The opinion of the court was delivered by: Moran, Senior District Judge.
Plaintiffs bring this lawsuit as a purported class action on
behalf of all African-American customers of Shell-brand gas
stations. They allege that, in Chicagoland and across the nation,
Shell-brand gas stations require African-Americans to pre-pay for
gasoline while allowing white customers to pay after pumping gas.
Plaintiffs claim that this pattern or practice of racial
discrimination violates their federally-protected civil rights.
Defendants move to dismiss the complaint on a variety of grounds.
For the reasons set forth below, defendants' motions are granted
in part and denied in part.
Daron Hill ("Hill"), Tyson Parks ("Parks"), and Christopher M.
Lawson ("Lawson") (collectively "plaintiffs") are
African-American customers of Shell-brand gasoline.*fn1 Most
Shell-brand gas stations are equipped with gas pumps that can be
turned on or off from a console inside the service station.
Customers can be viewed by the operator of the station through a
window or video camera. Plaintiffs allege that they were required
to pay in advance for gasoline before the operator of the station
would turn on the pump ("pre-pay"). White customers arriving
within minutes of such incidents, however, were allowed to pump
their gas first and then pay ("post-pay"). Plaintiffs claim that
this racially discriminatory treatment violated their rights
under 42 U.S.C. § 1981, 1982, and 2000a.
Defendant Shell Oil Company ("Shell") is a Delaware corporation
doing business in this district. Until 1998, Shell owned
approximately 8,500 gas stations located throughout the United
States. On or after January 1, 1998, Shell transferred ownership
of the approximately 8,500 stations and related assets to
defendant Equilon Enterprises, LLC ("Equilon"). Approximately 10
percent of the stations are owned and operated directly by Shell
or Equilon ("corporate stations"). The remaining 90 percent of
the stations are owned by Shell or Equilon but operated by
individual contract dealers ("dealer stations"). The dealer
stations operate under a dealer agreement ("agreement")
with-Shell and Equilon, and lease the stations from Shell and
Equilon under a "Motor Fuel Station Lease" ("lease"). The
Agreement requires dealer stations to maintain corporate
standards in the operation of Shell-brand stations (agrmt, ¶ 2).
The agreement and the lease also provide for termination by Shell
or Equilon if a dealer station knowingly fails "to comply with
federal, state or local laws or regulations relevant to the
operation of [the station]" (agrmt, ¶ 18.1(c)(11); lease, ¶
Plaintiffs allege that they were subject to discrimination at
both corporate and dealer stations. Specifically, the complaint
details a total of twelve pre-pay incidents at two corporate and
six dealer stations across Chicagoland.*fn2 It also describes
incidents at five other stations located in
metropolitan areas outside Illinois. With respect to the
incidents occurring in Illinois, plaintiff Hill was required to
pre-pay on September 21, 1997, at a Shell corporate station in
Skokie. He was also required to pre-pay at the following dealer
stations on the following dates: Ashland Diversey Shell on
February 6, 8, and 10, and August 3, 1997; Peterson Western Shell
on August 3 and September 7, 1997; Ridge Devon Shell on August 3,
1997; Irving Sheridan Shell on September 7, 1997; and Clark Devon
Shell on September 21, 1997. Plaintiff Lawson was required to
pre-pay on January 10, 1998, at an Equilon-operated station in
Lombard. Plaintiff Parks was required to pre-pay on June 7, 1998,
at Roselle Shell.*fn3
Based on these Illinois incidents, plaintiffs name as
defendants in this lawsuit Shell, Equilon and the six dealer
stations identified above. Unless otherwise noted, we shall refer
to the six dealer stations collectively as "dealer defendants,"
and individually as Ashland Diversey Shell, Irving Sheridan
Shell, Ridge Devon Shell, Clark Devon Shell, Peterson Western
Shell, and Roselle Shell.
