on the pleadings had plaintiffs attached it to the complaint.’ It is less clear, however, whether the
court can considcr the standard bond form when plaintiffs belatedly attach it to a reply brictf.
Certainly it would be unfair to do so without giving defendant an opportunity to respond, See

Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 597 (7" Cir. 1997) (arguments raised for

the first time in a reply brief can be deemed waived because the opposing party has not had the
opportunity to address them). Moreover, it is unclear whether plaintiffs’ document is the
document attached to the collective bargaining agreement.

The court invited defendant to address the authenticity of the document submitted by
plaintiffs, an exercise that failed to shed light on the issue, since defendant’s sur-reply that
followed failed to address whether the standard bond form is the one that was attached to the
collective bargaining agrecment. Instead, defendant merely argued that since the document was
not attached to the complaint or incorporated into the pleadings, the court should not consider it.
The court must conclude that, at this stage, a dispute remains as to the authenticity of the
standard form bond attached to plaintiffs’ reply brief since, in its filings thus far, defendant has
not admitted that this document is the standard form referenced in the collective bargaining
agreement, or otherwise conceded its authenticity. ‘Therefore, the court will not consider this
document in ruling on the motion for judgment on the pleadings. Cf, Wright v. Associated Ins.

., 29 F.3d 1244, 1248 (7" Cir. 1994) (concluding that district court properly considered

' By the same token, the court could have considered it had defendant attached it to a
motion to dismiss, since the collective bargaining agreement is central to plaintiffs’ claim and the
standard bond form was part of the collective bargaining agreement. See Venture Assocs. Corp.
v. Zenith Data Sys., 987 F.2d 429, 431 (7" Cir. 1993) (“[dJocuments that a defendant attaches to
a motion to dismiss are considered part of the pleadings if thcy are referred to in the plaintiff's
complaint and are central to [plaintiff's] claim”).

4



incompletely summarize the content of the Communications Agrcement, those allegations are
denied. Defendant refers the Court to the Communications Agreement for a recitation of its full
and complete terms.”

Defendant’s answer docs not comply with Federal Rule of Civil Procedure 8. Rule 8
gives defendants only three options in how to answer an averment in a complaint: admit it; deny
il; or state that the defendant is without sufficient knowledge or information to form a belief as to
its truth, which has the effect of a denial. Sce Fed. R. Civ. P. 8(b). Defendant's answer, which
invites the court to peruse the agreement and answer plaintiffs averment itself, neither admits,
denies, nor protests its lack of knowledge or information. Therefore, the court deems the answer
to admit that the collective bargaining agreement contains a requirement that the fringe benefit
bond conform with a standard form such as attached as Appendix “K” to the agreement.

Matters are complicated, however, by the fact that plaintiffs attached only portions of the
collective bargaining agreement to the complaint. The incomplete copy of the collective
bargaining agreement that is attached to the complaint docs not include the standard bond form
Nor does the complaint quote the language of the standard bond form. In an effort to remedy this
situation, plaintifs have attached what purports to be the standard bond form to their reply brief.

Normally, in ruling on a motion for judgment on the pleadings, the court may not
consider documents other than the pleadings. Wood, 925 F.2d at 1581. An exceplion to this rule
is that the court may consider documents that have been attached as exhibits to the pleadings or
incorporated by reference in the pleadings. Id. at 1581-82; Fed. R. Civ. P. 10(c). Thus, here the

court could have considered the standard bond form in ruling on plaintiffs’ motion for judgment

we



agreement attached to defendants’ motion to dismiss, where affidavit authenticated agreement,
and plaintiff repeatedly referred to agreement and quoted from it in complaint); GF! Corp. v.

Associated Wholesale Grocers, Inc,, 130 F.3d 1381, 1385 (10" Cir, 1997) (concluding that

district court properly considered letter submitted as exhibit to defendant’s motion to dismiss,
where plaintiff did not dispute letter’s authenticity, and had referred to letter and quoted from it
in amended complaint, and referred to it throughout brief).

Without the standard bond form before it, the court cannot determine whether defendant’s
bond complies with the requirements of the collective bargaining agreement. Nor can the court
consider plaintiffs’ allegation in its motion that defendant failed to furnish the bond to plaintiffs,
as that is a matter outside the pleadings. Accordingly, plaintiffs’ motion for judgment on the
pleadings is denied.?

The court also denies plaintiffs’ request that the court enjoin defendant from continuing
to work within the jurisdiction of Local 134, Injunctive relief is an extraordinary and drastic
remedy that should not be granted unless the movant, by a clear showing, carries the burden of
persuasion. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The plaintiff first must show: (1)
a likehhood of success on the merits, (2) irreparable harm if injunctive relief is denied, and (3)
the inadequacy of any remedy at law. Cooper v. Salazar, 196 F.3d 809, 813 (7" Cir. 1999), Tf
the plaintiff makes this threshold showing, the court must then balance the harm to the plaintiff

that would result if the injunction were wrongfully denicd against the harm to defendant if the

? Neither party has asked the court to convert the motion for judgment on the pleadings
to a motion for summary judgment, as is permitted by Federal Rule of Civil Procedure 12(c).
The court notes that if it did so, the motion for summary judgment would also be denied, since
plaintiffs have not authenticated the standard bond form attached to their reply brief.

