United States District Court, N.D. Illinois, Eastern Division
June 10, 2004.
Dr. Richard Hass, Plaintiff,
The RICO Enterprise, Janet Volk Hass, et al. Defendants.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court are Defendants' Motions to Dismiss [4-1; 6-1;
20-1; 36-1]. For the following reasons, the motions are granted.
Plaintiff's Complaint is dismissed with prejudice.
On December 2, 2003, Plaintiff filed his Complaint alleging
that Defendants,*fn1 collectively referred to as "The RICO
Enterprise," had conspired to, inter alia, violate his Due
Process rights by "fixing" the outcome of Plaintiff's divorce and
child custody proceedings in the Circuit Court of DuPage County,
Illinois. See Pl.'s Compl. ¶¶ 18-67. Plaintiff based federal
subject matter jurisdiction on 42 U.S.C. § 1983 and the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et
seq. Plaintiff's Complaint contains allegations of the behavior
of his ex-wife, former in-laws and other persons involved with
the divorce and child custody proceedings, concluding that "[t]he
DuPage Courts are a lucrative shakedown racketeering Enterprise
operating under color of law." Pl.'s Compl. ¶ 17. In response to Plaintiff's Complaint, Defendant Michael Kintz
filed a Motion to Dismiss. Kintz argues three grounds for
dismissal: (1) Plaintiff's Complaint is barred by the doctrine of
res judicata, based upon a similar lawsuit filed in the Circuit
Court of DuPage County; (2) Plaintiff's Complaint fails to state
a claim upon which relief can be granted; and (3) Plaintiff's
Complaint should be stricken, pursuant to Federal Rule of Civil
Procedure 12(f), as it is entirely scandalous. Defendant Robert
Galatzer-Levy also filed a Motion to Dismiss.*fn2
Galatzer-Levy argues two grounds for dismissal: (1) Plaintiff's
Complaint is barred by the statute of limitations, and (2)
Plaintiff's Complaint fails to state a claim upon which relief
can be granted. Defendant Judge James Konetski also filed a
Motion to Dismiss. Judge Konetski argues that dismissal is
appropriate as to him because Plaintiff has failed to make any
allegations against him in the Complaint, and has only named him
as a Defendant in the caption of the Complaint. Defendant Judge
Kenneth Abraham also filed a Motion to Dismiss. Judge Abraham
argues four grounds for dismissal: (1) Plaintiff failed to serve
him within 120 days as required by Federal Rule of Civil
Procedure 4(m), (2) Judge Abraham is entitled to judicial
immunity, (3) Plaintiff's Complaint is barred by the statute of
limitations, and (4) Plaintiff's Complaint fails to state a claim
upon which relief can be granted. All Defendants seek dismissal
As the failure to state a claim and statute of limitation
defenses are dispositive as to all Defendants, the court need
only address those arguments. While the remaining arguments
raised by the various Defendants are meritorious, the failure to
state a claim and statute of limitation defenses are dispositive
as to all Defendants. II. ANALYSIS
A. Failure to State a Claim
Pursuant to Federal Rule of Civil Procedure 8(a)(2), a
complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed.R. Civ.
Pro. 8(a)(2); see also Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168
(1993) (discussing "notice pleading" standards under the Federal
Rules of Civil Procedure). Under this liberal notice pleading
standard, "`[a] court may dismiss a complaint only if it is clear
that no relief could be granted under any set of facts that could
be proved consistent with the allegations." Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984)).
The main function to be performed by the complaint is to "give
the defendant fair notice of what the plaintiff's claim is and
the grounds upon which it rests." Conley v. Gibson,
355 U.S. 41, 47 (1957). "While federal notice-pleading allows for a
generous reading of a complaint, in order to resist a motion to
dismiss, the complaint must at least set out facts sufficient to
`outline or adumbrate' the basis of the claim." Panaras v.
Liquid Carbonic Industries Corp., 74 F.3d 786, 792 (7th Cir.
1996). The Federal Rules of Civil Procedure require the plaintiff
to disclose adequate information regarding the basis of the claim
for relief as distinguished from a bare averment that the
plaintiff wants relief and is simply entitled to it. See 5
Charles Allen Wright & Arthur R. Miller, Federal Practice and
Procedure: Civil 2d § 1202 (2d ed. 1990). A complaint contains
adequate information regarding the basis of the claim for relief
if it contains even "the bare minimum facts necessary to put the
defendant on notice of the claim so that he can file an answer."
Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). To provide
a defendant with fair notice, "a complaint must allege facts bearing on all material elements necessary to sustain a
recovery under some viable legal theory." Looper Maintenance
Service, Inc. v. City of Indianapolis, 197 F.3d 908, 911 (7th
Cir. 1999) (citation omitted).
