over Yellow Cab because he dropped Mordini as a defendant in his
second amended complaint, and because the citizenship of Yellow
Cab's parent corporation, Stamford Capital, is diverse.
In support of his argument, plaintiff cites Campbell v.
Triangle Corp., 336 F. Supp. 1002 (E.D.Pa. 1972), in which Judge
Lord assumed pendant jurisdiction over the non-diverse subsidiary
of a diverse parent corporation. Plaintiff neglects the fact that
Judge Lord reconsidered his decision and allowed the plaintiff to
dismiss the non-diverse defendant after the Third Circuit ruled
that the doctrine of pendant jurisdiction could not preserve
federal jurisdiction in a diversity action if one of the
defendants resided in the same state as the plaintiff. See
Campbell v. Triangle Corp., 56 F.R.D. 480, 481 (E.D.Pa. 1972)
(citing Seyler v. Steuben Motors, Inc., 462 F.2d 181, 181-82
(3rd Cir. 1972)). The court declines to follow Campbell, a
quarter-century-old case from another district whose essential
holding has been rejected by courts and commentators alike. See,
e.g., J.M. Resources Inc. v. Petro-Pak Resources, Ltd.,
581 F. Supp. 629, 630-31 (D.Colo. 1984) (rejecting the notion that the
pendant parties doctrine allows a court to take jurisdiction
without complete diversity); Charles A. Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice and Procedure: Jurisdiction
2d § 3567.2 (1984) ("This assault on the rule of complete
diversity, which the Supreme Court laid down in 1806 for cases
under the general diversity statute, has now been authoritatively
rebuffed."). As the Supreme Court has stated, the history of
28 U.S.C. § 1332(a) "clearly demonstrates a congressional mandate
that diversity jurisdiction is not to be available when any
plaintiff is a citizen of the same State as any defendant." Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct.
2396, 57 L.Ed.2d 274 (1978). Because plaintiff and Yellow Cab are
both Illinois citizens, diversity of citizenship cannot provide
the basis for jurisdiction in the instant case.
Plaintiff also argues that the court has jurisdiction over this
action because it arises under federal law. Plaintiff alleges
violations of 42 U.S.C. § 1981, 1985(2), and 1986, and insists
that the court has jurisdiction over these claims under
28 U.S.C. § 1331 (conferring upon the district courts "original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States") and 28 U.S.C. § 1343
(conferring jurisdiction over § 1985 claims).*fn1 Because
plaintiff does not allege that he was subjected to racial
discrimination while making a contract or enforcing his contract
rights, plaintiff does not state a claim under Section 1981. See
Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct.
2363, 105 L.Ed.2d 132 (1989) ("Section 1981 cannot be construed
as a general proscription of racial discrimination . . ., for it
expressly prohibits discrimination only in the making and
enforcement of contracts.").
Plaintiff likewise does not state a claim under Section 1985.
To state a claim under this statute, plaintiff must allege facts
evidencing a civil conspiracy, and must allege some sort of
racial animus. See Mural v. City of Chicago, 1999 WL 259941, at
*3 (N.D.Ill. Apr.19, 1999). Although in his second amended
complaint plaintiff alleges "a racially motivated conspiracy,"
plaintiff does not allege his Section 1985 claim with sufficient
particularity. Moreover, plaintiff does not identify himself as a
member of any racial group. See id.
In addition, plaintiff's allegations of conspiracy are wholly
conclusory. Under Section 1985(2), plaintiff must allege that two
or more persons formed an agreement to inflict injury on him, and
that this agreement culminated in an overt act that caused him
damage. See, e.g., Lenard v. Argento, 699 F.2d 874, 882 (7th
Copeland v. Northwestern Mem. Hosp., 964 F. Supp. 1225, 1234
(N.D.Ill. 1997). Although plaintiff vaguely alleges that Yellow
Cab and Stamford Capital conspired to "deny relief," he does not
identify an overt act that caused him injury.*fn2 "The
allegation that a conspiracy existed is a legal conclusion which
is not binding on the Court even when made by a pro se litigant,
and this Court may not conjure facts to support such a claim
where none are apparent from the allegations." Smith v. Haith,
978 F.2d 1261, 1992 WL 311787, at *4 (7th Cir. 1992); see also
Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1208
(7th Cir. 1980) ("[E]ven a pro se litigant is required to allege
something in the way of facts before his allegations of
conspiracy may be deemed to state a claim."). The court concludes
that because plaintiff does not plead his Section 1985 claim with
sufficient particularity, 28 U.S.C. § 1331 and 1343 do not
provide the basis for federal jurisdiction.
