Count II – Tortious Interference with Prospective Economic Advantage
Count II begins a long series of tort claims asserted in the First Amended Complaint.
As I referenced earlier, the parties agree that the standards for holding the local union accountable for the conduct of its agents are different for tort claims than for the secondary boycott claim in Count I.
Even the higher standard requiring union participation, authorization or ratification has been met by the undisputed evidence that Local 395’s two business agents organized and participated in actual violence with the purpose that it bring about the end of the non-union employer’s contract and its replacement with Local 395 ironworkers.
In Count II, all the plaintiffs allege that all named defendants are liable for “causing PLAINTIFFS economic harm from such tortuous (sic) interference regarding economic advantage and causing each of PLAINTIFFS to lose substantial numbers of jobs.”
Plaintiffs’ argument for summary judgment on this claim is startlingly brief and conclusory, consisting almost entirely of the recitation of the tort’s elements.
Plaintiffs’ argument for summary judgment on this claim is startlingly brief and conclusory, consisting almost entirely of the recitation of the tort’s elements.
In both the First Amended Complaint and in their summary judgment briefing, plaintiffs have been less than clear on the theory of Count II.
The principal shortcoming of D5’s motion for summary judgment as to Count II is the lack of discussion or analysis demonstrating how the established facts support ability for a particular theory of tortious interference.
The brief discussion of the tort in D5’s opening brief cites no evidence and offers no explanation of the business relationship at issue.
The factual allegations of the First Amended Complaint (and those found to be undisputed for the purposes of D5’s summary judgment motion) could be thought to state a claim for interference with D5’s existing contract on the Dyer
Baptist Church job, but are not shown to encompass a theory of interference with future contracts or other business.
On this messy record, I have to agree with Local 395 that plaintiffs have not shown an entitlement to judgment as a matter of law on a claim for tortious interference with prospective economic advantage, and summary judgment will be denied as to Count II. [Emhasis added.].]
Although plaintiffs’ poor treatment of Count II doesn’t support summary judgment in their favor, they have lately identified a theory and evidence sufficient to keep the count alive for now.
Counts III, VI, XII, and XV – Assault
Counts IV, VII, and XIII – Battery
Plaintiffs seek summary judgment as to liability on all their claims for assault and battery against Local 395, Veach and Williamson. Neither Veach nor Williamson has filed any opposition to the request for summary judgment on the assault and battery claims.5
In view of the undisputed facts, and the apparent concession by Veach and Williamson, summary judgment as to liability will be granted in favor of plaintiffs and against Veach and Williamson on Counts III, IV, VI, VII, XII, XIII and XV.
In order to establish Local 395’s liability for the various assaults and batteries, plaintiffs must demonstrate, by the enhanced burden of “clear proof,” Local 395’s actual participation in, actual authorization of, or ratification of the tortious conduct after actual knowledge of it.
The statutory language – “unlawful acts of individual officers, members, or agents” – indicates that if the participation,
authorization or ratification standard is met, the union can be vicariously liable even for conduct by rank-and-file Members.
Whether or not the undisputed evidence establishes that Veach or Williamson threw any punches or kicked any of the victims, the evidence establishes that Veach and Williamson organized the Local 395 members and orchestrated their descent on the employees of D5, in which Veach and Williamson participated.
Both of them stipulated to conspiring “to use actual and threatened violence” and to initiating the January 7 confrontation in which the assaults and batteries occurred.
My determination that plaintiffs are entitled to summary judgment against Local 395 for their claims of assault and battery will be predicated on the participation and authorization prongs of the §106 standard. I do not undertake a determination whether the union could be said, as a matter of law, to have ratified the assaults and batteries because it is unnecessary to do so, and because the conclusion is less certain.
In support of a finding of participation and/or authorization, plaintiffs have several undisputed facts in their favor. Local 395 has never repudiated the violence against plaintiffs, nor has it undertaken any investigation into the tortious conduct, or imposed any discipline against any member for involvement in the attack.
All of this remained true even after the guilty pleas of Veach and Williamson made their responsibility for and involvement in the attack plain and public in January 2020.
Participation and authorization are sufficient to support Local 395’s liability for the assault and battery claims that Veach and Williamson themselves do not oppose.
Summary judgment will therefore be granted against Local 395 on the assault and battery claims of plaintiffs Lindner, Harper, and Kudingo, and the assault claim brought by plaintiff Tonnesen. [Emphasis added.]
Tomorrow: Intentional Infliction of Emotional Distress
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