Petition — Riley v. International Union of Allied Industrial Workers
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83-1172
No.
rar PD
DEC 81 1993
me hi,
Supreme Court of the An a
Octoser Term, 1983
ROBERT 8. RILEY,
Petitioner,
vB.
INTERNATIONAL UNION OF ALLIED INDUSTRIAL
WORKERS, et al, .
Respondents.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF ILLINOIS
Bf
DEAN M. TRAFELET
SCHLEGEL & TRAFELET, LTD.
One N. LaSalle St.
Suite 3900
Chieago, Illinois 60602
(312) 782-1061
Attorney for Petitioner
Rosgert 8S. Ruzy
Of Counsel
BARRY A. GOMBERG
ABRAMS, GOMBERG & REESE, LTD.
135 South LaSalle Street 2610
Chicago, IL 60603
(312) 372-1981
UNITED STATES LAW PRINTING CO, CHICAGO, ILLINOIS 60618 (312) 525-6581
QUESTIONS PRESENTED
1. Whether a court shall apply collateral estoppel where
in the prior case a dismissal was entered upon a docket
sheet which failed to state the grounds therefor and where
the docket entry could be based upon two or more grounds,
neither of which are determinable from the docket entry.
2. Whether a state court shall apply the doctrine of
collateral estoppel where in the prior federal case no
‘*final’’ judgment was set forth upon a separate document
stating the grounds therefor and where there was no
strict compliance with the Federal Rule of Civil Procedure
58(2).
PARTIES AFFECTED
Appellant-Defendant Below: Robert S. Riley
Appellee-Plaintiff Below: International Union of Allied
Industrial Workers of America, AFL-CIO, Local 876, By
Samuel J. Williams, as President, and Lonnie E. Williams,
as Financial Secretary-Treasurer.
TABLE OF CONTENTS
cw PAGE
SL Se i
a ER IS I ca i
EE 1\
i sssestnamnnsvesinncsibbntionn 2
a er neneosnenvapesemansecacustone 2
Federal Rules and Statutes Involved 0000000000000. 2
I i, ass ceseesnnesesecenbeues 3
Existence of Jurisdiction Below 20.00.0000... 0.00 6
Reasons for Granting the Writ 0000... 7
EEE EE 10
Appendix
A. US. District Court No. 81-3216 Motion to Dismiss 1
Memorandum In Support of Defendant’s Motion
ES LE TE TT 2
Amendment to Defendant’s Memorandum In Sup-
port of Motion to Dismiss 2.222... 12
Answer to Motion to Dismiss ........00000000000000000.00.... 18
ne Se ee 15
Motion for leave to file first Amended Complaint 17
Memorandum in Support of Plaintiff’s Motion
for leave to file an Amended Complaint .............. 22
B.
C.
iii
Illinois Cireuit Court
PAGE
UT TI satatetecinatessstaadciabcileciaspdeictabaeaiesnoasatcnines 34
Illinois Appellate Court
Order of the Court and Opinion .......000.00000............ 37
A RO TE 51
Order Denying Petition for a Rehearing .............. 57
Petition for a Certificate of Importance ....... ‘coi 58
Memorandum of Appellate Court Clerk denying
Petition for a Certificate of Importance ............... 63
Illinois Supreme Court
Petition for Leave to Appeal to the Supreme
II easeieiicnchsdtactubncdnsabscascisinbeiie dimmed cacidocuncapeiueastialael ata ass 64
Memorandum of Clerk of Illinois Supreme Court
denying Petition for Leave to Appeal to the Su-
IID SOUND | steccntcchgeiscteriehnsinecnelnsiobaa piccaitbeaenehdasehiailteaiies 89
Petit on to Stay or Recall Mandate —....0000000....... 90
Suggestions in Support of Defendant Appellant’s
Petition to Stay or Recall Mandate ....................... 94
Order granting petition to Stay or Recall Mandate 104
iv
TABLE OF AUTHORITIES
Cases
PAGE
Russel v. Place (1876) 94 U.S. 606, 24 L.Ed. 214 ........ 7
Happy Elevator No. 2 v. Osage Construction Co.
(C.A. 10th, 1954), 209 F.2d 459 ........... Sad cuniciaatheamapian 7
Beronio v. Ventura County Lumber Co. (1900) 129
Cal. 232, 61 P 958, 79 Am.St.Rep. 118 ........................ 7
Kremer v. Chemical Construetion Corporation, 456
U.S. 461, 72 L.Ed.2d 262, 102 S.Ct. 1883, reh.den.,
73 L.Ed.2d 1405, 103 S.Ct. 20 2... eee cccececseeeeeeees SS)
Allemv. Met irry, 449 U.S. 90, 66 L.Ed.2d 308, 101 S
EE a ee Oe Te Oe TS 8
Montana v. United States, 440 U.S. 147, 59 L.Ed. 2d
EN I Ra See SE s
Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan
(1884), 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 ....... 9/
Bankers Trust Co. v. Mallis (N.Y., 1978) 98 S.Ct. 1117,
GS. Ue. GOR GS Game GO cine 9
Dice v. Akron, Canton, Youngstown Railroad Co.
(1952) 342 U.S. 359, 96 L.Ed. 398, 72 S.Ct. 312 ...... 4
Treatise
Moore’s Federal Practice, Volume 1B .....0.0000000000.... 7,3
Moore’s Federal Practice, Volume 6A |... 00... 9
Iu the
Supreme Court of the Anited States
Octoser TERM, 1983
No.
ROBERT S. RILEY,
Petitioner,
v8.
INTERNATIONAL UNION OF ALLIED INDUSTRIAL
WORKERS, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF ILLINOIS
To the Honorable Chief Justice and Associate Justices of
the Supreme Court of the United States:
Your Petitioner, Robert S. Riley, respectfully prays that
a Writ of Certiorari be issued to review the decision of
the Illinois Supreme Court which left standing an opin-
ion of the Illinois Appellate Court for the Fourth District
in the above case which is in conflict with opinions of this
Court.
2
OPINIONS BELOW
The Illinois Appellate Court’s Opinion was issued under
Illinois Supreme Court Rule 23 which provides that such
opinions need not be published. After a diligent search
for publication, including a telephone call to Pantagraph
Publications, the official publisher of Lllinois Court Opin-
ions, we concluded that the opinions were not published.
The opinions are, however, attached as part of the Ap-
pendix.
JURISDICTION
The Illinois Supreme Court denied Robert Riley’s Peti-
tion for Leave to Appeal in an Order dated October 4,
1983, a copy of which is attached as Appendix D. The IIli-
nois Supreme Court allowed Robert Riley’s Petition to
Stay or Recall Mandate pending the outcome of this Peti-
tion for a Writ of Certiorari in an Order dated November
15, 1983, a copy of which is attached as Appendix D. This
Court has jurisdiction under Title 28, Section 1254, United
States Code.
FEDERAL RULES INVOLVED
28 USC 58(2)
Rule 58. Entry of Judgment
Subject to the provisions of Rule 54(b):.... (2) upon
a decision by the court granting other relief, or upon a
special verdict or a general verdict accompanied by an-
swers to interrogatories, the court shall promptly approve
the form of the judgment, and the clerk shall thereupon
enter it. Every judgment shall be set forth on a separate
document. A judgment is effective only when so set forth
and when entered as provided in Rule 79(a). Entry of
3
the judgment shall not be delayed for the taxing of costs.
Attorneys shall not submit forms of judgment except upon
direction of the court, and these directions shall not be
given as a matter of course.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21,
1963, eff. July 1, 1963.)
STATEMENT OF THE CASE
Robert S. Riley is an employee of the Archer Daniels
Midland Company (‘‘ADM’’) located in Decatur, Illinois
and a member of the International Union of Allied In-
dustrial Workers of America, AFL-CIO, Local 876
(‘‘AIW’’).
The AIW called a strike against ADM on February 8,
1980 and established picket lines near ADM. From Febru-
ary 22, 1980 to May 19, 1980 Robert S. Riley crossed the
picket line and worked for ADM.
Mr. Riley was served with notice on September 27, 1980
that he would be tried by a trial committee of the ATW on
September 30, 1980. Subsequently, the AIW notified Mr.
Riley on October 1, 1980 that the trial was continued to
October 6, 1980. On October 6, 1980 the AIW conducted
its trial of Mr. Riley in his absence, and found him in vio-
lation of Article 32.04 the Union Constitution prohibiting
‘‘working in an establishment where a sanctioned strike
is in progress, or returning to work during a sanctioned
strike.’’ The ATW fined him $64.00 per day, or $6,400.00,
for a period of one hundred days. Article 32.02 requires
that the trial is ‘‘to take place not less than ten (10) nor
more than fifteen (15) days after the receipt of such no-
tice... .’’ Mr. Riley was notified of the findings of the
trial on or about November 3, 1980. Mr. Riley appealed
+
from these findings, using the Union’s internal appellate
procedures until he had exhausted the statutory time limit
of four months for such appeals. 29 U.S.C. Sec. 411(a) (4)
(1959).
On July 13, 1981 Mr. Riley filed suit against the AIW
in U.S. District Court alleging inter alia, that the ATW
had failed to give him adequate notice of the trial, that
it failed to give him sufficient time to prepare his defense,
and that its trial committee was prejudiced against him
thereby failing to give him a fair trial, and that, if proved,
such allegations would be in violation of 29 USC 411(a)
(5) (A, B, & C).
The AIW filed a motion to dismiss arguing a lack of
jurisdiction due to Mr. Riley’s failure to exhaust his ad-
ministrative remedies and failure to state a claim upon
which relief may be granted. On December 7, 1981 the
U.S. District Court made the following docket entry:
The Court has again examined the file. Attorney for
Plaintiff has not filed any further response to Defen-
dant’s Motion to Dismiss. It appears that said motion
is well taken and therefore this case must be dismissed.
CAUSE DISMISSED (Ackerman, T.)
No judgment on a separate document was ever entered.
Except for this brief statement, no other explanation for
this docket entry from the U.S. District Court is known.
Two weeks later, the AIW filed suit in the Circuit Court
of Illinois for the Sixth Judicial District in Union County
seeking to enforce its fine. Against this suit, Mr. Riley
interposed as a counter claim the violations of 29 U.S.C.
411(a)(5) (A, B, & C) which he had alleged previously in his
suit in US. District Court. The ATW responded with a
motion to dismiss the counter claim on three grounds: 1) ,
lack of jurisdiction, 2) collateral estoppel, and 3) pleading
5
conclusions of law. In support of the collateral estoppel
argument, the AIW attached a certified copy of the docket
sheet for Mr. Riley’s case which he had filed as case Num-
ber 81-3216 in the U.S. District Court for the Central Dis-
trict of Illinois together with a copy of the Complaint and
the AIW’s motion to dismiss. On February 18, 1982 the
AIW filed a motion for summary judgment supported by
affidavits and the deposition taken of Mr. Riley during his
federal case. In that deposition Mr. Riley admitted that
he had crossed the picket lines for approximately 80 days
during the strike, but asserted that he did so only after
being harassed by AIW officials. The Circuit Court of
Illinois entered a Written Judgment Order which found
in pertinent part that it failed to state a cause of action
and that it should be estopped because of the U.S. District
Court’s action with regard to the claims.
Mr. Riley then appealed to the Appellate Court of Illi-
nois for the Fourth Judicial District. In his brief he
argued that the application of collateral estoppel was an
error which should be reversed because there had been no
ruling on the merits in the U.S. District Court and that
the summary judgment, since it was entered when there
‘were still issues of material fact at issue, was entered in
error. The Appellate Court affirmed, and went on to deny
Mr. Riley’s petition for a rehearing and for a Certificate
of Importance to the Illinois Supreme Court.
His remedies before the Appellate Court exhausted, Mr.
Riley then petitioned the Illinois Supreme Court on No-
vember 7, 1983 for leave to appeal. His petition was de-
nied on October 4, 1983 and mandate issued on the 26th
of the same month. He petitioned the Illinois Supreme
Court to Stay or Recall its mandate and therein alleged
6
that there was no final judgment in the U.S. District Court
because no judgment on a separate document was ever
entered pursuant to Federal Rule of Civil Procedure 58(2).
The Petition to Stay or Recall Mandate was granted and
this Petition for a Writ of Certiorari ensues.
EXISTENCE OF JURISDICTION BELOW
The Cireuit Court of Illinois had jurisdiction over Mr.
Riley’s federal counter-claims pursuant to the principles
of concurrent jurisdiction as outlined in the Appellate
Court of Illinois for the fourth Judicial District’s opinion,
attached hereto as Appendix C.
The U.S. District Court is granted jurisdiction over Mr.
Riley’s claims pursuant to 29 USC 411(a)(4) and continues
to have jurisdiction over his claims until the provisions
of 28 USC 58(2) are met so that an appeal may be taken
therefrom.
REASONS FOR GRANTING WRIT
A.
By refusing to grant Robert Riley’s petition for Leave
to Appeal, the Illinois Supreme Court left standing an
Illinois Appellate decision which decides an important
federal question in a manner inconsistent with applicable
decisions of this court, other state courts of last resort
and other federal appellate courts. The issue presented,
moreover is an issue which this court should decide so as
to lend certainty to the application of the doctrine of col-
lateral estoppel and to remind the courts of this country
of the principle it announced more than a century ago in
the case of Russel v. Place (1876) 94 US 606 at 608, 24 L.
Ed. 214.
This court in 1876 pronounced the rule that if a judg-
ment might be ‘‘based upon one or more of several
grounds, then none of them are conclusively established
under the doctrine of collateral estoppel, since it is im-
possible for another court to tell which issue or issues were
adjudged by the rendering court.’” Russel v. Place op.
cit.; Happy Elevator No. 2 v. Osage Construction Co. (CA
10th, 1954) 209 F.2d 459 at 462; Beronio v. Ventura County
Lumber Co. (1900) 129 Cal 232 at 236, 61 P 958, 79 Am.
St.Rep. 118.
The recent decisions of this court justly extol the vir-
tues of the doctrine of collateral estoppel: ‘‘collateral es-
toppel relieves parties of the cost and yexation of multiple
‘Quote taken from 1.B. Moore's Fed. Prac. 778; see his cita-
tions of authority in n.15 there; also see p. 782 and p. 789 for
further statements on the rule.
8
lawsuits, conserve judicial resources, and, by preventing
- inconsistent decisions, encourage reliance on adjudica-
tion.’’ Kremer v. Chemical Construction Corporation, 456
US 461, 72 L.Ed.2d 262, 102 S.Ct. 1883, reh den (US) 73
L.Ed.2d 1405, 103 S.Ct. 20; Allen v. McCurry, 449 US 90,
66 L.Ed.2d 308, 101 S.Ct. 441; Montana vy. United States,
440 U.S. 147, 59 L.Ed.2d 210, 99 S. Ct. 970. In the cases
just cited, this court imposes the limitation upon the doc-
trine that the parties have a fair, impartial and equal
opportunity to litigate the issues; in short, the prior
adjudication must meet general due process requirements.
Other limitations, however, are necessary, for the doc-
trine, if misunderstood and misapplied, can very easily
result in substantial individual injustice. In Moore’s Fed-
eral Practice it is stated:
These requirements play an important role in limit-
ing collateral estoppel to its proper function, and pre-
venting its expansion into a trap for the unwary, or
even the reasonably cautious, litigant or lawyer. As
we point out elsewhere, unless properly limited, col-
lateral estoppel can easily produce individual injus-
tice. 1.B. Moore’s Fed. Prac. 788.
This case presents this court with an opportunity to de-
lineate precisely an important limitation to the doctrine
of collateral estoppel thereby preventing substantial indi-
vidual injustice in the future.
Federal Rule of Civil Procedure No. 58(2) is a jurisdic-
tional rule. By placing the judgment on a separate docu-
ment and, afterwards, entering it upon the docket, a judg-
ment becomes ‘‘final’’, i.e. ‘‘appealable’’. The judicial act
of judgment followed by the ministerial act of entry upon
the docket marks the end of the trial court’s jurisdiction;
9
and, if an appeal is timely filed, the beginning of appel-
late court jurisdiction. 6A Moore’s Fed. Prac. 58.02 and
authorities cited therein and in y gh erRi A and D. Be-
cause of its jurisdictional nature, failure to follow this
rule may be raised at any time or by the court, sua sponte.
By analogy from Mansfield, Coldwater & Lake Michigan
Ry. Co. v. Swan (1884) 111 US 379, at 382, 4 S.Ct. 510, 25
L.Ed. 462.
It follows from the jurisdictional nature of this rule
that, although strict compliance may be waived (Bankers
Trust Co. v. Mallis, N.Y. 1978, 98 8. Ct. 1117, 485 US 381,
55 L.Ed.2d 357 reh.den. 98 S.Ct. 2259, 436 US 915, 56 L.Ed.
2d 416), absent express or implied waiver, a judgment is
not ‘‘final’’ until strict compliance with Fed. Rul. Civ.
Pro. 58(2) obtains. Since the application of collateral
estoppel requires a final judgment, it follows that where
strict compliance with Fed. Rul. Civ. Pro. 58(2) is ab-
sent, collateral estoppel cannot and should not be applied.
Although in Lilinois State Courts, a final judgment may
be entered only through a docket entry, in federal courts
rule 58(2) sets forth a different definition of ‘‘finality’’
for judgments, by its requirement that judgments first be
set forth on a separate document. Thus, when a state court
adopts its own definition of judgment finality in applying
collateral estoppel, rather than applying the federal defi-
nition, (when the prior case was a federal case), the state
court, in effect, uses state procedural rules to deprive a
United States citizen of his federally protected rights.
This court in Dice v. Akron, Canton, Youngstown Railroad
Company, (1952) 342 U.S. 359, 96 L.Ed. 398, 72 S.Ct. 312
stated that it would not permit state courts to deprive a
U.S. citizen of his federally protected rights through state
procedural means.
10
This court has never considered the question of whether
a judgment which fails to strictly comply with Federal
Rules of Civil Procedure 58(2) is ‘‘final’’ for purposes
of collateral estoppel and this case presents this court
with an opportunity to decide the question, and at the
same time to reaffirm its decision in Dice y. Akron, op. cit.
CONCLUSION
For the reasons stated above, your petitioner respect-
fully prays that this court grant his petition for a Writ
of Certiorari.
Respectfully submitted,
/38/ Dean M. Trafelet
Dean M. Trare.et
Scutece, & Trareet, Lop.
One N. LaSalle St.
Suite 3900
Chicago, Illinois 60602
(312) 782-1061
Attorney for Petitioner
Rosert S. Ruzy
Of Counsel
Barry A. GomBErRc
Asrams, Gomperc & Regzsz, Lop.
135 South LaSalle Street 2610
Chicago, Llinois 60603
(312) 372-1981
APPENDIX
APPENDIX A
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT, SPRINGFIELD DIVISION
ROBERT RILEY,
Plaintiff,
NO. 81-3216
UNION OF AMERICA, LOCAL 876,
Defendant.
