Ronald Smart v. Local 702 International Brothe

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-4088
R ONALD D. SMART, doing business
as P ASCHALL E LECTRIC,
Plaintiff-Appellant,
v.
L OCAL 702 INTERNATIONAL B ROTHERHOOD
O F E LECTRICAL W ORKERS, C HRISTOPHER
N. G RANT AND S CHUCHAT, C OOK & W ERNER,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 07 C 94—David R. Herndon, Chief Judge.
S UBMITTED A PRIL 30, 2008—D ECIDED A PRIL 7, 2009
Before R IPPLE, K ANNE and T INDER, Circuit Judges.
R IPPLE, Circuit Judge. Ronald Smart brought this
action asserting state-law claims against the International
Brotherhood of Electrical Workers, Local 702 (“IBEW”), its
counsel, Christopher Grant, and Mr. Grant’s law firm,
Schuchat, Cook & Werner. The district court granted the
2 No. 07-4088
defendants’ motion to dismiss. We now affirm in part
and reverse and remand in part the judgment of the dis-
trict court.
I
BACKGROUND
A. Facts
Mr. Smart is the sole proprietor of Paschall Electric, a
non-union company. In 2003, Mr. Smart contracted to
perform electrical work for the construction of a sports
complex. He alleges that, after he entered into the con-
tract, the IBEW coerced the owner of the sports complex
to terminate his relationship with Mr. Smart; specifically,
Mr. Smart alleges that the IBEW threatened to with-
hold services and otherwise to shut down the building
project if the owner did not employ union workers
instead of Mr. Smart. According to the complaint, the
owner fired Mr. Smart and hired a company affiliated
with the IBEW to complete the work on the project.
B. District Court Proceedings
In response to the termination of Paschall Electric’s
services, Mr. Smart filed the present action in the United
States District Court for the Southern District of Illinois.
Mr. Smart alleged that the IBEW’s coercive tactics vio-
lated the Illinois Antitrust Act, 740 ILCS 10/3. Mr. Smart
also brought two additional claims. The first, a claim
for unwarranted prosecution, was brought against the
No. 07-4088 3
IBEW, Mr. Grant and Schuchat, Cook & Werner. The
second, a claim for legal malpractice, was brought
against Mr. Grant and his firm. At the heart of these
claims were earlier legal actions by the IBEW to recover
employee contributions to a fringe benefit fund associated
with a collective bargaining agreement (“CBA”).1
The defendants moved to dismiss Mr. Smart’s com-
plaint on the grounds that: Mr. Smart’s claims were
preempted by the National Labor Relations Act (“NLRA”);
they were barred by judicial estoppel; and they failed
to state a claim upon which relief could be granted. The
district court granted the motion. It determined that
Mr. Smart’s state antitrust claim was preempted by the
1
At one time, Mr. Smart was a party to a CBA with the IBEW;
the CBA obligated Mr. Smart to pay fees associated with that
agreement to the IBEW. When Mr. Smart attempted to withdraw
from the CBA, the IBEW sought to establish Mr. Smart’s liability
for those fees through arbitration. An arbitrator determined that
Mr. Smart was responsible for making contributions. Subse-
quently, Mr. Smart instituted an action to vacate the arbitral
award, and the IBEW counterclaimed for enforcement. The
district court granted summary judgment to the IBEW, and we
affirmed on appeal. See Smart v. IBEW, Local 702, 315 F.3d 721(7th Cir. 2002). Later, the IBEW and the trustees of various
employee-benefit funds brought an action against Mr. Smart for
failure to pay benefit contributions and to file reports associated
with those contributions. Mr. Smart failed to answer the
complaint, and default judgment was entered on behalf of the
IBEW. Mr. Smart’s efforts to vacate the default judgment were
unsuccessful. See Roan v. Smart, Memorandum and Order, No.
03-cv-04065-DRH (S.D. Ill. June 30, 2003).
4 No. 07-4088
NLRA. With respect to the common law claims, the
court held that Mr. Smart had pleaded himself out of
court. Turning first to the malpractice claim, the court
noted that “a legal malpractice claim can only be brought
by a plaintiff against his former attorney, not against
an attorney or law firm that has never represented the
plaintiff . . . .” Smart v. Int’l Bhd. of Elec. Workers, Local 702,
No. 07-cv-94-DRH, 2007 WL 4259972, at *4 (S.D. Ill. Dec. 3,
2007). Concerning the “unwarranted” prosecution claim,2
the court observed that, in order to prevail on this claim,
Mr. Smart had to establish that he had prevailed in the
underlying litigation. However, the court observed that
none of the previous legal actions mentioned in Mr.