Plaintiff's Complaint alleges a conspiracy in violation of
RICO. Yet, aside from allegations of the behavior of his ex-wife
and former in-laws during his divorce and child custody
proceedings, all Plaintiff provides within his prolix 15-page
Complaint is the unadorned allegation that "[t]he DuPage Courts
are a lucrative shakedown racketeering Enterprise operating under
color of law." Pl.'s Compl. ¶ 17. Plaintiff's Complaint fails to
allege even the faintest outline of this conspiracy. Even under
liberal notice pleading standards, the pleading of a conspiracy
requires a plaintiff to "indicate the parties, general purposes,
and approximate date, so that the defendant has notice of what he
is charged with." Walker v. Thompson, 288 F.3d 1005, 1007 (7th
Cir. 2002). Plaintiff's conspiracy theory is similar to that in
Albiero v. City of Kankakee, 122 F.3d 417, 420-21 (7th Cir.
1997), where the plaintiffs alleged a conspiracy, but did not
elaborate or provide any other allegations to support the
Plaintiff's Complaint fails to meet the notice pleading
requirements set forth in the Federal Rules of Civil Procedure.
"This is not a case where the plaintiff has been tripped up by
`mere technicalities,' but rather, the plaintiff has omitted the
gravamen of his complaint." Kyle v. Morton High School,
144 F.3d 448, 457 (7th Cir. 1998) (per curiam). Rehashing the
difficulties of his divorce and child custody proceedings, adding
all those involved in those proceedings as defendants, and simply
adding the word "conspiracy" does not state a cause of action.
See Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir. 2000). B. Statute of Limitation
Since statutes of limitations are defenses to claims, a
plaintiff ordinarily need not anticipate or attempt to defuse
these defenses in a complaint. See Gomez v. Toledo,
446 U.S. 635, 640 (1980). However, "[a] litigant may plead itself out of
court by alleging (and thus admitting) the ingredients of a
defense. . . ." United States Gypsum Co. v. Indiana Gas Co.,
Inc., 350 F.3d 623, 626 (7th Cir. 2003) (citation omitted);
see also Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir.
1998) ("Litigants may plead themselves out of court by alleging
facts that establish defendants' entitlement to prevail."); Soo
Line R.R. Co. v. St. Louis S.W. Ry. Co., 125 F.3d 481, 483 (7th
Cir. 1997) (indicating that a "plaintiff can plead himself out of
court by alleging facts which show that he has no claim, even
though he was not required to allege those facts").
In order to have properly brought a civil RICO claim, Plaintiff
must have filed suit within 4 years of the date on which he knew
or should have known that he had been injured. See Rotella v.
Wood, 528 U.S. 549, 552 (2000). Likewise, a § 1983 claim must
have been filed within 2 years of the date on which he knew or
should have known that he had been injured. See Licari v. City
of Chicago, 298 F.3d 664, 667-68 (7th Cir. 2002) (Bauer, J.) ("A
two year statute of limitations applies to section 1983 claims in
As previously indicated, Plaintiff's Complaint contains
allegations of the behavior of his ex-wife, former in-laws and
other persons involved with his divorce and child custody
proceedings. See Pl.'s Compl. ¶¶ 18-67. The Complaint clearly
demonstrates that all of the actions complained of occurred
between 1995 and 1998. See id. ¶¶ 19-20, 23, 34-5, 46. For
example, Plaintiff alleges that "[o]n information & belief as
well as comparison with other DuPage cases, Plaintiff believes
the $10,000 sent by mail by Defendants Volk [Plaintiff's in-laws]
in June & put into two 6 month CD's were used to bribe Defendant Judge Abraham in November 1995 to
fix the judgment as predicted." Pl.'s Compl. ¶ 19. The latest
action complained of occurred in June 1998, at which time
Defendant Judge Abraham found Plaintiff to be in direct civil
contempt of court. See id. ¶ 35. Plaintiff's Complaint
contains no allegations of conduct beyond 1998.
Plaintiff's § 1983 claim had to have been filed before June
2000 and his RICO claim had to have been filed before June 2002.
Plaintiff's Complaint was not filed until December 2003, and as
such the Complaint is untimely. "Statutes of limitations are not
arbitrary obstacles to the vindication of just claims, and
therefore they should not be given a grudging application." Cada
v. Baxter HealthCare Corp., 920 F.2d 446, 453 (7th Cir. 1990).
"They protect important social interests in certainty, accuracy,
and repose." Id.
For the foregoing reasons, Defendants' Motions to Dismiss [4-1;
6-1; 20-1; 36-1] are granted. Plaintiff's Complaint is dismissed
IT IS SO ORDERED.