MOTION TO DISMISS
COMES NOW the Defendant, ALLIED INDUSTRIAL
WORKERS UNION OF AMERICA, LOCAL 876, by its
Attorneys, RONALD L. CARPEL, LTD. pursuant to Rule
12 of the Federal Rules of Civil Procedure, moves this
Court to dismiss the Plaintiff’s, ROBERT RILEY, com-
plaint and in support thereof states as follows:
)
)
vs )
ALLIED INDUSTRIAL WORKERS )
)
)
1. That the complaint fails to state a cause of action
and that the Plaintitf has failed to attach a copy of the
International Constitution which document is the basis
of this action.
2. That the Honorable Court lacks jurisdiction over
the subject matter of this cause of action in that the Plain-
tiff has failed to exhaust his internal union remedies as
required under 29 U.S.C. § 411 (a)(4).
WHEREFORE, ‘che Defendant, ALLIED INDUSTRI-
AL WORKERS UNION OF AMERICA, LOCAL 876,
moves this Court for an order dismissing the Plaintiff's,
ROBERT RILEY, complaint with prejudice, at cost to
the Plaintiff.
App. 2
ALLIED INDUSTRIAL WORKERS
UNION OF AMERICA, LOCAL 876,
Defendant
BY: RONALD L. CARPEL, LTD.
BY /s/ Ronald L. Carpel
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT, SPRINGFIELD DIVISION
ROBERT RILEY, )
Plaintiff,
vB )
ALLIED INDUSTRIAL WORKERS )
UNION OF AMERICA, LOCAL 876, )
Defendant. )
MEMORANDUM IN SUPPORT OF DEFENDANTS
MOTION TO DISMISS
COMES NOW, the Defendant, ALLIED INDUSTRIAL
WORKERS UNION OF AMERICA, LOCAL 876 and for
its Memorandum in Support of its Motion to Dismiss
filed herein, states as follows:
The Defendant sets forth a brief summary of the facts.
The Plaintiff prior to, and at all times mentioned in this
matter, was a member of the Defendant Union, Local 876
and subject to the terms of the Constitution of the Inter-
national Union.
That on September 25, 1980, the Plaintiff was served
with a letter which indicated that he had been charged by
the Defendant Union with numerous violations of the De-
fendant’s rules as set forth in the International Constitu-
tion alleging that the Plaintiff had crossed picket lines
and worked for Archer Daniels Midland Company during
a duly authorized strike against that company. The letter
NO. 81-3216
App. 3
set forth the Plaintiff’s rights under the Constitution, and
specifically advised the Plaintiff that his failure to appear
at the hearing could be construed as an admission of guilt.
The letter also advised the Plaintiff that the trial would
be held on September 30, 1980 and designated the time
and location of the said trial. The Plaintiff was also fur-
nished a copy of the Defendant Union’s Constitution.
These documents, except for the International Constitu-
tion, were attached to the Plaintiff’s complaint as group
Exhibit B.
On September 28, 1980, the Plaintiff was advised by
letter that the trial had been postponed to October 6, 1980,
to comply with the Defendant’s Constitution which re-
quired that a trial for violations of union rules be con-
ducted between ten and fifteen days after service of notice
and charges upon the member. This letter is also included
in the Plaintiff’s complaint in group Exhibit B.
On October 6, 1981, the trial was called to order at the
time and place stated in the notices to the Plaintiff. The
Plaintiff was called three times by the Chairman and failed
to appear. The trial was adjourned for a period of thirty
(30) minutes during which time the Chairman attempted
to call the Plaintiff on three separate occasions to deter-
mine if the Plaintiff would attend the trial. The Chairman
was unable to reach the Plaintiff by telephone and the
trial reconvened with evidence heard and a subsequent
finding of guilty on five of the eight charges pending
against the Plaintiff. A fine of $64.00 per day for each
of the 100 days the Plaintiff worked during the strike was
recommended and subsequently approved by the member-
ship.
The P!-intiff was notified of the decision and fine by a
notice dated November 3, 1980. This notice is attached to
the Plaintiff's complaint as Exhibit A.
App.4
On December 10, 1980, the Plaintiff sent a letter to the
International Union indicating his intent to appeal the
fine to the International Union Executive Committee pur-
suant to Article 19 of the Union Constitution, a copy of
which is attached to Plaintiff’s complaint as Exhibit E.
Subsequently, on February 2, 1981, the Plaintiff, in a
letter to the International Union, set forth his reasons
why the fine against him should be reversed. This letter
is attached to the Plaintiff’s complaint as Exhibit G. In
a letter dated June 30, 1981, the Plaintiff was notified that
the Executive Board had denied his appeal and concurred
in the findings of the trial committee. This letter is at-
tached to the Plaintiff’s complaint as Exhibit H.
The Defendant contends that this Honorable Court
should refuse to take jurisdiction in this matter as the
Plaintiff has failed to exhaust his internal union remedies
as required under 29 U.S.C. § 411 (a)(4) which states, in
part, as follows:
‘**(4) Protection of the right to sue. No labor or-
ganization shall limit the right to any member thereof
to institute an action in any court, or in a proceeding
before any administrative agency, irrespective of
whether or not the labor organization or its officers
are named as defendants or respondents in such action
or proceeding, or the right of any member of a labor
organization to appear as a witness in any judicial,
administrative, or legislative proceeding, or to peti-
tion any legislature or to communicate with any legis-
lator: Provided, That any such member may be re-
quired to exhaust reasonable hearing procedures (but
not to exceed a four-month lapse of time) within such
organization, before instituting legal or administra-
tive proceedings against such organizations or any
officer thereof. (Emphasis Added)
App. 5
ARGU MENT
The Plaintiff states in his complaint that he has been,
and is, a member of the Defendant local union. As a mem-
ber of the Defendant union the Plaintiff has agreed to be
bound by the Constitution of International Union and
Laws governing Local Unions hereafter referred to as the
‘*Constitution’’. This ‘‘Constitution’’, among other things,
details the rights of a member who is charged with vio-
lating union rules and the basis of charges against a
member, in addition to the trial and appeals procedure
afforded the member. The Plaintiff alleges in his com-
plaint that the Defendant has violated his rights but has
refused to attach to this complaint a copy of the ‘‘Con-
stitutiou’’, which establishes those rights. The Defendant
contends that the ‘‘Constitution’’ is a necessary document
and is, in effect, the basis of the Plaintiff’s complaint. The
failure of the Plaintiff to attach a copy of the ‘‘Constitu-
tion’’ renders the complaint defective.
The allegations in the Plaintiff’s complaint clearly re-
flect that the Plaintiff failed and refused to attend or par-
ticipate in his trial before the trial committee. The De-
fendant maintains that the Plaintiff’s failure to partici-
pate in his trial constitutes a waiver of his right to a trial
on the matter. The Defendant further maintains that be-
cause the Plaintiff has elected to waive his right to a trial,
he should then not be allowed to come before this Court
and claim that he has exhausted his inter-union remedies
which is a condition precedent to seeking relief before
this Court.
The doctrine of waiver is certainly not a new concept
to the judicial system. The case of Lichter v. United States,
334 U.S. 742, 92 Led 1694 (1948), while not involving a
App. 6
dispute between a union and its members, clearly sets forth
the law whereby a person may not waive a right and later
claim he was not afforded the right.
The Lichter case involved the recovery by the United
States for excessive profits made by the Plaintiff’s during
the war in violation of the Renegotiation Act. Under the
Act, the War Controls Price Adjustment Board had the
power to determine if excessive profits had been made and
further the power to order restitution. The Act indicated
that parties aggrieved by the decision of the Board had to
take their appeals to the Tax Court. The Plaintiff com-
panies in that matter did not so appeal, but immediately
brought the matter before the United States District Court.
The Supreme Court affirmed the District Court’s refusal
to hear the matter because the Plaintiffs had refused to —
take the matter before the Tax Court. The Supre:ne Court
indicated that a person cannot claim he was given a hear-
ing when the facts clearly show that the person did not
avail himself of the opportunities afforded for such a
hearing.
The doctrine of waiver was further supported in the
case of Ritz v. O'Donnell, 566 F2d 731, (1977). In Ritz,
the Plaintiff knowingly failed to exercise certain rights
available to him during a disciplinary hearing before his
union. The Court states that ‘‘Courts have also uniform-
ally declared that union members who knowingly fail to
exercise rights guaranteed or afforded them in connection
with union disciplinary proceedings have waived those
rights.’’
It is the Defendant’s position that if a union member
may waive his rights within a disciplinary hearing, he
may likewise waive his right to the disciplinary hearing
itself if the union member fails and refuses to participate
App.7
in that hearing. The Plaintiff in the matter before this
Court should not be allowed to claim that he has exhausted
his inter-union remedies when he has not availed himself
of those remedies by his failure to attend at the trial
hearing.
The case of Shernoff vs. Schimel 106 N.Y.S. 2d 505
(1951), dealt precisely with the question as to whether
an aggrieved union member could claim to exhaust his
inter-union remedies and thus bring his matter before a
Court of law when the union member failed to participate
in the inter-union procedures afforded him. In the Sher-
noff case, the Plaintiff came before the Court seeking a
temporary injunction to restrain the defendant union from
refusing to recognize the Plaintiff as a member of that
union. The Plaintiff union member had declined to partic-
ipate in the appeal proceedings before the Joint Execu-
tive Board, indicating that he had not previously received
a fair trial. The Joint Executive Board indicated that
the Plaintiff union member should have an opportunity
for a trial and ordered the local union to conduct a retrial
so that there was no question as to affording the Plaintiff
union member every possible safeguard and protection.
The Plaintiff union member again refused to partici-
pate in the local trial after he had received due notice of
the time and place of the trial and was advised fully of
his rights therein. The Plaintiff union member was again
found guilty of the charges against him and was so ad-
vised. In addition, the Plaintiff was given notice that he
could present his case before the fuli membership and
again refused to appear to present his case before that
body. The Plaintiff then brought another application for
temporary injunction before the court seeking reinstate-
ment as a union member. The court indicated that the
App. 8
Plaintiff union member had made no serious effort to
exhaust his remedies within the framework of the union
and thus he had not exhausted his rights within the union
framework and did net qualify for injunctive relief be-
fore the court.
In addition to the Plaintiff’s failure to participate in
the trial proceedings at the local level, the Plaintiff has
failed to exhaust all his inter-union remedies by his fail-
ure to appeal to the International Convention as set forth
in Article 19.3 which states as follows:
‘*The International Executive Board shall act upon
such appeal at its next regular meeting or at a spe-
cial meeting called for such purpose, and it shall
notify the parties interested of the date on which the
appeal is to be considered, and such parties may in
the discretion of the International Executive Board
be afforded the right to appear and present argument.
The International Executive Board may affirm, re-
verse, or modify the action, decision, or penalty ap-
pealed from or may refer the matter back to the local
union for further proceedings in accordance with the
directions of the Internation Executive Board. Any
subordinate body or member thereof aggrieved by the
action of the International Executive Board shall ap-
peal to the convention of the International Union by
serving notice of appeal on the International Union
and filing supporting statements within sixty (60)
days after such decision is rendered.’’ (Emphasis
Added)
The case of Forline v. Helpers Local No. 42, 211 F. Supp.
315 (E. A. Penn. 1962) is cited by the Defendant as addi-
tional support for its contention that the Plaintiff has
failed to exhaust his inter-union remedies and that the
question of exhaustion of remedies is one which can be
decided in a motion to dismiss.
App. 9
In Forline, the United States District Court for the
Eastern District of Pennsylvania was again faced with the
matter as to whether the aggrieved union members had
exhausted their interunion remedies prior to seeking the
jurisdiction of the Court. ‘The defendant union, in that
ease, asked for a motion to dismiss claiming that the Plain-
tiffs had failed to exhaust the remedies available to them
under the Constitution and By-Laws of the defendant
union. The Plaintiffs cited the case of Detroy v. American
Guild of Variety Artists, 286 F.2d 75 (2d Cir. 1961) as
justification for their failure to exhaust union remedies.
The Court in Detroy stated that based on the language
set forth in 29 U.S.C. 411 (a)(4), the requirement of ex-
haustion was not absolute but a requirement which may be
imposed by the Court depending on the factual basis set
forth. The court in Forlime stated that the legislative and
judicial policies that underline the requirement of ex-
haustion of union remedies were stated in Detroy at page 79
as follows:
‘“‘The congressionally approved policy of first per-
mitting unions to correct their own wrongs is rooted
in the desire to stimulate labor organizations to take
the initiative and independently to establish honest
and democratic procedures.’
‘*The possibility that corrective action within the union
will render a member’s complaint moot suggests that
in the interests of conserving judicial reserves, no court
step in before the union is given its opportunity.”’
The court in Forline indicated that to effectuate the poli-
cies previously set forth in the Detroy case ‘‘the issue of
exhaustion of remedies should be disposed of as early in the
proceedings as practicable. In appropriate cases, it may
be determined preliminarily upon motion, but it cannot be
presumed in a vacuum. Where a union moves to dismiss
App. 10
the complaint, it should place before the Court facts estab-
lishing that the union remedies are available to the Plain-
tiff and the Plaintiff has neglected to use them.’’
The Plaintiff, in his complaint, states that he did appeal
to the International Executive Board. However, the Plain-
tiff fails to state that he has attempted to appeal the matter
to the Convention of the International Union which conven-
tion is due to convene on August 29, 1981.
The Defendant further maintains that the Plaintiff may
not claim to have exhausted his inter-union remedies when
he has failed to appeal his case to the International Con-
vention which is scheduled to meet in the very near future.
The Defendant maintains that this court may determine
on a motion to dismiss if the Plaintiff has exhausted his
inter-union remedies as required under 29 U.S.C. 411 (a)-
(4), which exhaustion of the said inter-union remedies is a
condition precedent to the invocation of the jurisdiction of
this Court.
It is clear that the Plaintiff has waived his right to a
trial before the local union on this matter by his failure
and refusal to participate in the local trial. Based upon
his failure and refusal to participate in the local trial, the
Plaintiff cannot claim to have exhausted his inter-union
remedies as required by the Statute.
it is further clear from the facts set forth above that
the plaintiff also failed and refused to appeal the decision
of the local union to the International Convention. The
Convention is due to convene in the very near future and
such failure and refusal to appeal to the Convention also
constitutes a failure on the part of the Plaintiff to exhaust
his inter-union remedies as required by the statute.
Finally, the Plaintiff has failed and refused to attach a
copy of the International (onstitution which document is
necessary and essential to the Plaintiff's cause of action.
App. 11
In view of the Plaintiff’s failure to exhaust his inter-
union remedies as required under 29 U.S.C. 411 (a)(4) and
his failure to attach a copy of the International Constitu-
tion the Defendant moves this court for an order dismiss-
ing the Plaintiff’s complaint with prejudice at costs to the
Plaintiff.
Respectfully submitted,
Ronald L. Carpel, Ltd.
By /s/ Ronald L. Carpel
Attorneys for Defendant
Allied Industrial Workers Union
Of America, Local 876,
Defendant
PROOF OF SERVICE
The undersigned attorney certifies that a copy of the
foregoing instrument was served upon the attorneys of
record of all parties who have appeared in the above cause
by enclosing the same in an envelope addressed to such at-
torneys at their business address, with postage fully pre-
paid, and by depositing said envelope in a United States
Post Office Mail Box in Dec., Illinois on the 31 day of
July, 1981.
/s (signature dlegible)
App. 12
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT, SPRINGFIELD DIVISION
ROBERT RILEY, )
Plaintiff, )
vs ) NO. 81-3216
ALLIED INDUSTRIAL WORKERS )
UNION OF AMERICA, LOCAL 876, _ )
Defendant. )
AMENDMENT TO DEFENDANT’S MEMORANDUM
IN SUPPORT OF MOTION TO DISMISS
(Filed August 14, 1981)
Comes Now, the Defendant, Allied Industrial Workers
Union Of America, Local 876 and for its Amendment to
its Memorandum in Support of its Motion to Dismiss
previously filed states as follows:
1. That in the first paragraph of Page 8 of the Defen-
dant’s Memorandum, the Defendant makes reference to the
International Convention, which was due to convene on
‘* August 29, 1981."’
2. That the date referred to as August 29, 1981 is in-
correct, and that the correct date should read ‘‘ August
24, 1981.”""
3. That the remainder of Defendant’s Memorandum is
correct in all respects except for the change in the date
as set forth above.
Respectfully submitted,
Ronald L. Carpel, Ltd.
By /s/ Ronald L. Carpel
Attorney for Defendant
ALLIED INDUSTRIAL WORKERS
UNION OF AMERICA, LOCAL 876,
Defendant
App. 13
PROOF OF SERVICE
The undersigned attorney certifies that a copy of the
foregoing instrument was served upon the attorneys of
record of all parties who have appeared in the above cause
by enclosing the same in an envelope addressed to such at-
torneys at their business address, with postage fully pre-
paid, and by depositing said envelope in a United States
Post Office Mail Box in ................ , Illinois on the 31 day of
July, 1981.
/a/ (signature illegible)
8-22-81 Clerk to notify atty for pl of the requirements
of local rule 12. Rule on pl to file response within 7 days.
Failure to do so will be taken as a confession........ .... ........
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT, SPRINGFIELD DIVISION
_ ROBERT RILEY, )
Plaintiff, )
vs. ) No. 81-3216
)
ALLIED INDUSTRIAL WORKERS )
UNION OF AMERICA, LOCAL 876, )
Defendant. )
ANSWER TO MOTION TO DISMISS
Now comes the plaintiff, Robert Riley, by one of his
attorneys, Murray B. Woolley, and in answer to the defen-
dant’s Motion to Dismiss states as follows:
1. That the complaint does state a cause of action under
Chapter 29 U.S.C. §§411(a) (1) (2) (5) (¢) 412 and 529,
all being under the Labor Management Reporting and Dis-
closure Act; that the plaintiff failed to attach a copy of
App. 14
the Constitution of the International Union, but that said
inadvertent failure is not of consequence in that he has
stated sufficient allegations in support of his Complaint
under the L.M.R.D.A.
2. That the plaintiff has exhausted his internal union
remedies pursuant to paragraph of his Complaint, which
among other things states that his first appeal was dated
December 15, 1980 and thé” last response that he received
from the International Union was June 30, 1981; under
the circumstances since he has pleaded appeals of his fine
to the International Union covering a period of more than
six months, he has satisfied the requirements of the law
that he exhaust his internal union remedies.
WHEREFORE, the plaintiff, Robert Riley, moves this
Court for an Order denying the defendant’s Motion to
Dismiss at the costs of the defendant.
