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R & V PINE TREE, INC. v. VILLAGE OF FOREST PARK

October 11, 1996

R & V PINE TREE, INC., d/b/a THE PINES RESTAURANT/THE OAK LEAF LOUNGE, Plaintiff,
v.
THE VILLAGE OF FOREST PARK, a municipal corporation, and LORRAINE POPELKA, individually, Defendant.



The opinion of the court was delivered by: NORGLE

OPINION AND ORDER

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendants' motion to strike and dismiss the Second Amended Complaint of Plaintiff R & V Pine Tree, Inc. d/b/a the Pines Restaurant/the Oak Leaf Lounge ("Corporation") filed by Defendants, Lorraine Popelka ("Popelka") and the Village of Forest Park ("Forest Park") (collectively "Defendants"). For the following reasons, the motion is granted.

 1. Background

 The events preceding the seven-day suspension of the Corporation's liquor license follow. During October 1994, the Corporation orally contracted with a production company for a disc jockey to perform at its location in Forest Park on "disc jockey nights." On those nights, the number of black patrons at the Corporation increased. *fn1"

 The Corporation alleges that also during October of 1994, Popelka, Mayor and Liquor Commissioner of Forest Park, initiated a custom and practice of harassment and interference with the Corporation's right to freedom of expression and of interference with its business. The pleaded harassment conclusions and allegations include, inter alia, police pulling over black patrons in their vehicles without a valid cause; video taping black patrons; paying police officers overtime to sit outside of the Plaintiff's Corporation although no trouble had been reported; having police walk through the Corporation for no valid reason; bringing groundless proceedings to revoke the Corporation's liquor license; and having police set off patrons' auto alarms.

 The Corporation asserts that the motive of Popelka was to force it to eliminate disc jockey nights and reduce the number of black patrons who frequent the Corporation and Forest Park. *fn2" Furthermore, the Corporation alleges that its agent heard a telephone conversation on a police scanner which provided clear evidence the Popelka had made a decision to punish the Corporation before any local liquor commission hearing and before any evidence was heard.

 The Corporation filed a five-count Second Amended Complaint ("Complaint") against Defendants. Counts I and II allege a violation of First Amendment rights under 42 U.S.C. § 1983. Count I alleges that Popelka harassed and interfered with both the Corporation's right to freedom of expression and its business in an effort to force the Corporation to eliminate disc jockey nights and to thereby reduce the number of black patrons visiting the Corporation. Count II asserts similar harassment claims, naming Forest Park as a Defendant. Count III brings state claims alleging that both Defendants committed tortious interference with the Corporation's business relations and with the contractual relationship between the Corporation and the disc jockey hired to perform on disc jockey nights. Count IV alleges that Popelka, in her capacity as trier of fact at a Liquor Commission hearing, failed to address the evidence and that she was predisposed to financially damage the Corporation because of her own personal agenda when she suspended the Corporation's license, fined the Corporation, and caused the Corporation financial harm. Popelka's actions, claims the Corporation, violated its due process rights under the Fourteenth Amendment. Count V states that Forest Park, by allowing Popelka to remain as the decision-maker during the Liquor Commission hearing despite evidence demonstrating a personal agenda, violated its due process rights under the Fourteenth Amendment and 42 U.S.C. § 1983. *fn3"

 In each Count, the Corporation alleges commercial and financial damage to its business and reputation and both present and future financial losses. While the Corporation does not so specify in the pleadings, the court infers that the alleged harassment has ended, as the Corporation seeks only money damages rather than additional injunctive relief.

 II. Discussion

 For purposes of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must accept all allegations as true. Flynn v. Kornwolf, 83 F.3d 924, 925 (7th Cir. 1996). Further, the court must draw all reasonable inferences in favor of the non-movant. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). Rule 12(b)(6) does not provide a procedure for resolving contests about facts or merits of a case; rather, it allows defendants to test the formal sufficiency of statements of claims for relief. American Auto. Accessories, Inc. v. Fishman, 1996 U.S. Dist. LEXIS 12207, No. 95 C 5156, 1996 WL 480369, at *2 (N.D. Ill. Aug. 22, 1996). Because federal courts require mere "notice pleading," the court must construe the pleadings liberally, and mere vagueness or lack of detail alone cannot be sufficient grounds for dismissal. Id. Thus, the test under Rule 12(b)(6) is whether it appears beyond doubt that the plaintiff can prove no set of facts in support of a claim which would entitle him to relief. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996).

 A. Counts I and II

 Counts I and II allege that Defendants violated § 1983 when their harassment interfered with the Corporation's First Amendment right to freedom of expression. Although unclear, it appears that the Corporation attempts to state a claim for violation of its First Amendment right to freedom of expression. Section 1983 claims require deprivation of "clearly established" constitutional rights. See Gregorich v. Lund, 54 F.3d 410, 413 (7th Cir. 1995) (citation omitted).

 Where the Corporation cannot demonstrate that the official's conduct violated a clearly established right, the officials are entitled to qualified immunity. Williams v. Anderson, 959 F.2d 1411, 1414 (7th Cir. 1992) (citation omitted). The court focuses its determination, of whether a right was clearly established, on ...


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