II. History of Proceedings
Plaintiffs have made numerous submissions to the Illinois
Department of Human Rights ("IDHR") complaining of these
discriminatory pre-pay incidents. As we will discuss below, the
substance and chronology of these filings are important. On
February 24, 1998, plaintiff Hill filed a charge with the IDHR
against Shell for the September 21, 1997 pre-pay incident at the
corporate station in Skokie. In that submission to the IDHR, Hill
also described the pre-pay incidents he suffered at the five
dealer stations with which he had dealings. Shell responded to
the charge on April 15, 1998. On June 11, 1998, plaintiff Parks
filed an IDHR charge against Roselle Shell based on the pre-pay
incident he suffered there on June 7, 1998. On August 18, 1998,
Hill filed amended charges, identifying with more specificity the
five dealer stations that required him to pre-pay for gas. On
September 16, 1998, plaintiff Hill withdrew his IDHR charges and
filed a complaint, naming Shell and five dealer stations as
defendants. On September 23, 1998, Hill filed the first amended
complaint, which added Parks as a plaintiff and Equilon and
Roselle Shell as defendants.
Plaintiffs filed a new round of IDHR charges on December 10,
1998. In addition to the charges of Hill and Parks against Shell
and the six dealer defendants, Lawson filed charges against
Equilon for the January 10, 1998 pre-pay incident he suffered at
the corporate station in Lombard. The December 10, 1998, filings
were formal IDHR charges, naming as respondents each of the eight
defendants. In a letter to plaintiffs' counsel dated December 28,
1998, an IDHR investigator informed plaintiffs that their charges
were filed more than 180 days after the alleged incidents and
therefore were untimely under Illinois law. On January 27, 1999,
plaintiffs filed the second amended complaint ("complaint")
against Shell, Equilon and the six dealer defendants.
In the complaint, plaintiffs purport to bring a bilateral class
action on behalf of "all African-American persons who have
purchased gas at or will in the future seek to purchase gas from
Shell and Equilon corporate locations or contract dealers" (cplt,
¶ 13) They name Shell, Equilon and the six dealer stations as
defendants, along with a defendant class consisting of "all Shell
and Equilon contract dealers operating under Shell and Equilon's
Lease and Dealer Agreement" (cplt, ¶ 18). Plaintiffs raise two
counts in their complaint, both based on the same discriminatory
pre-pay incidents. Count I is brought under Sections 1981 and
1982 of the Civil Rights Act of 1866, as amended by the Civil
Rights Act of 1991. 42 U.S.C. § 1981 and 1982. Count II is
brought under Title II of the Civil Rights Act of 1964.
42 U.S.C. § 2000a. Plaintiffs allege that defendants
have maintained a pattern or practice of requiring
African-American customers, but not white customers, to pre-pay
for gas purchases. Plaintiffs allege that Shell and Equilon are
liable for the misconduct of their corporate stations, and of the
dealer stations, over whom they have actual or apparent
authority. Plaintiffs seek monetary damages, injunctive relief,
attorneys' fees, and a declaration against defendants
establishing that Shell and Equilon have the power under the
agreement and the lease to terminate any dealer station
discovered to have violated federal civil rights laws against
members of the plaintiff class.
All eight defendants have moved to dismiss the complaint.
Defendants primarily argue that 1) Count II should be dismissed
because plaintiffs have failed to satisfy the jurisdictional
prerequisites of Title II, and 2) both counts should be dismissed
for failure to state a claim. In addition, various defendants
advance a number of other grounds for full or partial dismissal,
including arguments of vicarious liability, mootness, standing,
and misjoinder. As discussed below, the motions to dismiss are
granted in part and denied in part.
I. Subject Matter Jurisdiction Over Title II Claim
Defendants move to dismiss plaintiffs' Title II claims under
Rule 12(b)(1) for lack of subject matter jurisdiction. Where a
Rule 12(b)(1) motion challenges the sufficiency of the
allegations of subject matter jurisdiction, the court must accept
as true all well-pleaded factual allegations and construe them
favorably to the pleader. Rueth v. EPA, 13 F.3d 227, 229 (7th
Cir. 1993). Dismissal is proper only if it appears beyond doubt
that the plaintiff cannot prove any set of facts consistent with
the complaint that would entitle him to the relief requested.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
Defendants claim that plaintiffs have failed to satisfy Title
II's jurisdictional requirements before filing this lawsuit.