Robert Riley,
Plaintiff
Murray B. Woolley
One of His Attorneys
1981
7/13/81
7/13/81
7/17/81
8/ 3/81
S/ 3/81
8/ 3/81
8/ 6/81
8/14/31
8/22/81
8/31/81
9/ 1/81
9/ 1/81
App. 15
DOCKET SHEET
Complaint.
Summons w/USMarshal Form and one copy
issued to USMarshal for service.
Summons, ret. exec. on International Union
cert. mail by USM 7/16/81.
(Deft.) Motion ‘To Dismiss.
(Deft.) Memorandum In Support Of Defen-
dants Motion To Dismiss.
(Deft.) Motion To Strike.
(Deft.) Memorandum In Support Of Defendants
Motion To Strike. LV
(Deft.) Amendment ‘Io Defendant’s Memoran-
dum In Support Of Motion To Dismiss.
Clerk to notify Atty. for pltf. of the require-
ments of Local Rule 12. Rule on pltf. to file
response within seven (7) days. Failure to do
so will be taken as a confession of the pending
Motions. (Ackerman, J.) Copy of d/e mailed to
parties w/copy of Local Rule 12.
Letter from Atty. Murray B. Woolley, counsel
for pltf. request extension of time to and in-
cluding Sept. 4, 1981.
Letter from Atty. Ronald L. Carpel, counsel for
deft. in opposition to pltfs. letter requesting ex-
tension of time.
Although the point made by Atty. Carpel in his
letter in opposition is not without merit, never-
theless the Court Allows this Motion to extend
time to and including Sept. 4, 1981. (Ackerman,
J.) Copy of d/e mailed to parties.
9/ 4/81
9/ 4/81
9/ 4/81
9/ 4/81
9/14/81
11/10/81
11/10/81
11/10/81
App. 16
(Pitf.) Answer To Motion To Dismiss.
Memorandum In Support Of The Plaintiff’s
Opposition To The Defendant’s Motion To Dis-
miss.
(Pitf.) Answer To Defendant Union’s Motion
To Strike.
Memorandum In Opposition ‘lo Defendant’s Mo-
tion To Strike.
Hearing on all pending motions set for Tuesday,
November 10, 1981 at 2:30 p.m. Atty. Carpel
to notify parties.
Notice of Hearing.
Cause called for hearing on all pending motions.
Attorney Ronald Carpel appears for defen-
dants. No one appears for plaintiff. Attorney
Murray Woolley contacted telephonically by the
court. Attorney Woolley said he received notice
of the hearing, could not appear and stands on
his memos already filed. Arguments of Defen-
dant attorney heard. Leave granted to counsel
for the defendant to file a copy of the union
constitution as part of the record. Leave
granted to counsel for the defendant to file
Plaintiff’s deposition in support of his motion
to dismiss. Ruling reserved at this time. Rule
on Plaintiff to respond if desired in accordance
with Rule 12 and Rule 56, F.R.C.P., within 21
days. (Ackerman, |J.).
Docket entry mailed to attorneys.
Deposition of Robert Riley taken Sept. 8, 1981,
filed.
App. 17
12/ 7/81 The Court has again examined file. Atty. for
pitf. has not filed any further response to deft’s
motion to dismiss. It appears that said motion
is well taken and therefore this case must be
dismissed. ('ause Dismissed. (Ackerman, .J.)
Copy of d/e mailed to parties.
12/ 7/81 Case Closed.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT, SPRINGFLELD DIVISION
ROBERT 8S. RILEY, )
Plaintiff, )
Vs. ) No. 81-3216
)
ALLIED INDUSTRIAL WORKERS )
UNION OF AMERICA, LOCAL 876, )
Defendant. )
MOTION FOR LEAVE TO FILE FIRST AMENDED
COMPLAINT
(Filed November 4, 1983)
NOW COMES the Plaintiff, ROBERT S. RILEY, by and
through his attorneys, ABRAMS, GOMBERG & REESE,
LTD., and respectfully moves this Court for leave to file
a First Amended Complaint. In support of this Motion,
Plaintiff states as follows:
1. On July 17, 1981, the Plaintiff filed his Complaint
in the above captioned cause, by and through different
counsel.
2. On November 10, 1981, with Plaintiff's Counsel ab-
sent, a hearing was held on Defendant's Motion to Dis-
miss and Plaintiff's Motion to Strike.
App. 18
3. On December 7, 1981, there was entered a docket
entry dismissing the cause which was silent as to the reason
and grounds therefor. The Union's Motion to Dismiss
was based upon two grounds: 1) lack of jurisdiction for
failure to exhaust administrative remedies and 2) failure
to state a claim upon which relief can be granted.
4. On December 22, 1981, the Union filed a Complaint
in the Illinois Cireuit Court of Macon County seeking en-
forcement of a $6,400.00 fine assessed by a trial committee
of the Union, to which Plaintiff raised certain counterclaims
alleging the Union’s action violated certain federal rights
protected by Ch. 29 U.S.C. $411(a)(5)(e).
5. Upon the belief that his federal rights would be ad-
judicated and protected by the Illinois state courts, the
plaintiff obtained new counsel and interposed as a counter-
claim to the Union’s complaint in Illinois State Court the
claim he alleged in the above captioned matter.
6. Federal Rules of Civil Procedure 58(2) states in per-
tinent part as follows:
‘*. .. Every judgment shall be set forth on a separate
document. A judgment is effective only when so set
forth and when entered as provided in Rule 79(a)."’
(emphasis added)
7. Since no judgment set forth upon a_ separate
document was ever entered by this Court in the within
cause, no final judgment was ever entered in the within
cause of action by this Court pursuant to F.R.C.P. 58(c)
and 79(a); see also 1b Moore’s Fed.Prac. 723 and Moore
v. Umited States (C.A. D.C., 1965) 344 F.2d 558; Fibre
Board Paper Products, Coro. v. East Bay Union, (C.A.
9th, 1965) 344 F.2d 300, cert denied (1965) 382 U.S. 826,
86 S.Ct. 61, 15 L.Ed.2d 71 which set forth the rule that a
final judgment is necessary before the doctrine of Collateral
Estoppel can be properly applied.
App. 19
8. When a judgment could have been grounded upon
more than one alternative ground but does not expressly
rely on any one of them, then none is coneluded. 1b Moore's
Fed. Prac. 729.
9. The Illinois Cireuit Court for Macon County er-
roneously applied Illinois law on when judgments are final
and collateral estoppel and dismissed the Pilaintiff’s
Counter claim based upon his federally protected rights
and granted the Union summary judgment on July 12, 1982.
10. The Appellate Court of Illinois denied the Plain-
tiff’s appeal from this error on March 17, 1983 and denied
the Plaintiff's petition for a rehearing on April 14, 1985,
again erroneously applying Lllinois rather than Federal
law on finality of judgment and collateral estoppel.
11. On October 4, 1983, the Supreme Court of Illinois
denied the Plaintiff's petition for leave to file an appeal and
mandate issued on October 26, 1983.
12. The United States Supreme Court clearly stated in
Dice v. Akron, Conton & Youngstown Railroad Company,
(1952) 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 that it will
not permit state procedural law to deprive a United States
Citizen of his federally protected rights.
13. The Plaintiff in good faith intends to petition the
United States Supreme Court for a Writ of Certiorari so
that be may obtain federal review of the above mentioned
errors in Illinois Courts, and has retained counsel there-
fore.
14. The Plaintiff, in good faith, intends to petition the
[llinois Supreme Court to stay or recall its mandate for
the above mentioned errors and because he intends in good
faith to appeal to the United State Supreme Court, and has
retained counsel therefor.
App. 20
15. Although the Illinois Courts have clearly and obvi-
ously erred, Writs of Certiorari are rarely granted by
the United States Supreme Court and amendment of Plain-
tiff’s Complaint in this Court may be Plaintiff’s last op-
portunity to have his federally protected rights properly
adjudicated.
16. Plaintiff's cause filed in this Court is meritorious.
17. Plaintiff requests a hearing on this motion.
WHEREFORE, Plaintiff respectfully prays this Court
to grant him leave to file an amended complaint so that
he may have an opportunity to have the merits of his fed-
eral claim heard. Or, alternatively, the Plaintiff respect-
fully prays that this honorable Court refrain from entering
judgment and ruling on this motion until such time as as
the Plaintiff has exhausted his appeal to the United States
Supreme Court and the Iliinois Supreme Court has ruled
upon the Plaintiff's Petition to Stay or Recall Mandate.
Respectfully Submitted:
ABRAMS, GOMBERG & REESE, LTD.
ABRAMS, GOMBERG & REESE, LTD.
135 South LaSalle Street
Suite 2610
Chicago, Lllinois 60603
(312) 372-1981
App. 21
PROOF OF SERVICE
The Undersigned, being first duly sworn on oath, deposes
and states that s/he served copies of the foregoing MO-
TION FOR LEAVE TO FILE FIRST AMENDED COM-
PLAINT by mailing copies of same in a properly addressed
and stamped envelope and depositing same in the U.S. Mail
as follows:
Clerk of the U.S. District Court,
Central District, Springfield Division 3 copies
P.O. Box 315
Springfield, Illinois 62705
Ronald A. Carpel, Ltd. 3 copies
132 South Water Street
Suite 538 Milikin Court
P.O. Box 309
Decatur, Illinois 62525
on the 3rd day of November, 1983.
‘s/ David L. Addleton
SUBSCRIBED AND SWORN to before
me this 3rd day of
November, 1983
/s/ (signature iliegible)
ABRAMS, GOMBERG & REESE, LTD.
135 South LaSalle Street
Suite 2610
Chicago, Lllinois 60603
(312) 372-1981
App. 22
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT — SPRINGFIELD DIVISION
ROBERT S. RILEY, )
Plaintiffs )
vs. ) No. 81-3216
)
)
)
ALLIED INDUSTRIAL WORKERS
UNION OF AMERICA, LOCAL 876
Defendant )
MEMORANDUM IN SUPPORT OF PLAINTIFF’S
MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT
(Filed November 4, 1983)
INTRODUCTION
On July 17, 1981, the Plaintiff represented by different
counsel, filed his complaint in the above captioned matter.
With Plaintiff’s counsel absent, a hearing was held on the
Defendant’s motion to dismiss and Plaintiff’s motion to
strike. The Union’s motion to dismiss was based on two
grounds: 1) lack of jurisdiction for failure to exhaust
administrative remedies and 2) failure to state a claim
upon which relief could be granted. Without stating its
reasons therefor, this court on December 7, 1981 caused
to be entered upon the docket a notation dismissing the
cause.
Subsequently, the Union, the Defendant herein, filed a
complaint in the Cireuit Court for Macon County, seeking
enforcement of its fine assessed by one of the Union's
trial committees in the amount of $6,400.00 against Robert
Riley, the Plaintiff herein. Against this claim in the Lli-
nois Circuit Court, Robert Riley interposed as a counter
claim allegations that the trial, notice thereof and imposi-
tion of the fine violated certain federal rights protected by
Ap). 23
Ch. 29 U.S.C. Section 411 (a)(5)(c)—in essence, the same
claims he alleged in the complaint for this matter in this
court.
This motion seeks leave to file an amended complaint.
The grounds and reasons for this motion are several and
the equities in the case strongly favor allowing the motion.
Robert Riley interposed as his counter claim in the Illinois
Court the claims he raised before this court because he be-
lieved his federal rights would be well protected in the
Illinois Courts. He pursued his counter claims in State
Court with ali the due diligence one could expect of him,
appealing the Lllinois Circuit Court’s erroneous applica-
tion of Lllinois law, rather than federal law on when judg-
ments are ‘‘final,’’ and the application of collateral estop-
pel to his case to the Illinois Supreme Court. Presently,
he in good faith intends to apply to the Supreme Court
of the United States for a Writ of Certiorari so as to obtain
federal review of the treatment his federally protected
rights received in the Illinois State Courts. In view
of the rules against duplicative actions in different
Courts, and his good faith belief that his federal rights
would receive the same measure of protection in the Illinois
Courts as they would receive in the Federal Courts, and
his due diligence in pursuing those rights in the State
Court, the Plaintiff cannot be faulted for a lack of due
diligence.
ARGUMENT
A. Clear and obvious error occurred in the Illinois State
Courts in its application of Lilinois law on the finality
of judgments rather than Federal law.
Rule 58(2) of the Federal Rules of Civil Procedure pro-
vide in pertinent part as follows:
‘*. 2. Every judgment shall be set forth on a separate
document, a judgment is effective only when so set
forth. . .°’ (Emphasi.: added)
App. 24
Appendix I to this memorandum consists of a true and
correct copy of the docket sheet for the case of Robert S.
Riley v. Allied Industrial Workers Union of America, U.S.
Dist. Ct. No. 81-3216 (‘‘Riley v. Allied’’), the case at bar.
All the documents filed in this case are numbered serially
in the second column. No separate document was ever filed
in Riley v. Allted. Consequently, there is nu separate docu-
ment entitled ‘‘judgment’’ listed in the docket sheet. The
only record available of the U.S. District Court’s disposi-
tion of the case is the docket entry of 12-7-81. A mere
docket entry under 58(2) does not qualify as a ‘‘separate
document’’.
That a mere docket entry does not qualify as a ‘‘ separate
document’’ is clear from the language of Rule 58. It re-
quires that first the Court approve the form of the judg-
ment submitted to it and then that the clerk enter the judg-
ment upon the docket:
‘*... the Court shall promptly approve the form of the
judgment, and the clerk shall thereupon enter it... A
judgment is effective only when so set forth and when
entered as provided in Rule 79(a). F.R.Civ.Pro. 58(2)”’
(emphasis added).
An effective judgment becomes such only through a two
step process: first, when set forth upon a separate docu-
ment; second, when entered pursuant to F.R.Civ.Pro.
79(a). The case law is overwhelmingly in accord with this
interpretation. (C'onrad v. Medina, D.C. Mun.App. 1946,
47 A.2d 562, (Prior to the adoption of this rule, federal
courts considered entry of a judgment as a ministerial
duty, the lack of which did not affect the validity of the
judgment for most purposes). Taylor v. Sterrett, CA Tex
1976, 527 F.2d 856, (This rule is to mechanically applied).
Virgin Islands National Bank vy. Tropical Ventures Inc.,
D.C. Virgin Islands 1973, 358 F.Supp. 1203, (Judicial entry
App. 25
of judgment is the norm rather than entry by the clerk, and
departure from the norm is narrowly (restricted). Levin v.
Wear-Ever Aluminum, Inc. C.A. Pa. 1970, 427 F.2d 847,
(Provisions requiring every judgment to be set forth on a
separate document and entered on a docket of the court
are mandatory in all cases). Associated Press vy. Taft-
Ingalls Corp., C.A. Ohio 1963, 323 F.2d 114, (Judgment
signed by the court is a ‘*prima facie’’ judgment in a case
rather than a memorandum opinion or docket entry). Scola —
v. Boat Frances, R., Imc., (.A. Mass. 1980, 618 F.2d 147,
(An appealable, final decision or judgment must be set forth
upon a separate document distinct from the jury verdict
or non-jury decision by the Court). Sasson v. U.S., C.A.
Ga. 1977, 549 F.2d 983, (This rule requires a judgment
separate and apart from an accompanying opinion).
The purpose of this rule is to clarify when the time for
appeal begins to run. Bankers Trust Co. v. Mallis, N.Y.
1978, 98 S.Ct. 1117, 435 U.S. 381, 55 L.Ed. 357, rehearing
denied 98 S.Ct. 2259, 436 U.S. 915, 56 L.Ed.2d 416; Scola
v. Boat Frances, R., Inc., op. cit. For this reason. an order
tacked onto the end of an opinion will not qualify as a
‘‘separate document’’. Caperton v. Beatrice Pocahontas
Coal Coal Co., C.A. Va. 1978, 585 F.2d. 683; Taylor v.
Sterrett, op. cit. Consequently, the absence of any separ-
ate document setting forth a judgment, except for an un-
signed transcript of the court's oral opinion, constitutes a
deviation from the requirements of this rule. W.G. Cosby
Transfer and Storage Corp. v. Frochlke, C.A. Va. 1973, 480
F.2d. 498.
The consequences of failure to comp!y with this rule are
consistent with its rationale. Failure to comply is grounds
for dismissing an appeal for lack of appellate court juris-
diction. Nanez v. Superior Oil Co., C.A. La. 1976, 535 F.2d
324; Taylor v. Sterrett, op. cit; Moore v. St. Lowis Music
Supply Co, Inc., C.A. Mo. 1975, 526 F.2d. 801; Chicago
App. 26
Housing Tenants Organization, Inc. v. Chicago Housing
Authority, C.A. Il. 1975, 512 F.2d 19. Thus, F.R. Civ. Pro.
58(2) is a jurisdictional rule. It establishes the end of the
District Court's jurisdiction and the beginning of the U.S.
Appellate Court’s jurisdiction. Jurisdictional issues may
be raised at any time by any party or by the court sua
sponte. F.R.Civ.Pro. 12(h) (3).
The conclusion that there was no judgment on the U.S.
District Court is inescapable. The rule is mandatory in
all cases and is to be mechanically applied. Consequently,
and since F.R.Civ.Pro. 58(2) is a jurisdictional rule, this
issue may be raised at any time by any party or sua sponte
by the Court. Since only the docket entry exists to show
the U.S. District Court’s disposition of the case, and since
a docket entry does not qualify as a ‘‘separate document”’,
no judgment exists which would support a theory of col-
lateral estoppel. Without a judgment, collateral estoppel
cannot apply. Clear and obvious error has occurred, the
effect of which is to, by state procedural means, deprive
Robert Riley of his federally protected rights. The Su-
preme Court of the United States has clearly stated in
Dice v. Akron, Canton Youngstown Railroad Co., (1952),
342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 that it will not
permit state procedural law to deprive a United States’
citizen of his federally protected rights.
B. The Illinois Courts erred on their application of the
doctrine of collateral estoppel.
When a judgment could have been grounded upon more
than one alternative ground but does not expressly rely on
any one of them, then none is concluded. 16 Moores Fed.
Prac. 729. The rule in Illinois is the same and has been
stated as follows: The rule of estoppel by verdict (Syn.
‘‘eollateral estoppel’’) or res judicata will not be invoked
on pure speculation as to the finding of the trial court in
App. 27
prior litigation. Lemanski v. Lemanski, 1967, 87 Il. App.
2d 405, 231 N.E. 2d 191, appeal dismissed, cert. den. 89
S.Ct. 52, 393 U.S. 20, 21 L.Ed.2d 21; rehearing den. 89
S.Ct. 381, 393 U.S. 956, 21 L.ied. 2d 370.
The docket entry of this court did not state the grounds
upon which it was entered. .\ssuming arguendo that the
docket entry was a final judgment, since it did not state
the grounds for the dismissa' the doctrine of collateral
estoppel cannot be applied fo. it is unclear whether the
merits of Riley’s claim in the U.S. District Court were
ever reached. Indeed, as this court well knows, the merits
of Riley’s claim were never reached.