Smart’s complaint or in the IBEW’s motion to dismiss
were terminated in his favor.3 Consequently, the
district court dismissed both the malpractice claim and
the unwarranted prosecution claim with prejudice.
Mr. Smart timely appealed.
2
Illinois courts refer to this tort as malicious prosecution;
however, for consistency, we shall use the terminology em-
ployed by Mr. Smart.
3
The court took judicial notice of the cases and their outcomes.
See Smart v. Int’l Bhd. of Elec. Workers, Local 702, No.
07-cv-94-DRH, 2007 WL 4259972, at *4 (S.D. Ill. Dec. 3, 2007). The
court also observed that, in his responses to the IBEW’s motion
to dismiss, Mr. Smart “ha[d] failed to oppose the notion that the
outcomes of these proceedings were not terminated in his
favor.” Id.No. 07-4088 5
II
DISCUSSION
A. Jurisdiction
Before turning to the merits of Mr. Smart’s claims, we
must address a threshold issue: whether the district court
had subject matter jurisdiction over Mr. Smart’s claims.
Federal district courts are courts of limited jurisdiction;
“[t]hey possess only that power authorized by Constitu-
tion and statute.” Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 552 (7th Cir. 2005) (quoting Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)).
Congress has conferred subject matter jurisdiction on the
district courts only in cases that raise a federal question
and cases in which there is diversity of citizenship among
the parties. See 28 U.S.C. §§ 1331-32. Unless Mr. Smart’s
complaint falls into one of these two categories, we
must dismiss the action for want of jurisdiction.
1.
Turning first to the possibility that the complaint falls
within the court’s diversity jurisdiction, we note that
Mr. Smart, as the party seeking to invoke federal juris-
diction, bears the burden of demonstrating that the re-
quirements for diversity are met. See Pollution Control
Indus. of America, Inc. v. Van Gundy, 21 F.3d 152, 155 (7th
Cir. 1994). Specifically, Mr. Smart must establish “complete
diversity,” “meaning that no plaintiff may be from the
same state as any defendant.” Hart v. Fedex Ground Package
Sys., Inc., 457 F.3d 675, 676 (7th Cir. 2006); McCready v. eBay,
6 No. 07-4088
Inc., 453 F.3d 882, 891 (7th Cir. 2006). However, neither
Mr. Smart’s complaint in the district court nor his brief to
this court suggests that this requirement has been met.
Quite the contrary, Mr. Smart, an Illinois citizen, asserts
that one of the defendants is an Illinois law firm, which
likely has partners who are Illinois citizens. See Cosgrove
v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998) (“The citizen-
ship of a partnership is the citizenship of the partners,
even if they are limited partners, so that if even one of
the partners (general or limited) is a citizen of the same
state as the plaintiff, the suit cannot be maintained as a
diversity suit.” (citing Carden v. Arkoma Assocs., 494 U.S.
185 (1990))).
2.
If we are to maintain jurisdiction over this appeal, Mr.
Smart’s complaint must raise a federal question. “Ordi-
narily, a court must determine the presence or absence
of a federal question by examining only the plaintiff’s
well-pleaded complaint,” Nelson v. Stewart, 422 F.3d 463,
466 (7th Cir. 2005) (citing Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987)); a federal defense to a state cause of
action typically will not suffice, see Louisville & Nashville
R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908). This rule is
followed even if the defense relies on “the pre-emptive
effect of a federal statute.” Beneficial Nat’l Bank v. Anderson,
539 U.S. 1 (2003) (citing Franchise Tax Bd. of California
v. Constr. Laborers Trust for S. Cal., 463 U.S. 1 (1983)).
At first blush, it does not appear that Mr. Smart has
met this requirement; he included only state causes of
No. 07-4088 7
action in his complaint. Although the IBEW raised a
federal defense to Mr. Smart’s claims—the preemptive
force of the NLRA—federal preemption ordinarily does
not provide a basis for asserting federal jurisdiction over
a claim.
There is, however, an exception to this general rule:
“On occasion, the Court has concluded that the pre-
emptive force of a statute is so ‘extraordinary’ that it
‘converts an ordinary state common-law complaint
into one stating a federal claim for purposes of the
well-pleaded complaint rule.’ ” Caterpillar Inc., 482
U.S. at 393 (quoting Metro. Life Ins. Co. v. Taylor, 481
U.S. 58, 65 (1987)). This “independent corollary” to
the well-pleaded complaint rule is known as the
“complete preemption” doctrine. Id. “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,
and therefore arises under federal law.” Id. . . .
