NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 30, 2011*
Decided December 23, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐2290 Appeal from the United States District
Court for the Southern District of Illinois.
RONALD D. SMART,
Plaintiff‐Appellant, No. 07‐CV‐0094 DRH
v. David R. Herndon,
Chief Judge.
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL 702, et al.,
Defendants‐Appellees.
ORDER
Ronald Smart, a non‐union electrician, alleges that an agent for Local 702 of the
International Brotherhood of Electrical Workers coerced a businessman to renege on his
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 11‐2290 Page 2
contract with Smart and hire a union member to finish the job. In a previous appeal we held
that Smart’s allegations state a claim that Local 702 engaged in a secondary boycott, an
unfair labor practice for which redress is available to Smart under § 303 of the National
Labor Relations Act, 29 U.S.C. § 187. See Smart v. Local 702, Int’l Bhd of Elec.Workers, 562 F.3d
798 (7th Cir. 2009). On remand the district court granted summary judgment for Local 702
on the ground that Smart lacks evidence that he was damaged by the union’s tactic. We
conclude that the court erred.
Smart is a sole proprietor doing business as Paschall Electric. He submitted a bid to
do electrical work at a sports facility that was undergoing renovation. As reflected by
Smart’s written bid, most of the work involved running conduit and wire, installing outlets,
and connecting lights and other fixtures. Smart’s bid of $7,575 for labor and materials was
accepted. He started working immediately, but on the second day he was fired and replaced
by a union electrician whose $12,000 bid had been rejected when the operator of the facility
accepted Smart’s proposal. In an affidavit the operator explains that a representative of
Local 702 had threatened to “shut down” his renovation project if he did not replace Smart
with the electrician named by the union. The Local 702 representative warned that
contractors in other building trade unions would stop other work necessary to open the
sports facility on schedule, and because time was of the essence, the operator of the facility
acceded to the union’s demands. Smart was paid $900 after he submitted a bill for 12 hours
of labor and $233 in materials already expended for the job.
Smart filed a complaint with the National Labor Relations Board, which was settled
by Local 702 agreeing to post notice to its members that the union would not use pickets or
threats to coerce the operator of the sports facility to stop doing business with Smart. After
that Smart filed this lawsuit. Initially he raised a handful of claims against Local 702, its law
firm, and one of the firm’s attorneys. The district court dismissed that complaint on the
ground that it failed to state a claim, and after we partially overturned that decision, Smart
amended his complaint to plead only the § 303 claim arising from the alleged secondary
boycott. (Smart again named as defendants the lawyer and firm, but the district court
dismissed both after concluding that § 303 authorizes suit only against a labor organization.
Smart has abandoned any challenge to this ruling.)
After the district court had declined Smart’s request to reopen the period for
discovery, Local 702 moved for summary judgment. The union conceded the existence of a
material dispute concerning whether it had engaged in a secondary boycott. The union
argued, however, that Smart lacked evidence he would have made a profit on the
terminated contract and thus could not prove he suffered an injury. The union attached the
transcript of Smart’s deposition, during which counsel for Local 702 posed a series of
questions about the likelihood that Smart would have made a “profit”—a term that counsel
never defined—if his contract at the sports facility had not been terminated. In answering
counsel’s questions, Smart said he was uncertain whether that job would have been
No. 11‐2290 Page 3
profitable, that he may have bid the job at no profit just to stay busy, that he did not know
what profit margin he usually built into his bids, and that he could not then recall any
document that might refresh his memory. In opposing the union’s motion for summary
judgment, Smart explained that his deposition testimony had been hindered by not having
access during the deposition to the documents from which he could determine his profit.
Since that time, he said, he had reviewed his records and verified that he was charging the
operator of the sports complex $55 per hour for labor but paying his one employee only
$16.50 per hour, and that he already had many of the necessary materials left over from
previous jobs, so he would have made money working at the sports facility. Smart attached
to his response the invoice he submitted for the work completed before his contract was
terminated, which confirms that he was charging $55 per hour for labor. He did not attach
any document or affidavit supporting his assertions that his one employee was being paid
only $16.50 per hour or that he already had on hand many of the necessary materials. But
Smart remedied that omission by filing his own motion for summary judgment, which the
district court evaluated along with the union’s motion. This time Smart attached his
employee’s payroll record for the relevant time period, which states his employee’s hourly
rate as $16.50. While the motions for summary judgment were pending, the district court
cancelled a settlement conference which had been scheduled.
The district court granted Local 702ʹs motion and denied Smart’s. The court reasoned
that injury is an element of a § 303 claim arising from a secondary boycott and that Smart
had failed to present competent evidence that he suffered lost profits because he was fired.
According to the court, Smart had not provided evidentiary support for his assertions that
his employee was paid only $16.50 per hour or that he already possessed some of the
necessary materials for the job, but the court made no mention of the payroll record listing
the $16.50 wage rate. What’s more, the district court said, a determination of damages
would be too speculative even with admissible evidence of the $16.50 rate and the reduced
expense of using materials on hand.