In Dlinois, although the purpose of the doctrine of col-
lateral estoppel is to prevent a party from litigation the
same issue twice, it should not be used to preclude a party
from litigating the matter at all. Gay v. Open Kitchens,
Inc., 1981, 56 Il. Dee. 258, 100 Ll. App. 3d 968, 427 N.E.
2d 338. Indeed, collateral estoppel will not be applied un-
less it appears that the party against whom estoppel is
asserted had full and fair opportunity to litigate the issue
in the prior proceeding and that the doctrine will not re-
sult in injustice to the party against whom it is asserted.
Fred Olson Motor Service v. Container Corp. of America,
1980, 37 Dll. Dee. 5, 81 Ill. App. 3d 825, 401 N.E.2d 1098.
Thus, even in the application of Illinois law, the Illinois
Court erred. The effect of their ruling prevented Riley
from producing any evidence of his federal claim, a result
of substantial] injustice to Riley.
C. Robert Riley used due diligence in prosecuting his
federal claim in the Dlinois State Courts which he be-
lieved would adequately protect his federal rights, thus
preventing duplicative actions in two courts; since the
United States Supreme Court rarely grants Writs of
Certiorari, amendment of his complaint herein may be
his last opportunity for a full and fair hearing.
App. 28
Only days after the docket entry in this case, the Plain-
tiff was served with summons to the Illinois Cireuit Court
of Macon County to answer a complaint filed by his union
there to enforce its fine. He obtained the present counsel
to defend against it. ‘To avoid duplicative actions, and be-
lieving his federal rights would be well protected in the
state courts, he interposed as his counter claim there, the
claims alleged herein. Six months later, on July 12, 1982
judgment was entered against him through the erroneous
application of Llinois law, rather than federal law, on the
finality of judgments, and the erroneous application of the
Illinois doctrine of collateral estoppel to his case. Riley
then filed an Appeal of the judgment entered with the
Appellate Court of Illinois, 4th District on August 9, 1982.
The Appellate Court denied the appeal of Riley on March
17, 1983. On April 14, 1983 the Appellate Court denied
Riley’s petition for a rehearing and on May 5, 1983 denied
his application for a Certificate of Importance to the Illi-
nois Supreme Court. Riley’s Petition to Appeal to the
Illinois Supreme Court was denied on October 4, 1983. Its
Mandate issued on October 26, 1983.
Riley intends to apply to the Supreme Court of the
United States for a Writ of Certiorari. These, as is well
known, are rarely granted.
Additionally, Riley has petitioned the Lllinois Court to
stay or recall its mandate, pending disposition of his peti-
tion to be filed before the U.S. Supreme Court, and peti-
tion to amend his complaint. Thus, it cannot be maintained
that Riley has not used due diligence in prosecuting his
federal claim. In view of the rules against duplicative
litigation, his election to interpose as his counter claim,
the within claim, should not be held against him. Although
it may be alleged that filing this motion constitutes dupli-
cative actions, at this stage in the proceedings, with only
App. 29
a costly appeal to the United States Supreme Court left
to him under a writ which is rarely granted, such an ob-
jection in view of the equities, should not be sustained.
An objection that this motion would, if granted result
in duplicative litigation uiisses its mark. In the Illinois
Supreme Court, the Petition to Stay or Recall its man-
date is based on document appeal to the U.S. Supreme
Court and a clear and obvious error in the application of
Illinois law to a federal claim. The Writ of Certiorari to
the U.S. Supreme Court will be based upon the clear and
obvious error in the Illinois Courts. Here the issue is quite
different. Here we are concerned with the equities of
Riley’s motion to amend his complaint. The focus is upon
his due diligence in the State Courts in prosecuting his
claim and the fact that, as yet, he has been unable in any
forum to reach the merits of his claim. If he were able
to pursue the merits of his claim simultaneously in two
forums, such an objection might have some weight. But,
in this case, it cannot be seriously alleged that the motion
would lead to duplicative and potentially contradictory
rulings.
CONCLUSION
Robert Riley has been deprived of his rights protected
by the Labor Management Relations Disclosure Act. He
has asserted these rights, first in a federal forum where
no judgment was ever properly entered. When sued by
his Union in the Illinois (ourts, he raised as a counter-
claim those same rights which were never finally adjudi-
cated by the U.S. District Court. The Llinois Courts, with-
out a judgment which would support the doctrine, never-
theless applied collateral estoppel to Robert Riley's
counter-claim, a clear and obvious error. The Illinois
Court, in applying it: own law on when judgments are
‘*final’’, rather than the federal law, by procedural means
deprived Robert Riley of his federally protected rights.
App. 30
Under these circumstances, where a U.S. citizen has been
denied his day in Court at every turn, although zealously
and with due diligence pursuing his federal claim, and
avoiding duplicative litigation where possible, the equities
require granting his motion to file an amended complaint,
for this may be his last opportunity to have a full and fair
hearing.
7/13/81
7/13/81
7/17/81
8, 3/81
8/ 3/81
8/ 3/81
8, 6/81
8/14/31
Respectfully submitted,
ABRAMS, GOLDBERG & REESE, LTD.
135 South LaSalle Street
Suite 2610
Chicago, Illinois 60603
(312) 372-1981
DOCKET SHEET
Complaint
Summons w/USMarshal Form and one copy 1s-
sued to USMarshal for service.
SUMMONS, ret. exec. on International Union,
cert. mail by USM 7/16/81.
(Deft.) MOTION TO DISMISS.
(Deft.) MEMORANDUM IN SUPPORT OF
DEFENDANTS MOTION TO DISMISS.
(Deft.) MOTION TO STRIKE.
(Deft.) MEMORANDUM IN SUPPORT OF
DEFENDANTS MOTION TO STRIKE.
(Deft.) AMENDMENT To Defendant’s Memo-
randum In Support Of Motion To Dismiss.
8/22/81]
8/31/81
9, 1/81
9, 1/81
9, 4/81
9/ 4/81
9, 4/81
9/ 4/51
9/14/81
11/10/81
Ap). 31
(lerk to notify Atty. for pltf. of the require-
ments of Local Rule 12. Rule on pitf. to file
response within seven (7) days. Failure to do
so will be taken as a confession of the pending
Motions. (Ackerman, .J.) Copy of d/e mailed to
parties w/copy Local Rule 12.
Letter from Atty. Murray B. Woolley, counsel
for pitf. request extension of time to and inelud-
ing Sept. 4, 1981
Letter from Atty. Ronald L. Carpel, counsel for
deft. in opposition to pltfs. letter requesting ex-
tension of time.
Although the point made by Atty. Carpel in his
letter in opposition is not without merit, never-
theless the Court ALLOWS this Motion to ex-
tend time to and including Sept. 4, 1981. ( Acker-
man, J.) Copy of d/e mailed to parties.
(Pitf.) ANSWER To Motion To Dismiss.
MEMORANDUM IN SUPPORT Of The Plain-
tiff’s Opposition To The Defendant's Motion
To Dismiss.
(Pitf.) ANSWER To Defendant Union’s Mo-
tion To Strike.
MEMORANDUM IN OPPOSITION To Defen-
dant’s Motion To Strike.
Hearing on all pending motions set for Tues-
dav, November 10, 1981 at 2:30 p.m. Atty. Carpei
to notify parties.
Notice of Hearing.
11/10/81
11/10/81
12/ 7/81
12/ 7/81
App. 32
Cause called for hearing on all pending motions.
Attorney Ronald Carpel appears for defen-
dants. No one appears for plaintiff. Attorney
Murray Woolley contacted telephonically by the
Court. Attorney Woolley said he received
notice of the hearing, could not appear and
stands on his memos already filed. Arguments
of Defendant attorney heard. Leave granted
to counsel for the defendant to file a copy of
the union constitution as part of the record.
Leave granted to counsel for the defendant to
file Plaintiff's deposition in support of his
motion to dismiss. Ruling reserved at this
time. Rule on Plaintiff to respond if desired
in accordance with Rule 12 and Rule 56, F.R.
C.P., within 21 days. (Ackerman, .J.)
Docket entry mailed to attorneys.
Deposition of Robert Riley taken Sept. 8, 1981,
filed.
The Court has again examined file. Atty. for
pitf. has not filed any further response to deft’s
motion to dismiss. It appears that said motion
is well taken and therefore this case must be
dismissed. CAUSE DISMISSED. (Ackerman,
J.) Copy of de mailed to parties.
CASE CLOSED.
App. 38
PROOF OF SERVICE
The Undersigned, being first duly sworn on oath, deposes
and states that s/he served copies of the foregoing MEMU.-
RANDUM IN SUPPORT OF PLAINTIFF’S MOTION
FOR LEAVE TO FILE FIRST AMENDED COM-
PLAINT by mailing copies of same in a properly ad-
dressed and stamped envelope and depositing same in the
U.S. Mail as follows:
Clerk of the U.S. District Court,
Central District, Springtield Division
P.O. Box 315
Springfield, Llinois 62705
Ronald A. Carpel, Ltd.
132 South Water Street
Suite 538 Milikin Court
P.O. Box 309
Decatur, Illinois 62525
on the 3rd day of November, 1983.
s David F. Addelton
SUBSCRIBED AND SWORN to before
me this 3rd day of
November, 1983
/8/ (signature illegible)
Notary
ABRAMS, GOMBERG & REESE, LTD.
135 South LaSalle Street
Suite 2610
Chicago, Illinois 60603
(312) 372-1981
3 copies
App. 34
APPENDIX B
IN THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
MACON COUNTY, ILLINOIS
INTERNATIONAL UNION OF AL-
LIED INDUSTRIAL WORKERS OF
AMERICA, AFL-C1O, LOCAL 876,
BY SAMUEL J. WILLIAMS, As
President, AND LONNIE E. WIL-
LIAMS, As Financial Secretary-
Treasurer,
Plaintiffs,
vs. NO. 81-LM-895
ROBERT S. RILEY,
i
Defendant.
JUDGMENT ORDER
NOW ON THIS 12th day of July, 1982, this Cause
coming on for hearing upon the Plaintiffs’ Motion to
Amend Complaint Instanter, Plaintiffs’ Motion to Dismiss
Counterclaim or in the Alternative to Strike Portions
Thereof, and Plaintiffs’ Motion for Summary Judgment,
the Plaintiffs’ present by their attorney, RONALD L.
CARPEL, and the Defendant present and by counsel,
MURRAY B. WOOLLEY; the Court having considered
said Motions, supporting Affidavits and other Exhibits
and after hearing arguments of counsel, and being well
advised in the premises, FINDS AS FOLLOWS:
1. The Court has jurisdiction of the parties hereto and
the subject matter hereof.
2. That Plaintiffs have made a Motion to Amend their
(‘omplaint Instanter and Defendant has no objection thereto
and said Motion should be allowed.
App. 35
3. That the Plaintiffs have made a Motion to Dismiss
the Amended Counterclaim of the Defendant which prayed
for an Injunction and other relief against the Plaintiff.
4. That the Plaintiffs" Motion to Dismiss the Amended
Counterclaim should be allowed in that said Amended
(‘ounterclaim fails to state a cause of action and further,
that the Defendant is collateraly estopped from bringing
said Counterclaim in view of the previous dismissal of
the case entitled Robert Riley vs. Allied Industrial Work-
ers, Local 876 in Cause No. 81-3216 filed in the United
States District Court, Central Distriet, Springfield Divi-
sion.
5. That Plaintiffs’ Motion for Summary Judgment
should be allowed in that the Pleadings, Exhibits and Afii-
davits on file show that there is no genuine issue as to
any material fact and the Plaintiffs are entitled to a
Judgment as a matter of law.
6. That the Prayer of the Plaintiffs’ Motion for Sum-
mary Judgment should be allowed and the fine of $6,400.00
levied against the Defendant, Robert S. Riley, should be
enforced by Judgment of this Court.
7. That the equities are with the Plaintiff and against
the Defendant.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED AS FOLLOWS:
1. That the Plaintiffs’ Motion to Amend their Complaint
Instanter is granted and amendments set forth in said
Motion are incorporated by reference in said Complaint.
’. That Plaintiffs’ Motion to Dismiss Defendant's
Amended Counterclaim is granted and the Defendant’s
Amended Counterclaim is dismissed and strickened with
prejudice.
App. 36
3. That Plaintiffs’ Motion for Summary Judgment is
granted and Judgment is entered in favor of the Plaintitfs
and against the Defendant, Robert S. Riley, in the sum of
$6,400.00, plus costs of suit.
4. That there is no just reason to delay enforcement
of this Judgment.
5. Execution may issue.
ENTER:
the Defendant, Robert S. Riley
App. 37
APPENDIX C
NO. 4-82-0506
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
INTERNATIONAL UNION OF ALLIED INDUSTRIATL
WORKERS OF AMERICA, AFL-CIO, LOCAL 876, BY
SAMUEL J. WILLIAMS, As President, ANI) LONNIE
E. WILLIAMS, As Financial Secretary-Treasurer,
Plaintiffs-Appellees,
ROBERT S. RILEY,
Defendant-Appellant.
Appeal from Circuit Court County of Macon
No. 81LM895
Honorable Donald W. Morthland, Judge Presiding.
(Filed March 17, 1983)
PRESIDING JUSTICE WEBBER delivered the order
of the court:
Defendant (Riley) appeals from an order of the circuit
court of Macon County which dismissed with prejudice
his amended counterclaim and entered summary judgment
in favor of th» plaintiff (Union). We affirm.
Some background is necessary to an understanding of
the issues raised on appeal. The instant complaint was
filed in the cireuit court of Macon County on December
22, 1981. In it the Union alleged that it had been on strike
against .\rcher-Daniels-Midland Corporation, located at
App. 38
Decatur, from February 8, 1980, until May 19, 1980; and
that Riley had crossed the picket line in violation of the
Union’s constitution, a copy of which was attached to the
complaint. It was further alleged that under the provi-
sions of the constitution Riley was ordered to stand trial
before a union trial committee on September 30, 1980,
and was so notified of such trial; further, that the trial
was continued until October 6, 1980, in order to allow
Riley time to prepare his defense. The complaint then
alleged that Riley failed to appear at the trial and that
the trial committee found him guilty of violating the
Union’s constitution; the minutes of the committee were
attached to the complaint and revealed that Riley was fined
by the committee $64 per day for 100 days, being the
number of days on which the committee found he had
crossed the picket line. The complaint then prayed for
enforcement of the fine of $6,400.
On January 18, 1982, Riley filed an answer and counter-
claim. In the counterclaim he alleged violations by the
Union of certain provisions of a Federal statute known as
the Labor-Management Reporting and Disclosure Act,
more commonly called the Landrum-Griffin Act (LMRDA).
Specifically, he claimed that the notice of trial was in-
adequate in violation of section 101(a)(5)(B) of LMRDA
(29 U.S.C. sec. 411(a)(5)(B)); and that he was denied a
fair trial in violation of section 101(a)(5)(C) (29 U.S.C.
sec. 411(a)(5)(C)). He further alleged that the trial
committee was prejudiced against him and that he had
been subjected to continuing harassment which consti-
tuted cruel and unusual punishment. His prayer for relief
asked dismissal of the Union’s complaint and for damages
for harassment. Attached as an exhibit to the counter-
claim was a letter of appeal by Riley to the International
Union and a letter from that body denying the appeal.
App. 39
The Union filed a motion to dismiss the counterclaim
which set up essentially three grounds: (1) lack of juris-
diction in the state court, (2) collateral estoppel, and
(3) pleading conclusions of law. In support of the col-
lateral estoppel ground there was attached a certified copy
of the docket sheet of the United States District Court for
the Central District of Illinois in case number 81-3216,
together with copy of the complaint and a motion to
dismiss. These documents reveal that on July 13, 1981,
Riley filed the suit against the Union for violation of his
rights under the LHRDA and service was had upon the
Union. Thereafter, in addition to the motion to dismiss,
the Union filed a motion to strike, the exact nature of
which is not indicated. Memoranda in support of both
motions were filed and Riley filed answers to both motions
together with memoranda in support of the answers. On
November 10, 1981, the cause was called for hearing on
all motions. The docket entry of that date indicates that
Riley’s attorney chose not to appear but to stand on his
memoranda already filed. The District Court allowed the
filing cf Riley’s deposition taken September 8, 1981, and
granted Riley 21 days in which to make response.
On December 7, 1981, the District Court made the fol-
lowing docket entry:
‘‘The Court has again examined file. Atty. for Pltf.
has not filed any further response to deft.’s motion
to dismiss. It appears that said motion is well taken
and therefore this case must be dismissed. CAUSE
DISMISSED. (Ackerman, J.)”’
The copy of the motion to dismiss in the District Court
indicates that its grounds were: (1) failure to state a
cause of action, and (2) Riley’s failure to exhaust his in-
ternal union remedies as required by section 101(a)(4)
of the LMRDA. 29 U.S.C. sec. 411(a) (4).
Ap). 40
To summarize to this point: Riley sued the Union on an
LMRDA complaint in Federal court in July 1981 and was
dismissed in December 1981; two weeks later the Union
filed the instant suit in state court, and Riley set up as a
counterclaim essentially the matters on which he had pre-
viously sued.
On February 18, 1982, the Union filed a motion for sum-
mary judgment supported by affidavits and Riley’s Fed-
eral deposition. In that deposition Riley admitted that he
crossed the picket line but asserted that he did so only
after being harassed by Union officials over a nonexistent
petition which he allegedly circulated asking others to
return to work. He stated that after returning to work
he worked approximately 80 days during the strike. He
admitted that on September 27, 1980, he received a certi-
fied letter of notice of the trial that was to take place
on September 30, 1980. He knew that this was contrary to
the Union constitution so he refused to attend. He also
stated that he got a letter on September 29, 1980, stating
that the Union had violated the constitution and therefore
the trial was moved back to October 6, 1980. He felt that
the trial committee was stacked against him since several
members had harassed him regarding the nonexistent pe-
tition. However, he did not notify the trial committee that
he thought the trial was improper and he would refuse to
attend. He stated that he would have appeared if the trial
had been constitutional and if he could have been repre-
sented by an attorney. He stated he believed he could not
be so represented. Further he said that even counting
from September 27, 1980, there were only nine days be-
tween the time he received notice and the time of the trial.
Finally he testified that he appealed to the International
with counsel’s advice. However, he stated that he did not
appeal to the International convention which was held in
App. 4]
August 1981. He stated that he did not know that he
could so appeal although he did admit that he had a copy
of the Union constitution which reveals that such an appeal
is a necessary step in exhausting internal union remedies.
He admitted that a hand delivered copy of the charges
was received by him on September 25, 1980.
