Blackburn v. Sweeney
| Decision Date | 31 March 1994 |
| Docket Number | Civ. No. 4:93cv0050AS. |
| Citation | 850 F. Supp. 758 |
| Parties | Thomas BLACKBURN and Raymond T. Green, Plaintiffs, v. Charles SWEENEY, Jr., and Daniel Pfeifer, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Philip A. Whisler and James S. Fanzini, Indianapolis, IN, for plaintiffs.
Ronald E. Elberger, George E. Purdy, Indianapolis, IN, Robert J. Konopa and Ann-Carol Simons, South Bend, IN, for defendants.
On or about July 15, 1993, the plaintiffs, Thomas Blackburn and Raymond T. Green, filed this complaint invoking this court's federal question jurisdiction under Title 15 U.S.C. § 1, commonly known as the Sherman Antitrust Act. The plaintiffs are lawyers, as are the defendants, Charles Sweeney Jr. and Daniel H. Pfeifer, and once upon a time, they were all in the same law firm with offices in South Bend, Indiana, Fort Wayne, Indiana, and elsewhere, which engaged extensively in television advertising focused principally on the solicitation of personal injury litigation.
On or about October 6, 1993, the defendants filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.). Later, on February 24, 1994, the defendants filed a further motion to dismiss, or, in the alternative, for summary judgment, invoking both Rules 12(b)(6) and 56, Fed.R.Civ.P. The record in this case, while sounding in the high level concepts of antitrust law, has all of the earmarks of a domestic relations dispute, since it involves the break-up of a small, tightly-compact law firm and the professional and personal relationships that inhere therein.
One of the principal responses by the plaintiffs to the dispositive motions filed by the defendants is to launch major discovery warfare, in which neither of these parties are wearing secular halos. It is somewhat amusing that a part of this discovery dispute involves an argument about where.
This court has very serious reservations as to the need for any further discovery in this case to deal with these pending motions. However, in the interest of the greatest caution, all of these parties, namely, Thomas Blackburn, Raymond T. Green, Charles Sweeney, Jr. and Daniel Pfeifer, are now ORDERED to appear personally in Fort Wayne, Indiana, before the Honorable Roger B. Cosbey, United States Magistrate Judge, and all disputed discovery materials are to be presented to Magistrate Judge Cosbey in camera, so that he can determine and file a Report and Recommendation as to what further discovery is relevant to the issues in this case as framed by the pending motions. It is the expressed desire of this court that such proceeding go forward as soon as possible. This court expects these lawyer parties to fully comply with this Order and will accept nothing less than same. This court will use its full authority to see that both the letter and the spirit of this Order is fully complied with. IT IS SO ORDERED.
This record literally reeks with revenge, retaliation and retribution. To be sure these four lawyers, with the advice of other lawyers, negotiated vigorously and extensively to agree upon a final version of a written agreement with reference to the mutual withdrawal from partnerships. After elaborate and extensive negotiations, a final version was agreed upon and signed. See Appendix "A". This record is absolutely silent as to any improper coercion applied to these plaintiffs before they signed this agreement. The ink was hardly dry on this highly relevant written document until these plaintiffs were attempting to undermine it on the basis of federal antitrust law. The question to be answered in this case is whether there is a possible basis for them to do so under the so-called rule of reason. More on that later.
This court has read with some considerable interest the massive discovery that has already taken place in this case, and realizes that especially in the area of economic proof, there are a vast number of details that might arguably be relevant. This court has read and examined the elaborate paper chase in this case, and the conduct of some counsel in some of the deposition transcripts stops just short of being oppressive harassment. There appears to be a propensity on the part of some simply to want to prolong the process and make it as agonizing for the adversary as possible.
Because of what has already happened in this case, this court intends to run a very tight rein on any further discovery and it is for that reason, among others, that these four lawyer parties, as well as their counsel, will appear at one time and personally before United States Magistrate Judge Roger B. Cosbey, who will take a very firm hand in dealing with any further discovery in this case.
This court now takes up both the motions to dismiss filed by the defendants on October 6, 1993, and the motion to dismiss and in the alternative, for summary judgment, filed on February 24, 1994.
When this apparently lucrative lawyer partnership broke up, a written agreement was entered into which was attached to the original complaint, and is now attached as Appendix "A" to this Memorandum and Order. After having signed this agreement, these plaintiffs now contend that it violates Section 1 of the Sherman Act, 15 U.S.C. § 1. By moving under Fed.R.Civ.P. 12(b)(6) for dismissal, the defendant asserts that even assuming the plaintiff's allegations are true, the complaint fails to state a claim upon which relief can be granted. This rule contains only one of several "filters" used by the courts to separate "those suits that should receive plenary consideration from those that should not." Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). The rule's capacity to save the parties' and the court's resources is obvious.
Id. (citing, American Nurses' Association v. State of Illinois, 783 F.2d 716, 726-27 (7th Cir.1986)). See also, Wright v. Bosch Trucking Co., 804 F.Supp. 1069, 1071 (C.D.Ill. 1992); Stewart v. RCA Corp., 790 F.2d 624, 632 (7th Cir.1986). As stated by the Stewart court, a complaint "almost barren of facts" may comprise claims of a specific category if read liberally. Stewart, 790 F.2d at 632.
Dismissal of a complaint is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). See also, Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir.1992). This court must accept the well-pleaded factual allegations of the complaint as true and "construe such allegations in favor of the plaintiff." Roots Partnership v. Lands' End, Inc., 965 F.2d 1411, 1416 (7th Cir.1992). As a point of clarification, the court notes that it is required to accept only factual allegations; "it is not required to accept legal conclusions that may be alleged or that may be drawn from the pleaded facts." Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir.1976); see also, Reichenberger v. Pritchard, 660 F.2d 280, 282 (1981).
To escape dismissal "a plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action." Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 (7th Cir.1987) (citations omitted). "The complaint cannot be amended by the briefs filed by the plaintiff in opposition to a motion to dismiss." Gomez, 811 F.2d at 1039.
Likewise, the defendant may not "attempt to refute the complaint or to present a different set of allegations" in its 12(b)(6) challenge. Id. The defendant's attack must be against the sufficiency of the complaint; it "must demonstrate that the plaintiff's claim, as set forth by the complaint, is without legal consequence." Id.
Where a motion to dismiss is filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) and materials outside the motion to dismiss are presented to and not excluded by the court, then the motion to dismiss may be treated as a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. See, First Interstate Bank, N.A. v. Chapman & Cutler, 837 F.2d 775, 776-777 (7th Cir.1988); Cange & Stotler and Co., Inc., 826 F.2d 581, 583 (7th Cir.1987); and Winslow v. Walters, 815 F.2d 1114, 1116 (7th Cir.1987). Thus, where a party moves for dismissal upon the pleadings alone, it will be considered a Rule 12(b)(6) motion for dismissal. However, where a party files a Rule 12(b)(6) motion for dismissal and the court relies on materials outside the pleadings, it will be considered a Rule 56 motion for summary judgment.
Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Russo v. Health, Welfare & Pension Fund, Local 705, 984 F.2d 762 (7th Cir.1993).
A thorough discussion of Rule 56 by the Supreme Court of the United States can be found in a trilogy of cases decided in 1986. See, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)1; and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties ...
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