United States District Court, N.D. Illinois, Eastern Division
LEN BOOGAARD and JOANNE BOOGAARD, Personal Representatives of the Estate of DEREK BOOGAARD, Deceased, Plaintiffs,
NATIONAL HOCKEY LEAGUE, NATIONAL HOCKEY LEAGUE BOARD OF GOVERNORS, and GARY B. BETTMAN, Defendants.
MEMORANDUM OPINION AND ORDER
personal representatives of Derek Boogaard's estate (for
ease of exposition, the court will treat Boogaard himself as
the plaintiff) brought this suit against the National Hockey
League and its Board of Governors and Commissioner
(collectively, “NHL”), alleging tort claims
connected with Boogaard's death. Docs. 1-1, 62. Earlier
in the case, the court denied Boogaard's motion to remand
the suit to state court. Docs. 37-38 (reported at 20
F.Supp.3d 650 (N.D. Ill. 2014)). After discovery, the court
granted summary judgment against Boogaard on all claims set
forth in the first amended complaint. Docs. 140-41 (reported
at 126 F.Supp.3d 1010 (N.D. Ill. 2015)). Now before the court
is Boogaard's motion for leave to file a second amended
complaint. Doc. 143. The motion is granted.
to the proposed second amended complaint, Boogaard played for
two NHL teams as an “Enforcer/Fighter, ” which
means that his principal job was to fight opposing players
during games. Doc. 145-1 at ¶¶ 2-3. During the
fights he suffered brain injuries, which eventually developed
into chronic traumatic encephalopathy, or “CTE, ”
a brain disorder characterized by deteriorating judgment,
inhibition, mood, reasoning, behavior, and impulse control.
Id. at ¶¶ 4-7. Boogaard routinely suffered
other painful injuries as well, and team doctors treated his
symptoms with opioids, a class of highly addictive pain
medications. Id. at ¶¶ 4, 119-122,
127-137. Boogaard became addicted to opioids, went to rehab,
relapsed, and went to rehab again. Id. at
¶¶ 138, 140, 156-160. When he was on weekend
release from his second stay in rehab, he took Percocet,
accidentally overdosed, and died. Id. at
¶¶ 164-165, 206. He was 28 years old. Id.
at ¶ 1.
first amended complaint set forth eight claims. Counts I and
II alleged that the NHL breached a duty to keep Boogaard safe
when it allowed team doctors to get him addicted to opioids.
Doc. 62 at ¶¶ 43-101. Counts III and IV alleged
that the NHL injured Boogaard by failing to manage his
addiction according to the terms of the NHL's
collectively bargained Substance Abuse and Behavioral Health
Program. Id. at ¶¶ 102-200; see
20 F.Supp.3d at 658 (holding that the Program was part of a
2005 collective bargaining agreement). Counts V and VI
alleged that the NHL breached a voluntarily assumed duty to
protect Boogaard from brain trauma. Doc. 62 at ¶¶
201-226. And Counts VII and VIII alleged that the NHL
breached a voluntarily assumed duty to keep Boogaard safe
when it allowed team doctors to inject him with Toradol, an
intramuscular analgesic that makes concussions more likely
and more dangerous. Id. at ¶¶ 227-267.
moved under Federal Rule of Civil Procedure 12(b)(6) to
dismiss the first amended complaint on the ground that its
claims were completely preempted by § 301 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C.
§ 185, in light of the fact that a collective bargaining
agreement (“CBA”) governed the relationship
between Boogaard and the NHL at all relevant times. Doc. 43.
The court applied Rule 12(d) to convert the NHL's Rule
12(b)(6) motion into a Rule 56 summary judgment motion. Doc.
58. Boogaard moved for leave to file a second amended
complaint while the summary judgment motion remained pending.
