The opinion of the court was delivered by: Juergens, District Judge.
This cause is before the Court on the defendants' motion to
dismiss the complaint. They allege that Counts I, III and V of
the complaint are based on the provisions of Section 125,
Chapter 38, Illinois Revised Statutes, and under the
provisions of said statute liability is limited to $500, and
that in Counts II, IV and VI the plaintiffs assert a common
law action for which there is no foundation under Illinois
The defendants have also filed a motion to dismiss and for
default judgment. The latter motion is bottomed on the failure
of the plaintiffs to answer interrogatories and request for
admissions of fact propounded to them by the defendants.
Jurisdiction is founded on diversity of citizenship. The
plaintiffs are citizens and residents of states other than the
State of Illinois, and the defendants are residents of the
State of Illinois. The amount in controversy is alleged to
exceed the sum of $3,000, exclusive of interest and cost. The
cause was filed on June 17, 1958.
The motion to dismiss for failure to show jurisdiction in
this Court as to Counts I, III and V and for failure to state
a cause of action in Counts II, IV and VI will be considered
"That any person who shall violate any of the
provisions of the foregoing section by denying to
any citizen, except for reasons applicable alike
to all citizens of every race and color, and
regardless of color or race, the full enjoyment
of any of the accommodations, advantages,
facilities or privileges in said section
enumerated, or by aiding or inciting such denial,
shall for every such offense, forfeit and pay a
sum not less than twenty-five ($25) dollars nor
more than five hundred ($500) dollars to the
person aggrieved thereby, * * *"
The statute above set out clearly limits the liability for a
violation thereof and specifically provides that such
limitation shall be $500. Thus, it is clear that the amount in
controversy in Counts I, III and V is insufficient to provide
jurisdiction in this Court. Accordingly, Counts I, III and V
must be dismissed for lack of jurisdiction.
The defendants assert that there is no common law civil
rights remedy for refusal of a restaurant owner to render
service to anyone on account of race, color or creed; that the
defendants were in truth and in fact restaurant owners and not
innkeepers and, accordingly, were not subject to the common
law duties and responsibilities of innkeepers.
The Court has examined the law of the State of Illinois
concerning liability of a restaurant owner for refusing to
render service to anyone on account of race, color or creed
and finds that there is no provision in the common law which
requires that a restaurant owner render service to anyone on
account of race, color or creed. However, the complaint
alleges that the defendants were innkeepers and as such would
be subject to common law liability to provide services
regardless of race, color or creed. Since the complaint
alleges that the defendants were innkeepers and since there is
no evidence before this Court to show the contrary, a motion
to dismiss on the grounds that Counts II, IV and VI fail to
state a cause of action must be denied.
Next to be considered is the defendants' motion to dismiss
and for default judgment for failure of the plaintiffs to
answer interrogatories propounded to them pursuant to Rule 33
of the Federal Rules of Civil Procedure, Title 28 U.S.C.A. and
requests for admissions of fact pursuant to Rule 36 of the
Federal Rules of Civil Procedure, Title 28 U.S.C.A.
The plaintiffs have failed to file a response, either by way
of answer or objection, to the various interrogatories and
requests for admissions of fact as requested by the
defendants. The interrogatories were propounded to the
plaintiffs by the defendants by mailing same to the attorneys
for the plaintiffs on the 22nd day of April, 1959. Thereafter,
the defendants filed their motion to dismiss, which motion was
set for hearing on June 1, 1959. This hearing was postponed at
the request of the plaintiffs. On June 29, 1959, the
defendants served upon counsel for plaintiffs an additional
set of interrogatories and a set of requests for admissions.
On motion of the plaintiffs the Court on July 16, 1959,
granted the plaintiffs an extension of time up to and
including September 11, 1959, in which to file objections or
answers to the interrogatories and requests for admissions of
fact. Notwithstanding the extension of time, the plaintiffs
have failed to reply to the requests for admissions and the
interrogatories or to present any objections thereto.
Rule 37 of the Federal Rules of Civil Procedure provides ...