Opinion
No. 00 C 4385
July 27, 2000
MEMORANDUM OPINION AND ORDER
This Court's sua sponte July 21, 2000 memorandum opinion and order ("Opinion") red-flagged for plaintiff Richard Dickieson ("Dickieson") and his counsel a problem that figuratively jumped out from the pages of his Complaint against his former employer DER Travel Service, Inc. ("DER") and its president and senior vice president: the clear applicability of what has become known as "the intracorporate conspiracy doctrine" that bars conspiracy claims under 42 U.S.C. § 1985 ("Section 1985") in this Circuit. Dickieson's counsel has responded swiftly with a July 25 Memorandum of Law ("Memorandum," or "Mem. ___" where its specific pages are cited), beating by two days the July 27 timetable that the Opinion had set for such a response.
Essentially the thrust of the Memorandum is that this Court, instead of adhering to the Seventh Circuit's Payton decision referred to in the Opinion, should instead follow this year's en banc decision of the Eleventh Circuit in McAndrew v. Lockheed Martin Corp., 206 F.3d 1031 (11th Cir. 2000). In McAndrew that Court of Appeals distinguished between a plaintiff's claims that are brought under Section 1985(3) (as to which that Circuit has followed our own in recognizing and applying the intracorporate conspiracy doctrine) and Section 1985(2) claims (where that Circuit has now chosen to take a different path).
But this Court is of course duty bound to follow Seventh Circuit and not Eleventh Circuit law. And our own Court of Appeals has expressly applied the intracorporate conspiracy doctrine to bar Section 1985(2) claims as well — indeed, it did so in Wright v. Illinois Dep't of Children Family Servs., 40 F.3d 1492, 1507-08 (7th Cir. 1994), a case that addressed a claim just like Dickieson's: one that alleged a conspiracy on defendants' part to deny access to the federal courts. And there is no principled way to distinguish the situation addressed inWright from that in the present case in terms of "egregious circumstances" (which is the fallback position sought to be advanced in the Memorandum).
Dickieson's counsel obviously has not done his homework fully in stating, as the "First" proposition in his conclusion (Mem. 6);
The only appellate authority is that the "intracorporate conspiracy" doctrine does not apply to a claim under § 1985(2). E.g., McAndrew v. Lockheed, et al., supra. No contrary authority exists in this or any other Circuit.
After all, it has taken only a few minutes' research to locate Wright. It is less surprising that the otherwise thoughtful McAndrew opinion failed to acknowledge or discuss our Court of Appeals' contrary holding inWright either — the Eleventh Circuit was announcing its own doctrine, not being bound (as are Dickieson and this Court) to conform to Seventh Circuit law).
Thus Mem. 6 is wrong in asserting that Dickieson's Section 1985(2) claim fits within the "egregious circumstances" exception, as it has been limited by our Court of Appeals to defendants' conduct "motivated solely by personal [rather than corporate] bias" (as set out in Payton, 184 F.3d at 633 n. 9). All of the Complaint's allegations (including Complaint ¶¶ 44, 45 and 46, to which Dickieson attempts to point) speak of defendants and their concerns collectively as well as individually.
Accordingly, as forecast in the Opinion if Dickieson proved unable to "dodge that fatal blow" stemming from the intracorporate conspiracy doctrine, this Court dismisses his Count I claim under Section 1985(2), a dismissal that also carries with it the dismissal of the two individual defendants. It appears from Mem. 6, however, that Dickieson wishes to remain in this federal court on the Count II state law claim against DER alone. This Court is therefore contemporaneously issuing its customary minute order establishing an initial status hearing date and providing for the litigants' activities preceding that date.