Doc. 130. The court granted summary judgment on the ground
that the first amended complaint's claims were completely
preempted by § 301 of the LMRA and that Boogaard §
301 claims-which is how his claims, having been completely
preempted, had to be characterized- were barred by the
applicable statute of limitations. 126 F.Supp.3d at 1016-27.
Boogaard then renewed his motion for leave to file a second
amended complaint. Doc. 143.
Rule 15(a)(2), leave to amend “shall be freely given
when justice so requires, ” but “leave is
inappropriate where there is undue delay, bad faith, dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, or futility of the amendment.” Villa v.
City of Chicago, 924 F.2d 629, 632 (7th Cir. 1991);
see also Gen. Elec. Capital Corp. v. Lease Resolution
Corp., 128 F.3d 1074, 1085 (7th Cir. 1997) (“Even
though Rule 15(a) provides that ‘leave shall be freely
given when justice so requires, ' a district court may
deny leave to amend for … futility. The opportunity to
amend a complaint is futile if the complaint, as amended,
would fail to state a claim upon which relief could be
granted.”) (citation and some internal quotation marks
omitted). The NHL argues that the proposed second amended
complaint would be futile because its claims, like the first
amended complaint's claims, are all completely preempted
by the LMRA and, as LMRA claims, are barred on limitations
grounds; the NHL makes no other futility argument. Doc. 152.
the complete preemption doctrine, “the pre-emptive
force of [a federal] statute … converts an ordinary
state common-law complaint into one stating a federal
claim.” Caterpillar Inc. v. Williams, 482 U.S.
386, 393 (1987) (internal quotation marks omitted).
“Once an area of state law has been completely
pre-empted, any claim purportedly based on that pre-empted
state law is considered, from its inception, a federal
claim.” Crosby v. Cooper B-Line, Inc., 725
F.3d 795, 800 (7th Cir. 2013) (internal quotation marks
omitted); see also Ne. Rural Elec. Membership Corp. v.
Wabash Valley Power Ass'n, 707 F.3d 883, 894 (7th
Cir. 2013). Section 301 of the LMRA completely preempts state
law claims “founded directly on rights created by
collective-bargaining agreements, and also claims
substantially dependent on analysis of a
collective-bargaining agreement.” Caterpillar,
482 U.S. at 394 (internal quotation marks omitted); see
also Nelson v. Stewart, 422 F.3d 463, 467-69 (7th Cir.
2005); In re Bentz Metal Prods. Co., 253 F.3d 283,
285-86 (7th Cir. 2001) (en banc). Preemption under § 301
“covers not only obvious disputes over labor contracts,
but also any claim masquerading as a state-law claim that
nevertheless is deemed ‘really' to be a claim under
a labor contract.” Crosby, 725 F.3d at 797.
court explained in earlier opinions, 20 F.Supp.3d at 653-58;
126 F.Supp.3d at 1016-25, the first amended complaint's
claims were completely preempted because resolving them would
have required the court to interpret the CBA. Counts III
through VIII alleged that the NHL voluntarily assumed a duty
to protect Boogaard and that it had breached that duty. The
scope of one person's voluntarily assumed duty to protect
another depends on the totality of the circumstances, which
in this case would have included contested interpretations of
the CBA. See LM ex rel. KM v. United States, 344
F.3d 695, 700 (7th Cir. 2003) (“[W]hether a voluntary
undertaking has been assumed is necessarily a fact-specific
inquiry.”); Bourgonje v. Machev, 841 N.E.2d
96, 114 ( Ill. App. 2005) (“[T]he existence and extent
of voluntary undertakings are to be analyzed on a
case-by-case basis.”). In particular, the scope of the
NHL's voluntarily assumed duty to Boogaard depends on
reasonable disputes concerning whether the CBA allowed the
NHL to unilaterally prohibit fighting, to prohibit team
doctors from administering Toradol, or to require team
doctors to follow certain procedures for diagnosing
concussions-rendering Counts III through VIII completely
preempted. 20 F.Supp.3d at 653-58; 126 F.Supp.3d at 1018-22.