Un March 1, 1982, Riley, without leave of court, filed
an amended counterclaim, alleging essentially the same
matters as appeared in the original counterclaim but
adding that the Federal suit was dismissed for failure to
exhaust internal union remedies. The Union filed a mo-
tion to dismiss or to strike the amended counterclaim on
the same grounds as in its original motion. Riley an-
swered the motion, alleging that collateral estoppel did
not apply. He also filed an answer to the motion for sum-
mary judgment, stating that he had good reason for crossing
the picket line as stated in his affidavit. However, the
affidavit does not appear in the record.
On July 16, 1982, the trial court entered a written judg-
ment order which found: (1) that it had jurisdiction;
(2) that the Union be allowed to amend its complaint with-
out objection; (3) that the motion to dismiss the amended
counterclaim be allowed because (a) it failed to state a
cause of action, and (b) Riley was collaterally estopped by
the dismissal of the Federal action; and (4) that the
Union’s motion for summary judgment be allowed. The
court thereupon entered judgment in favor of the Union
and against Riley in the sum of $6,400. This appeal
followed.
A considerable argument between the parties arises out
of the question of the state trial court’s jurisdiction over
Riley’s counterclaim. While we believe that the proper
basis for dismissal of it was collateral estoppel, some brief
Ap). 42
comment on the subject of the state court’s jurisdiction
is appropriate.
The Union argues that the Federal court allowed its
motion to dismiss which alleged as one alternative ground
lack of jurisdiction in that court and that it therefore
follows that there was no jurisdiction in the state court; it
also argues that matters arising under Title I of the
LMRDA are exclusively Federal. If, in fact, the Federal
dismissal was only for lack of jurisdiction (the extensive
proceedings in that court as revealed by its docket sheet
appear to belie such a theory), that decision appears er-
roneous but relief from it cannot be sought in state court
but rather by Federal appeal. Further, we do not agree
that the Federal jurisdiction is exclusive.
The nub of the argument has to do with Riley’s failure
to pursue his remedy to its last stage. The Union’s con-
stitution sets up its own appellate process. The trial com-
mittee’s findings may be appealed to the International
“xecutive Committee, as was done in Riley’s case. The
International Committee’s judgment may then be appealed
to the International Convention, as was not done.
The rights set forth in Title I include protection of the
right to sue, section 101(a)(4), 29 U.S.C. see. 411(a) (4)
(1976) :
‘*No labor organization shall limit the right of any
member thereof to institute an action in any court
* * *: Provided, That any such member may be re-
quired to exhaust reasonable hearing procedures (but
not to exceed a four-month lapse of time) within such
organization, before instituting legal or administrative
proceedings.’’
This provision allows courts in their discretion to deter-
mine whether pursuit of internal union remedies is re-
Ap} , 45
quired. (Foy y. Nurfolk & Western Ry. Co. (4th Cir. 1967),
377 F.2d 243, cert. denied (1967), 389 U.S. 848, 19 L. Ed. 2d
117, 88 S. Ct. 74; Giordani v. Upholsterers International
Union (2d Cir. 1968), 403 F.2d 85; Fulton Lodge No. 2
of the International Association of Machmsts @& Aero-
space Workers, AFL-C10 y. Nir (Sth Cir. 1969), 415 F.2d
212; Semancik v. United Mine Workers (3d Cir. 1972),
466 F.2d 144.) Four months of union proceedings is all
that is required prior to instituting suits under Title IL.
(Giordani; Johnson v. General Motors (2d Cir. 1981), 641
F.2d 1075; Thompson v. New York Central R.R. Co. (8.D.
N.Y. 1966), 250 F. Supp. 175.) Moreover, in cases in-
volving a biased tribunal or other procedural irregularities
in the union disciplinary proceedings, the court may re-
gard the results of that proceeding as void, in which case
internal union appeals are not required. See Heyden,
Landrum-Griffin, Section 101(a)(4)—Its Impact on Em-
ployee Rights, 7 Employee Rel. L.J. 643, 650-52 (1982),
citing Libutti v. DiBrizzi (2d Cir. 1964), 337 F.2d 216, and
Chambers v. Local Union No. 639, International Brother-
hood of Teamsters (D.C. Cir. 1978), 578 F.2d 375.
In Riley's case, it appears that he fulfilled this four-
month exhaustion requirement. The union’s trial board
issued its decision on November 3, 1980. The international
executive committee rendered its decision in the appeal on
June 30, 1981. Riley did not file suit in Federal court
until July 15, 1981, more than eight months after the
trial board’s decision issued.
We conclude that Riley’s Federal suit was aptly filed.
As to the exclusivity argument, we believe that concur-
rent jurisdiction exists in Federal and state courts in
actions brought under Title I of the LMRDA. In the
instant ease the Union relies on Safe Workers’ Organi-
zation Chapter No. 2. Ballinger (8.1. Ohio 1974), 389
Ap). 44
F. Supp. 903, for the proposition that jurisdiction is ex-
elusively Federal.
There are various considerations supporting the con-
current jurisdiction of state courts in actions brought pur
suant to Title | of LMRDA. First, the Safe Workers’
analysis is not persuasive. Second, the Federal district
courts are split on this issue and higher courts have not
addressed the question. Third, the structure of the
LMRDA and the remedies provided by various titles do
not mandate exclusive jurisdiction in the Federal courts.
Fourth, Illinois courts appear willing to enforce Federal
statutes where jurisdiction is not expressly reserved to
the Federal courts. Fifth, the language of Title I’s en-
forcement provision, section 102, 29 U.S.C. see. 412, is com-
parable to that in the Labor Management Relations Act.
section 301, 29 U.S.C. see. 185(a) (1976), which has been
interpreted as granting concurrent jurisdiction. Sixth,
concurrent jurisdiction has been exercised in relation to
the provisions of LMRDA, Title II, for which the statutory
remedy is enforcement by the Secretary of Labor.
In Safe Workers’ the Federal District Court in con-
struing section 101 of the Landrum-Griffin Act stated that
the general rule is that Federal jurisdiction is not exelu-
sive unless Congress chooses to make it so, either ex-
pressly or by fair implication. The court went on to state
that jurisdiction over 29 U.S.C. see. 411 is exclusively Fed-
eral. The court based its reasoning on an analysis of
29 U.S.C. see. 412 and 29 U.S.C. sec. 501. Section 412
states in pertinent part: ‘* Any person whose rights secured
by the provisions of this subchapter [Title 29 U.S.C. sees.
411-15! have been infringed by any violation of this sub-
chapter may bring a civil action in a district court of the
'nited States.’’ (Emphasis added.) Section 501 provides
that members may sue union officials ‘in any district court
App. 45
of the United States or in any state court of competent
jurisdiction."’ (lumphasis added.) From a comparison
of these two sections, the district court reasoned that
Congress intended the Federal District Courts to have
exclusive jurisdiction for actions brought pursuant to 29
U.S.C. see. 411.
The cases cited by Safe Workers’ do not support its
theory. (Parks v. International Brotherhood of Electric
Workers (4th Cir. 1963), 314 F.2d 886; Detroy v. American
Guild of Variety Artists (2d Cir. 1961), 286 F.2d 75;
C'alhoon \. Harvey (1964), 379 U.S. 134, 13 L. Ed. 2d 190,
85S. Ct. 292.) In Parks the court stated that the LMRDA
created new Federal rights for union members to be en-
forced.is Federal courts, but this statement was made in
connection with a possible conflict between action under
LMRDA and the jurisdiction of the National Labor Rela-
tions Board. The Detroy court stated that the rights
granted under Title I of the LMRDA required a duty to
formulate Federal law. The question was exhaustion of
internal union remedies and the court stated that Federal
courts may develop their own principles regarding the
time when union action in violation of Title I of the
LMRDA was ripe for judicial intervention. In Calhoon
the Supreme Court found that the ease fell under Title IV,
rather than Title I, and that the Federal court did not,
therefore, have jurisdiction.
Illinois courts have a tradition of enforcing rights under
Federal law. In Reidelberger vy. Bi-State Development
Agency (1956), 8 Ill. 2d 121, 133 N.E.2d 272, the supreme
court stated that in the absence of constitutional or statu-
lory provisions limiting jurisdiction to Federal courts,
state courts have authority to enforce rights under the
constitution and statutes of the United States. In Parkin
v. Damen-Ridge Apartments, Inc. (1951), 344 TI. App. 301,
Ap). 46
304, 100 N.B.2d 632, 634, the court cited with approval
the general statement from 21 C.J.S. Courts see. 526 (1940) :
‘*As a general rule, the grant of jurisdiction to federal
courts does not of itself imply that the jurisdiction is to
be exclusive.’’
The same doctrine was more expansively stated by the
Supreme Court in Charles Dowd Box Co. v. Courtney
(1962), 368 U.S. 502, 7 L. Ed. 2d 483, 82 S. Ct. 519, in con-
struing section 301(a) of the Labor Management Relations
Act (29 U.S.C. see. 185(a)):
‘‘We start with the premise that nothing in the
concept of our federal system prevents state courts
from enforcing rights created by federal law. Con-
current jurisdiction has been a common phenomenon
in our judicial history, and exclusive federal court
jurisdiction over cases arising under federal law has
been the exception rather than the rule.’’ 368 U.S.
502, 507-08, 7 L. Ed. 2d 483, 487, 82 S. Ct. 519, 522-23
(footnote omitted).
See also Lucal 174, Teamsters, Chauffeurs, Warehousemen
& Helpers of America y. Lucas Flour Co. (1962), 369 U.S.
95, 7 L. Ed. 2d 593, 82 S. Ct. 571; Gordon v. Thor Power
Tool Co. (1965), 55 Ill. App. 2d 389, 205 N.E.2d 55;
American Device Manufacturing Co. vy. International As-
sociation of Machinists & Aerospace Workers, AFL-CIO,
District No. 6 (1969), 105 Ill. App. 2d 299, 244 N.E.2d 862;
Alexander vy. Standard Oil Co. (1977), 53 Tl. App. 3d 690,
695-96, 368 N.E.2d 1010, 1013-14.
We are of the opinion that the Federal District Court
had jurisdiction of Riley’s complaint filed there and that
the cireuit court of Macon County had jurisdiction of
his counterclaim filed there.
We turn next to the question of collateral estoppel which,
in a sense, is derivative of the question of jurisdiction.
App. 47
Collateral estoppel is a familiar principle of law; stated
briefly, it holds that a former adjudication by a court of
competent jurisdiction is a bar to a subsequent action, if
the action is based on an identity of parties, of subject
matter, and of cause of action. (Gonyo v. Gonyo (1973),
9 Ill. App. 3d 672, 292 N.E.2d 591; Gudgel v. St. Louis
Fire d& Marine Insurance Co. (1971), 1 Tl. App. 3d 765, 274
N.E.2d 597.) A comparison of Riley’s suit in Federal
court and his counterclaim in state court demonstrates
beyond argument that these requirements were present.
The Federal court’s dismissal order, set forth verbatim
above, was nonspecific, although the motion to dismiss
raised dual grounds, failure to state a cause of action
and lack of jurisdiction. The extensive briefing by the
parties in that court together with the filing of the depo-
sition is a clear indication that the motion was some-
thing more than a perfunctory disposition on the ground
of jurisdiction only. We have already indicated that we
believe jurisdiction had attached in the Federal court.
The clear implication exists that the Federal court con-
sidered Riley’s suit on its merits.
Pratt v. Baker (1967), 79 Ill. App. 2d 479, 223 N.E.2d
865, is instructive on the matter of dismissal on unspeci-
fied grounds. There the plaintiff brought an action in
tort and deceit on facts which had been alleged in a prior
suit. In that prior suit the trial court had dismissed for
failure to state a cause of action. The trial court in the
second suit also dismissed on grounds of res judicata.
The appellate court affirmed holding that the prior action
did not contest the facts but disputed the right of the
plaintiff to recover on those facts. It therefore did not
matter whether the facts were established by extrinsic
evidence upon issues joined or admitted by a motion to
dismiss. In either case the decision was upon the merits.
App. 48
So in the instant case, the dismissal by the Federal
court upon a motion alleging failure to state a cause of
action was an adjudication that no right to recover on the
facts pleaded existed.
Federal procedure is even more stringent. In Rinehart
v. Locke (7th Cir. 1971), 454 F.2d 313, in upholding a
dismissal by the district court, the court of appeals held
that under the Federal Rules of Civil Procedure, unless
the district court specifies otherwise, a dismissal operates
as an adjudication on the merits, except for dismissals for
lack of jurisdiction, for improper venue, or for failure to
join necessary parties.
We therefore hold that the district court’s dismissal of
Riley’s suit was an adjudication on the merits and operates
as a collateral estoppel on his counterclaim in the circuit
court of Macon County, which was correct in dismissing it.
The final question is the propriety of summary judgment.
Riley argues that issues of fact remain on questions of
notice of trial, fair trial and the number of days upon
which he crossed the picket line. The first two are moot
by reason of collateral estoppel.
The record is in great confusion over the matter of
days across the picket line. The original recommendation
of the trial committee was ‘‘Fine of $64 per day for 100
days for a total of $6400 or less provided you present
proof you worked less in which case $64.00 per day up to
100 days for each day worked.’’ This appears to indicate
that some proceeding for additional, or supplementary,
proof was contemplated. However, the only provision
found in the Union’s constitution on the matter relates to
appeals. Article 19 of that document provides in pertinent
part: ‘‘The International Executive Board, in its disere-
tion, may decide the appeal either on the record before it
or by retrial before it.’’ (Emphasis added.) Riley did
file the appropriate notice of appeal.
Ap). 49
The secretary-treasurer of the International Union re-
sponded by requesting Riley to submit ‘‘any documents,
ete. that you may have in your defense.’’ Riley replied:
‘*My reasons for wanting the fine dropped are as follows:"’
(Emphasis added.) Then follows a list of six reasons, all
relating to miatters other than the fine. No mention is
made of abating a portion of the fine, only that the fine be
‘*dropped.’’
The International Executive Board, so far as the record:
indicates, did not retry the case. There appears only a
letter to Riley from the International Secretary-Treasurer
stating that at a meeting of the International Executive
Board Riley’s appeal ‘‘was reviewed and discussed at
length."’ The trial committee’s recommendation was
adopted except for a provision that Riley be ‘‘forever’’
barred from holding any elected or appointed union office
was reduced to ‘‘a period of five (5) years.”’
Thereafter, the parties treated the fine as being in the
amount of $6,400. In its motion for summary judgment
the Union recited that figure as the fine and in his answer
to the motion for summary judgment Riley did not dispute
the amount but stated only ‘‘that the fine was unlawful.’’
It was not until he reached this court that Riley raised
the question of the number of days upon which the fine was
predicated by arguing that his deposition indicated some-
thing in the neighborhood of 80 days. In our judgment he
has waived any such argument or contention. It was not
raised in answer to the motion for summary judgment
in the trial court and Riley did not pursue any intraunion
remedies described above. Therefore, summary judgment
Was appropriate.
For all the foregoing reasons, the order of the circuit
court of Macon County is affirmed.
Affirmed.
GREEN and MILLER, JJ.J., coneur.
Ap). 50
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH JUDICIAL DISTRICT
ws
General No. 482-0506
INTERNATIONAL UNION OF ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO, LOCAL 876, BY
SAMUEL J. WILLIAMS, as President, AND LONNIE
FE. WILLIAMS, as Financial Secretary-Treasurer,
Plaintiffs-Appellees,
v.
ROBERT S. RILEY,
Defendant-Appellant.
Appeal from Cireuit Court Macon County
81-LM-895
Donald W. Morthland, Judge Presiding
FOR APPELLANT FOR APPELLEE
Barry \. Gomberg Ronald L. Carpel, Ltd.
Arlynn Renee Cohen Attorneys at Law
Abrams, Gomberg Suite 538 Millikin Court
& Reese, Ltd. 132 South Water Street
Attorneys at Law P.O. Box 309
135 South LaSalle Street Decatur, Illinois 62525
Suite 2610
Chicago, Illinois 60603
RULE 23 ORDER FILED: Mareh 17, 1983
JUSTICES:
ItONORABLE ALBERT G. WEBBER, III, P.J.
HONORABLE FREDERICK S. GREEN, J.
HONORABLE BEN*K. MILLER, J.
Concurring
App. 51
NO. 4-82-0506
IN THE
APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
INTERNATIONAL UNLON OF ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO, Local 876, By
Samuel J. Williams, as President, and Lonnie E. Williams,
As Financial Secretary-Treasurer,
Plaintiff-Appellee,
vs.
ROBERT S. RILEY,
Defendant-Appellant.
Appeal from the Circuit Court of the Sixth Judicial Circuit,
Macon County, Lilinois
NO. 81 LM 895
Honorable Donald W. Morthland, Judge Presiding
PETITION FOR REHEARING
(Filed April 6, 1983)
Defendant-Appellant, ROBERT S. RILEY, by his attor-
ney, ABRAMS, GOMBERG & REESE, LTD., pursuant
to Supreme Court Rule 367 and the orders of this Court,
respectfully petitions this Court for a rehearing.
This Court filed its Memorandum and Order affirming
the decision of the Cireuit Court of Macon County on
March 17, 1983. .\ rehearing is sought for the following
reasons :
App. 52
INTRODUCTION
In its Memorandum Opinion dated March 1%, 1983, this
Court determined that the State Court was properly
vested with jurisdiction &= to all issues relating to this
appeal and that the Defendant, ROBERT 5. RILEY, had
properly exhausted his administrative and grievance reme-
dies. Thus, the only issues remaining were whether any
genuine issues of material fact existed at the time sum-
mary judgment was ordered by Judge Morthland and
whether Mr. Riley's arguments raising these issues of fact
were barred by collateral estoppel.
A. The law pertaming to collateral estoppel was either
overlooked or misapprehended hy the Court.
The law is clear that summary judgment should be
awarded by the Court only when the moving party’s right
thereto is clear and free from doubt and only where it is
determined that no material questions of fact exist (pP-
14-15 Appellant’s Brief). Defendant has argued thafsev-
eral material questions of fact existed at the time of the
entry of the order for summary judgment, namely :
1) Whether the defendant was afforded proper notice
of the Trial Committee Meeting wherein the $6,400.00
was imposed; (PpP- 17-18 Appellant's Brief, (.49, C.2,
C.3);
2) Whether the Defendant was afforded a fair and
impartial trial (p. 19. Appellant's Brief, C.124);
3) Whether the Defendant crossed picket lines for
100 days as charged in Plaintiff's Complaint (pp- 20-22,
Appellant's Brief, C.2, (113-114, €.128).
This Court never reached the first two of these issues
in that the Court determined that said issues were adjadi-
cated in the previous Federal Court action filed by the
App. 53
Defendant, and as such Defendant was collaterally estopped
from raising these issues as a defense in Cireuit Court and
again raising them on appeal.
