United States District Court, E.D. Missouri, Eastern Division
ANDREW L. SCHLAFLY, Plaintiff,
EAGLE FORUM, et al., Defendants.
MEMORANDUM & ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Eagle Forum's
motion to dismiss. (Doc. No. 64). Plaintiff Andrew Schlafly
opposes the motion. (Doc. No. 65). For the reasons set forth
below, the motion to dismiss will be granted in part, and
Plaintiff will be granted leave to file an amended complaint.
seeks a declaratory judgment that a January 28, 2017 special
meeting, during which the board voted to remove him as a
director, was held in violation of the by-laws and was ultra
vires. (Doc. No. 8). Eagle Forum is a non-profit, voluntary
membership, non-sectarian, non-partisan corporation formed
under the Illinois General Not For Profit Corporation Act.
(Doc. No. 8-3). Under its by-laws, Eagle Forum has a board
of directors composed of eight regular directors and one
at-large director. (Id. at Art. V, Sec. 2). The
by-laws provide that at an annual meeting in odd-numbered
years, the board elects up to eight directors to serve on the
board. (Id. at Art. V, Sec. 4). The at-large
director is elected by Eagle Forum's membership from a
pool of three candidates nominated by the board.
bylaws provide that they may be amended by a unanimous vote
of the board, or by an affirmative vote of all serving
directors, provided that notice of the proposed changes is
mailed to each director at least ten days in advance of the
meeting. (Id. at Art. XII, Sec. 1). All matters not
covered by Eagle Forum's by-laws are governed by
Robert's Rules of Order Newly Revised. (Id. at
Art. XII, Sec. 2).
Rule of Civil Procedure 12(b)(6) permits the dismissal of a
lawsuit for “failure to state a claim upon which relief
may be granted.” See Fed. R. Civ. P. Rule
12(b)(6)). When considering a motion under this Rule,
the Court must examine the sufficiency of the plaintiff's
complaint, not the merits of the lawsuit. See Gibson v.
City of Chicago, 910 F.2d 1510, 1520-21 (7th Cir. 1990);
Triad Assocs., Inc. v. Chicago Housing Auth., 892
F.2d 583, 585 (7th Cir. 1989), abrogated on other grounds
by Board of County Comm'rs, v. Umbehr, 518 U.S. 668,
116 S.Ct. 2342 (1996). Dismissal is appropriate only if it
appears to a certainty that the plaintiff cannot establish
any set of facts which would entitle him to the relief
sought. See Hishon v. King & Spalding, 467 U.S.
69, 73 (1984); Mosley v. Klincar, 947 F.2d 1338,
1339 (7th Cir. 1991). The Court accepts as true all
well-pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff. Dawson v. General
Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992).
corporations in Illinois are governed by the General Not for
Profit Corporation Act, 805 ILCS § 105, et seq.
(“the Act”) and the corporation's articles of
incorporation and bylaws. A corporation may adopt any reasonable
by-law to enable it to carry out its purpose, as long as the
by-laws are consistent with the laws of Illinois and the
United States. Allen v. Chicago Undertakers'
Ass'n, 462, 83 N.E. 952, 953 (1908). The Act
requires each non-profit corporation to have a board of
directors to manage the affairs of the corporation. 805 ILCS
§ 105/108.05(a). In the case of a corporation with no
members expressly entitled to vote to remove a board member,
the affirmative vote of a majority of the directors is
sufficient to remove a director. Id. at §
108.35(b). The Act generally prohibits a director from voting
by proxy. Id. at § 108.05(d).
asserts that the January 28, 2017 meeting removing him as a
director was invalid because it prohibited voting by proxy
and the notice was inadequate for its failure to disclose
that one of the purposes of the meeting was to change the
by-laws. In its motion to dismiss, Eagle Forum argues that
Plaintiff fails to state a claim because Eagle Forum's
actions were lawful under the Act and Eagle Forum's
Forum's by-laws are silent regarding proxy voting by a
director. However, the Act expressly prohibits directors of a
non-profit corporation from voting by proxy. 805 ILCS §
105/108.05(d). Plaintiff points to the following language in
the Act to support his argument that voting by proxy must be
permitted under the Act:
(c) In the case of a corporation with members entitled to
vote for directors, no director may be removed, except as
(1) A director may be removed by the affirmative vote of
two-thirds of the votes present and voted, either in person
or by proxy.
Id. at § 108.35(c)(1). However, this section
applies only to corporations with members entitled to vote
for directors. Here, Eagle Forum's by-laws expressly
provide that sitting directors, not the membership, vote on
incoming directors, while members vote on the at-large
director. Thus, the section of the Act relied upon by
Plaintiff does not apply and the Act's prohibition on