OVERNITE TRANSP. v. INTERN. BROTH. OF TEAM.

• Decision Date: 19 June 2002
• Docket Number: No. 1-00-0334.,1-00-0334.
• Citation: 265 Ill.Dec. 664,332 Ill. App.3d 69,773 N.E.2d 26
• Parties: OVERNITE TRANSPORTATION COMPANY, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN and HELPERS OF AMERICA, AFL-CIO, and Teamsters Local Union Nos. 41, 120, 135, 414, 705, 710, 714 and 781, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFLCIO, Phillip Young, Ronald Foster, Walter A. Lytle, Robert Kruezer, William Hogan, Jr., Robert Vickney, John Murphy, Dane Passo, Patrick Flynn, Joseph Bernstein, Kevin Moore, David Cameron, and John Does Through 250, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

773 N.E.2d 26

332 Ill. App.3d 69

265 Ill.Dec. 664

OVERNITE TRANSPORTATION COMPANY, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN and HELPERS OF AMERICA, AFL-CIO, and Teamsters Local Union Nos. 41, 120, 135, 414, 705, 710, , Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFLCIO, Phillip Young, Ronald Foster, Walter A. Lytle, Robert Kruezer, William Hogan, Jr., Robert Vickney, John Murphy, Dane Passo, Patrick Flynn, Joseph Bernstein, Kevin Moore, David Cameron, and John Does Through 250, Defendants-Appellees.

No. 1-00-0334.

Appellate Court of Illinois, First District, Third Division.

June 19, 2002.

Julia A. Martin, Matkov, Salzman, Madoff & Gunn, Chicago, for Appellant.

Marvin Gittler, Susan Brannigan, Asher, Gittler, Greenfield & D'Alba, Ltd.; Sacks, Goreczny, Maslanka & Costello, P.C., Chicago, for Appellees.

Presiding Justice HALL delivered the opinion of the court:

The plaintiff, Overnite Transportation Company (Overnite) filed a complaint seeking damages for trespass, tortious interference with existing and prospective business relationships and civil conspiracy against the defendants, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Teamsters Local Union Numbers 41, 120, 135, 414, 705, 710, 714 and 781, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, certain named officers and agents and unknown individuals. The circuit court dismissed the suit pursuant to section 2-619(a)(3) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(3) (West 1998)). Overnite filed this timely appeal.

After the briefs were filed in this case, the defendant-appellees filed a motion requesting oral argument which we ordered taken with the case. Subsequently, this court allowed oral argument in this case. We therefore strike the motion requesting oral argument as moot. We now turn to the merits of this appeal.

On July 14, 1999, Overnite filed the instant complaint against the defendants in the circuit court of Cook County. It is not disputed that, prior to filing the complaint, on June 15, 1999, Overnite filed an unfair labor practice charge with the National Labor Relations Board (NLRB) based upon the same facts that it set forth in the complaint filed in this case. Other factual allegations pertinent to our review are taken from the complaint and are set forth below.

Overnite is a common carrier engaged in the interstate transportation of freight and maintains a freight service center in Bedford Park, Illinois. Beginning in the fall of 1994, the defendants engaged in efforts to organize Overnite's freight-handling employees and to gain collective bargaining agreements for various separate units of Overnite's employees. Sometime prior to June 14, 1999, the defendants conspired to commit various tortious and criminal acts against Overnite and its employees to force them to accept union representation and a Teamster contract. On June 15, 1999, the defendants, some armed with axe handles disguised as picketing posters, arrived at Overnight's Bedford Park facility, where they forced their way into the facility, injured security persons and marched around the facility making obscene gestures and shouting obscenities and threats at Overnite employees who refused to support them. After some 20 to 30 minutes, the defendants left the facility but threatened to return and repeat their unlawful acts unless Overnite and its employees capitulated to their demands.

The defendants filed a motion to dismiss Overnite's complaint. Specifically, the defendants alleged that the complaint should be dismissed pursuant to section 2-619(a)(3) of the Code, which provides as follows:

"(a) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. * * *

* * *

(3) That there is another action pending between the same parties for the same cause." 735 ILCS 5/2-619(a)(3) (West 1998).

The sole issue on appeal is whether the circuit court erred in dismissing Overnite's complaint pursuant to section 2-619(a)(3).

I. Standard of Review

Generally, a court of review applies a de novo standard to a motion to dismiss because the motion does not require the trial court to weigh facts or determine credibility. Hapag-Lloyd (America), Inc. v. Home Insurance Co., 312 Ill.App.3d 1087, 1090, 246 Ill.Dec. 36, 729 N.E.2d 36, 39 (2000). However, when such a motion to dismiss is inherently procedural, such as a section 2-619(a)(3) motion seeking dismissal because another action is pending between the parties for the same cause, the motion urges the trial court to weigh several factors to determine if it is appropriate for the action to proceed. Hapag-Lloyd, 312 Ill.App.3d at 1090, 1096, 246 Ill.Dec. 36, 729 N.E.2d at 39, 43. Where the trial court has weighed the factors in determining whether to grant a dismissal or stay of the proceedings, the trial court's decision is reviewed under an abuse of discretion standard. See Hapag-Lloyd, 312 Ill.App.3d at 1090-91, 246 Ill.Dec. 36, 729 N.E.2d at 39.