Nelson, 422 F.3d at 466-67 (parallel citations omitted).
Complete preemption is a term that describes “the
specific situation in which a federal law not only
preempts a state law to some degree but also substitutes
a federal cause of action for the state cause of action,
thereby manifesting Congress’s intent” to extend the
jurisdiction of the federal courts to such cases. Schmeling
v. NORDAM, 97 F.3d 1336, 1342 (10th Cir. 1996).
To determine whether a claim is subject to complete
preemption, we ask whether “Congress clearly intended
completely to replace state law with federal law and
8 No. 07-4088
create a federal forum . . . .” Vorhees v. Naper Aero Club,
Inc., 272 F.3d 398, 403 (7th Cir. 2001). We never have
articulated a precise method for discerning congressional
intent in this area. A logical first step in this analysis is
determining “whether the state claim is displaced by
federal law under an ordinary preemption analysis.” Blab
T.V. of Mobile, Inc. v. Comcast Cable Comms., Inc., 182 F.3d
851, 857 (11th Cir. 1999). If a federal statute preempts the
state action, we then look to whether Congress created a
federal cause of action to take the place of the state
action. See Rogers v. Tyson Foods, Inc., 308 F.3d 785, 788
(7th Cir. 2002) (stating that the “ ‘ability to bring suit
under [federal law] is an element of “complete preemp-
tion.” ’ ” (quoting Vorhees, 272 F.3d at 404)).
a.
Here Mr. Smart’s state antitrust claim is preempted by
federal law. In his complaint, Mr. Smart alleges that the
IBEW threatened to “shut the project down if [the owner]
continued to use Mr. Smart, a non union electrician, as
opposed to a union electrician.” R.1 at 2. Additionally,
Mr. Smart claims that the IBEW threatened to have
union electricians withhold work if the owner continued
to use Mr. Smart’s services. Id. at 2-3. As the IBEW recog-
nizes, the activities described by Mr. Smart in his com-
plaint arguably are prohibited by section 8(b)(4) of the
NLRA, 29 U.S.C. § 158(b)(4), which prohibits an attempt
by a labor organization “to threaten, coerce, or restrain
any person engaged in commerce or in an industry affect-
ing commerce, where in either case an object thereof is . . .
No. 07-4088 9
forcing or requiring any person . . . to cease doing business
with any other person.” 28 U.S.C. § 158(b)(4)(ii)(B); see
also Appellee’s Br. at 19-20. As such, the IBEW continues,
Mr. Smart’s claims are preempted by San Diego Building
Trades Council v. Garmon, 359 U.S. 236 (1959).
In Garmon, the Supreme Court addressed whether an
employer could maintain a state tort cause of action for
damages incurred as a result of picketing activities that
arguably were protected by section 7 of the NLRA.4 The
4
Section 7 of the NLRA, 29 U.S.C. § 157 provides:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
and shall also have the right to refrain from any or all of
such activities except to the extent that such right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment as autho-
rized in section 158(a)(3) of this title.
Section 8 of the NLRA, 29 U.S.C. § 158, defines “unfair labor
practices” to include actions by employers that “interfere with,
restrain, or coerce employees” in the exercise of section 7 rights
or other collective, labor activities. See 29 U.S.C. § 158(a).
Subsection (b) defines unfair labor practices by labor organiza-
tions and, relevant to Mr. Smart’s claims, provides:
(b) Unfair labor practices by labor organization
It shall be an unfair labor practice for a labor organization
or its agents--
...
(continued...)
10 No. 07-4088
Court held that state regulation of labor relations must
yield when it threatens to disturb the federal balance
that Congress struck between prohibited and legitimate
labor practices:
4
(...continued)
(4) (i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an
industry affecting commerce to engage in, a strike or a
refusal in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform
any services; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is--
...
(B) forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing
in the products of any other producer, processor, or
manufacturer, or to cease doing business with any other
person, or forcing or requiring any other employer to
recognize or bargain with a labor organization as the
representative of his employees unless such labor
organization has been certified as the representative
of such employees under the provisions of section 159
of this title: Provided, That nothing contained in this
clause (B) shall be construed to make unlawful, where
not otherwise unlawful, any primary strike or primary
picketing;
....
