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SCHNABEL v. BUILDING & CONSTR. TRADES COUNCIL OF P

April 13, 1983

F. Carl SCHNABEL, Joseph William Curtin, Ronald Hunsicker, and Schnabel Associates, Inc.,
v.
BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO, et al.



The opinion of the court was delivered by: MCGLYNN

 McGLYNN, District Judge.

 On May 21, 1982, plaintiffs, Schnabel Associates, Inc. ("SA"), F. Carl Schnabel, President of SA, Joseph William Curtin, a construction worker for SA and Ronald Hunsicker, a construction manager for SA (collectively referred to as the "individual plaintiffs"), filed a ten count complaint against the defendants, Building & Construction Trades Council of Philadelphia and Vicinity, AFL-CIO ("the Council"), Local 542, International Union of Operating Engineers, Local 921, International Brotherhood of Painters and Allied Trades, Local Union 654, International Brotherhood of Electrical Workers, Metropolitan District Council of Philadelphia, United Brotherhood of Carpenters and Joiners of America (collectively referred to as the "union defendants"), Ralph Williams, former Business Manager of the Council, Charles Priscopo, a delegate to the Council and Business Agent of Local 542, Edward E. McClintock, Business Representative and Financial Secretary of Local 921, Hugh M. Snow, Business Manager of Local 654, Earl Henninger, Business Representative of Carpenters and various John Does and Richard Roes (collectively referred to as the "individual defendants"). The complaint states that since around November 4, 1981 the defendants have engaged in unlawful picketing and other illegal and at times violent conduct *fn1" at four job sites at which SA is an open shop general contractor in order to induce subcontractors, suppliers, construction owners and users from doing business with SA. In count one, SA avers that the behavior of the Council and the union defendants violates § 8(b)(4) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(b)(4), and § 303 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 187. Part of the recovery SA seeks in this count is an award of punitive damages and attorneys' fees. Count two states that the defendants' behavior constitutes a violation of the Civil Rights Act of 1871, 42 U.S.C. §§ 1985(3) & 1986 (also known as the "Ku Klux Klan Act") because it has the intended purpose and effect of depriving plaintiffs, who are persons with no affiliation with organized labor, of equal protection of the law, specifically the right to freely travel and associate with each other in the pursuit of their employment relations and the right guaranteed under § 7 of the NLRA, 29 U.S.C. § 157, to refuse to associate with a labor organization. In count three, SA asserts that the defendants and other co-conspirators have violated sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2. Similarly in count four SA contends that the defendants themselves have undertaken actions proscribed by these antitrust statutes. Lastly, counts five through ten allege various state law causes of action. *fn2"

 Defendants have moved to dismiss count one as to all the defendants but the Council and counts two through ten in their entirety. Regarding count one, defendants assert that the complaint fails to state a claim upon which relief can be granted against the union defendants because it fails to contain enough factual allegations to pass muster even under the liberal notice pleading required by the federal rules. *fn3" Defendants also ask that SA's requests for punitive damages and attorneys' fees be stricken. As to count two, defendants contend that the plaintiffs have again failed to plead with specificity, that the plaintiffs do not belong to a class of persons targeted for protection by § 1985(3) and that plaintiffs cannot rely upon violations of § 303 as a basis for recovery under § 1985(3). Defendants further contend that having failed to plead a cause of action under § 1985, plaintiffs have not stated one under § 1986. Concerning SA's antitrust counts, defendants again assert that they lack the requisite specificity under the federal pleading rules. They also argue that these counts as pled do not invoke jurisdiction under the Sherman Act and do not survive the exemptions afforded organized labor from the antitrust laws. Defendants also assert that plaintiffs have not adequately pled any causes of action against the individual defendants because they have not properly pled any federal causes of action against them. Lastly, defendants contend that counts five through ten do not set forth enough detail to state causes of action against the Council and the union defendants.

 I will address each one of these arguments in turn. Before addressing the merits of the motion, however, there is a threshold issue I must resolve. After the defendants filed their motion to dismiss, plaintiffs filed an amended complaint along with their reply to the motion. Plaintiffs rely in part on this amended complaint in their reply. Some of the defendants assert the plaintiffs were not free to file the amended complaint without leave of court. Therefore, they conclude that it is not properly before me for consideration.