The record in this case reveals that the circuit court based its decision on the factors it believed that it was required to consider. Therefore, we will review the circuit court's decision under the abuse of discretion standard.¹

II. Analysis

Section 2-619(a)(3) is designed to avoid duplicative litigation and is to be applied to carry out that purpose. Kellerman v. MCI Telecommunications Corp., 112 Ill.2d 428, 447, 98 Ill.Dec. 24, 493 N.E.2d 1045, 1053 (1986). Pursuant to section 2-619(a)(3), the defendant may move for a dismissal or stay of the action. Kellerman, 112 Ill.2d at 447, 98 Ill.Dec. 24, 493 N.E.2d at 1053. It is the burden of every section 2-619(a)(3) movant to demonstrate through clear and convincing evidence that the two actions involve both the same parties and the same cause. Hapag-Lloyd, 312 Ill.App.3d at 1091, 246 Ill.Dec. 36, 729 N.E.2d at 40.

A. The NLRB Proceeding

Overnite begins by contending that the NLRB proceeding is not an "action" within the meaning of section 2-619(a)(3).

Previous cases have not addressed this precise issue. In fact, the Illinois Supreme Court has specifically declined to decide whether a proceeding before an administrative tribunal with the power to issue a final, binding and enforceable decision constitutes an "action" within the meaning of section 2-619(a)(3). Tumminaro v. Tumminaro, 198 Ill.App.3d 686, 692, 144 Ill.Dec. 826, 556 N.E.2d 293, 297 (1990); see Ransom v. Marrese, 122 Ill.2d 518, 530-31, 120 Ill.Dec. 525, 524 N.E.2d 555, 561 (1988).

In Ransom, our supreme court held that a proceeding before a medical review board did not qualify as a judicial proceeding, i.e., its members were not judicial officers, no hearing or trial was conducted, and it did not render a decision or judgment on the merits. Ransom, 122 Ill.2d at 529, 120 Ill.Dec. 525, 524 N.E.2d at 560.

The Ransom court noted that in Cummings v. Iron Hustler Corp., 118 Ill. App.3d 327, 73 Ill.Dec. 829, 454 N.E.2d 1078 (1983), the reviewing court had assumed, without expressly deciding, that a proceeding before the Illinois Human Rights Commission was an "action" under section 2-619(a)(3). The court then noted the analysis in the appellate opinion in Ransom² wherein the appellate court, in finding that the medical review board proceeding did not qualify as an "action," distinguished the Cummings decision on the basis that the administrative agency in that case was authorized to render final, binding decisions which were enforceable through a court order and that the proceedings before it were similar to a judicial proceeding. Ransom, 122 Ill.2d at 529,120 Ill.Dec. 525,524 N.E.2d at 560.

Moreover, an agency is said to act in a judicial capacity when it provides: "`(1) representation by counsel, (2) pretrial discovery, (3) the opportunity to present memoranda of law, (4) examination and cross-examination at the hearing, (5) the opportunity to introduce exhibits, (6) the chance to object to evidence at the hearing, and (7) final findings of fact and conclusions of law.' [Citation.]" Wenig v. Lockheed Environmental Systems & Technologies Co., 312 Ill.App.3d 236, 239-40, 244 Ill.Dec. 670, 726 N.E.2d 645, 648 (2000).

In an NLRB proceeding, when a complaint is issued based upon the filing of an unfair labor practices charge, the matter is first heard by an administrative law judge. All of the parties, including the administrative law judge, have the power to call, examine and cross-examine witnesses and introduce evidence into the record. 29 C.F.R. § 101.10 (1999). After the hearing, the administrative law judge prepares a decision, making findings of fact and conclusions of law, and recommends what action should be taken in the case. 29 C.F.R. § 101.11 (1999). The NLRB then reviews the entire record and issues its decision, either adopting, modifying or rejecting the findings of the administrative law judge. 29 C.F.R. § 101.12 (1999). In the event that the NLRB's order is not complied with, or the NLRB determines that it is advisable to implement the order with a court judgment or a party wishes to challenge the NLRB's decision, petition for such relief may be made to the appropriate federal court. 29 C.F.R. § 101.14 (1999). Once an NLRB order has been enforced by a court judgment, the NLRB has the responsibility of obtaining compliance with that judgment. 29 C.F.R. § 101.15 (1999).

Based on the above, we are of the opinion that an NLRB proceeding is similar to a judicial proceeding.

Overnite argues that the Ransom court also refused to find the proceeding before the medical review board to be "an action" because of the delay in the review board's issuing of a decision. Ransom, 122 Ill.2d at 530, 120 Ill.Dec. 525, 524 N.E.2d at...