29 U.S.C. § 158(b).
No. 07-4088 11
When it is clear or may fairly be assumed that the
activities which a State purports to regulate are pro-
tected by § 7 of the National Labor Relations Act, or
constitute an unfair labor practice under § 8, due
regard for the federal enactment requires that state
jurisdiction must yield. To leave the States free to
regulate conduct so plainly within the central aim
of federal regulation involves too great a danger of
conflict between power asserted by Congress and
requirements imposed by state law. Nor has it mat-
tered whether the States have acted through laws
of broad general application rather than laws specifi-
cally directed towards the governance of industrial
relations. Regardless of the mode adopted, to allow
the States to control conduct which is the subject of
national regulation would create potential frustra-
tion of national purposes.
Id. at 244 (footnote omitted). We have summarized this
holding by stating that the NLRA preempts state claims
based on conduct that is “arguably protected, arguably
prohibited, or left to the domain of market forces” by the
NLRA. N. Ill. Chapter of Associated Builders & Contractors,
Inc. v. Lavin, 431 F.3d 1004, 1005-06 (7th Cir. 2005); accord
Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir. 2004); United
States v. Palumbo Bros., 145 F.3d 850, 861-62 (7th Cir. 1998);
NLRB v. State of Ill. Dep’t of Employee Sec., 988 F.2d 735, 738
(7th Cir. 1993).5 More relevant to Mr. Smart’s claims, the
5
The Garmon rule does not apply to state statutes “rooted in
local feeling and responsibility,” such that preemption cannot be
(continued...)
12 No. 07-4088
Court has held that Garmon preempts the operation of
state antitrust laws that attempt to regulate activity
falling within the scope of the NLRA. See Sears, Roebuck &
Co. v. San Diego County Dist. Council of Carpenters, 436
U.S. 180, 193 (1978) (“[A] state’s antitrust law may not
be invoked to enjoin collective activity which is also
arguably prohibited by the federal Act.”).
However, it is clear that preemption under Garmon is
not “complete.” 6 Every court to address the issue directly
has reached this conclusion.7 See Lontz v. Tharp, 413 F.3d
5(...continued)
inferred absent compelling congressional direction, nor does
Garmon preempt claims that raise issues that are only collateral
or peripheral to federal labor law. United States v. Palumbo
Bros., 145 F.3d 850, 864 (7th Cir. 1998); NLRB v. State of Ill.
Dep’t of Employee Sec., 988 F.2d 735, 739 (7th Cir. 1993).
6
Although the IBEW raised the issue of Garmon preemption,
neither party took the additional step of addressing whether
Garmon preemption was “complete” preemption. Consequently,
we requested additional briefing by the parties on this issue
and also solicited an amicus brief from Professor Gerald E.
Berendt of the John Marshall Law School. We thank Professor
Berendt for his excellent submission.
7
In Baker v. IBP, Inc., 357 F.3d 685 (7th Cir. 2004), we spoke
in passing with respect to the scope of Garmon preemption. Baker
involved a federal RICO claim which the district court
had dismissed for want of subject matter jurisdiction because,
according to the district court, the claim was preempted by
Garmon. As part of our discussion, we stated that “federal labor
law so occupies the field of labor relations that it is impossible
(continued...)
No. 07-4088 13
435, 442-43 (4th Cir. 2005) (“[S]ections 7 and 8 do not work
to completely preempt the kind of state law claims that
plaintiffs are pressing.”); Felix v. Lucent Techs., Inc., 387
F.3d 1146, 1165-66 (10th Cir. 2004) (holding that “Garmon
preemption provides no basis for removal jurisdiction
in federal court” and observing that “the lower courts
are uniform in finding that Garmon preemption under
the NLRA does not completely preempt state laws so as
to provide removal jurisdiction”); Ethridge v. Harbor
House Rest., 861 F.2d 1389, 1396-1401 (9th Cir. 1988) (noting
that “sections 7 and 8 do not confer original federal
court jurisdiction over actions within its scope” and that
“state law actions claimed to be preempted by sections 7
and 8 of the NLRA are not removable to federal court”).
The primary rationale for the courts’ decisions is that
Congress not only “strip[ped] state courts of adjudicatory
authority” with respect to activity arguably subject to
sections 7 and 8, “in the very same breath it also deprive[d]
federal courts of that authority.” Lontz, 413 F.3d at 442
(internal quotation marks and citations omitted). This is
7
(...continued)
to formulate a claim under state law”; however, we went on
to observe that the plaintiffs in Baker had not raised any state
claims, only federal claims under RICO. With respect to
those federal claims, we held that, as “[a]pplied to claims in
federal court, and arising under federal law, Garmon has
nothing to do with either preemption or subject matter juris-
diction.” Id. at 688. Therefore, we have not addressed the specific
question raised by this appeal: whether Garmon completely
preempts state antitrust claims involving labor activity.