The record is void of any indication that the issues of
notice and fair trial were adjudicated on their merits in
Federal Court. The Plaintiff herein (Defendant in the
Federal Cause) filed a Motion to Dismiss the Federal cause
on two grounds: lack of jurisdiction (due to Mr. Riley's
alleged failure to exhaust his internal grievance remedies),
and failure to state a cause of action (C.83). Although
the Federal cause was dismissed, the specified reasons for
said dismissal cannot be found anywhere within the record.
The dismissal was simply a docket entry (p. 4 Court’s
Opinion) which did not explain the cause therefore. (C.88).
It is Defendant's contention that this Court either
overlooked or misapprehended the law of collateral estop-
pel as cited by Defendant in his Reply Brief (pp. 6-7)
by barring Mr. Riley’s right to raise the issues of notice
and fair trial. Gonyo v. Gonyo, 292 N.B.2d 591, 9 TIL App.3d
672 (1973) stated:
‘*A\ second action may be barred where . .. the same
controlling fact or question material to the determi-
nation of both causes has been adjudicated as the
border in establishing the defense under either of the
aforementioned principles is upon the part invoting it.
. . » The party raising the defense must show with
clarity and certainty the parties, the precise issues and
the judgment of the former action’’ (id. 592-593).
(Emphasis added)
Defendant re pectfully submits that this Court misapplied
collateral estoppel in this appeal as it is clear that the
precise issues adjudicated by the Federal Court could not
be demonstrated with any clarity and certainty nor is it
evident what ‘‘controlling factor or questions material
to the determination of both causes has been adjudicated.”’
App. 54
In the Memorandum Opinion of March 12, 1983, this
Court apparently took cognizance of these facts (p. 13
Memorandum Opinion) but failed to properly apply the
law pertaining to collateral estoppel. This Court instead
chose to improperly apply the law expounded in Pratt vy.
Baker, (1967) 79 Ill. App.2d 479, 223 N.B.2d 865. In that
case, the Court was found to have properly dismissed a
second suit on the grounds of res udjudicata where a prior
suit had been dismissed for failure to state a cause of action.
Defendant has amply and specifically argued throughout
this appeal that it is impossible to determine if the Federal
cause herein was in fact dismissed on the merits (for
failure to state a cause of action). In fact, this Court
stated to counsel at the Oral Argument that ‘“We don’t
know what Ackerman (the Federal Judge) did. He may
have been out to lunch for all we know’’. Defendant is
stunned that this Court applied the doctrine of collateral
estoppel in the face of these circumstances.
In a final attempt to invoke this doctrine (apparently
in a major effort to prevent having to adjudicate the issues
of notice and fair trial) this Court once again misapplies
case law in an apparent effort to bolster its argument. |
This Court cites Rinehart v. Locke, (7th Cir. 1971) 454
F.2d 313, (p. 14 of Memorandum Opinion) as holding that:
‘‘in upholding a dismissal by the District Court, the
Court of Appeals held that under the Federal Rules
of Civil Procedure, unless the District Court. states
otherwise, a dismissal operates as an adjudication on
the merits, except for dismissal for lack of jurisdiction
for improper venue or for failure to join necessary
parties.’’ (p. 14 of Memorandum Opinion)
This Court misinterpreted this to mean that any dismissal
is a dismissal on the merits. Such is not the holding of
Rinehart. Rinehart stated at p. 314 that:
‘‘It has been held that the list in Rule 41(b) of types
of dismissal which are not presumptively adjudications
Ap). 55
on the merits is not exclusive, and that the situations
where dismissal not provided for in Rule 41 are to
operate as adjudication on the merits are those ‘in
which the defendant must incur the inconvenience of
preparing tu meet the merits because there is no
initial bar to the Court’s reaching them’. The same
decision indicates that a dismissal for failure to ful-
fill a ‘precondition’ for consideration of the merits ts
not a decision on the merits. (Emphasis added)
With this gloss upon the Rule, the question remains a
close one, but we are persuaded that under the Rule
an order of a district court which dismisses a com-
plaint for failure to state a claim, but which does not
specify that the dismissal is without prejudice is res
judicata as to the then existing claim which it appears
plaintiff was attempting to state.’’ (id. p. 315)
It is thus abundantly clear that Rinehart stands for
the proposition that a dismissal for failure to state a claim
is a dismissal on the merits while a dismissal for failure
to fulfill a ‘‘precondition’’ for consideration on the merits
(i.e. Riley’s failure to exhaust his grievance remedies) is
not. Thus, Rinehart only bolsters defendant’s argument
that collateral estoppel cannot be applied absent a clarity
and specificity of issues and an adjudication on the merits.
By this Court’s own admission, it is undeterminable as
to why the Federal cause was dismissed. As such, this
Court committed gross error in determining that Mr.
Riley’s arguments as to notice and fair trial were col-
laterally estopped.
The third issue, the number of days which Mr. Riley
crossed the picket lines (on which the imposition of the
fine was based) was also barred by this Court based upon
the argument that said issue was never raised in the trial
court. Such is not the case as defendant raised this issue
in his deposition (C.28), said deposition being submitted
as Exhibit A in Plaintiff’s Motion for Summary Judgment.
It is apparent that this Court, as well as the trial court
App. 56
chose to ignore this issue, rather than affording it the full
weight it deserves. The question still remains as to
whether the Defendant crossed lines for 100 days or for 80
days as stated in Mr. Riley’s deposition. This issue was
wrongly ignored by both courts in that it created a genuine
issue of material fact at the time summary judgment was
entered.
B. This Court wrongfully ignored the genuine tssues
of material fact raised by Defendant.
By applying the doctrine of collateral estoppel, this
Court never reached the issue of whether genuine issues
of material fact existed at the time summary judgment
was entered. Said issues of fact have been discussed
hereinabove. By this action, this Court effectively pre-
cluded Mr. Riley of his right to present meritorious de-
fenses and thus denied him of his constitutional due process
rights.
In effect, this Court has affirmed a summary judgment
for $6,400.00 based upon a fine which was improperly
imposed. This Court has enforced a fine which was im-
posed against Defendant without affording defendant suf-
ficient notice, said fine being levied at a trial committee
meeting which amounted to a ‘‘kangaroo court.’’ (C.124)
While this Court searches for a reason to affirm the lower
Court, a working man is being deprived of his constitu-
tional due process rights. Mr. Riley has never had a hear-
ing. The only testimony we have of Mr. Riley is his depo-
sition that clearly raises issues of fact. Defendant con-
siders any such denial on the part of this Court of the
Defendant’s rights to present his defenses a grossly un-
just decision by this Court that Mr. Riley had to pay
$6,400.00 fine no matter what he offered to the lower court.
In effect, he was guilty before proven innocent. This is
not in accord with the United States Constitution and our
System of Justice.
App. 57
(ONCLUSION
For all the above and foregoing reasons, Defendant re-
spectfully request a rehearing as to all of the above-state
matters.
Respectfully Submitted:
s/ Barry A. Gomberg
ABRAMS, GOMBERG & REESE, LTD.
ABRAMS, GOMBERG & REESE, LTD.
135 S. LaSalle Street — Suite 2610
Chicago, Illinois 60603
(312) 372-1981
The undersigned, being first duly sworn on oath deposes
and states that she served copies of the above and fore-
going to the following:
Ronald A. Carpel, Ltd.
Attorneys at Law
132 South Wacker Drive 3 Copies
Suite 538 Millikin Court
P.O. Box 309
Decatur, Illinois 62525
Reporter of Decisions
P.O. Box 186 1 Copy
Bloomington. Illinois 61701
by First Class Mail on April 6, 1983.
Signature Illegible
SUBSCRIBED and SWORN to before
me this 6 day of April, 1983
s/ J. Marlene Mason
Notary
ABRAMS, GOMBERG & REESE, LTD.
135 S. LaSalle Street — Suite 2610
Chicago, Illinois 60603
(312) 372-1981
ORDER DENYING PETITION FOR A REHEARING
App. 58
No. 4-82-0506
IN THE
APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
INTERNATIONAL UNION OF ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO, Local 876, By
Samuel J. Williams, as President and Lonnie E. Williams,
as Financial Secretary-Treasurer,
Plaintiff-Appellee,
Vs.
ROBERT S. RILEY,
Defendant-Appellant.
Appeal from the Circuit Court of the Sixth Judicial Circuit
Macon County, Illinois
No. 82 LM 895
Honorable Donald W. Morthland, Judge Presiding
PETITION FOR CERTIFICATE OF IMPORTANCE
NOW COMES the Defendant-Appellant, ROBERT S.
RILEY, by his attorneys, ABRAMS, GOMBERG &
REESE, LTD., and respectfully requests this Court to
issue a certificate of importance to seek review by the
Supreme Court pursuant to Supreme Court Rule 316, and
in support of this Petition, Defendant states as follows:
1. That this Court erroneously applied the doctrine
of collateral estoppel and such wrongful application is an
issue of significant importance that must be reviewed by
the Supreme Court.
App. 59
In its Memorandum Opinion dated March 17, 1983, this
Court ruled that Defendant was collaterally estopped
from raising in the Trial Court and on appeal several
genuine issues of material fact which existed at the time
of the entry of the Order of Summary Judgment, namely:
A. Whether the Defendant was afforded proper
notice of the Trial Committee Meeting wherein the
$6,400.00 fine was imposed; (pp. 17-18 Appellant's
Brief, C.49, C.2, C.3);
B. Whether the Defendant was afforded a fair and
impartial trial; (p. 19, .\ppellant’s Brief, C.124) ;
C. Whether the Defendant crossed picket lines for
100 days as charged in Plaintiff’s Complaint; (pp. 20-
22, Appellant’s Brief, C.2, C.113-114, C.128).
The doctrine of collateral estoppel was most wrongfully
applied as the record is entirely void of any indication
that the issues of notice and fair trial were adjudicated
on their merits in Federal Court.
The Plaintiff herein (Defendant in the Federal Cause)
filed a Motion to Dismiss the Federal cause on two grounds:
lack of jurisdiction (due to Mr. Riley’s alleged failure to
exhaust his internal grievance remedies), and failure to
state a cause of action (C.83). Although the Federal
cause was dismissed, the specified reasons for said dis-
missal cannot be found anywhere within the record. The
dismissal was simply a docket entry (p. 4 Court’s Opinion)
which did not explain the cause therefore (C.88). The
total void of the reasons for the Federal cause dismissal
renders it impossible for any court to legitimately apply
collateral estoppel. Gonyo v. Gonyo, 292 N.E.2d 591, 9
Ill.App.3d 672 (1973) stated:
‘*\ second action may be barred where . . . the same
controlling fact or question material to the determina-
App. 60
tion of both causes has been adjudicated as the border
in establishing the defense under either of the afore-
mentioned principles is upon the part invoting it. . .
The party raising the defense must show with clarity
and certainty the parties, the precise issues and the
judgment of the former action."’ (id. 592-593) (em-
phasis added)
This Court chose to ignore Gonyo and instead chose to
improperly apply case law wholly inapplicable to the
instant case. (pp. 45 Petition for Rehearing).
In addition, not only did this Court not know with
clarity and certainty the precise issues and judgment of
the Federal Cause, but in fact this Court stated to counsel
at the Oral Argument that, ‘‘We don’t know what Acker-
man (the Federal Judge) did. He may have been at lunch
for all we know.”’
In light of the law governing the application of collateral
estoppel and this Court’s own admission that it is im-
possible to determine the basis upon which the Federal
Cause was dismissed, this Court’s ruling shocks the con-
science of all reason and justice. If this Court’s ruling
was to be permitted to stand, the doctrine of collateral
estoppel would be severely eroded. Accordingly, this issue
is of such grave importance that this Court should certify
the Defendant's appeal to the Supreme Court of Illinois.
»”. This Court wrongfully denied the Defendant his
day in Court.
In effect, this Court has affirmed a summary judgment
for $6,400.00 based upon a fine which was improperly im-
posed. This Court has enforced a fine which was imposed
against Defendant without affording Defendant sufficient
notice, said fine being levied at a trial committee meet-
ing which amounted to a ‘‘kangaroo court”’ (C.124). While
this Court searches for a reason to affirm the lower Court,
Ap}. 61
a working man is being deprived of his constitutional due
process rights. .\ working man is being denied his right
to walk off a union picket line for good cause. Mr. Riley
is being denied an opportunity to assert Federal and State
statutes that insure his employment rights.
Mr. Riley has never had a hearing. The only testimony
we have of Mr. Riley is his deposition that clearly raises
issues of fact. Defendant considers any such denial on
the part of this Court of the Defendant’s rights to present
his defenses a grossly unjust decision by this Court that
Mr. Riley had to pay $6,400.00 fine no matter what he
offered to the lower Court. 1. effect, he was guilty before
proven innocent. This is not in accord with the United
States Constitution and our System of Justice.
WHEREFORE, Defendant respectfully prays this Hon-
orable Court certify this cause to the Supreme Court for
review.
Respectfully Submitted:
s Signature Illegible
ABRAMS, GOMBERG & REESE, LTD.
ABRAMS, GOMBERG & REESE, LTD.
135 S. LaSalle Street — Suite 2610
Chicago, Llinoix 60603
(312) 372-1981
App 62
The undersigned, being first duly sworn on oath, deposes
and states that she served a copy of the foregoing Petition
for Certificate of Importance to:
Ronald A. Carpel, Ltd.
Attorneys at Law
132 South Wacker Drive
Suite 538 — Millikin Court
P.O. Box 309
Decatur, Illinois 62525
by mailing a copy of same, postage prepaid on the 27th
day of April, 1983.
s Alexa Solomon
SUBSCRIBED and SWORN to
before me this 27 day
of April, 1983
s/ Signature Illegible
Notary Public
ABRAMS, GOMBERG & REESE, LTD.
135 S. LaSalle Street — Suite 2610
(‘hieago, Illinois 60603
(312) 372-1981
Attorneys for Defendant-Appellant
App. 63
STATE OF ILLINOIS
APPELLATE COURT
Fourth District
Supreme Court Building
Springfield 62706
Clerk of the Court Research Director
(217) 782-2586 (217) 782-3528
DATE: May 5, 1983
RE: Int'l. Union of AIW of America,
AFL-CIO, Local 876 v. Riley
General No. 482-0506
Macon 81-LM-895
TO COUNSEL:
Today | have entered an order of this court in the above
cause, denying the petition of appellant for certificate of
importance.
DARRYL PRATSCHER, Clerk
Appellate Court
Fourth District
DP :pd
TO: Abrams, Gomberg & Reese, Ltd./Barry A. Gomberg
Arlynn R. Cohen
Ronald L. Carpel, Ltd.
Received May 9, 1983.
App. 64
APPENDIX D
IN THE SUPREME COURT OF LLLINOIS
INTERNATIONAL UNION OF ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO, LOCAL 876, by
SAMUEL J. WILLIAMS, as President and LONNIE FE.
WILLIAM, as Financial Secretary-Treasurer,
Plaintiff-Appellee,
ROBERT S. RILEY,
Defendant-Appellant.
Appeal from the Cireuit Court of Macon County, Illinois
81 LM 895
Appeal from the Appellate Court of Illinois, Fourth
Judicial District 482-0506
PETITION FOR LEAVE TO APPEAL
TO THE SUPREME COURT
NOW COMES ROBERT S. RILEY, Defendant-Appel-
lant, by his attorneys, ABRAMS, GOMBERG & REESE,
LTD., and respectfully requests leave to appeal to the Su-
preme Court from the Order of the Appellate Court of
Illinois for the Fourth District, entered heretofore on
March 17, 1983. The Petition for Rehearing was filed in
the Appellate Court on April 6, 1983, and denied on April
14, 1983. In support of this Petition, Defendant respect-
fully states as follows:
l. STATEMENT OF FACTS
Defendant, ROBERT 8S. RILEY, appeals from an Order
of the Circuit Court of Macon County which dismissed with
prejudice his Amended Counter-Claim and entered Sum-
App. 65
mary Judgment in faver of the Plaintiff. The Appeate
Court of Illinois for the Fourth District affirmed.
ROBERT S. RLLEY, is an employee of the Archer
Daniels Midland Company (hereinafter ‘‘ADM’*’) located
in Decatur, Illinois and a member of the ALLIED INDUS-
TRIAL WORKERS OF AMERICA INTERNATIONAL
UNION (hereinafter **AIW"') AFL-CIO, LOCAL UNION
876.
On the 8th day of February, 1950, a strike was called by
the Plaintiff Local. The Plaintiff Local established picket
lines near ADM (C. 2).
From February 22, 1980 to May 19, 1980, during the
aforementioned strike, the Defendant crossed the estab-
lished picket lines and worked for ADM for the duration
of the strike (C. 2). As a result of the aforementioned
action on the part of the Defendant, the Plaintiff Local
imposed fines on the Defendant at the rate of $64.00 for
each day which the Detendant crossed picket lines pursuant
to local Constitution Articles 13.09, 14.04 and 19.04 (C. 2).
The Defendant was fined a total of $6,400.00, the Union
having established the Defendant crossed lines for ap-
proximately 100 days.
The Union notified the Defendant of the aforementioned
charges and set a date for trial ((. 58, C. 59, C. 60). The
initial trial date was set for September 30, 1980. The De-
fendant was served with notice on September 27, 1980. Sub-
sequently, the Union continued the trial date to October
6, 1980, and the Defendant was informed of this date on
October 1, 1980 (C. 99, C. 121-122). On October 6, 1980,
the Plaintiff Local conducted a trial in Defendant's absence
and found the Defendant to be in violation of Article 32.04
of the Union Constitution (C. 50,51). Defendant was then
notified of the findings of the trial committee on or about
November 3, 1980 (C. 63).
App. 66
Defendant subsequently appealed from the decision of
the trial committee to the International Executive Board
on December 10, 1980, pursuant to Article 19 of the Con-
stitution of the International Union (C. 75). The In-
ternational Executive Board denied the appeal (C. 80).
On July 13, 1981, Defendant (utilizing other than present
counsel) filed a Complaint in the United States District
Court, Central District, seeking a declaratory judgment as
to the aforementioned disciplinary action taken by the
Union, arguing that such action was in violation of Ch. 29
U.S.C., $411(a)(5)(ce). The Union filed a Motion to Dis-
miss the Federal Cause on two grounds. (1) Lack of juris-
diction (due to Riley's failure to exhaust his administra-
tive remedies), and (2) failure to state a claim upon which
relief can be granted. On December 7, 1981, the District
Court made the following docket entry:
“The Court has again examined the file. Attorney for
Plaintiff has not filed any further response to Defen-
dant’s Motion to Dismiss. It appears that said motion
is well taken and therefore this case must be dismissed.
CAUSE DISMISSED (Ackerman, J.)”’
At no point did the Federal Court specify the reason for
said dismissal (C. 84, 88).