 Rule 15(a) of the Federal Rules of Civil Procedure provides that "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served. . . ." Rule 7(a) defines pleadings as "a complaint and an answer; a reply to a counterclaim . . .; an answer to a counterclaim . . .; a third-party complaint . . .; and a third-party answer. . . ." By interpreting these two rules together, it is almost universally held that a motion to dismiss does not constitute a responsive pleading which terminates a plaintiff's right to amend as a matter of course. See 6 C. Wright & A. Miller, Federal Practice and Procedure § 1483 (1971 & Supp.1982); 3 Moore's Federal Practice para. 15.07[2] (1982 & Supp. 1982-83); Kelly v. Delaware River Joint Comm'n, 187 F.2d 93 (3d Cir.), cert. denied, 342 U.S. 812, 72 S. Ct. 25, 96 L. Ed. 614 (1951). Cf. Neifeld v. Steinberg, 438 F.2d 423, 425 n. 3 (3d Cir.1971) (motion to strike defenses not a responsive pleading). See also Drennon v. Philadelphia General Hospital, 428 F. Supp. 809 (E.D.Pa.1977); Bates v. Western Electric, 420 F. Supp. 521, 524 n. 1 (E.D.Pa.1976). Thus plaintiffs' amended complaint is properly before me.

 In evaluating the merits of defendants' motion, I must accept as true the well-pleaded allegations of the amended complaint and construe them in the light most favorable to the plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). It is well-established that a complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) (footnote omitted). With these guidelines in mind, I now turn to the substance of defendants' motion.

 COUNT ONE

 The role a complaint plays in federal civil practice is a limited one:

 
It is not necessary to plead evidence, nor is it necessary to plead facts upon which the claim is based. "To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."

 Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir.1977), cert. denied, 434 U.S. 1086, 98 S. Ct. 1280, 55 L. Ed. 2d 791 (1978), quoting Conley v. Gibson, 355 U.S. at 47, 78 S. Ct. at 103. *fn4" See Fed.R.Civ.P. 8(a). Despite this liberal interpretation, defendants nonetheless assert that count one fails to state a cause of action against the union defendants. Defendants' assertion must fail.

 Count one more than adequately gives these defendants fair notice of SA's claim under § 303: *fn5"

 
24. Beginning on or about November 4, 1981, and continuing thereafter to the present time, Defendant Council, acting for itself and also acting through or on behalf of Defendants Local 542, Local 921, Local 654 and Carpenters, and each and all of those Defendants, acting in whole or in part through or under the direction of their agents, including the individual Defendants Williams, Gillespie, Priscopo, McClintock, Snow, Henninger and others, have engaged in picketing and related activities at all entrances and exits to the above-identified construction project job sites, both while Plaintiff SA has been engaged in operations thereon and at times when it has not been so engaged.
 
25. The aforesaid picketing and related activities of Defendants Council, Local 542, Local 921, Local 654 and Carpenters has taken place at all entrances and exits to the above-identified construction project job sites, both while Plaintiff SA's subcontractors have been engaged in operations thereon, and at times when they have not been so engaged.
 
* * *
 
27. At various times since November 4, 1981, and continuing, the enumerated Defendants have engaged in conduct, both at the aforesaid job sites and at other places removed therefrom, whereby they have, both successfully and unsuccessfully, by both direct and indirect means, sought to force, compel or otherwise induce other persons, including but not limited to actual and potential subcontractors, suppliers, and construction owners and users, from doing business with, or from continuing to do business with, Plaintiff SA.
 
28. An object of the aforesaid picketing and related activities of Defendants Council Local 542, Local 921, Local 654 and Carpenters has been to force Plaintiff SA and certain suppliers to cease or refrain from doing business with Plaintiff SA's subcontractors.
 
29. By engaging in the aforesaid conduct and activities, Defendants Council, Local 542, Local 921, Local 654 and Carpenters have also continuously violated the proscriptions of § 8(b)(4) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 157 [158](b)(4) and of § 303 of the LMRA, 29 U.S.C. § 187. The said conduct and activities of the enumerated Defendants have had the intended and actual effect of disrupting business relationships between Plaintiff SA and various of its subcontractors, suppliers and other third parties with whom it has done business or has sought to do business.
 
