United States District Court, N.D. Illinois, Eastern Division
Ameristar Casino East Chicago, LLC, Michael Pegoraro, James Malecky, Lisa Jung, and Monir David, Plaintiffs,
UNITE HERE Local 1, Defendant.
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge
UNITE HERE Local 1 began boycotting plaintiff Ameristar
Casino East Chicago, LLC, in response to a labor dispute. The
other plaintiffs-Michael Pegoraro, James Malecky, Lisa Jung,
and Monir David-are customers of the casino. All plaintiffs
bring claims against Local 1 for secondary boycott activity
under 29 U.S.C. §§ 158(b)(4), 187, and the
individual plaintiffs also bring state-law claims for
invasion of privacy. Local 1 moves to dismiss, arguing that
the plaintiffs fail to state a claim for secondary boycott
activity or for invasion of privacy, and that the invasion of
privacy claims are preempted. For the following reasons, the
motion to dismiss is granted in part as to the invasion of
privacy claims and as to David's secondary boycott claim.
The motion is denied as to the remaining plaintiffs'
secondary boycott claims.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain factual
allegations that plausibly suggest a right to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The
court must construe all factual allegations as true and draw
all reasonable inferences in the plaintiffs' favor, but
the court need not accept legal conclusions or conclusory
allegations. Virnich v. Vorwald, 664 F.3d 206, 212
(2011) (citing Iqbal, 556 U.S. at 680-82). Local 1
argues that heightened pleading requirements should be
imposed here because of the risks of burdensome discovery and
of litigation chilling the union's First Amendment
rights. But Local 1 cites no authority imposing a heightened
pleading requirement in secondary boycott cases. Because
secondary boycott prohibitions are directed only at coercive
conduct and do not restrict First Amendment liberties,
see generally Edward J. DeBartolo Corp. v. Florida Gulf
Coast Bldg. & Const. Trades Council, 485 U.S. 568
(1988), and even constitutional claims are subject to the
usual pleading requirements of Rule 8, see Johnson v.
City of Shelby, 135 S.Ct. 346, 347 (2014), no heightened
pleading requirement applies here.
considering a motion to dismiss, the court may consider
“documents that are attached to the complaint,
documents that are central to the complaint and are referred
to in it, and information that is properly subject to
judicial notice.” Williamson v. Curran, 714
F.3d 432, 436 (7th Cir. 2013). But when a defendant attaches
other documents to their motion to dismiss, “the court
must either convert the 12(b)(6) motion into a motion for
summary judgment under Rule 56 and proceed in accordance with
the latter rule, or exclude the documents attached to the
motion to dismiss and continue under Rule 12.”
Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir.
1998). Local 1 has attached to their motion to dismiss an
affidavit from their counsel, ,  which includes
exhibits represented to be the leaflets referred to in the
complaint, an unfair labor charge that Local 1 filed with the
National Labor Relations Board against Jung's restaurant,
a report from the Orland Park Police Department regarding
Local 1's visit to Jung's restaurant, an order of the
Lake County Superior Court of Indiana in Ameristar Casino
East Chicago, LLC v. UNITE HERE Local 1, Case No.
45D01-1504-PL-34, and a complaint and notice of hearing
issued by the NLRB to Ameristar. Although leaflets are
mentioned in the plaintiffs' complaint, and the NLRB
charge and police report might be public records which can be
considered on a motion to dismiss, Local 1 makes no argument
for the centrality of any of its exhibits to the issues in
this motion to dismiss. I decline to convert Local 1's
motion to dismiss into a motion for summary judgment, and do
not consider these documents.
operates a hotel and casino in East Chicago, Indiana. UNITE
HERE Local 1, which represents approximately 200 Ameristar
employees, began a boycott of Ameristar in March 2015 in
response to a labor dispute between Ameristar and Local 1.
Shortly thereafter, Ameristar began receiving complaints that
Local 1 was sending letters to Ameristar's customers and
calling their home and cell phones to solicit them to boycott
the casino. The following year, Local 1 began distributing
leaflets at the homes of Ameristar customers and their
neighbors, including plaintiffs Michael Pegoraro and Monir
David. The leaflets identify the customer by name, label them
as regulars of the casino, and ask the neighbors to join
Local 1's boycott of Ameristar. Ameristar customers have
asked Local 1 to stop distributing leaflets, sending letters
to their homes, and making phone calls, but Local 1 has
refused to do so.
distributed the leaflets describing Pegoraro and his wife as
regular customers of the casino within a one-block radius of
their home. Pegoraro claims that, since their distribution,
his reputation in the neighborhood has been diminished. His
neighbors and family members have asked if he has a gambling
problem, and a neighbor who was a customer of Pegoraro's
business has ceased doing business with him since the
leafleting commenced. After a few months, Local 1 also began
distributing these leaflets to the private residence of his
daughter and her neighbors.
also distributed leaflets about plaintiff James Malecky, a
customer of Ameristar and owner of an establishment called
the Rockin' Horse in Oak Forest, Illinois. The leaflets
were distributed at the office of the current mayor of Oak
Forest and at the home of a village alderman. On at least one
occasion, representatives of Local 1 entered the Rockin'
Horse and attempted to solicit Rockin' Horse's
customers to support the boycott of Ameristar. Another
Ameristar customer, Lisa Jung, owns a restaurant in Orland
Park, Illinois. In April 2016, representatives of the union
entered the restaurant at dinner time and began distributing
leaflets to the restaurant patrons. The leaflets identified
Jung, stated that she was a regular customer of Ameristar,
and stated that she did not support Local 1's boycott.
The union representatives refused to leave the premises until
Jung threatened to call the police. A month later,
representatives of Local 1 positioned themselves outside
Jung's restaurant entrance, approached patrons of the
restaurant, and distributed leaflets to the patrons. Local
1's representatives refused to cease their activities
until ordered to do so by the Orland Park police.
Representatives of Local 1 also entered a business in Chicago
owned by another (unnamed) Ameristar customer. The
representatives told employees that the owner could not give
them raises because the owner was a “big
gambler.” Representatives also called the business
owner's brother (on his home phone) to encourage him to
convince the business owner to support's boycott.
and the individual plaintiffs now sue Local 1, claiming that
the union's activities were intended to harass and
embarrass Ameristar's customers and their families.
plaintiffs allege that Local 1 has threatened and coerced
Ameristar customers to cease patronizing the casino and that
it has also threatened and coerced individuals and entities
in business relationships with Ameristar customers, with the
object of forcing them to cease doing business with Ameristar
customers. 29 U.S.C. § 158(b)(4) prohibits secondary
boycott activity, and 29 U.S.C. § 187(b) authorizes
private suits by “[w]hoever shall be injured in his
business or property by reason” of violations of §
158(b)(4). Local 1 argues that plaintiffs do not
allege any coercive conduct or damages but maintains that the
complaint merely describes the union's protected speech
urging a consumer boycott.