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Ameristar Casino East Chicago LLC v. Unite Here Local 1

United States District Court, N.D. Illinois, Eastern Division

December 19, 2016

Ameristar Casino East Chicago, LLC, Michael Pegoraro, James Malecky, Lisa Jung, and Monir David, Plaintiffs,
UNITE HERE Local 1, Defendant.


          Manish S. Shah United States District Judge

         Defendant 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.

         I. Legal Standards

         To 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.

         In 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, [13], [1] 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.

         II. Background

         Ameristar 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.

         Local 1 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.

         Local 1 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.

         Ameristar 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.

         III. Analysis

         A. Secondary Boycott

         The 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).[2] 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.

         1. Coe ...

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