30. The aforesaid conduct and activities engaged in by the Defendant Council and by the other Defendant labor organizations in violation of § 8(b)(4) of the NLRA continued long after December 15, 1981 in violation also of a Consent Decree, issued on that date by the United States District Court for the Eastern District of Pennsylvania. (Civil Action 81-4976).

 Amended Complaint paras. 24-25 & 27-30. See note 1 supra. I am satisfied that these paragraphs in count one give the union defendants adequate notice of SA's claims against them.

 Defendants cite numerous cases which stand for the proposition that local unions will be held liable only where there is evidence that their agents carried out the alleged unlawful acts. With this statement I have no quarrel. See C & K Coal Co. v. UMW, 704 F.2d 690, at 695 (3d Cir.1983). However defendants go further and state that the law requires the plaintiffs to plead facts " showing authorization, ratification or any other acts showing the creation of any agency relationship." Defendants' Joint Memorandum of Law in Support of Their Motion to Dismiss the Complaint, at 8 (emphasis in the original). I can find no support for this position.

 None of the several cases cited by the defendants involved a federal district court's resolution of a motion to dismiss. Most were decisions by the NLRB which was reviewing trial examiners' findings after a full hearing that proof of the requisite agency had either been established or lacking. SA too will have to show such an agency at trial in order to hold the union defendants liable under count one. But at this stage in the proceedings, I am satisfied that SA has adequately pleaded a cause of action against them under § 303.

 Defendants next ask that SA's request for punitive damages be stricken. Despite SA's assertion to the contrary, I have concluded that punitive damages are not recoverable for violations of § 303 directly. Therefore the defendants' request will be granted.

 In Local 20, Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 84 S. Ct. 1253, 12 L. Ed. 2d 280 (1964), the plaintiff employer sued the local union for the latter's unlawful secondary activities under both § 303 and state law. One of the district court's findings was that there had been no violence. The precise question presented to the Court was whether a federal court "is free to apply state law in awarding damages resulting from a union's peaceful strike conduct. . . ." Id. at 256, 84 S. Ct. at 1257. The court concluded that where peaceful union secondary activities were involved, state law regarding damages was preempted by § 303. Two years later, the Court decided United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). There the Court reaffirmed the holding of Local 20, Teamsters but added that "on state claims, though not on § 303 claims, punitive damages may be recovered." Id. at 736, 86 S. Ct. at 1144.

 Reading these two cases together it is clear that state law governing damages arising out of unlawful peaceful secondary activity is displaced by § 303 whereas state law concerning punitive damages for violent secondary activity is not. However, it is also evident that any claim for punitive damages must be based on a state claim and not a § 303 claim. See Harnischfeger Corp. v. Sheet Metal Workers Internat'l Assoc., AFL-CIO, 436 F.2d 351 (6th Cir. 1970); Anderson v. Electrical Workers, Local 712, 422 F. Supp. 1379, 81 Lab. Cas. (CCH) P13,065 (W.D. Pa.1976); Hennepin Broadcasting Assoc., Inc. v. NLRB, 408 F. Supp. 932 (D.Minn.1975); Iodice v. Calabrese, 345 F. Supp. 248 (S.D.N.Y.1972), aff'd in part and rev'd in part, 512 F.2d 383 (2d Cir.1975); Thurston & Sons, Inc. v. R. B. Barber, 66 Lab.Cas. (CCH) P 12,212 (M.D.N.C.1971).

 Although decided before Gibbs, this conclusion was reached by the Court of Appeals for the Sixth Circuit in Price v. United Mine Workers, 336 F.2d 771 (6th Cir.1964), cert. denied, 380 U.S. 913, 85 S. Ct. 899, 13 L. Ed. 2d 799 (1965). The defendants there asserted unsuccessfully that § 303 prohibited any state causes of action in tort for conspiracy or malicious destruction of property:

 
If [the union's] contention is correct that Congress had preempted the entire field and there is no state or pendent jurisdiction, then the hapless victim of personal injuries, or damages inflicted to his property by unlawful primary activities is left without remedy in either state or federal courts. He could not sue for damages for an assault and battery committed on his person or for malicious destruction of his property or business.