Even if plaintiff had pled his Section 1985 claim sufficiently,
the doctrine of res judicata would mandate dismissal of
plaintiff's complaint.*fn3 In plaintiff's third amended
complaint in state court, plaintiff alleged that defendants had
engaged in a "conspiracy to obstruct justice displaying racial or
otherwise class-based invidiously discriminatory animus" by
filing a counterclaim, and alleged that Yellow Cab and its
attorney, Moscow, had suppressed evidence by concealing the
whereabouts of the taxicab driver, Justin Cofie ("Cofie"). A jury
trial was held and plaintiff lost. Plaintiff appealed, arguing,
inter alia, that Yellow Cab had obstructed justice by causing the
disappearance of Cofie and concealing photographs from the jury.
The appellate court affirmed the lower court judgment in an
unpublished opinion. Sampson v. Yellow Cab Co., No. 1-97-2480
(Ill.App.Ct. April 20, 1998).
In the instant suit, plaintiff alleges that, in the course of
representing Yellow Cab, Mordini suppressed evidence in the form
of certain photographs. In the second amended complaint plaintiff
seeks to file, he alleges "a racially motivated conspiracy to
interfere with [his] civil rights outside of court proceedings,"
referring specifically to the accident itself and to his
allegations that defendants engaged in "criminal obstructions of
justice, concealed evidence, [and] concealed whereabouts of the
key witness-cab driver. . . ."
To decide whether res judicata bars plaintiff's federal claims,
this court must determine whether the state court, under state
law, "would give the [prior state court] judgment preclusive
effect against the claims asserted in the federal action."
Pirela v. Village of North Aurora, 935 F.2d 909, 911 (7th Cir.
1991). A federal court will consider the federal claim only "if
the state would allow for reconsideration of [the] previously
decided claim or if the federal plaintiff did not have an
adequate chance to address the claim during the state action. . .
." Garry, 82 F.3d at 1367 n. 8.
For res judicata to apply under Illinois law, "there must be
(1) a final judgment on the merits in an earlier action; (2) an
identity of the cause of action in both the earlier and the later
suit; and (3) an identity of parties or privies in the two
suits." Doe v. Allied-Signal, Inc., 985 F.2d 908, 913 (7th Cir.
1993). Element one is satisfied because the state court jury
verdict is a judgment on the merits that must be given preclusive
effect, and the state appellate court's affirmance of this
verdict likewise amounts to a final judgment on the merits.
Element three is satisfied because the parties in the two suits
are essentially identical. Plaintiff's addition of Yellow Cab's
parent Stamford Capital (who was not a party to the state court
suit) as a defendant in the instant suit appears to be merely a
barefaced attempt to create diversity jurisdiction. In addition,
although plaintiff sued attorney Moscow in the state court suit
and is attempting to sue attorney Mordini in the instant case,
Moscow and Mordini belong to the same law firm and both represent
Yellow Cab. In any event, plaintiff drops attorney Mordini from
the suit in his second amended complaint.
As for element two, whether there is an identity of the causes
of action, Illinois courts consider "separate claims . . . the
same cause of action for purposes of res judicata if they arise
from a single group of operative facts, regardless of whether
they assert different theories of relief." River Park, Inc. v.
City of Highland, 184 Ill.2d 290, 234 Ill.Dec. 783,
703 N.E.2d 883, 893 (1998). The claims plaintiff makes in both his amended
complaint and his second amended complaint arise from the same
nucleus of facts as the claims decided by the jury and by the
appellate court. The jury found for defendant on the state law
claims arising out of the accident and presumably concluded that
Yellow Cab had not caused the taxicab driver to disappear. The
appellate court affirmed the state court's judgment, rejecting
plaintiff's claims that defendants had concealed evidence or
otherwise obstructed justice in the course of the trial. Although
in the state court suit plaintiff linked his allegations of
invidious discrimination to defendants' counterclaims, while in
the instant suit he links his allegations of racial animus both
to the accident itself and to defendants' alleged obstructions of
justice, plaintiff's claims in the instant suit arise out of the
identical facts (various defendants' conduct during the accident
and at trial) as his claims in the state court suit. Thus, even
if this court had jurisdiction over the instant suit, plaintiff's
claims would be barred by res judicata. The court therefore
grants defendants' motion to dismiss.