The opinion of the court was delivered by: Ann Claire Williams, District Judge.
MEMORANDUM OPINION AND ORDER
The estate and children of the late Marsha Brewer-Stewart, bring this
action against Defendants, City of Naperville ("City"), Officers
Brestal, Martin, Degregorio, Barker, Baker, Hochstetler, Montanari,
Winter, and McAnally ("Officers") and Gregory Stewart ("Stewart"). In
Count I, plaintiffs seek relief under 42 U.S.C. § 1983 against the
City and Officers for violation of decedent's constitutional rights under
the Fourteenth Amendment. In Count II and III, the first of several state
law claims brought under pendant jurisdiction, plaintiffs allege willful
and wanton conduct (Count II) and intentional infliction of emotional
distress (Count III) on the part the City and Officers. In Count IV,
plaintiffs allege that Stewart's actions resulted in injury to Marsha
Brewer-Stewart prior to her death under the Survival Act, 755 Ill. Comp.
Stat. 5/27-6 (Ill.Stat.Ann. 1992). In Count V, plaintiffs charge that
Stewart's actions resulted in Marsha Brewer-Stewart's death and caused
them injury under the Wrongful Death Act, 740 Ill. Comp. Stat. 18%
(Ill.Stat.Ann. 1992). The City and Officers now move to dismiss Count I,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and
Counts II and III for lack of subject matter jurisdiction. Defendant
Stewart moves to dismiss Counts IV and V under Rule 12(b)(1) for lack of
subject matter jurisdiction, or alternatively, under 12(b)(6). For the
reasons set forth below, the court denies the City and Officers' motion
to dismiss Counts I-III and grants Stewart's motion to dismiss Counts IV
and V for lack of subject matter jurisdiction.
Marsha Brewer-Stewart ("Marsha") was married to Defendant Stewart. (2nd
Am. Compl. ¶ 7.) Stewart had a history of violent criminal behavior.
(Id. ¶ 8.) He had tried to commit suicide several times and on May
9, 1993, he attempted to murder Marsha. (id.) Stewart also had a long
history of mental illness. (Id. ¶ 9.) He had been a patient at Mercy
Center, a mental health facility, until December 10, 1993, when he was
discharged. (Id. ¶ 9-10.) Accordiug to plaintiffs, the City police
knew about Stewart's violent behavior and history of mental illness.
(Id. ¶ 11.)
On December 26, 1993, at approximately 8:35 p.m., Marsha frantically
telephoned "911" requesting emergency help at her home, 531
FesslerStreet, in Naperville, Illinois. (Id. ¶ 12.) One or more of
the Officers arrived at Marsha's home by approximately 8:40 p.m. (Id.
¶ 13.) Other Officers arrived shortly after 8:40 p.m. (Id.) Officers
did not make forced entry into Marsha's home until approximately 9:20
p.m. (Id. ¶ 14.) When Officers did make forced entry, they discovered
that Marsha had sustained fatal knife wounds at Stewart's hands. Stewart
had also stabbed himself in the chest. (Id.) Stewart was convicted for
killing Marsha and is now incarcerated. (Id. ¶ 3.) Plaintiffs did not
discover the details concerning the events of December 26, 1993, until
Stewart's criminal trial in January 1995. (Id. ¶ 17.)
Subsequently, Plaintiffs Paul P. Didzerekis ("Didzerekis"),
administrator of Marsha's estate, and Marsha's children, Leigh Ann
Brewer, Dana Brewer, and father and next friend of Lara Brewer,*fn1
Robert Brewer filed this action in the Circuit Court of Cook County.
(Id. ¶ 16.) Plaintiffs voluntarily non-suited their cause of action
in that court since it lacked jurisdiction. That court then dismissed the
action without prejudice on November 25, 1996.
(Id.) On December 12, 1996, plaintiffs filed a two-count complaint with
this court against Stewart, the City and Officers. Defendants sought
leave to file a motion to dismiss the complaint, which the court
granted. However, the court vacated the briefing schedule when it granted
plaintiffs' request to file an amended complaint. (See Mem. Order and
Op., No. 96 C 8148, J. Williams, Feb. 9, 1998.)
Plaintiffs filed their First Amended Complaint on February 28, 1997. In
that complaint, plaintiffs alleged that both the City and Officers
violated Marsha's civil rights, including her rights under the Fourteenth
Amendment. In Count II, Didzerekis charged that Stewart should be held
liable to Marsha's estate for the pain and suffering Marsha endured prior
to her death. In Count III, the remaining plaintiffs claim that Stewart
is liable to them under the Wrongful Death Act. Plaintiffs argued that
because of Stewart's wrongful act, they were deprived of her support,
love, affection, companionship, guidance, care and attention. Defendants
moved to dismiss the First Amended Complaint on May 8, 1997. Plaintiffs
then filed a motion for leave to amend their complaint a second time. On
December 24, 1997, Stewart filed a motion to dismiss plaintiffs' First
Amended Complaint. On February 9, 1998, the court granted all defendants'
motions to dismiss the First Amended Complaint without prejudice and
denied plaintiffs motion for leave to file a Second Amended Complaint,
except to properly allege the parent-child relationship between Marsha
and plaintiffs, Leigh Ann, Dana and Lara Brewer.
The City and Officers now move to dismiss Count I of plaintiffs' Second
Amended Complaint for failure to state a claim upon which relief can be
granted.*fn2 Stewart moves to dismiss Counts II and III for lack of
subject matter jurisdiction, or in the alternative, under Rule 12(b)(6)
for failure to state a claim.
A motion of dismiss tests the legal sufficiency of the complaint and
not the merits
of the suit. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990)
(citing Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586
(7th Cir. 1989)). A plaintiff fails to state a claim up which relief may
be granted only if "it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief." Leaky v. Board of Trustees of Community College Diet. No. 508,
912 F.2d 917, 921 (7th Cir, 1990) (quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In analyzing the sufficiency of
plaintiffs complaint, the Court must accept as true all well-pleaded
factual allegations and draw all reasonable inferences in favor of the
Plaintiff. Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.
1991); Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.
1990). These factual allegations may be contained in the complaint or,
under some circumstances, in plaintiffs reply brief in opposition to a
motion. See Early v. Bankers Life and Cas. Co., 959 F.2d 75, 78-79 (7th
Cir. 1992) (accepting as true facts contained in reply to motion to
dismiss which clarified conclusions pled in complaint and challenged in
motion). This court, however, is "not obliged to ignore any facts set
forth in the complaint that undermine the plaintiff's claim or assign any
weight to unsupported conclusions of law." R.J.R. Services, Inc. v. Aetna
Cas. and Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989).
On a motion to dismiss for lack of subject matter, the party asserting
jurisdiction, the plaintiff in this case, bears the burden of making a
prima facie showing that jurisdiction is proper. Chemical Waste Management
v. Sims, 870 F. Supp. 870, 873 (N.D.Ill. 1994). When deciding such a
motion, a court may accept affidavits submitted by both parties, but all
factual disputes must be resolved in favor of the plaintiff. McDonald's
Corporation v. Bukele, 960 F. Supp. 1311, 1314 (N.D.Ill. 1997) (citations
A. The City: Monell Practice or Policy
The City argues that the court must dismiss Count I of plaintiffs'
complaint because it falls to set forth facts sufficient to show a
municipal practice or policy. The City also contends that even if
plaintiffs could show a municipal practice or policy, they did not plead