Loss v. Blankenship, 673 F.2d 942, 946-947 (7 Cir. 1982) (limiting
§ 301 claims to signatories to the collective bargaining
agreement). I grant the Trustees’ motion to dismiss the
counterclaim with respect to Count I.

Count II of the counterclaim alleges conversion on the part of
the Trustees. Comtel alleges that it was coerced into paying the
Trustees $95,000, an amount Comtel claims was in dispute after the
first audit by the Trustees. To state a claim for conversion,
Comtel must allege that the Trustees wrongfully deprived it of
money to which it had a right to immediate possession. Horbach v.
Kaczmarek, 288 F.3d 969, 978 (7** Cir. 2002). Further, the money
must be “a specific fund or specific money in coin or bills” and
Comtel’s “right to the money must be absolute.” Id. Comtel does
not allege that the money in question was a specific fund; there is
nothing before me to show that the money was in any way segregated
from other money, placed in an exclusive account, or otherwise made
distinctive. Simply placing a specific dollar amount on the money
in question is not sufficient to make it a “specific fund.” See,
e.g., Marc Dvmpt., Inc. v. Wolin, 904 F. Supp. 777, 795 (N.D. Ill.
1995) (Moran, J.); Cumis Inc. Soc., Inc. v. Peters, 983 F. Supp.
787, 793-794 (N.D. Ill. 1997) (Alesia, J.). Comtel makes no
allegations that the Trustees in any way segregated the money in
question or otherwise earmarked it. The money in question is

therefore not a “special fund” and the allegations are not


the same interpretation of the same section of the collective
bargaining agreement be tried together. The claims’ basis in state
law is no bar to the exercise of supplemental jurisdiction. The
Trustees’ argument under Rule 12(b) (1) fails.

The Trustees next argue that the counterclaims should be
dismissed for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6). Count I of the counterclaim
alleges breach of contract by the Trustees, specifically that they
breached the collective bargaining agreement. If the resolution of
a state-law claim, such as breach of contract, relies primarily on
analysis of a collective bargaining agreement, the claim must
either be dismissed as pre-empted by federal law or treated as a
claim under 29 U.S.C. § 301. Allis Chalmers Corp. v. Lueck, 471
U.S. 202, 220 (1985). The signatories to the collective bargaining
agreement are Comtel, ECA, and Local 134. The Trustees are not a
signatory party to the agreement, but are third-party
beneficiaries. See, e.g., Central States v. Gerber Truck Service,
870 F.2d 1148, 1151 (7 Cir. 1989) (stating that “pension and
welfare plans are not parties to the collective bargaining and
participation agreements”). The Trustees cannot be subject to a
claim under § 301.! Teamsters Int’l Auto. Transporters Indus.

Negotiating Committee v. Troha, 328 F.3d 325, 329 (7 Cir. 2003);

1 If I do not treat Count I as a claim under § 301, I must
dismiss it as pre-empted by federal labor contract law. Allis
Chalmers, 471 U.S. at 220.


sufficient to sustain a claim for conversion. I grant the

Trustees’ motion to dismiss the counterclaim with respect to Count

The Trustees are given leave to amend their counterclaim.

"Lane £ Bask

Elaine E. Bucklo
United States District Judge

II.

Dated: September) 4, 2003


Négute Order Forur06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Jud i
ree Magistrate Suse Elaine E. Bucklo “then Assigned Judge
CASE NUMBER 03 C 1813 DATE 9/26/2003
CASE Divane, Jr., et al. vs, Comtel Technologies, Inc.
TITLE

{In the following box (2) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

qa)

MOTION:

DOCKET ENTRY:

qd) gO Filed motion of [ use listing in “Motion” box above.]

(2) Qa Brief in support of motion due

3) B Answer brief to motion due___. Reply to answer briefdue____.

