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STERLING v. KAZMIERCZAK

November 25, 1997

JEROME STERLING, JR., et al., Plaintiffs,
v.
W. KAZMIERCZAK, et al., Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court are two motions to dismiss plaintiffs Jerome Sterling, Jr. and Jerome Sterling, Sr.'s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The first motion is brought by defendants Officer W. Kazmierczak and the Village of Orland Park; the second is brought by defendants Sportmart, Inc. and Marcel Cairo. For the reasons that follow, the court grants both motions to dismiss.

 I. BACKGROUND

 Plaintiffs' first amended complaint alleges the following facts which, for the purpose of ruling on these motions, are taken as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). On November 30, 1995, Jerome Sterling, Jr. ("Sterling Jr.") entered a Sportmart, Inc. ("Sportmart") store located at 1385 Orland Park Place, Orland Park, Illinois to purchase air rifle cartridges. When he entered the store, Sterling Jr. was wearing a pair of Nike Air Jordan athletic shoes that he had purchased four days earlier from Marshall Field's. After entering the store, Sterling Jr. first searched for the air rifle cartridges, after which he went to the area of the store that had sports games for sale. He then he examined and sampled some of the games.

 At that time, defendant Marcel Cairo ("Cairo"), one of the store's security guards, approached Sterling Jr. and questioned him about the pair of athletic shoes that Sterling Jr. was wearing. Sterling Jr. told Cairo that he had purchased the shoes four days earlier from Marshall Field's. Cairo did not ask Sterling Jr. to show him a receipt for the shoes; rather, Cairo simply accused Sterling Jr. of stealing the shoes and removed the shoes from his feet.

 Cairo then contacted the Orland Park Police. Officer W. Kazmierczak ("Officer Kazmierczak") responded to the call. Based on the information provided to him by Cairo, Officer Kazmierczak released the shoes to Cairo, arrested and handcuffed Sterling Jr., and took Sterling Jr. to the Orland Park Police Station. Sterling Jr. was charged with retail theft and placed into a holding cell until his bail was paid.

 Sterling Jr. went to trial on the charge. During his trial, Sterling Jr. produced a Marshall Fields' receipt for the pair of shoes along with other evidence. He was found not guilty.

 As a result of the above alleged incidents, plaintiffs filed an eight-count complaint against defendants Cairo, Sportmart, Civil Recovery Services and C.J. Sommer, alleging one federal claim under 42 U.S.C. § 1983 and seven state law claims. The section 1983 claim was against Cairo. On its own motion, the court (1) dismissed the section 1983 claim because Cairo was as a private, not state, actor and (2) dismissed the state law claims pursuant to 28 U.S.C. § 1367 without prejudice so that plaintiffs could pursue those claims in state court.

 Instead of filing the action in state court, plaintiffs filed an amended complaint in this court. The amended complaint added two defendants, Officer Kazmierczak and the Village of Orland Park ("the Village"), and includes ten counts, three federal claims and seven state law claims. This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. *fn1"

 II. DISCUSSION

 A. Standard for deciding Rule 12(b)(6) motion to dismiss

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F. Supp. 1283, 1285 (N.D. Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Even under the liberal notice pleading standard of the Federal Rules of Civil Procedure, however, a complaint must include either direct or inferential allegations respecting all material elements of the claims asserted. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). Bare legal conclusions attached to narrated facts will not suffice. Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir. 1985).

 Finally, when ruling on a Rule 12(b)(6) motion to dismiss, the court should consider any additional facts alleged by plaintiff in either an affidavit submitted to the court or plaintiff's response brief if those facts are consistent with the complaint's allegations. See, e.g., Albiero v. City of Kankakee, 122 F.3d 417, 1997 WL 469038, at *2 (7th Cir. 1997) ("[A] plaintiff may supplement the complaint with factual narration in an affidavit or brief. If the extra assertions make out a claim, then the complaint stands."); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439 (7th Cir. 1994) ("This court has held that when reviewing Rule 12(b)(6) motions, we will consider new factual allegations raised for the first time on appeal provided they are consistent with the complaint."); Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992) ("A plaintiff need not put all of the essential facts in the complaint. He may add them by affidavit or brief -- even a brief on appeal."). However, the court ...


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