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ROTHMAN v. CITY OF CHICAGO

May 14, 2003

RICHARD ROTHMAN, PLAINTIFF,
v.
CITY OF CHICAGO; BETANCOURT REALTY NETWORK; SAUL WAIMBERK; FIRST AMERICAN TITLE INSURANCE COMPANY; MCNISH, KNABE & KRONING; BERNARD RIVKIN; JOHN A. ROBERSON, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE CHICAGO DEPARTMENT OF BUILDINGS; JAMES P. MCCARTHY, IN HIS OFFICIAL CAPACITY AS JUDGE OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS; MARY ROBINSON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE ILLINOIS ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION; ROBERT J. VERRANDO, IN HIS OFFICIAL CAPACITY AS SENIOR ATTORNEY OF THE ILLINOIS ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION; ARTHUR B. SMITH, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION, AN AGENCY OF THE STATE OF ILLINOIS; DEFENDANTS.



The opinion of the court was delivered by: John W. Darrah, United States District Judge

AMENDED MEMORANDUM OPINION AND ORDER

Plaintiff, Richard Rothman ("Rothman"), filed a fourteen-count class action suit against Defendants, seeking legal, equitable, and other relief. Count I alleges a violation of the American with Disabilities Act ("ADA") against Betancourt Realty Network ("Betancourt"). Count II alleges a violation of the ADA against First American Title Insurance Company ("FATIC"). Count III seeks a declaratory judgment against Saul Waimberk ("Waimberk"); FATIC; McNish, Knabe & Kroning ("MKK"); and Bernard Rivkin ("Rivkin") for alleged violations of the ADA. Count IV alleges abuse of process/malicious prosecution claims against Waimberk, Betancourt, Rivkin, and MKK. Count V alleges retaliation in violation of the ADA against Waimberk, Betancourt, Rivkin, and MKK. Count VI alleges an ADA claim against the Illinois Attorney Registration and Disciplinary Commission (the "ARDC"), Mary Robinson ("Robinson"), and Arthur Smith ("Smith"). Count VII alleges a violation of 42 U.s.c. § 1983 against John Roberson ("Roberson"), the Commissioner of the Chicago Department of Buildings. Count VIII alleges an ADA claim against Judge James McCarthy ("Judge McCarthy"). Count IX alleges a violation of 42 U.S.C. § 1983 against Judge McCarthy. Count X also alleges a 42 U.S.C. § 1983 claim against Judge McCarthy. Count XI alleges a 42 U.S.C. § 1983 claim against Smith and Robinson. Count XII alleges a 42 U.S.C. § 1983 claim against Robinson and Robert Verrando ("Verrando"). Count XIII alleges another 42 U.S.C. § 1983 claim against Robinson. Count XIV alleges a violation of Rothman's Fourteenth Amendment fights against the ARDC, Robinson, Judge McCarthy, and Smith.

Currently before the Court are (1) Betancourt, Waimberk, and FATIC's Motion to Dismiss; (2) Rivkin and MKK's Motion to Dismiss; (3) the ARDC, Robinson, Smith, and Verrando's Motion to Dismiss or Abstain; (4) the City of Chicago's Motion to Dismiss; (5) Judge McCarthy's Motion to Dismiss; and (6) Rothman's Motion for a Preliminary Injunction on Counts VI, VII, VIII, XI, and XII.

BACKGROUND

The underlying allegations are myriad and include multiple, unrelated matters. Accordingly, it is appropriate to set out all these operative allegations necessarily considered in support and in defense of the motions before analyzing them pursuant to the applicable law. The following is a summary of the allegations set out in Plaintiff's Second Amended Complaint.

Rothman's Disability

Rothman has epilepsy and has a history of having had epilepsy. All of the Defendants were aware of Rothman's disability at all times described in the instant litigation.

Real Estate Purchase by Rothman

On May 23, 2000, Rothman submitted a written offer to purchase Unit 512 at 2337 W. Wolfman located in Chicago, Illinois. On June 8, 2000, Wolfman Towers Partnership and RAS Wolfman, Inc. (collectively "Wolfman") accepted the offer, with modifications. RAS Wolfman is the general partner in Wolfman Towers Partnership, the developer of the subject real estate. Waimberk and Betancourt are limited partners in Wolfman Towers Partnership (Betancourt, Waimberk, RAS Wolfram, Inc., and Wolfram Towers Partnership are collectively referred to as "the Seller").

Rothman tendered earnest money of $1,000, which was held by Betancourt as escrowee. The Seller never requested any additional earnest money from Rothman and never indicated that the Seller would or might declare Rothman in default for failure to deliver any additional earnest money.

