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LEVIN-RICHMOND TERMINAL CORP. v. INTERNATIONAL LON

November 29, 1990

LEVIN-RICHMOND TERMINAL CORPORATION, Plaintiff,
v.
INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10; THOMAS LUPHER, individually and as President and former Vice President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10; JOHN CARR, individually and as former President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10; WILLIAM WATKINS, individually and as Secretary-Treasurer of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10; WILLIAM BANCROFT, individually and as former Secretary Treasurer of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10; LAWRENCE THIBEAUX, individually and as Vice President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 10; INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 34; RICHARD CAVALLI, individually and as President and former Vice President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 34; FRANK BILLECI, individually and as former President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 34; BRIAN NELSON, individually and as Vice President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 34; BRIAN McWILLIAMS, individually and as Secretary-Treasurer of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 34; ARTHUR ROSENBROCK, individually and as former Secretary-Treasurer of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 34; INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 91; IVAN OLSON, individually and as President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 91; JOSEPH AYMES, individually and as former President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 91; TOM TURNER, individually and as Vice President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 91; HOWARD HILDEBRAND, individually and as former Vice President of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 91; KENNETH COSTA, individually and as Secretary-Treasurer and former Assistant Secretary-Treasurer of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 91; ERIC NELSON, individually and as former Secretary-Treasurer of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 91; WILLIAM WHITAKER, individually and as Assistant Secretary-Treasurer of INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 91, Defendants



The opinion of the court was delivered by: WEIGEL

 STANLEY A. WEIGEL, UNITED STATES DISTRICT JUDGE

 This suit by plaintiff Levin-Richmond Terminal Corporation ("LRT") against International Longshoremen's and Warehousemen's Union Locals 10, 34, and 91 and their agents (collectively "ILWU") revolves around a Memorandum of Understanding ("MOU") entered into by plaintiff and defendants on June 30, 1983. Plaintiff contends that the MOU is illegal and unenforceable because it provides that four ILWU members, whom plaintiff refers to as "ghosts," will receive compensation based upon work performed by LRT employees who are members of Operating Engineers Local 3 ("Local 3"), not ILWU. Plaintiff claims that defendants' allegedly extortionate conduct which led to the signing of the MOU, coupled with defendants' alleged threats of violence and labor unrest if plaintiff did not honor the agreement, constitute a pattern of unlawful racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq.

 An understanding of the labor dispute between plaintiff and defendants in late 1982-early 1983 is essential to decide the motions before the Court. LRT is a cargo-loading business located at the Port of Richmond, in Richmond, California. In December 1982 LRT was party to a collective bargaining agreement with Local 3 providing for the loading and unloading of cargo at its Richmond facility. That month ILWU lay claim to this work and picketed plaintiff at its facility. This picketing led plaintiff to file unfair labor practice charges against ILWU with the National Labor Relations Board ("NLRB"). Plaintiff and ILWU settled the dispute, with the union locals disclaiming the loading and unloading work, but reserving their right to picket barges or ships which have historically employed, but are not currently employing, ILWU workers.

 Plaintiff moves (1) to strike several of defendants' affirmative defenses; (2) to strike the Declaration of Frank Billeci in opposition to plaintiff's motion for partial summary judgment; and (3) for partial summary judgment on its claim that the MOU is unlawful and unenforceable.

 I. Plaintiff's Motion to Strike Affirmative Defenses

 Pursuant to Federal Rule of Civil Procedure 12(f), plaintiff moves to strike defendants' first, fourth, fifth, sixth, and seventh affirmative defenses contained in their answer to the complaint, *fn2" on the ground that they are insufficient as a matter of law. *fn3" Motions to strike affirmative defenses are disfavored. Before a motion to strike defenses may be granted, "the Court must be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defenses succeed." Systems Corp. v. American Tel. & Tel. Co., 60 F.R.D. 692, 694 (S.D.N.Y. 1973). Moreover, a motion to strike defenses should not be employed as a vehicle for determining "disputed and substantial questions of law." William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015, 92 L. Ed. 2d 731, 106 S. Ct. 3324 (1986). Each of the challenged affirmative defenses will be discussed in turn.

 A. First Affirmative Defense

 In their first affirmative defense defendants contend that various provisions of RICO, 18 U.S.C. §§ 1961 et seq., are unconstitutionally vague. In particular, defendants object to the definition of "pattern of racketeering," § 1961(5), and the provision making it unlawful "to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." § 1962(c). These provisions, defendants argue, are void since they fail to provide adequate notice of the conduct they prohibit. Plaintiff notes that the constitutionality of RICO has frequently been upheld, arguing that this defense is therefore insufficient as a matter of law. Nonetheless, Justice Scalia's concurring opinion in the Supreme Court's recent decision in H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989), suggests that the constitutionality of RICO presents a substantial legal question. The majority in Northwestern Bell attempted to develop a meaningful concept of "pattern of racketeering activity." Noting that the majority has "added nothing to improve our prior guidance," Justice Scalia, joined by three other Justices, warned:

 
No constitutional challenge to this law has been raised in the present case, and so that issue is not before us. That the highest Court in the land has been unable to derive from this statute anything more than today's meager guidance bodes ill for the day when that challenge is presented.

 Id. at 2909 (Scalia, J., concurring). Since four Justices of the Supreme Court find that RICO's constitutionality is at least suspect, defendants' unconstitutionality defense raises a substantial legal question that cannot be deemed insufficient as a matter of law for the purpose of plaintiff's motion to strike. *fn4"

 B. Fourth Affirmative Defense

 Defendants claim in their fourth affirmative defense that plaintiff's suit is barred by the four-year statute of limitations applicable to claims arising under RICO. See Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 156, 97 L. Ed. 2d 121, 107 S. Ct. 2759 (1987). Plaintiff responds that since it claims damages only for those injuries suffered during the four-year period prior to the filing of the ...


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