Plaintiff filed a Complaint in the Cireuit Court of Macon
County seeking enforcement of the $6,400.00 fine assessed
by a trial committee on December 22, 1981. Defendant an-
swered the Complaint and filed a Counter-Claim on Janu-
ary 18, 1982, seeking dismissal of the action, a declaratory
judgment finding that the actions of Plaintiff were in viola-
tion of the Labor-Management Reporting and Disclosure
Act and appropriate monetary damages ((. 66-70). Spe-
cifically, Mr. Riley claimed that the Notice of Trial was
inadequate and in violation? of $101(a)(5)(D) of LMRDA
(29 U.S.C. $411(a)(5)(B); and that he was not afforded
a fair irial in violation of 29 U.S.C. $411(a /5)(e).
App. 67
Riley further alleged that the trial committee was
stacked against him and that he had been subjected to con-
tinuing harrassment which constituted cruel and unusual
punishment. Plaintiff filed «a Motion to Dismiss the
Counter-Claim on January 22, 1982 ((C. 83-85) on three
grounds: (1) lack of jurisdiction in the State Court,
(2) collateral estoppel, and (3) pleading conclusions of law.
In support of the collateral estoppel ground there was
attached a certified copy of the docket sheet of the United
States District Court for the Central District of Illinois,
case number 81-3216 together with a copy of the Complaint
and a Motion to Dismiss.
On February 18, 1982, the Union filed a Motion for
Summary Judgment supported by affidavits and Riley’s
filed deposition. In that deposition, Riley admitted that he
crossed the picket line but asserted that he did so only
after being harrassed by Union officials and further stated
that after returning to work, he worked approximately 80
days during the strike. On July 16, 1982, the trial court
entered a written judgment order which found: (1) that it
had jurisdiction; (2) that the Union be allowed to amend
its Complaint without objection; (3) that the Motion to
Dismiss the Amended Counter-Claim be allowed because ;
a) it failed to state a cause of action; and b) Riley was
clearly estopped by the dismissal of the Federal action;
and c) that the Union's Motion for Summary Judgment
be allowed. The Court thereupon entered Judgment in
favor of the Union and against Riley in the sum of
$6,400.00. This appeal followed.
Mr. Riley's appeal stated that the Cireuit Court’s en-
tering of Summary Judgment was error as several genuine
issues of material fact existed at the time of the entry of
the Order for Summary Judgment, namely :
Ap). 68
(1) Whether the Defendant was atforded proper notice
of the trial committee meeting wherein the $6,400.00 fine
was imposed; (C. 49, ©. 2, ©. 3);
(2) Whether the Defendant was afforded a fair and im-
partial trial ((. 124);
(3) Whether the Defendant crossed the picket lines for
100 days as charged in Plaintiff’s Complaint (C. 2, C. 113-
14, C. 128).
The Appellate Court determined that Mr. Riley was
collaterally estopped from raising these issues. as they
had been previously adjudicated upon a Motion to Dis-
nuiss in the Federal cause.
(1. STATEMENT OF THE POINTS RELIED UPON
BY THE APPELLATE COURT
In its Memorandum Opinion of March 17, 1982, the Ap-
pellate Court determined that the State Court was proper-
ly vested with jurisdiction as to all issues relating to this
appeal and that the Defendant, Robert S. Kiley, had prop-
erly exhausted his administrative and grievance remedies.
Thus, the only issues remaining were whether any genuine
issues of material fact existed at the time Summary Judg-
ment was ordered by Judge Morthland and whether Mr.
Riley's arguments raising these issues of fact were barred
by collateral estoppel.
The Appellate Court never reached the first two issues
of fact in that the Court determined that said issues were
adjudicated in the previous Federal Court action filed by
the Defendant, and as such, Defendant was collaterally
estopped from raising these issues as a defense in the Cir-
cuit Court and again raising them on appeal. The third
issue, the number of days which Mr. Riley crossed the
picket lines (on which the imposition of the fine was based)
App. 69
was also not reached by the Appellate Court in that it
determined that said argument was barred in that it was
never raised in the trial court. Defendant respectfully
contends that the Appellate Court committed gross error
in reaching both these determinations.
Ill. ARGUMENT
The law of collateral estoppel was wholly misapplied by
the Appellate Court, and as such review by the Supreme
Court is clearly warranted. The record is void of any in-
dication that the issues of notice and fair trial were adjudi-
cated on the merits in Federal Court. The Plaintiff herein
(Defendant in the Federal (ause) filed a Motion to Dis-
miss the Federal Cause on two grounds: lack of jurisdic-
tion (due to Mr. Riley’s alleged failure to exhaust his in-
ternal grievance remedies) and failure to state a cause of
action (C. 83). Although the Federal cause was in fact
dismissed, the specific reasons for said dismissal cannot be
found anywhere within the record. The dismissal was
simply a docket entry (pg. + Court’s Opinion) which did
not explain the cause therefore ((. 88). As such, the Appel-
late Court committed gross error in determining that De-
fendant was collaterally estopped from raising these issues.
The law pertaining to collateral estoppel is clearly stated
in Gowlijo v. Gonyo, 292 N.E.2d 591, 9 Il.App.3d 672 (1973) :
‘*4 second action may be barred where ... the same
controlling fact or question material to the determina-
tion of both cuuses has been adjudicated as the burden
in establishing the defense under either of the afore-
mentioned principles is upon the parties invoking it
_.. The party raising the defense must show with
clarity and certainty the pariies, the precise issues and
the judgment of the former action.”’ l\d. at 592-593
(emphasis added).
The Appellate Court wrongfully applied collateral estoppel
in the instant case, as it is clear that the precise issue~<
App. 70
adjudicated by the Federal Court cannot be demonstrated
with any clarity and certainty nor was it evident chat ‘‘con-
trolling fact or question material to the determination of
both causes has been adjudicated’’.
In its Memorandum Opinion of March 12, 1983, the Ap-
pellate Court apparently took cognizance of this fact (pg.
13, Memorandum Opinion) but failed to properly apply the
aforestated law. The Court instead chose to improperly
apply the law expounded in Pratt v. Baker, 79 Ill.App.2d
479, 223 N.E.2d 865 (1967). In that case, the Court was
found to have properly dismissed a second suit on the
grounds of res adjudicata where a prior suit had been dis-
missed for failure to state a cause of action. Pratt is
wholly distinguishable from the instant case in that Mr.
Riley has amply and specifically argued throughout this
appeal that it was impossible to determine if in fact the
Federal cause was dismissed on the merits (for failure to
state a cause of action). In fact, the Appellate Court stated
to couhsel at the oral argument that ‘‘ We don’t know what
Ackerman (the Federal Judge) did. He may have been
out to lunch for all we know”.
The Appellate Court again misapplied the law of col-
lateral estoppel in citing Reinhart v. Locke, also wholly
inapplicable to the instant case. Reinhart states at page
314 that:
‘*It has been held that the list in Rule 41(b) of types
of dismissal which are not presumptively adjudications
on the merits is not exclusive, and that the situations
where dismissal are not provided for in Rule 41 are
to operate as adjudication on the merits are those ‘‘in
which the Defendant must ineur the inconvenience of
preparing to meet the merits because there is no initial
bar to the Courts reaching them’’. The same decision
indicates a dismissal for failure to fulfill a “ pre-con-
dition”’ for consideration of the merits is not a deei-
sion on the merits.”
App. 71
It is thus abundantly clear that Reimhart stands for the
proposition that a dismissal for failure to state a claim is a
dismissal on the merits while « dismissal for failure to ful-
fill a ‘‘pre-condition’*’ a consideration on the merits (.e.
Riley’s failure to exhaust his grievance remedies) is not.
In this case, we do not know whether the dismissal of the
Federal cause was for failure to state a claim or for failure
to fulfill a ‘‘pre-condition’* for consideration on the merits.
Collateral estoppel must not be applied absent a clarity
and specificity of issues and an adjudication on the merits.
By the Appellate Court’s own admission, it was unde-
terminable as to why the Federal cause was dismissed. As
such, the Appellate Court committed serious error in de-
termining that Mr. Riley's arguments as to notice and fair
trial were collaterally estopped.
Finally, the Appellate Court found that the third issue,
the number of days which Mr. Riley crossed the picket lines,
was also barred in that said issue was never raised in the
trial court. However, such was obviously not the case as
Defendant raised this issue in his deposition (C. 28), said
deposition having been filed in the trial court and having
been submitted as Exhibit *‘.\*’ in Plaintiff's Motion for
Summary Judgment. It is apparent that both the Appel-
late Court as well as the ‘rial Court chose to ignore this
issue, rather than affording it the full weight it deserves.
The question still remains as to whether the Defendant
crossed lines for 100 days or for 80 days as stated in
Mr. Riley's deposition testimony. This issue clearly raises
a genuine issue of material fact, as the fine imposed upon
Mr. Riley was based upon the number of days which he
actually crossed picket lines during the authorized strike.
The Appellate Court wrongfully determined said issue was
barred, and accordingly, review by this Court is most clear-
ly warranted.
App. 72
Furthermore, Riley's Federal suit sought only a declara-
tory judgment. The Union succeeded upon a Motion for
Summary Judgment in the trial court as the lower court
found Riley was estopped from asserting his rights unde:
the Labor-Management Reporting and Disclosure Act. Be-
cause of the determination, no Court has ever decided
whether this union violated Riley's rights. Could Riley
walk off the picket lines and go to work if he desired:
Riley has never been able to assert his federally protected
rights.
In determining that Mr. Riley was barred from raising
the aforementioned issues either in the trial court or on
appeal, the Appellate Court wrongfully ignored the genuime
issues of material fact which were raised by the Defen-
dant. These issues of fact have been discussed herein-
above. In its action, the Court effectively precluded Mr.
Riley of his right to present meritorious defenses and thus
denied him of his Constitutional due process rights.
In effect, the Appellate Court affirmed a Summary Judg-
@ent for $6,400.00 based upon u fine which was improperly
imposed. The Court enforced a fine which was imposed
against Defendant without affording Defendant sufficient
notice, said fine being levied at a trial committee meeting
which amounted to a ‘‘kangaroo court’’ ((. 124). A work-
ing man has been deprived of his Constitutional due proc-
ess rights. Mr. Riley has never had a hearing. The only
testimony we have of Mr. Riley is his deposition that
clearly raises genuine issues of material fact. Defendant
considers denial on the part of the Appellate Court for
the Defendant's rights to present his defense as a grossly
unjust decision in ordering that Mr. Riley had to pay a
$6,400.00 fine no matter what he offered to the lower court.
In effect, he was guilty before proven innocent. This is not
in accord with the United States (Constitution and our
system of justice.
App. 75
Finally, the Appellate Court erroneously misapplied and
misinterpreted the law pertaining to collateral estoppel.
If the Appellate Court’s ruling were permitted to stand,
the doctrine of collateral estoppel would be most severely
eroded. In effect, the law as it exists now would become
non existent. The impact of the Appellate Court’s ruling
would eliminate the well established law of collateral
estoppel which now exists and in its place establish new
law which in effect would stand for the proposition that any
plaintiff or any defendant would be collaterally estopped
from raising any issues as defenses under any cirecum-
stances if they were merely part of the subject matter of a
previous suit, even if said suit was not adjudicated upon
the merits. Such law would work to deny many citizens of
this State their Constitutional due process rights.
Accordingly, review by this Court is greatly warranted,
and the decision of the Appellate Court herein must be re-
versed.
WHEREFORE, Defendant, ROBERT 8S. RILEY, re-
spectfully prays this Honorable Court grant him leave to
appeal from the decision of the Appellate Court herein.
Respectfully Submitted:
/s/ Barry A. Gomberg
ABRAMS, GOMBERG & REESE, LTD.
ABRAMS, GOMBERG & REESE, LTD.
135 S. LaSalle Street
Suite 2610
Chicago, Lilinoixs 60603
(312) 372-1981
Counsel for Appellant
Ap). 74
NO. 4-82-0506
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
(Filed March 17, 1983)
INTERNATIONAL UNION OF ALLIED INDUSTRIAI
WORKERS OF AMERICA, AFL-CIO, LOCAL 876, BY
SAMUEL J. WILLIAMS, As President, AND LA INNIE E.
WILLIAMS, As Financial Secretary-Treasurer,
Plaintiffs-Appellees,
4
.
v.
ROBERT 8S. RILEY,
Defendant-Appellant.
Appeal from Cireuit Court County of Macon No. S1LM895
Honorable Donald W. Morthland. Judge Presiding.
PRESIDING JUSTICE WEBBER delivered the order
of the court:
Defendant (Riley) appeals from an order of the circuit
court of Macon County which dismissed with prejudice
his amended counterclaim and entered summary judgment
in favor of the plaintiff (Union). We affirm.
Some background is necessary to an understanding of
the issues raised on appeal. The instant complaint was
filed in the cireuit court of Macon County on December
22, 1981. In it the Union alleged that it had been on strike
against Archer-Daniels-Midland Corporation, located at
Decatur, from February &, 1980, until May 19, 1980; and
that Riley had crossed the picket line in violation of the
Union's constitution, a copy of which was attached to the
App. 75
complaint. It was further alleged that under the provi-
sions of the coustitution Riley was ordered to stand trial
before a union trial committee on September 30, 1980, and
was so notified of such trial; further, that the trial was con-
tinued until October 6, 1980, in order to allow Riley time to
prepare his defense. The complaint then alleged that Riley
failed to appear at the trial and that the trial committee
found him guilty of violating the Union's constitution; the
minutes of the committee were attached to the complaint
and revealed that Riley was fined by the committee $64
per day for 100 days, being the number of days on which
the committee found he had crossed the picket line. The
complaint then prayed for enforcement of the fine of
$6,400.
On January 18, 1982, Riley filed an answer and counter-
claim. In the counterclaim he alleged violations by the
Union of certain provisions of a Federal statute known
as the Labor-Management Reporting and Disclosure Act,
more commonly called the Landrum-Griffin Act (LMRDA).
Specifically, he claimed that the notice of trial was inade-
quate in violation of section 101(a)(5)(B) of LMRDA (29
U.S.C. see. 411(a)(5)(B)); and that he was denied a fair
trial in violation of section 101(a)(5)(C) (29 U.S.C. see.
411(a)(5)(C)). He further alleged that the trial com-
mittee was prejudiced against him and that he had been
subjected to continuing harassment which constituted
cruel and unusual punishment. His prayer for relief asked
dismissal of the Union's complaint and for damages for
harassment. Attached as an exhibit to the counterclaim
was a letter of appeal by Riley to the International Union
and a letter from that body denying the appeal.
The Union filed a motion to dismiss the counterclaim
which set up essentially three grounds: (1) lack of juris-
diction in the state court, (2) collateral estoppel, and
Ap). 76
(3) pleading conclusions of law. In support of the col-
lateral estoppel ground there was attached a certified copy
of the docket sheet of the United States District Court
for the Central District of Illinois in case number 81-3216,
together with a copy of the complaint and a motion to dis-
miss. These documents reveal that on .July 13, 1981, Riley
filed the suit against the Union for violation of his rights
under the LMRDA and service was had upon the Union.
Thereafter, in addition to the motion to dismiss, the Union
filed a motion to strike, the exact nature of whici. is not
indicated. Memoranda in support of both motions were
filed and Riley filed answers to both motions together with
memoranda in support of the answers. On November 10,
1981, the cause was called for hearing on all motions. The
docket entry of that date indicates that Riley’s attorney
chose not to appear but to stand on his memoranda already
filed. The District Court allowed the filing of Riley’s
deposition taken September 8, 1981, and granted Riley 21
days in which to make response.
On December 7, 1981, the District Court made the fol-
lowing docket entry:
“The Court has again examined file. Atty. for
Pltf. has not filed any further response to deft’s mo-
tion to dismiss. It appears that said motion is well
taken and therefore this case must be dismissed.
CAUSE DISMISSED. ( Ackerman, J.)"’
The copy of the motion to dismiss in the District Court
indicates that its grounds were: (1) failure to state a cause
of action, and (2) Riley's failure to exhaust his internal
union remedies as required by section 101(a)(4) of the
LMRDA. 29 U.S.C. see. 411(a)(4).
To summarize to this point: Riley sued the Union on an
LMRDA complaint in Federal court in July 1981 and was
App. 77
dismissed in December 1951; two weeks later the Umon
filed the instant suit in state court, and Riley set up as a
counterclaim essentially the matters on which he had previ-
ously sued.
On February 18, 1982, the Union filed a motion for sum-
mary judgment supported by affidavits and Riley's Federal
deposition. In that deposition Riley admitted that he
crossed the picket line but asserted that he did so only
after being harassed by Union officials over a nonexistent
petition which he allegedly circulated asking others to re-
turn to work. He stated that after returning to work he
worked approximately 80 days during the strike. He
admitted that on September 27, 1980, he received a certified
letter of notice of the trial that was to take place on Sep-
tember 30, 1980. He knew that this was contrary to the
Union constitution so he refused to attend. He also stated
that he got a letter on September 29, 1980, stating that the
Union had violated the constitution and therefore the trial
was moved back to October 6, 1980. He felt that the trial
committee was stacked against him since several members
had harassed him regarding the nonexistent petition. How-
ever, he did not notify the trial committee that he thought
the trial was improper and he would refuse to attend. He
stated that he would have appeared if the trial had been
constitutional and if he could have been represented by
an attorney. He stated he believed he could not be so
represented. Further he said that even counting from
September 27, 1980, there were only nine days between the
time he received notice and the time of the trial. Finally
he testified that he appealed to the International with coun-
sel’s advice. However, he stated that he did not appeal to
the International convention which was held in August
1981. !le «tated that he did not know that he could so
appeal although he did admit that he had a copy of the
Union constitution which reveals that such an appeal is a
App. 78
necessary step in exhausting internal union remedies. He
admitted that a hand delivered copy of the charges was
received by him on September 25, 1980,
On March 1, 1982, Riley, without leave of court, filed
an amended counterclaim, alleging essentially the same mat-
ters as appeared in the original counterclaim but adding
that the Federal suit was dismissed for failure to exhaust
internal union remedies. The Union filed a motion to dis-
miss or to strike the amended counterclaim on the same
grounds as in its original motion. Riley answered the mo-
tion, alleging that collateral estoppel did not apply. He
also filed an answer to the motion for summary judgment,
stating that he had good reason for crossing the picket line
as stated in his affidavit. However, the affidavit does not
appear in the record.
On July 16, 1982, the trial court entered a written judg-
ment order which found: (1) that it had jurisdiction;
(2) that the Union be allowed to amend its complaint-with-
out objection; (3) that the motion to dismiss the amended
counterclaim be allowed because (a) it failed to state a
cause of action, and (b) Riley was collaterally estopped
by the dismissal of the Federal action; and (4) that the
Union’s motion for summary judgment be allowed. The
court thereupon entered judgment in favor of the Union
and against Riley in the sum of $6,400. This appeal fol-
lowed.