 Id. at 774. The court decided that Congress did not intend such a result and concluded that "section 303 does not immunize unlawful acts of force and violence or malicious destruction of property committed by anyone in the course of a strike whether characterized as primary or secondary. It is not a haven for such conduct." Id. at 775. Thus § 303 does not bar recovery of punitive damages for violations of state law. See C & K Coal v. UMW, supra, at 699.

 In count one of the amended complaint, SA seeks relief solely under § 303 for violations of § 8(b)(4). If SA prevails under count one, they will not be entitled to punitive damages. Therefore, the request will be stricken. *fn6"

 I do not reach the same conclusion, however, with respect to defendants' request to strike SA's prayer for attorneys' fees. Although the oft-cited case of Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975) reinforced the longstanding practice in the United States that parties are, in most instances, responsible for the attorneys' fees incurred in litigating their suits, this "American Rule" is not without its exceptions. One exception is where a statute specifically provides for an award of attorneys' fees to the prevailing party. Id. at 254-55, 95 S. Ct. at 1620. Courts have consistently held that § 303 is not such a statute. *fn7" See, e.g., F.F. Instrument v. Union de Tronquistas, 558 F.2d 607 (1st Cir.1977); Mead v. Retail Clerks Int. Ass'n, 523 F.2d 1371 (9th Cir.1975).

 Another exception, however, could conceivably apply to the case before me. Attorneys' fees are also recoverable where a losing party has "'acted in bad faith, vexatiously, wantonly, or for oppressive reasons'" or where a party wilfully disobeys a court order. Alyeska Pipeline, 421 U.S. at 258-59, 95 S. Ct. at 1622 quoting F.D. Rich Co., Inc., 417 U.S. 116, 129, 94 S. Ct. 2157, 2165, 40 L. Ed. 2d 703 (1974) and Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S. Ct. 1404, 1407, 18 L. Ed. 2d 475 (1967). This exception could apply to a § 303 case. See L.J. Maxey, Jr. d/b/a King-O-Meat Co. v. Butchers' Union Local 126, 627 F.2d 912 (9th Cir. 1980); F.F. Instrument v. Union de Tronquistas, supra; Mead v. Retail Clerks Int. Ass'n, supra; Food Handlers Local 425 v. Valmac Industries, Inc., 528 F.2d 217 (8th Cir.1975). Therefore, because there appears to be a "set of facts in support of [SA's] claim which would entitle [them] to relief," I will not strike their request for attorneys' fees. See Conley v. Gibson, 355 U.S. at 45-46, 78 S. Ct. at 102.

 COUNT TWO

 Defendants put forth three reasons why count two which alleges a violation of § 1985(3) should be dismissed. Their first one can be quickly resolved. Defendants assert that plaintiffs are not specific enough in their allegations to survive dismissal. Complaints alleging a cause of action under § 1985(3) must consist of more than "mere conclusory allegations of deprivations of constitutional rights. . . ." Robinson v. McCorkle, 462 F.2d 111 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 492 (1972). Cf. Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir.1976) (§ 1983). See United States v. City of Philadelphia, 482 F. Supp. 1274 (E.D.Pa.1979), aff'd, 644 F.2d 187 (3d Cir.1980), and cases cited at 1275-76. To state a claim under § 1985(3), then, the following must be shown:

 
(1) a conspiracy by the defendants; (2) designed to deprive plaintiff of the equal protection of the laws; (3) the commission of an overt act in furtherance of that conspiracy; (4) a resultant injury to person or property or a deprivation of any right or privilege of citizens; and (5) defendant's actions were motivated by a racial or otherwise class-based invidiously discriminatory animus. *fn8"

 Carter v. Cuyler, 415 F. Supp. 852, 857 (E.D.Pa.1976) citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S. Ct. 1790, 1798-99, 29 L. Ed. 2d 338 (1971). Count two of plaintiffs' amended complaint contains numerous and detailed allegations and incorporates by reference many others so as to satisfy the above criteria. *fn9" They certainly go well beyond "mere conclusory allegations." As a result, I find defendants' first argument insufficiently persuasive to require dismissal.

 Defendants' second contention is a thornier one. They allege that the plaintiffs who are "persons having no affiliation with organized labor in the Greater Philadelphia area, or . . . persons employing or associating with such nonaffiliated persons" do not belong to a class cognizable under § 1985(3). See Amended Complaint para. 35.