Smart presents four arguments on appeal; one entitles him to relief but the others do
not.
First, he contends that the record contains sufficient evidence demonstrating a
nonspeculative injury from the termination of his contract and thus the district court erred
by granting summary judgment to Local 702. Our review is de novo. See King v. Burlington
N. & Santa Fe Ry., 538 F.3d 814, 817 (7th Cir. 2008).
A plaintiff must present sufficient evidence to establish a genuine dispute of fact on
all essential elements of a claim in order to survive summary judgment. Lewis v. CITGO
Petroleum Corp., 561 F.3d 698, 702 (7th Cir. 2009). If a plaintiff’s business was injured by a
secondary boycott, a suit may be brought under § 303 to recover for the loss sustained.
29 U.S.C. § 187(b); Landgrebe Motor Transp., Inc. v. District 72, Int’l Ass’n of Machinists &
No. 11‐2290 Page 4
Aerospace Workers, 763 F.2d 241, 244 (7th Cir. 1985). A § 303 action arising from a secondary
boycott is similar to a claim for tortious interference with a contract. United Constr. Workers
v. Laburnum Constr. Corp., 347 U.S. 656, 666 (U.S. 1954); Taylor Milk Co. v. Intʹl Bhd. of
Teamsters, 248 F.3d 239, 247 (3d Cir. 2001); Allied Intʹl v. International Longshoremenʹs Assʹn,
814 F.2d 32, 40 (1st Cir. 1987). In order to recover, Smart must be able to prove injury.
See R.L. Coolsaet Constr. Co. v. Local 150, Intʹl Union of Operating Engʹrs, 177 F.3d 648, 660 (7th
Cir. 1999); George E. Hoffman & Sons, Inc. v. International Brotherhood of Teamsters, 617 F.2d
1234, 1247 (7th Cir. 1980). But he does not need to detail the exact amount of the damages he
suffered. R.L. Coolsaet Constr. Co., 177 F.3d at 660; BE & K Constr. Co. v. Will & Grundy
Counties Bldg. Trades Council, 156 F.3d 756, 770 (7th Cir. 1998).
The district court erred by granting summary judgment for Local 702. In concluding
that Smart lacked evidentiary support for his assertion that his labor costs were just $16.50
per hour, the court overlooked the payroll record Smart attached to his cross‐motion for
summary judgment. The district court evaluated Local 702ʹs and Smart’s motions for
summary judgment simultaneously and was obligated to consider the materials Smart
attached to his motion. See Davis v. Time Warner Cable of Southeastern Wis., L.P., 651 F.3d 664,
671 (7th Cir. 2011) (stating that summary judgment is appropriate only when evidence “as a
whole” shows there is no genuine dispute as to any material fact); Las Vegas Sands, LLC v.
Nehme, 632 F.3d 526, 532 (9th Cir. 2011) (stating that court must consider each party’s
evidence submitted with cross‐motions for summary judgment regardless which motion
evidence is attached to). Although the court had discretion to disregard this document,
see S.D. ILL. LOCAL R. 7.1(d) and FED. R. CIV. P. 56(c)(3), the court did not, as far as we can
tell, exclude the billing record on a procedural ground.
Local 702, for its part, continues to ignore the existence of this payroll record, but
once that record is taken into account, it is clear that Smart introduced evidence that he
suffered an injury. Smart was injured if the amount of money he would have earned from
the job surpasses what his costs would have been. See, e.g., E360 Insight, Inc. v. Spamhaus
Project, 658 F.3d 637, 647–648 (7th Cir. 2011) (explaining that damages for claim of tortious
interference with contract should be measured by difference between lost revenue and
avoided costs); RESTATEMENT (SECOND) OF TORTS § 912 cmt. d, illus. 9 (1979) (explaining that
party is entitled to recover under claim for tortious interference with business transaction if
able to prove that revenues would have been greater than expenses).
Smart proposed to complete the job for $7,575, a price that included labor and
materials. We do not know exactly what all of the costs of the job would have been, but the
evidence gives us some idea. Smart’s labor costs were less than 1/3 the rate he charged the
customer—he charged $55 per hour for labor for his first week of work, but paid his
employee $16.50 per hour. Also, Smart’s material costs were low: Smart’s proposal describes
a job which appears labor intensive (implying that a large portion of the bid was for labor
No. 11‐2290 Page 5
rather than material costs), and his invoice for the work he completed shows that materials
accounted for only slightly more than 1/4 of the charges. Low material costs, and low hourly
labor costs relative to hourly charges, make it likely Smart would have earned more from
the job than he spent to complete the job. Certainly it is possible that Smart would have
incurred additional expenses attributable solely to his lost job at the sports facility (e.g., the
cost to rent a lift or Smart’s share of payroll taxes for his employee if the employee was paid
only for actual hours worked). But Local 702 has never argued—and did not submit any
evidence—that Smart would have incurred additional out‐of‐pocket costs but for the
union’s interference. Indeed, since the job was completed by an electrician of the union’s
choosing, we can infer that Local 702 has ready access to records of the labor hours
expended and the non‐labor expenses associated with completing the work started by
Smart, so the union would know whether Smart would have earned something from his
contract even without charging union scale.