14 No. 07-4088
because “the same ‘exclusive competence’ of the NLRB
which divests state courts of original jurisdiction over
claims subject to sections 7 and 8 also divests federal
courts of such jurisdiction.” Id. (internal quotation marks
and citations omitted); see also Felix, 387 F.3d at 1166(“If Garmon preemption applies, the correct result is that
neither the federal court nor the state court has juris-
diction; the case must be adjudicated before the
NLRB.”); Ethridge, 861 F.2d at 1400 (“Though sections 7 and
8 may create a federal cause of action, it is not within
the federal court’s jurisdiction to resolve the dispute—it is
for the NLRB to decide the case.”). Additionally, the courts
have observed that the “sine qua non of complete preemp-
tion is a pre-existing federal cause of action that can be
brought in district courts.” Lontz, 413 F.3d at 442. However,
as noted above, the NLRB, not the courts, is vested with
primary jurisdiction for adjudicating labor disputes
under sections 7 and 8. Consequently, Garmon preemption
alone cannot provide a basis for federal jurisdiction
over Mr. Smart’s alleged state-law claims that implicate
sections 7 and 8.
b.
Our inquiry into federal jurisdiction is not at an end,
however. As we already have noted, the activities de-
scribed by Mr. Smart in his complaint arguably fall
within the coverage of section 8(b)(4) of the NLRA, 29
U.S.C. § 158(b)(4), which prohibits an attempt by a labor
organization “to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting com-
No. 07-4088 15
merce, where in either case an object thereof is . . . forcing
or requiring any person . . . to cease doing business with
any other person.” 29 U.S.C. § 158(b)(4)(ii)(B). Another
provision of federal labor law is pertinent to our inquiry.
With respect to injuries resulting from a secondary
boycott,8 Congress has provided a means of redress in
federal court. Specifically, 29 U.S.C. § 187 provides:
(a) It shall be unlawful, for the purpose of this section
only, in an industry or activity affecting commerce,
for any labor organization to engage in any activity
or conduct defined as an unfair labor practice in
section 158(b)(4) of this title.
(b) Whoever shall be injured in his business or prop-
erty by reason or any violation of subsection (a) of this
section may sue therefor in any district court of the
United States subject to the limitations and provisions
of section 185 of this title without respect to the
amount in controversy, or in any other court having
jurisdiction of the parties, and shall recover the dam-
ages by him sustained and the cost of the suit.
29 U.S.C. § 187 (emphasis supplied).
8
In National Woodwork Manufacturers Assoc. v. N.L.R.B., 386 U.S.
612 (1967), the Supreme Court observed that “[t]he gravamen
of a secondary boycott is that its sanctions bear, not upon the
employer who alone is a party to the dispute, but upon some
third party who has no concern in it. Its aim is to compel him
to stop business with the employer in the hope that this
will induce the employer to give in to his employees’ demands.”
386 U.S. at 627, n.16 (quoting Int’l Bhd. of Elec. Workers, No.
501 v. N.L.R.B., 181 F.2d 34, 37 (2d Cir. 1950)).
16 No. 07-4088
With respect to 29 U.S.C. § 187(b), there is ample evi-
dence that Congress meant to “exercise [the] extraordinary
pre-emptive power . . . that converts an ordinary state
common law complaint into one stating a federal claim for
purposes of the well-pleaded complaint rule.” Metro. Life
Ins. Co., 481 U.S. at 65. First, the language employed by
Congress in section 187(b) is comparable to that em-
ployed in other statutes that the Court has found to be
completely preemptive, particularly section 301 of the
Labor Management Relations Act (“LMRA”).9 See id.9
Section 301 of the LMRA is codified at 29 U.S.C. § 185, which
provides:
(a) Venue, amount, and citizenship
Suits for violation of contracts between an employer and a
labor organization representing employees in an industry
affecting commerce as defined in this chapter, or between
any such labor organizations, may be brought in any
district court of the United States having jurisdiction of the
parties, without respect to the amount in controversy or
without regard to the citizenship of the parties.
(b) Responsibility for acts of agent; entity for purposes
of suit; enforcement of money judgments
Any labor organization which represents employees in an
industry affecting commerce as defined in this chapter and
any employer whose activities affect commerce as defined
in this chapter shall be bound by the acts of its agents. Any
such labor organization may sue or be sued as an entity
and in behalf of the employees whom it represents in the
(continued...)
