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June 7, 2001


The opinion of the court was delivered by: James H. Alesia, Judge


Before the court is defendant Michael F. Sheahan's motion to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court grants the motion to dismiss.


Plaintiffs Centagon, Incorporated ("Centagon"), Penderyn, Limited ("Penderyn"), Valerie Campbell ("Campbell") and Jeanne Marie Dana ("Dana") (collectively "plaintiffs") bring this diversity action against defendant Michael F. Sheahan ("Sheahan") in his official capacity as the Sheriff of Cook County. Centagon and Penderyn are Delaware corporations with their principal places of business in New York. Campbell is a citizen of New York; Dana is a citizen of Florida. Sheahan, Sheriff of Cook County, is a citizen of Illinois. The amount in controversy exceeds $75,000. Thus, plaintiffs allege that this court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a). This action arises out of the eviction of plaintiff Campbell from her condominium. The complaint alleges the following facts which, for purposes of ruling on this motion, are to be taken as true.

Campbell was the beneficial owner of a condominium (the "unit") in a residential building located at 1212 North Lake Shore Drive in Chicago, Illinois. The building is owned by 1212 Lake Shore Drive Condominium Association (the "Association"). All plaintiffs owned various personal property which was kept in the unit. The majority of this property was valuable furniture, artwork, antiques, and clothing. In 1997, Campbell and the Association had a dispute regarding an assessment owed to the Association in the amount of approximately $4,000. When the assessment went unpaid, the Association initiated an action in the Circuit Court of Cook County. In that state court action, the Association sought to obtain a monetary judgment and to foreclose a possessory lien against the unit. During the state court proceeding, Campbell was represented by counsel. Judgment was entered in that state action in favor of the Association, and on June 9, 1997, an "Amended Order for Possession" was entered by the state court judge which entitled the Association to $3,901.54 in damages, over $2,000 in attorneys' fees, and possession of the premises. The enforcement of this order was stayed until August 8, 1997. Moreover, Campbell and her attorneys sought a further extension, and the enforcement of the possessory judgment was further stayed until November 8, 1997.

On February 25, 1998, Sheahan — through his deputies — arrived at 1212 North Lake Shore Drive in order to effectuate the state court order for possession. Judy Harris ("Harris"), the president of the Association, and Scott Herkert ("Herkert"), a member of the management company, allowed the deputies to enter the building. The deputies proceeded to the unit and forcibly entered it. Neither Campbell nor any of the plaintiffs or their agents was present at the unit on February 25, 1998. In their complaint, plaintiffs allege that the property was removed at the direction of Harris and/or Herkert. Upon entering the unit, the deputies removed portions of the personal property from the unit and placed it on the street. Neither the deputies nor the Association took any steps to secure the property once it was removed from the unit. However, the deputies noted on their eviction worksheet that several people on the street were looking at the property which was removed from the unit. Most of the property that was removed and placed on the street was subsequently stolen or damaged.

As a result of this loss of property, plaintiffs have filed a four-count complaint against Sheahan in his official capacity as Sheriff of Cook County. Count I alleges that Sheahan was negligent in allowing personal property to be lost or stolen, and therefore acted outside the scope of his authority. Count II alleges that, because Sheahan knew that he was only to deliver possession of the property to the Association and that pedestrians were checking out the removed personal affects, Sheahan had a special duty to safeguard that personal property and that he breached that duty. Count III alleges that Sheahan acted with conscious disregard for the safety of plaintiffs' personal property. Count IV alleges that Sheahan was an agent of the Association and, therefore, is liable for breach of contract and breach of fiduciary duty owed by the Association to plaintiffs.

Sheahan has moved to dismiss plaintiffs' complaint contending that (1) claims against Sheahan in his official capacity are barred by the Eleventh Amendment; (2) alternatively, the Court of Claims has exclusive jurisdiction over claims against the Sheriff; and (3) plaintiffs have failed to state a claim upon which relief can be granted. The court addresses these arguments below.

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

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all well-pleaded, factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. FED.R.Civ.P. 12(b)(6); Szumny v. Am. Gen. Fin. Inc., 246 F.3d 1065, 1067 (7th Cir. 2000). 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. 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 (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). Further, the court need not ignore facts set forth in the complaint that undermine plaintiffs' claim, nor is the court required to accept the plaintiffs' legal conclusion. Am. Nurses' Ass'n v. Illinois, 783 F.2d 716, 724 (7th Cir. 1986).

B. Eleventh Amendment

Sheahan contends that any claims brought against him in his official capacity as the Sheriff of Cook County are barred under the Eleventh Amendment. Specifically, Sheahan claims that, in executing a state order for forcible entry, he was acting as an arm of the Illinois state judicial system. Plaintiffs, on the other hand, contend that, in removing some — but not all — of plaintiffs' personal property ...

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