of the issues are similar. In their Motion, defendants Grant and Schuchat, Cook & Werner ("Schuchat") move for dismissal of Plaintiff's claims against them, arguing that his claims for unwarranted prosecution and legal malpractice fail as a matter of law and also that he is barred by the doctrine of judicial estoppel from bringing suit for failure to list his causes of action as assets in his bankruptcy petition (Doc. 14). Defendant IBEW 702 moves for dismissal of Plaintiff's claims against it, arguing that Plaintiff's claims for violation of the Illinois State Antitrust Act and unwarranted prosecution are completely preempted by the National Labor Relations Act ("NLRA") (Doc. 16). Further, IBEW 702 also argues Plaintiff's claim of unwarranted prosecution fails as a matter of law and is barred by the doctrine of judicial estoppel (Id.).

A. Motion to Dismiss

Previously, when ruling on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the district court assumed as true all facts well-pled plus the reasonable inferences therefrom and construes them in the light most favorable to the plaintiff. Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) Dist. 207, 29 F.3d 1149, 1151 (7th Cir. 1994)). The question was whether, under those assumptions, the plaintiff would have a right to legal relief. Id. This standard was articulated as such:

[U]nder "simplified notice pleading," . . . the allegations of the complaint should be liberally construed, and the "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of ...

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