 In 1971, the Supreme Court in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971) overruled a century of case law and held that state action was not a necessary element under § 1985(3). The Court also stated "that there must be some racial or perhaps otherwise class-based, invidiously discriminatory animus" to state a claim under the statute. Id. at 102, 91 S. Ct. at 1798. The Court did not delineate all such possible classes although it did state race was one such class. Id. at 102 n.9, 91 S. Ct. at 1798 n.9.

 In 1979, our Court of Appeals was called upon to decide whether a group of tenant organizers constituted a class under § 1985(3). The court held that:

 
unlike racial or sexual animus, animus against tenant organizers is not based upon "immutable characteristics" for which the members of the class have no responsibility. Nor are we persuaded that tenant organizers have been victims of the historically pervasive discrimination practiced against women.

  Carchman v. Korman Corp., 594 F.2d 354, 356 (3d Cir.), cert. denied, 444 U.S. 898, 100 S. Ct. 205, 62 L. Ed. 2d 133 (1979), quoting Novotny v. Great American Federal Savings & Loan Ass'n, 584 F.2d 1235, 1243 (3d Cir.1978) (en banc), vacated on other grounds, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979).

 Defendants first assert that because members of plaintiffs' purported class do not possess any "immutable characteristics" which are accidents of birth, they cannot qualify as being of a class recognized by the statute. There is support for defendants' position. See Three Rivers Cablevision, Inc. v. Pittsburgh, 502 F. Supp. 1118 (W.D.Pa.1980). However, I believe that one plausible interpretation of Carchman is that there are two prongs on which to base a class. One can belong to either: (1) a class of persons with immutable characteristics; or (2) a class of persons who have been the victims of historically pervasive discrimination. See Amoco Oil v. Local 99, 536 F. Supp. 1203, 1213-14 n. 20 (D.R.I.1982). This approach is at least suggested by several cases applying Carchman. See Banghart v. Sun Oil Co., 542 F. Supp. 451 (E.D.Pa.1982); Brown v. Southeastern Pennsylvania Transp. Author., 519 F. Supp. 864 (E.D.Pa.1981); Shirley v. Bensalem Twp., 501 F. Supp. 1138 (E.D.Pa.1980), appeal dismissed, 663 F.2d 472 (3d Cir.1981); Marino v. Bowers, 483 F. Supp. 765 (E.D.Pa.1980), aff'd, 657 F.2d 1363 (3d Cir.1981). More importantly, the Third Circuit just recently put to rest the argument that it is settled that only classes with immutable characteristics can maintain a § 1985(3) action in this circuit:

 
Some of our cases have spoken about immutable characteristics, but in context those references were merely indications of class characteristics which should be treated analogously with race. The question whether the statute protects against conspiracies, not involving state action, aimed at political classes, as well as classes whose members have the requisite immutable characteristics is an open one in this court.

 C & K Coal v. UMW, supra, at 698. Therefore, I will consider both prongs. Under either plaintiffs must fail.

 Undoubtedly plaintiffs do not belong to a class of persons with immutable characteristics. Thus for count two to survive dismissal, they must establish their class has been subject to historically pervasive discrimination.

 The Third Circuit has never had occasion to discuss and fully develop the criteria for qualifying as a class which has been the victim of historically pervasive discrimination. Other courts' attempts at defining classes under § 1985(3) are far from unanimous and represent a range of views from the most narrow to the exceedingly broad. See Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711, 719-20 n. 15 (9th Cir.), cert. denied, 454 U.S. 967, 102 S. Ct. 510, 70 L. Ed. 2d 383 (1981); Amoco Oil v. Local 99, 536 F. Supp. at 1213-14 n.20. The Court of Appeals' opinion in Carchman, however, is generally viewed as one evidencing an unwillingness to greatly expand the coverage of § 1985(3). See, e.g., Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d at 719-20 n. 15.

 A few cases concerning § 1985(3) classes have arisen in the labor context with different results. The case heavily relied upon by the plaintiffs is the recent decision by the Fifth Circuit in Scott v. Moore, 680 F.2d 979 (5th Cir.1982) (en banc), cert. ...


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