Furthermore, Local 702 misunderstands Smart’s deposition testimony. Smart’s
answers to the questions posed by the union’s lawyer show that he was considering
“profits” in the sense of money he would make beyond all of his costs, including those he
would have incurred whether he completed the job or not (e.g., he specifically referenced
the rent he paid). But the costs Smart would have incurred whether he was idle or working
on the job at the sports complex should not be subtracted from his anticipated revenue in
making the determination as to whether he was injured. See Taylor v. Meirick, 712 F.2d 1112,
1121 (7th Cir. 1983). Simply because a business has not been deprived of a “profit” in the
accounting sense does not mean it was not injured. Overhead costs that Smart would have
defrayed with revenue from his job at the sports complex had to be paid from other work
due to the union’s interference.
There is evidence that Smart suffered an injury, and thus Local 702 was not entitled
to summary judgment on the ground asserted. No alternative basis to support a grant of
summary judgment for Local 702 was argued in the district court, and none is asserted here,
and so another remand is in order.
Smart’s second argument on appeal is that the district court erred by not granting his
cross‐motion for summary judgment. Like Local 702, Smart discussed in his motion only the
element of injury. His motion is best understood as a further opposition to Local 702ʹs
submission, and since Smart did not discuss the other elements of his § 303 claim, he could
not have been entitled to judgment as a matter of law. See Van den Bosch v. Raemisch, 658
F.3d 778, 785 (7th Cir. 2011). Moreover, even if loss is the only element in dispute, Smart’s
evidence would prove an injury but not the extent of that injury. See BCS Servs. v. Heartwood
88, LLC, 637 F.3d 750, 758–761 (7th Cir. 2011) (reversing dismissal at summary judgment
and remanding for trial on question of damages where plaintiffs’ evidence established that
defendants’ actions were proximate cause of injury); Ruzicka Elec. & Sons, Inc. v. IBEW, Local
1, 427 F.3d 511, 521–522 (8th Cir. 2005) (concluding that plaintiff had presented sufficient
No. 11‐2290 Page 6
evidence of damages resulting from secondary boycott so that judgment as matter of law
was not appropriate, and that jury should determine extent of damages on remand); see
also Hydrite Chem. Co. v. Calumet Lubricants Co., 47 F.3d 887, 890 (7th Cir. 1995) (explaining
that for claims sounding in tort, fact of injury and amount of injury are analytically distinct);
Ustrak v. Fairman, 781 F.2d 573, 578 (7th Cir. 1986) (explaining that for claims sounding in
tort, in order to recover more than nominal damages, plaintiff must establish both fact and
extent of injury).
Smart’s third argument on appeal is that the district court abused its discretion by
choosing not to reopen discovery. A decision to disallow additional discovery is reviewed
for abuse of discretion. Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309,
319 (7th Cir. 2003). In this case, Smart did not show good cause for failing to complete
discovery within the seven months allotted by the district court, nor did he suggest what
additional evidence he hoped to unearth if given more time. Neither did Smart establish
that he lacked means to compel Local 702 to answer his discovery requests. See Davis v. G.N.
Mortg. Corp., 396 F.3d 869, 886 (7th Cir. 2005) (concluding that district court did not abuse its
discretion in denying additional discovery where plaintiff had failed to explain why ample
time plaintiff already had to conduct discovery and demand compliance with unmet
requests was insufficient); Kalis v. Colgate‐Palmolive Co., 231 F.3d 1049, 1056–1058 (7th Cir.
2000) (same). The court did not abuse its discretion.
Smart’s last argument is that the district court abused its discretion by cancelling the
settlement conference. District courts have discretion to schedule and, by implication, to
cancel settlement conferences, and we cannot say that the district court acted unreasonably
by canceling the conference while motions for summary judgment were pending. See FED. R.
CIV. P. 16(a)(5), (c)(2)(I); S.D. ILL. LOCAL R. 16.3(b)(1); Goss Graphics Sys. v. Dev Indus., 267
F.3d 624, 627 (7th Cir. 2001) (stating that district court has authority to order parties to
engage in settlement conference); G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648,
652 (7th Cir. 1989) (same). But now that the lawsuit is bound for trial on remand, the district
court may want to reconsider the scheduling of a settlement conference.
The order granting summary judgment for Local 702 is VACATED, and the case is
REMANDED for further proceedings consistent with this order.