Counts I and II, meanwhile, alleged that the NHL had breached
a freestanding duty to protect Boogaard from addiction.
Ordinarily, people are under no obligation to protect others
from harm unless they have a “special
relationship.” Domagala v. Rolland, 805 N.W.2d
14, 23 (Minn. 2011); accord Iseberg v. Gross, 879
N.E.2d 278, 284 (Ill. 2007). But whether the NHL had a
special relationship with Boogaard depends on the extent to
which the NHL exercised control over Boogaard's behavior
and safety, which in turn depends on contested
interpretations of the CBA-rendering Counts I and II
completely preempted as well. 126 F.Supp.3d at 1022-24.
proposed second amended complaint has twelve counts. Counts V
through XII are essentially identical to the first amended
complaint's eight counts, compare Doc. 145-1 at
¶¶ 119-256, with Doc. 62 at ¶¶
43-267, and are therefore completely preempted and
time-barred for the reasons set forth in the court's
earlier opinions. But Counts I through IV of the proposed
second amended complaint are new, and unlike the other eight
counts, they allege that the NHL actively harmed
Boogaard. Doc. 145-1 at ¶¶ 33-118. Every person has
a duty not to act unreasonably in a way that injures others;
the court need not interpret the CBA to determine the
existence or scope of that duty, and so claims based on the
breach of that duty are not preempted. 126 F.Supp.3d at
1024-25 (distinguishing three other decisions that
“involve[d] the [uncontroversial] duty not to
unreasonably harm other people” and that therefore did
not find LMRA preemption); see McPherson v. Tenn.
Football Inc., 2007 U.S. Dist. LEXIS 39595, at *22 (M.D.
Tenn. May 31, 2007) (holding that a claim against an NFL team
for injuries the plaintiff suffered when the team's
employee hit the plaintiff with a golf cart during a halftime
show was not completely preempted); Stringer v. Nat'l
Football League, 474 F.Supp.2d 894, 912-13 (S.D. Ohio
2007) (holding that a claim against the NFL for mandating the
use of dangerous equipment was not preempted); Brown v.
Nat'l Football League, 219 F.Supp.2d 372, 390
(S.D.N.Y. 2002) (remanding a claim against the NFL for
injuries the plaintiff suffered when a referee, an NFL
employee, hit the plaintiff in the eye with a heavy penalty
does not attempt to explain how claims alleging active
misdeeds would require interpretation of the CBA. Doc. 152 at
21-30. Instead, it argues that Counts I through IV of the
proposed second amended complaint are merely
“repackaged” versions of the other, preempted
claims. Id. at 21, 25. But that is not so. Counts I
and II allege that the NHL both failed to eliminate
violence in professional hockey and actively
promoted violence. The NHL is correct that those counts are
preempted to the extent they are based on allegations that
the NHL failed to eliminate violence, for the same reasons
that Counts V through XII are preempted. The court would need
to interpret the CBA to determine whether the NHL had a duty
to eliminate violence; for instance, it would be unlikely
that the NHL had such a duty if the CBA prohibited it from
eliminating violence. 126 F.Supp.3d at 1020-21. The NHL is
also correct that Counts I and II cannot proceed on a theory
that, once the NHL had put Boogaard at risk, it had a duty to
protect him from the risk. Doc. 152 at 24. Courts in both
Illinois and Minnesota have rejected the existence of such a
duty. See Domagala, 805 N.W.2d at 25-26 (noting that
the theory has “received heavy criticism from multiple
jurisdictions” and “declin[ing] at this time to
adopt” it “as a basis for imposing a duty of care
in a negligence claim”); Brewster v.