(4) oO Ruling/Hearingon___setfor___—_at

(5) i} Status hearing{held/continued to} [set for/re-set for]on___—_sset for__—_at

(6) oO Pretrial conference[held/continued to} [set for/re-set for]on__—_—ssetfor sat

(er) 0 Trial[set for/re-set for] on__at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto___—_—at

9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) OLocal Rule 41.1 COFRCP41(a\(1) OO FRCP41(a)(2).

qo) @ [Other docket entry} Enter Memorandum Opinion and Order granting Electrical Insurance

Trustees’ motion to dismiss second amended counterclaim of defendant with respect to Count II. The
Trustees are given leave to amend their counterclaim, Defendant’s motion to continue trial set for 9/29/03
is also granted. Plaintiffs’ motion for Rule 11 sanctions is taken under advisement. This case is referred
to Magistrate Judge Levin for a settlement conference and to narrow the issues for trial. Trial reset for
2/9/04 at 9:30 a.m.

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

3
No notices required. ume of notices
Notices mailed by judge's staff, SEP 2 9 2003

Notified counsel by telephone.

Docketing to mail notices.

Copy to judge/magistrate judge.

dare docketed,

MPI

’ ysia'S
Mail AO 450 form. pan ee 3
clon wa 92 88
courtroom yop “ys
deputy’s paws 8
initials STO Brtetime received in
central Clerk’s Office.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WILLIAM T. DIVANE, JR., KENNETH J.
BAUWENS, MICHAEL J. CADDIGAN,

I. STEVEN DIAMOND, SAMUEL EVANS,
MICHAEL FITZGERALD, THOMAS C.
HALPERIN, DANIEL MEYER, RICHARD
SIPPLE, and MICHAEL J. WALSDORF, as
the Electrical Insurance Trustees,

DOCKETED

SEP 2 9 2003

Plaintiffs,
No. 03 C 1813
v.

COMTEL TECHNOLOGIES, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs William R. Divane et al. (“Trustees”) serve as the
trustees for a benefit fund created by a collective bargaining
agreement signed between defendant Comtel Technologies, Inc.
(“Comtel”), the Electrical Contractors’ Association of the City of
Chicago (“ECA”), and Local 134, International Brotherhood of
Electrical Workers (“Local 134"). On October 11, 2002, the
Trustees conducted an audit of Comtel’s books and records from the
period from January 1, 2002 through September 30,2002, and
discovered an alleged deficit in Comtel’s contributions to the
fund. The Trustees also attempted an audit on April 23, 2003, of
Comtel’s books and records from October 1, 2002 through March 31,
2003, but Comtel allegedly did not cooperate with this audit. The

Trustees have filed this lawsuit seeking a judgment in the amount

H



of Comtel’s deficit as well as an order to compel cooperation with
the second audit. Comtel in turn filed a counterclaim against the
Trustees, alleging breach of the collective bargaining agreement
and conversion. The Trustees have moved to dismiss this
counterclaim, and I now grant their motion.

On a motion to dismiss, I accept all well-pleaded allegations
in the complaint as true, Turner/Ozanne v. Hyman/Power, 111 F.3d
1312, 1319 (7th Cir. 1997), and grant the motion only if the
plaintiff can prove no set of facts to support the allegations in
his claim. Strasburger v. Bd. of Educ., 143 F.3d 351, 359 (7th Cir.
1998).

The Trustees first allege that Comtel lacks subject matter
jurisdiction for its counterclaim. Fed. R. Civ. P. 12(b) (1)
Comtel’s counterclaims rely on state law. However, supplemental
jurisdiction under 28 U.S.C. § 1367 exists whenever there is a
claim properly before this court and “the relationship between that
claim and the state claim permits the conclusion that the entire
action before the court comprises but one constitutional ‘case.’”
United Mine Workers v. Gibbs, 383 U.S. 715, 725-726 (1966). The
claims must share a common nucleus of operative fact and must be of
the type where the claimant “would ordinarily be expected to try
them all in one judicial proceeding.” Id. In this case, the
counterclaims arise from the same collective bargaining agreement

as the initial claims.. Logic dictates that all claims relating to