A considerable argument between the parties arises out
of the question of the state trial court’s jurisdiction over
Riley's counterclaim. While we believe that the proper
basis for dismissal of it was collateral estoppel, some brief
comment on the subject of the state court’s jurisdiction is
appropriate.
The Union argues that the Federal court allowed its mo-
tion to dismiss which alleged as one alternative ground
Ap). 79
lack of jurisdiction in that court and that it therefore fol-
lows that there was no jurisdiction in the state court: it
also argues that matters arising under Title | of the
LMRDA are exclusively Federal. If, in fact, the Federal
dismissal was only for lack of jurisdiction (the extensive
proceedings in that court us revealed by its docket shee:
appear to belie such a theory), that decision uppears er-
roneous but relief from it cannot be sought in state court
but rather by Federal appeal. Further, we do not agree
that the Federaj jurisdiction is exclusive,
The nub of the argument has to do with Riley's failure
to pursue his remedy to its last stage. The Union's con-
stitution sets up its own appellate process. The trial com-
mittee’s findings may be appealed to the International
Executive Committee, as was done in Riley’s case. The
International Committee's judgment may then be appealed
to the International] Convention, as was not done.
The rights set forth in Title I inelude protection of
the right to sue, section 101(a) (4), 29 U.S.C. see. 411(a) (4)
(1976):
‘No labor organization shall limit the right of any
member thereof to institute an action in any court
* *; Provided, That any such member may be re-
quired to exhaust reasonable hearing procedures (but
not to exceed a four-month lapse of time) within such
organization, before instituting legal or administra-
tive proceedings. "’
This provision allows courts in their discretion to determine
whether pursuit of internal union remedies is required.
(Foy v. Norfolk & Western Ry. Co. (4th Cir. 1967), 377
F.2d 243, cert. denied (1967), 389 US. S48, 19 L. Ed. Qu
117, 88 S. Ct. 74; Giordani v. Upholsterers International
Union (2d Cir. 1968), 402 F.2d 85. Fulton Lodae No. » of
Ap). 80
ithe International Association of Machinists & «Aerospace
Workers, AFL-CIO vy. Nix (Sth Cir. 1969), 415 F.2d 212;
Semancik v. United Mine Workers (3rd Cir. 1972), 466 F.2d
144.) Four months of union proceedings is all that is re-
quired prior to instituting suits under Title |. (Giordani;
Johnson v. General Motors (2d Cir. 1981), 641 F.2d 1075;
Thompson v. New York Central R.R. Co. (S.D. N.Y. 1966),
250 F. Supp. 175.) Moreover, in cases involving a biased
tribunal or other procedural irregularities in the union
disciplinary proceedings, the court may regard the results
of that proceeding as void, in which case internal union
appeals are not required. See Heyden, Landrum-Griffin,
Section 101(a)(4)—Its Impact on Employee Rights, 7
Employee Rel. L.J. 643, 650-52 (1982), citing Libutti v.
Di Brizzi (2d Cir. 1964), 337 F.2d 216, and Chambers v.
Local Union No. 639, International Brotherhood of
Teamsters (D.C. Cir. 1978), 578 F.2d 375.
In Riley's case, it appears that he fulfilled this four-
month exhaustion requirement. The union’s trial board
issued its decision on November 3, 1980. The international
executive committee rendered its decision in the appeal on
June 30, 1981. Rile¥ did not file suit in Federal court
until July 13, 1981, more than eight months after the trial
board's decision issued.
We conclude that Riley’s Federal suit was aptly filed.
As to the exclusivity argument, we believe that concurrent
jurisdiction exists in Federal and state courts in actions
brought under Title I of the LMRDA. In the instant case
the Union relies on Safe Workers’ Organization Chapter
No. 2 v. Ballinger (S.D. Ohio 1974), 389 F. Supp. 903, for
the proposition that jurisdiction is exclusively Federal.
There are various considerations supporting the con-
curreat jurisdiction of state courts in actions brought pur-
suant to Title I of LMRDA. First, the Safe Workers’
analysis is not persuasive. Second, the Federal district
App. 81
courts are split on this issue and higher courts have not
addressed the question. Third, the structure of the LMRDA
und the remedies provided by various titles do not man-
date exclusive jurisdiction in the Federal courts. Fourth.
Illinois courts appear willing to enforce Federal statutes
where jurisdiction is not expressly reserved to the Federal
courts. Fifth, the language of Title I’s enforcement pro-
vision, section 102, 29 U.S.C. sec. 412, is comparable to
that in the Labor Management Relations Act, section 301,
29 U.S.C. sec. 185(a) (1976), which has been interpreted
as granting concurrent jurisdiction. Sixth, concurrent
jurisdiction has been exercised in relation to the provi-
sions of LMRD.A, Title LI, for which the statutory remedy
is enforcement by the Secretary of Labor.
In Safe Workers’ the Federal District Court in constru-
ing section 101 of the Landrum-Griffin Act stated that
the general rule is that Federal jurisdiction is not exelu-
sive unless Congress chooses to make it so, either ex-
pressly or by fair implication. The court went on to state
that jurisdiction over 29 U.S.C. sec. 411 is exclusively Fed-
eral. The court based its reasoning on an analysis of 29
U.S.C. see. 412 and 29 U.S.C. see. 501. Section 412 states
in pertinent part: ‘‘Any person whose rights secured by
. the provisions of this subchapter [Title 29 U.S.C. sees.
411-15] have been infringed by any violation of this sub-
chapter may bring a civil action in a district court of the
United States.’’ (Emphasis added.) Section 501 provides
that members may sue union officials ‘‘in any district
court of the United States or im any State court of compe-
tent jurisdiction.’’ (Emphasis added.) From a comparison
of these two sections, the district court reasoned that Con-
gress intended the Federal District Courts to have exclu-
sive jurisdiction for actions brought pursuant to 29 U.S.C.
sec. 411.
App. 82
The cases cited by Safe Workers’ do not support its
theory. (Parks v. International Brotherhood of Electric
Workers (4th Cir. 1963), 314 F.2d 886; Detroy v. .imeri-
can Guild of Variety Artists (2d Cir. 1961), 286 F.2d 75;
Calhoon v. Harvey (1964), 379 U.S. 134, 13 L. Ed. 2d 190,
85 S. Ct. 292.) In Parks the court stated that the LMRDA
created new Federal rights for union members to be en-
forced in Federal] courts, but this statement was made
in connection with a possible conflict between action under
LMRDA and the jurisdiction of the National Labor Rela-
tions Board. The Vetroy court stated that the rights
granted under Title I of the LMRDA required a duty to
formulate Federal law. The question was exhaustion of
internal union remedies and the court stated that Federal
courts may develop their own principles regarding the
time when union action in violation of Title I of the
LMRDA was ripe for judicial intervention. In Calhoon
the Supreme Court found that the case fell under Title IV,
rather than Title I, and that the Federal court did not,
therefore, have jurisdiction.
lllinois courts have a tradition of enforcing rights under
Federal lav. In Reidelberger v. Bi-State Development
Agency (1956), 8 Lil. 2d 121, 133 N.E.2d 272, the supreme
court stated that in the absence of constitutional or statu-
tory provisions limiting jurisdiction to Federal courts,
state courts have authority to enforce rights under the
constitution and statutes of the United States. In Parkin
v. Damen-Ridge Apartments, Inc. (1951), 344 Ill. App. 301,
304, 100 N.E.2d 632, 634, the court cited with approval
the general statement from 21 C.J.S. Courts see. 526
(1940): ‘‘As a general rule, the grant of jurisdiction to
federal courts does not of itself imply that the jurisdic-
tion is to be exclusive.”*
App. 83
The same doctrine was more expansively stated by the
Supreme Court in (Charles Dowd Box Co. v. Courtney
(1962), 368 U.S. 502, 7 L. Ind. 2d 483, 82 S. Ct. 519, in
construing section 301(a) of the Labor Management Rela-
tions Act (29 U.S.C. see. 185(a)):
‘*We start with the premise that nothing in the con-
cept of our federal system prevents state courts from
enforcing rights created by federal law. Concurrent
jurisdiction has been a common phenomenon in our
judicial history, and exclusive federal court juris-
diction over cases arising under federal law has
been the exception rather than the rule.’’ 368 U.S.
502, 507-08, 7 L. Ed. 2d 483, 487, 82 S. C't. 519, 522-
23 (footnote omitted).
See also Local 174, Teamsters, Chauffeurs, Warehousemen
& Helpers of America v. Lucas Flour Co. (1962), 369 U.S.
95, 7 L. Ed. 2d 593, 82 S. Ct. 571; Gordon v. Thor Power
Tool Co. (1965), 55 Tl. App. 2d 389, 205 N.E. 2d 55;
American Device Manufacturing Co. v. International As-
sociation of Machinists d& Aerospace Workers, AFL-CIO,
District No. 9 (1969), 105 Ill. App. 2d 299, 244 N.E.2d 862;
Alexander y. Standard Oil Co. (1977), 53 Ill. App. 3d 690,
695-96, 368 N.E.2d 1010, 1013-14.
We are of the opinion that the Federal District Court
had jurisdiction of Riley's complaint filed there and that
the circuit court of Macon County had jurisdiction of his
counterclaim filed there.
We turn next to the question of collateral estoppel which,
in a sense, is derivative of the question of jurisdiction.
Collateral estoppel is a familiar principle of law; stated
briefly, it holds that a former adjudication by a court of
competent jurisdiction is a bar to a subsequent action, if
the action is based on an identity of parties, of subject
matter, and of cause of action. (Gonyo v. Gonyo (1973), 9
Ill. App. 3d 672, 292 N.E.2d 591; Gudgel v. St. Louis Fire
@ Marine Insurance Co. (1971), 1 Il. App. 3d 765, 274
App. 84
N.E.2d 597.) A comparison of Riley’s suit in Federal
court and his counterclaim in state court demonstrates
beyond argument that these requirements were present.
The Federal court’s dismissal order, set forth verbatim
above, was nonspecific, although the motion to dismiss
raised dual grounds, failure to state a cause of action and
lack of jurisdiction. The extensive briefing by the parties
in that court together with the filing of the deposition is
a clear inaication that the motion was something more than
a perfunctory disposition on the ground of jurisdiction
only. We have already indicated that we believe juris-
diction had attached in the Federal court. The clear im-
plication exists that the Federal court considered Riley's
suit on its merits.
Pratt v. Baker (1967), 79 Ul. App. 2d 479, 223 N.E.2d
865, is instructive on the matter of dismissal on unspecified
grounds. There the plaintiff brought an action in tort and
deceit on facts which had bee alleged in a prior suit. In
that prior suit the trial court had dismissed for failure to
state a cause of action. The trial court in the second suit
also dismissed on grounds of res judicata. The appellate
court affirmed holding that the prior action did not contest
the facts but disputed the right of the plaintiff to recover
on those facts. It therefore did not matter whether the
facts were established by extrinsic evidence upon issues
joined or admitted by a motion to dismiss. In either case
the decision was upon the merits.
» So in the instant case, the dismissal by the Federal court
upon a motion alleging failure to state a cause of action
was an adjudication that no right to recover on the facts
pleaded existed.
lederal procedure is even more stringent. In Rinehart
v. Locke (7th Cir. 1971), 454 F.2d 313, in upholding a dis-
App. 85
missal by the district court, the court of appeals held
that under the Federal Rules of Civil Procedure, unless
the district’court specifies otherwise, a dismissal operates
as an adjudication on the merits, except for dismissals tor
lack of jurisdiction, for improper venue, or for failure to
join necessary parties.
We therefore hold that the district court’s dismissal of
Riley's suit was an adjudication on the merits and operates
as a collateral estoppel on hix counterclaim in the circuit
court of Macon County, which was correct in dismissing it.
The final question is the propriety of summary judgment.
Riley argues that issues of fact remain on questions of
notice of trial, fair trial and the number of days upon
which he crossed the picket line. The first two are moot by
reason of collateral estoppel.
The record is in great confusion over the matter of days
across the picket line. The original recommendation of the
trial committee was ‘Fine of $64 per day for 100 days
for a total of $6400 or less provided you present proof
you worked less in which case $64.00 per day up to 100
days for cach day worked.’* This appears to indicate that
some proceeding for additional, or supplementary, proot
was contemplated. However, the only provision found in
the Union’s constitution on the matter relates to appeals.
Article 19 of that document provides in pertinent part:
‘The International Executive Board, in its discretion, may
decide the appeal either on the record before it or by
retrial before it.”’ (Emphasis added.) Kiley did file the
appropriate rotice of appeal.
The secretary-treasurer of the International Union re-
sponded by requesting Riley to submit ‘‘any documents,
ete. that you may have in your defense.’’ Riley replied:
‘My reasons for wanting the fine dropped are as follows :**
(Emphasis added.) Then follows a list of six reasons, all
SE
App. 86
relating to matters other than the fine. No mention is made
of abating a portion of the fine, only that the fine be
‘*dropped.’"’
The International Executive Board, so far as the record
indicates, did not retry the case. ‘There appears only a
letter to Riley from the International Secretary-Treasurer
stating that at a meeting of the International Executive
Board Riley's appeal ‘‘was reviewed and discussed at
length." The trial committee’s recommendation was
adopted except for a provision that Riley be ‘‘forever’’
barred from holding any elected or appointed union office
was reduced to ‘‘a period of five (5) years."
Thereafter, the parties treated the fine as being in the
amount of $6,400. In its motion for summary judgment
the Union recited that figure as the fine and in his answer
to the motion for summary judgment Riley did not dispute
the amount but stated only ‘‘that the fine was unlawful.”’
It was not until he reached this court that Riley raised
the question of the number of days upon which the fine was
predicated by arguing that his deposition indicated some-
thing in the neighborhood of 80 days. In our judgment
he has waived any such argument or contention. It was
not raised in answer to the motion for summary judgment
in the trial court and Riley did not pursue any intraunion
remedies described above. Therefore, summary judgment
Was appropriate.
For all the foregoing reasons, the order of the cireuit
court of Macon County is affirmed.
Affirmed.
GREEN and MILLER, J.J., coneur.
App. 87
IN THE APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
General No. 482-0506
INTERNATIONAL UNION OF ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO, LOCAL 876, BY
SAMUEL J. WILLLAMS, as President, AND LONNIE E.
WILLLAMS, as Financial Secretary-Treasurer,
Plaintiffs-Appellees, 4,
ROBERT S. RILEY,
Defendant-Appellant.
Appeal from Circuit Court Macon County 81-LM-895
Donald W. Morthland, Judge Presiding
FOR APPELLANT POR APPELLEE
Barry A. Gomberg Ronald L. Carpel, Ltd.
Arlynn Renee Cohen Attorneys at Law
Abrams, Gomberg & Suite 538 Millikin Court
Reese, Ltd. 132 South Water Street
Attorneys at Law P.O. Box 309
135 South LaSalle Street Decatur, Dlinois 62525
Suite 2610
Chicago, Illinois 60603
RULE 23 ORDER FILED: March 17, 1983
JUSTICES: Honorable Albert G. Webber, Ill, P.J.
Honorable Frederick S. Green, J.
Honorable Ben K. Miller, J.
Concurring
App. 88
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK _ )
The undersigned, being first duly sworn on oath, deposes
and states that she served copies of the foregoing Petition
for Leave to Appeal to the Supreme Court by mailing
copies of same to:
Clerk of the Supreme Court of Illinois
Supreme Court Building 15 copies
Springfield, Illinois 62701
Ronald A. Carpel, Ltd.
132 South Water Street
Suite 538 Milikin Court 3 copies
P.O. Box 309
Decatur, Illinois 62525
on the 18th day of May, 1983, said copies to the Clerk of the
Supreme Court being sent by overnight mail.
s/ Alexa Solomon
SUBSCRIBED and SWORN to before
me this 18th day of May, 1983.
/s/ J. Marlene Moen
Notary Public
ABRAMS, GOMBERG & REESE, LTD.
135 S. LaSalle Street — Suite 2610
Chicago, Illinois 60603
(312) 372-1981
App. 89
ILLINOIS SUPREME COURT
JULEANN HORNY AK, CLERK
Supreme Court Building
Springtield, Ill. 62706
(217) 782-2035
October 4, 1983
Mr. Barry A. Gomberg
Abrams, Gomberg & Reese, Ltd.
135 S. LaSalle St., S#2610
Chicago, IL 60602
No. 58430—International Union of Allied Industrial
Workers of America, AFL-CIO, Local 876, etce.,
et al., etc., respondents, vs. Robert 8S. Riley,
petitioner. Leave to appeal, Appellate Court,
Fourth District.
The Supreme Court today DENIED the petition for
leave to appeal in the above entitled cause.
Very truly yours,
s/ Juleann Hornyak
Clerk of the Supreme Court
P. S. The Mandate of this Court will issue to the
Appellate Court on October 26, 1983.
App. 90
IN THE SUPREME COURT OF ILLINOIS
INTERNATIONAL UNION OF ALLIED INDUSTRIAL
WORKERS OF AMERICA, AFL-CIO, LOCAL 876, by
SAMUEL J. WILLIAMS, as President, and LONNIE E.
WILLIAMS, as Financial Seeretary-Treasurer,
Plaintiff-Appellee
VS.
ROBERT S. RILEY,
Defendant-Appellant
Appeal from the Circuit Court of Macon County, Illinois
81 LM 895
Appeal from the Appellate Court of Illinois, Fourth
Judicial Distriet 4-82-0506
PETITION TO STAY OR RECALL MANDATE
(Filed Nov. 7, 1983)
NOW COMES the Defendant-Appellant, ROBERT 5S.
RILEY, your Petitioner herein, and for his Petition to
Stay or Recall Mandate pursuant to Illinois Supreme
Court Rule 368, states as follows:
1. The Illinois Supreme Court in its order dated Octo-
ber 4, 1983, denied your Petitioner’s Petition for Leave to
Appeal to the Illinois Supreme Court, the above captioned
cause.
2. Mandate to the Appellate Court of Illinois for the
fourth judicial district issued on October 26, 1983.
3. Rule 58(2) of the Federal Rules of Civil Procedure
in pertinent part reads as follows:
App. 91
**
. every Judgment shall be set forth on a separate
document. A judgment is effective only when so set
forth ...°* (emphasis added).
4. No judgment set forth upon a separate document
was ever entered in the cause:
ROBERT S. RILEY, v. ALLIED INDUSTRIAL WORK-
ERS UNION OF AMERICA, LOCAL 876, and numbered
81-3216, which cause was filed on July 13, 1981.
do. No judgment having been set forth upon a separate
document in said cause, there can be no final judgment
to which the collateral estoppel doctrine can apply in Illi-
nois Courts thus, the Illinois Cireuit and Appellate Courts
in applying said doctrine to the within action have com-
mitted clear and obvious error in « case in which no final
judgment has ever been properly entered.
6. Since F.R.Civ.Pro. 58(2) is a jurisdictional rule, this
issue may
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