Pursuant to the real estate contract, the original delivery date was October 30, 2000. The contract purchase price was $244,900 for the unit and $14,000 for a parking space. On October 30, 2000, the Seller and their lawyer orally extended the original closing date of October 30, 2000 until September 14, 2001.

In March 2001, the Seller and Rothman met and agreed in writing to make upgrade selections. At this time, the Seller assured Rothman in writing that closing would take place by May 31, 2001.

On August 9, 2001, the Seller's lawyer contacted Rothman by phone to schedule a closing. Rothman informed the Seller, by letter, on August 9, 2001, that he was available at any time for closing on September 14, 2001. On September 4, 2001, two appraisers for Rothman's lenders were scheduled to conduct appraisals. On that date, the following items were not completed in the unit: no finished floors, no kitchen, no appliances, no plumbing in kitchen, no electrical facilities, and no fuse box.

On September 11, 2001, Rothman contacted the Seller's lawyer and advised him that Rothman's lender was experiencing a disruption in business due to the World Trade Center bombing and that he could not assure a closing on September 14, 2001.

On September 13, 2001, Rothman and the Seller agreed to modify the contract in that the Seller agreed to reduce the sales price by $750; and Rothman agreed to purchase a refrigerator on his own.

A new closing date of September 20, 2001 was scheduled. Because an appraisal could not take place prior to September 20, 2001, the closing was rescheduled to October 4, 2001, by agreement of the parties.

On September 19, 2001, Rothman completed a walk-through and a written punch list. On October 2, 2001, Rothman conducted a final walk-through of the unit. Several punch list items had not been corrected. The Seller indicated that an electrician would complete the electrical work the morning of October 4, 2001. On October 4, 2001, the construction manager informed Rothman that no electrical items would be completed before closing because the electrician was away on an emergency.

On October 4, 2001, Rothman had two loans approved; and his loan funds were ready for wire transfer at any time during that day. At 10:30 a.m. on that date, the closing agent, Pat Shapley ("Shapley") of FATIC, called Rothman to tell him he could close at any time before 4:00 p.m. Rothman was unable to close before 4:00 p.m. due to previously scheduled appearances and court filing deadlines in connection with the ARDC. At 2:00 p.m., the lawyer for the Seller contacted Rothman and terminated the contract. At 4:00 p.m., Rothman appeared for closing. The closing did not proceed.

Rothman's Law License and Suspension

On September 7, 2000, the Chicago office of the ARDC filed case 00 CH 52 against Rothman, alleging four counts of misconduct. A trial was held before the ARDC on June 11, 2001. A directed verdict was entered in Rothman's favor on two of the four counts. On September 13, 2001, the hearing board issued its report, recommending a six-month suspension of Rothman's law license. On January 10, 2002, the ARDC Review Board struck Rothman's Notice of Exceptions.

On January 17, 2002, the ARDC submitted a Motion to Approve and Confirm to the Illinois Supreme Court. On March 22, 2002, the Illinois Supreme Court declined to approve or confirm the ARDC Hearing Board Report and Recommendation. On that same day, the Illinois Supreme Court suspended Rothman's law license for nine months.

In September 2002, the ARDC filed a five-count complaint against Rothman, 02 OH 87, alleging professional misconduct. On November 12, 2002, Smith denied Rothman's Leave to Serve Interrogatories.

Gran-Oak Condominium Association Case

On June 20, 2002, Rothman removed case 02 M1 720548, Gran-Oak Condominium Ass'n v. Bondoc (Gran-Oak), to the United States District Court for the Northern District of Illinois, where it was docketed as case 02 C 4488. Previously, the Cook County State's Attorney filed a rule to show cause against Rothman in that case. On September 7, 2002, Rothman filed a motion to dismiss the Gran-Qak case. On December 9, 2002, the Gran-Oak case was dismissed by agreement of the parties. The case was not remanded to state court. As a result of the removal, Rothman asked Judge McCarthy to dismiss the rule to show cause hearing for lack of jurisdiction. Judge McCarthy declined to dismiss the rule to show cause hearing.

Contempt Proceedings Against Rothman

In August 2002, Waimberk, Betancourt, and MKK filed a Verified Petition for Adjudication of Criminal Contempt against Rothman in connection with case 01 M1 149251, Rothman v. Wolfman Towers Partnership, et al. In November 2002, trial was held on the criminal contempt petition. Judgment was entered in Rothman's favor.

On October 28, 2002, a trial was conducted in case 02 MC1 218527-01, People of the State of Illinois v. Rothman (Rothman I) in the Circuit Court of Cook County, Illinois. Judge McCarthy is currently presiding over another case, 02M01 290300, pending in the Circuit Court of Cook County (Rothman II). Rothman II involves an alleged criminal contempt of court occurring on May 6, 2003, in the Circuit Court building in Chicago, Illinois. Rothman filed a Motion to Dismiss ...


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