Rush-Presbyterian-St. Luke's Med. Ctr., 836 N.E.2d
635, 639 ( Ill. App. 2005) (rejecting the plaintiff's
request to apply Restatement (Second) of Torts § 321,
which codifies the discussed theory, on the grounds that it
“has been criticized for its vagueness and seemingly
limitless scope” and that the Supreme Court of Illinois
“has not adopted section 321 as an exception to the
general rule that one will not be liable to a third party
absent a special relationship”).
Counts I and II also allege that the NHL took several active
and unreasonable steps that ultimately harmed Boogaard.
Specifically, they allege that the NHL promoted on an
affiliated website an HBO documentary glorifying the
“Broad Street Bullies, ” a Philadelphia Flyers
team known for fighting; that it created promotional films
“that focus on the hardest hits that take place on the
ice”; that it displayed stories about enforcers and
on-ice fights on its website “on a nightly
basis”; that it produced on an affiliated TV network
“a weekly program segment called ‘Top 10 Hits of
the Week'”; and that it sponsored video games that
“includ[ed] fighting and vicious body checking.”
Doc. 145-1 at ¶ 57. Those actions, Counts I and II
allege, cultivated a “culture of violence” in the
NHL, which caused Boogaard to get into fights, which in turn
caused him to develop CTE and an addiction to opioids, which
in turn caused his death. Id. at ¶¶ 35,
69, 78. That theory of tort-that the NHL unreasonably harmed
Boogaard-is viable under Illinois and Minnesota law and not
preempted by the LMRA.
III and IV are similar. True, those counts include
allegations that the NHL failed to warn Boogaard of the risks
of concussions, and they would be preempted if they relied
only on those allegations. Id. at ¶¶ 89,
94, 97. But Counts III and IV also contain the seed of a
viable, non-preempted claim: that the NHL actively and
unreasonably harmed Boogaard by implicitly communicating that
head trauma is not dangerous. In particular, Counts III and
IV allege that the NHL made a show of “study[ing]
… repetitive concussive and/or sub-concussive brain
traumas amidst its player population, ” which caused
NHL players to “reasonably believe that the NHL's
findings would apprise them of any and all long-term
risks” of playing professional hockey. Id. at
¶¶ 81, 83, 86. It was not until after
Boogaard's death that the NHL reported its findings.
Id. at ¶ 90. Because the NHL had publicized
that it was studying the effects of brain trauma, Counts III
and IV allege, its silence on the issue implied that it had
found that the effects were minor. Id. at ¶ 89
(“By gratuitously conducting scientific research and
engaging in discussion of the long-term effects of brain
injuries sustained by NHL players, and by publicly
maintaining that its Concussion Program was thoroughly
analyzing concussion data, the NHL gave its players the false
impression that it was working on their behalf to keep them
informed and up-to-date on all medical and scientific
advancements related to repetitive head trauma.”).
Players, including Boogaard, allegedly relied on that
implication when they continued playing in a way that would
give them concussions. Id. at ¶ 95.
proposed second amended complaint is imperfect. Counts V
through XII reiterate claims that the court has already
dismissed, and Counts I through IV mix together different
kinds of allegations, some completely preempted by the LMRA
and some not. But federal courts use notice pleading, not
code pleading; the way a plaintiff separates allegations into
counts can be a useful organizational tool, but in the end
what matters is whether the complaint includes allegations
that, taken together, entitle the plaintiff to relief.
See Maddox v. Love, 655 F.3d 709, 719 (7th Cir.
2011) (“The problem, as we see it, is trying to
separate Maddox's claim for religious fellowship (the
subject of his grievance) into separate counts (Counts 2, 3,
and 4). The better approach is to examine the facts in the
while most of the claims in Boogaard's proposed second
amended complaint are preempted by the LMRA and time-barred,
a few are not, and the amendment accordingly is not futile.
Boogaard's motion for leave to amend is granted. Counts V
through XII are dismissed as completely preempted and barred
on limitations grounds, as are the above-referenced portions
of Counts I through IV. Defendants shall answer or otherwise
plead to the second amended complaint (other than the