No. 07-4088 17
(comparing ERISA’s civil enforcement provision to that of
section 301 of the LMRA and concluding, based on similar-
9
(...continued)
courts of the United States. Any money judgment against a
labor organization in a district court of the United States
shall be enforceable only against the organization as an
entity and against its assets, and shall not be enforceable
against any individual member or his assets.
(c) Jurisdiction
For the purposes of actions and proceedings by or against
labor organizations in the district courts of the United
States, district courts shall be deemed to have jurisdiction of
a labor organization (1) in the district in which such organi-
zation maintains its principal office, or (2) in any district
in which its duly authorized officers or agents are engaged
in representing or acting for employee members.
(d) Service of process
The service of summons, subpoena, or other legal process of
any court of the United States upon an officer or agent of a
labor organization, in his capacity as such, shall constitute
service upon the labor organization.
(e) Determination of question of agency
For the purposes of this section, in determining whether any
person is acting as an “agent” of another person so as to
make such other person responsible for his acts, the ques-
tion of whether the specific acts performed were actually
authorized or subsequently ratified shall not be controlling.
18 No. 07-4088
ity, that ERISA was meant to be completely preemptive).
Indeed, the language of section 187(b) not only mirrors
the broad language used by Congress with respect to
section 301 of the LMRA, it also explicitly references
section 301; it states:
Whoever shall be injured in his business or property
by reason or any violation of subsection (a) of this
section may sue therefor in any district court of the
United States subject to the limitations and provisions of
section 185 of this title without respect to the amount in
controversy, or in any other court having jurisdiction
of the parties, and shall recover the damages by him
sustained and the cost of the suit.
29 U.S.C. § 187(b) (emphasis added). Thus, Congress has
indicated its intent that causes of action under section 187
and causes of action under 29 U.S.C. § 185 be treated in
the same manner.
In addition to Congress’ explicit instructions that actions
under section 187 and section 185 be treated similarly,
Congress’ interests in uniform treatment of labor-manage-
ment relations are equally at stake in both provisions. Both
sections are part of a broad regulatory scheme that is both
substantive and procedural, with a decided purpose of
providing one, uniform means for the resolution of labor
disputes. See Palumbo Bros., 145 F.3d at 861 (noting that
the NLRA is a “comprehensive” and specific framework
in an area where uniformity is of the utmost importance
to congressional regulation, reflecting “congressional
intent to create a national, uniform body of labor law and
policy to protect the stability of the collective bargaining
No. 07-4088 19
process, and to maintain peaceful industrial relations”);
State of Ill. Dep’t of Employee Sec., 988 F.2d at 738 (noting
that, in enacting the NLRA, Congress largely dis-
placed state regulation of industrial relations, because
Congress intended to create a uniform, nationwide body
of labor law, and as such, the NLRA forecloses over-
lapping state law); see also Nelson, 422 F.3d at 467-68.
In sum, Congress has provided an explicit means of
redressing alleged violations of section 158(b)(4) through
section 187 of Title 29. Additionally, Congress has indi-
cated that it intended causes of action arising under
section 187 to be treated in the same manner as those
arising under section 185. Finally, the same interest in the
uniform treatment of labor relations is at play in both
sections 185 and 187. Consequently, we hold therefore
that section 187(b) completely preempts state-law claims
related to secondary boycott activities described in
section 158(b)(4); it provides an exclusive federal cause
of action for the redress of such illegal activity. As a
result, regardless of Mr. Smart’s choice to articulate his
claim under the Illinois Antitrust Act, he has pleaded a
federal claim. The district court therefore had subject-
matter jurisdiction over this action.
Our determination that Mr. Smart’s state antitrust claim
is completely preempted requires us to remand this part
of the case to the district court for further proceedings.
Because Mr. Smart’s claim is completely preempted by
federal law, the district court must address that claim
under section 187 of Title 29, and therefore must provide
him with an opportunity to amend his complaint to
ensure that he properly states a claim under the gov-
20 No. 07-4088
erning law. See Jass v. Prudential Health Care Plan, Inc.,
88 F.3d 1482, 1485, 1490-91 (7th Cir. 1996); see also Stewart
v. U.S. Bancorp, 297 F.3d 953, 958-59 (9th Cir. 2002).1 0
B. Unwarranted Prosecution Claim
We now turn to Mr. Smart’s claim of unwarranted
prosecution under Illinois law. The defendants argue
that, under applicable state law, the allegations of unwar-
ranted prosecution fail as a matter of law; indeed, the
district court dismissed the claims on this basis. Alter-
natively, the defendants maintain that the claim is pre-
empted by section 301 of the LMRA, 29 U.S.C. § 185,1 1
10
We cannot conclude that remanding the matter to the district
court will result in undue hardship to the IBEW. See Appellees’
Reply Supplemental Br. 7. Although the parties conducted
discovery to prosecute and defend state-law claims, many of
the facts discovered will be equally helpful in resolving the
new federal claim. Additionally, the district court, in its discre-
tion, either may grant the parties additional discovery or may
limit new discovery to protect the parties or to expedite the
litigation.