See 42 U.S.C. § 2000a-3(c). First, defendants argue that
plaintiffs failed to meet the 30-day state notice requirement
contained in § 2000a-3(c). Second, defendants argue that
plaintiffs failed to initiate IDHR proceedings within the 180-day
state filing period allotted under Illinois law (see 775 ILCS
5/7A-102(A)(1)), and therefore their Title II claims are barred.
Both of these arguments fail.
A. Title II's State Notice Requirement
Defendants claim that plaintiffs failed to satisfy Title II's
jurisdictional prerequisites because they did not file written
notice with the IDHR at least 30 days before bringing this
lawsuit. Title II contains a state notice requirement, set forth
in § 2000a-3(c):
In the case of an alleged act or practice prohibited
by this subchapter which occurs in a State, or
political subdivision of a State, which has a State
or local law prohibiting such act or practice and
establishing or authorizing a State or local
authority to grant or seek relief from such practice
or to institute criminal proceedings with respect
thereto upon receiving notice thereof, no civil
action may be brought under subsection (a) of this
section before the expiration of thirty days after
written notice of such alleged act or practice has
been given to the appropriate State or local
Because the requirements of § 2000a-3(c) are jurisdictional,
failure on the part of plaintiffs to satisfy the 30-day state
notice rule would warrant dismissal of their Title II claim for
lack of subject matter jurisdiction. See Stearnes v. Baur's
Opera House, Inc., 3 F.3d 1142, 1145 (7th Cir. 1993).
Plaintiffs raise two arguments in response to this claim.
First, they argue that this action falls under § 2000a-3(d),
which does not contain any state notice requirement. Second, they
contend that even if § 2000a-3(c) applies to their action, they
have satisfied the state notice requirement set forth therein. We
address each of these arguments in turn.
Plaintiffs emphasize that § 2000a-3(c) applies only where there
is "a State or local law prohibiting such act or practice and
establishing or authorizing a State or local authority to grant
or seek relief from such practice." They argue that the IDHR
does not have the authority to grant or seek the interstate class
remedy they pursue in this lawsuit. Therefore, they argue, §
2000a-3(c) does not govern this action. Instead, plaintiffs claim
to proceed under § 2000a-3(d), which applies to alleged acts or
practices occurring in a state "which has no State or local law
prohibiting such act or practice," and consequently does not
contain any requirement to notify a state agency prior to filing
a federal action.
Plaintiffs' position would circumvent § 2000a-3(c)'s state
notice rule in all cases in which a plaintiff anticipates seeking
interstate, classwide relief. Indeed, under plaintiffs' theory, §
2000a-3(c) would not apply whenever an individual seeks relief
from multiple defendants who do not reside in the same state.
This would vitiate § 2000a-3(c), which is meant to provide a
state agency the opportunity to invoke its remedies. See Harris
v. Ericson, 457 F.2d 765, 766 (10th Cir. 1972). If a plaintiff
is not satisfied with the relief available from the state agency,
he may proceed with his federal lawsuit after 30 days. This
requirement is not an onerous one.
Plaintiffs supply no authority supporting their position that
the notice requirement is not applicable when interstate,
classwide relief is sought. The only case cited by plaintiffs is
Robinson v. Power Pizza, Inc., 993 F. Supp. 1458 (M.D.Fla.
1998). In Robinson, the court held that § 2000a-3(c) did not
require plaintiffs to notify the Florida Commission on Human
Relations prior to filing a federal action because plaintiffs
sought a preliminary injunction and the Florida Commission
provided no mechanism for obtaining such relief. Id. at
1460-61. The court's holding in Robinson, however, was based on
unique concerns of urgency — the court emphasized the injustice
of forcing a plaintiff in need of immediate injunctive relief to
file a futile notice with the state agency and then wait 30 days
before initiating a federal action. Id. at 1461. Those
considerations of urgency do not exist here, and Robinson has
little bearing on this case.
Nothing in § 2000a-3(c) indicates that it does not apply in the
circumstances presented here, and there is no persuasive case law
suggesting otherwise. Indeed, Illinois has established a state
agency, the IDHR, to investigate and prosecute just the sort of
acts of racial discrimination plaintiffs allege in this lawsuit.
Accordingly, we ...