5


Minute Onde Fore (16797)

. United States District Court, Northern District of Illinois
Ni f Assigned Jud; 7 Sitting Judge if Other
var Magistrate Judge George W. Lindberg han Aasigned Judge
CASE NUMBER 02 C 3899 DATE 10/29/2002
CASE William T. Divane, et al. vs. Nextiraone
TITLE

[[n the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
af the motion being prescnted.]

MOTION:

DOCKET ENTRY;

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

(2) im) Briefin support of motiondue

(3) 0 Answer brief to motion due_____.. Reply to answer briefdue, os __-

(4) o Ruling/Hearing onset for at.

(5) t_ | Status hearing set for 11/6/2002 at 9:30 A.M.,

(6) Q Pretrial conference[held/coutinued to] [set for/re-set for]on ss set for al.
(7) Oo Trial[sct for/re-sct for]on_ at.

(8) oO [Bench/Jury trial] [Tearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agrcemcnt/pursuant to]

OFRCr4(m) CO Local Rule 41.1 OOFRCP41(a)(1) O FRCP41(a)(2).

(10) | [Other docket entry] Motion for judgment on the pleadings (4-1) is denied. Enter memorandum
opinion and order.

a1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court. -) Document

‘Numb
i

No notices required,

Notices mailed hy judge's staff.

Notified counsel hy telephone.

Y | Docketing to mail notices,

Mail AO 450 form, yunge teri eg

Copy lo judge/mugistrate judge.

Be baa daw waite noice
courtroom: we ive sw -

SLB deputy's
initials +

an “Datt/titne rettived in 7
central Clerk’s Offics nailing depery initials



injunction were wrongfully granted, and the impact on the public interest. Id.

As discussed above, at this point plaintiffs have not demonstrated a likelihood of success
on the merits. Nor do the pleadings support the conclusion that plaintiffs would suffer
irreparable harm without injunctive relief or that monetary relief would be an adequate remedy.
Accordingly, plaintiffs’ request for injunctive relicf is denied.

ORDERED: The motion for judgment on the pleadings [4-1] is denied.

ENTER:

George W. Lindberg
Senior U.S. District Judge

OCT 29 200

DATED:



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,
MICHARL FITZGERALD, THOMAS C.
HALPERIN, DANIEL MEYER, RICHARD
SIPPLE, and MICHAEL L. WALSDORF, as
the ELECTRICAL TNSURANCE TRUSTEES,

Plaintiffs,
02 C 3899

v.
Judge George W, Lindberg

DOCKETED

OCT 3 0 2002

NEXTIRAONE, LLC,

we SS SSS SS SSS SS

Defendant.
MEMORANDUM OPINION AND ORDER

Plaintiffs have moved, pursuant to Federal Rule of Civil Procedure 12(c), for entry of
judgment on the pleadings. For the reasons stated below, the motion for judgment on the
pleadings is denied.

Plaintiffs are the trustees under an agrecment between the Electrical Contractors’
Association of City of Chicago (“ECA”) and Tocal 134, International Brotherhood of Electrical
Workers. Defendant agreed to the terms of a collective bargaining agrcement betwecn the ECA
and Local 134. The complaint alleges that defendant breached its obligation under the collective
bargaining agreement to furnish a bond guaranteeing the payment of fringe benefit contributions,
with plaintiffs as obligee, Specifically, the complaint alleges that defendant’s fringe benefit bond
was canceled effective May 25, 2002, and that defendant has failed to provide a replacement.

Plaintiffs now move for judgment on the pleadings, and ask the court to enter an order enjoining

/



defendant from continuing to work within the scope of the work clause of the agreement and
within the jurisdiction of Local 134.

A motion for judgment on the pleadings brought pursuant to Federal Rule of Civil
Procedure 12(c) is governed by the same standard that applies to a motion to dismiss under Rule
12(b)(6). United States v. Wood, 925 F.2d 1580, 1581 (7" Cir. 1991). Accordingly, a Rule 12(c)
motion should not be granted unless, vicwing all of the facts alleged in the pleadings in the light
most favorable to the nonmoving party, the court is convinced that the nonmoving party can
plead no facts to establish a claim or defense. See id.

Tn response to the motion, defendant argues that material facts remain in dispute, because
defendant’s answer denics that defendant failed to provide a fringe benefit bond to replace the
bond canceled on May 25, 2002. Attached to the answer is a fringe benefit bond executed on
behalf of defendant in favor of plaintiffs, which went into effect on May 25, 2002 and covers
liability up to $1,000,000.

Plaintiffs contend that thcy nevertheless are entitled to judgment on the pleadings,
because the bond attached to defendant’s answer deviates from the trustees’ standard form by
including a cap on the surety’s liability, and because the bond was not furnished to the trustees.
The complaint alleges that the collective bargaining agreement provides, in pertinent part:

‘The Company shall furnish two bonds, cach with corporate surety, one to

guarantee the payment of wages with the Union as “obligee” and the other lo

guarantee the payment of fringe benefit contributions with the Electrical Insurance

Trustees as “obligee.”...The fringe benefit bond shall be on a standard form

provided by the Electrical Insurance ‘Trustees (an example is Included in
Appendix “K” of this Agreement).

Defendant answers this allegation by stating: “To the extent Plaintiffs inaccurately and/or