11
29 U.S.C. § 185(a) provides, in relevant part,
(a) Venue, amount, and citizenship
Suits for violation of contracts between an employer and a
labor organization representing employees in an industry
affecting commerce as defined in this chapter, or between
any such labor organizations, may be brought in any
district court of the United States having jurisdiction of the
(continued...)
No. 07-4088 21
because it necessarily requires interpretation of the CBA.1 2
If these additional state-law claims necessarily require
the interpretation of a CBA, they are cognizable only
under section 301 of the LMRA. The basic rule that governs
such a preemption analysis is set forth in Lingle v. Norge
Division of Magic Chef, Inc., 486 U.S. 399 (1988): “[A]n
application of state law is pre-empted by § 301 of the
Labor Management Relations Act of 1947 only if such
application requires the interpretation of a collective-
bargaining agreement.” Id. The Lingle approach, we have
explained,
is straightforward because the policy concern re-
quiring preemption in the section 301 context is also
straightforward. Federal labor policy mandates that
uniform federal law be the basis for interpreting
collective bargaining agreements. This policy
reduces the possibility “that individual contract terms
might have different meanings under state and fed-
eral law.” Conflicting interpretations of contract terms
“would inevitably exert a disruptive influence on the
11
(...continued)
parties, without respect to the amount in controversy or
without regard to the citizenship of the parties.
12
The defendants note that preemption under section 301 is
“complete” and argue that this complete preemption is the
basis for federal question jurisdiction in this suit. For the reasons
set forth in this section, we need not reach the question of
preemption because the claims fail as a matter of law
on grounds unrelated to the CBA.
22 No. 07-4088
collective bargaining process.” Not every dispute
tangentially involving a CBA is preempted by the
LMRA.
Douglas v. American Info. Techs. Corp., 877 F.2d 565, 569 (7th
Cir. 1989) (footnote omitted) (quoting Local 174, Teamsters
v. Lucas Flour Co., 369 U.S. 95, 103 (1962)).
To prevail on an unwarranted prosecution claim in
Illinois, Mr. Smart must show that the defendants brought
the underlying suits maliciously and without probable
cause and that the underlying suits were terminated in
Mr. Smart’s favor. See Cult Awareness Network v. Church
of Scientology Int’l, 685 N.E.2d 1347, 1350 (Ill. 1997). Here,
the suits underlying the unwarranted prosecution claim
focused on the IBEW’s effort to enforce an arbitration
award in its favor and also to collect unpaid employee
benefit contributions due under the CBA.1 3 There is,
however, no need to interpret the CBA in this case
because, as the district court correctly noted, Mr. Smart’s
pleadings have made clear that, at the time that he filed
his complaint in this case, he already had failed to
prevail in these actions. Local 702 prevailed on the merits
in both. 14 Mr. Smart’s claim, therefore, fails as a matter of
law on that element. We need not reach the question
of whether the suits were pursued without probable
cause—the only element that might involve interpreta-
13
See supra note 1.
14
In his response to the motion to dismiss, Mr. Smart did not
claim that the defendants misrepresented the disposition of
these cases.
No. 07-4088 23
tion of the CBA. Owen v. Carpenters’ Dist. Council, 161 F.3d
767, 773 (4th Cir. 1998) (noting that a district court may
pretermit the preemption question when the action is
clearly without merit); Childers v. Chesapeake & Potomac
Tel. Co., 881 F.2d 1259, 1263 (4th Cir. 1989) (same); Wash-
ington v. Union Carbide Corp., 870 F.2d 957 (4th Cir. 1989).
Cf. Foy v. Giant Food, Inc., 298 F.3d 284, 290-91 (4th Cir.
2002) (observing that the question of whether employer’s
action in prosecuting employee was malicious involved
evaluation of whether motive was improper, which, in
turn, required interpretation of the collective bargaining
agreement). Therefore, even if Mr. Smart’s unwarranted
prosecution claim would have required interpretation
of the CBA and therefore was preempted, the claim
still would fail because his submissions to the district
court did not contest that he failed to prevail on the
underlying actions.
C. Legal Malpractice Claim
Mr. Smart’s malpractice claim does not require inter-
pretation of the CBA. In Illinois, a claim for legal malprac-
tice requires a showing of four elements: “(1) the
existence of an attorney-client relationship that establishes
a duty on the part of the attorney; (2) a negligent act or
omission constituting a breach of that duty; (3) proximate
cause; and (4) damages.” Lopez v. Clifford Law Offices, P.C.,
841 N.E.2d 465, 470-71 (Ill. App. Ct. 2005). According
to Mr. Smart’s complaint, he did not have an attorney-
client relationship with Mr. Grant or with the firm of
Schuchat, Cook & Werner. Consequently, regardless of
24 No. 07-4088
how the CBA is interpreted, Mr. Smart’s claim must fail.
Because Mr. Smart has alleged facts in his complaint
that necessarily preclude relief, he pleaded himself out
of court, and the district court was correct to dismiss
his claim. See Benders v. Bellows & Bellows, 515 F.3d 757,
767 (7th Cir. 2008) (observing that “a plaintiff can plead
herself out of court by alleging facts that show she is not
entitled to a judgment”).
D. Motions to Amend
Mr. Smart also submits that the district court erred in
its decision to deny two motions to amend his com-
plaint. The motions sought to remove the legal mal-
practice claim and to add claims of fraud and conspiracy
to commit fraud on the court; the new claims were based
on allegedly false statements that the defendants sub-
mitted to the court in previous litigation. We review the
district court’s denial of Mr. Smart’s motions for an abuse
of discretion. See Bressner v. Ambroziak, 379 F.3d 478, 484
(7th Cir. 2004).
The district court did not abuse its discretion in denying
Mr. Smart’s motions to amend. The court denied the first
motion to amend for the following reasons: (1) Mr. Smart
failed to comply with a local rule requiring that the plain-
tiff attach a copy of the proposed amended complaint,
(2) he failed to explain why the claims were not included
in the original complaint, and (3) at least one of the pro-
posed claims did not meet the minimal requirements of
notice pleading. The court denied Mr. Smart’s second
motion to amend because, although Mr. Smith was aware
No. 07-4088 25
of the factual basis of the proposed new claims much
earlier, he did not submit the second motion to amend
until after the close of discovery and after his complaint
had been dismissed with prejudice. The court also denied
the motion because amendment would be futile. Specifi-
cally, the court noted that Mr. Smart sought to add a
claim of fraud on the court; however, he had failed to
allege facts that suggested that he had relied to his detri-
ment on the allegedly fraudulent statements made by the
defendants. We previously have upheld district courts’
denials of motions to amend where there has been undue
delay in bringing the motions or the motions would be
futile. See, e.g., Bethany Pharmacal Co., Inc. v. QVC, Inc., 241
F.3d 854, 860-61 (7th Cir. 2001); see also Tanner v. Neal, 232
F. App’x 924 (11th Cir. 2007) (“Although courts liberally
construe pro se pleadings, the litigant is still required to
conform to procedural rules, and the court is not required
to rewrite a deficient pleading.”). Therefore, we cannot
say that the district court’s denial of the motions, under
the circumstances presented here, constitutes an abuse of
discretion.15
15
Mr. Smart also argues that the district court’s dismissal of his
claims violated his Seventh Amendment right to a jury trial. The
Seventh Amendment is not violated by a proper dismissal for
failure to state a claim. See, e.g., Smith v. Kitchen, 156 F.3d 1025,
1029 (10th Cir. 1998); cf. 3 Penny Theater Corp. v. Plitt Theaters,
Inc., 812 F.2d 337, 340 (7th Cir. 1987) (Rule 41(b) dismissal
for failure to prosecute).
26 No. 07-4088
Conclusion
For the foregoing reasons, we affirm that portion of
the district court’s decision holding that Mr. Smart’s
state antitrust claim is preempted. However, because
Mr. Smart’s complaint includes allegations of secondary
boycott activity for which relief is available under 29
U.S.C. § 187, we remand that claim to the district court
for evaluation under the appropriate federal standard.
We affirm the district court’s dismissal of Mr. Smart’s
unwarranted prosecution and legal malpractice claims.
The judgment of the district court, therefore, is affirmed
in part, reversed in part and remanded for further pro-
ceedings. Mr. Smart may recover his costs in this court.
A FFIRMED in P ART,
R EVERSED and R EMANDED in P ART
4-7-09