The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants' motion to
dismiss Counts IV and V of Plaintiff Richard Rothman's
("Rothman") second amended complaint. For the reasons stated
below, we grant Defendants' motion.
Sometime between May 2000 and October 2001, Rothman had an
agreement to purchase a condominium unit from Wolfram Towers
Partnership. According to Rothman, defendants Saul Waimberk
("Waimberk") and Betancourt Realty Network ("Betancourt") are
limited partners in that partnership. Rothman claims that he was prepared to close on his unit on October 4, 2001, but the
partnership canceled their agreement and litigation ensued, with
Rothman alleging that the partnership canceled the sale because
Rothman suffers from epilepsy.
In August 2002, Betancourt and Waimberk, along with Defendant
McNish, Knabe & Kronig ("MKK), a Chicago law firm, and Defendant
Bernard Rivkin ("Rivkin"), an attorney employed by MKK, filed a
criminal contempt petition against Rothman in Illinois state
court. This petition alleged improper service and other
procedural flaws surrounding Rothman's Third Amended Complaint in
his state court case. Judgment was entered in Rothman's favor on
the petition in November of 2002.
Rothman brought the instant action against Defendants and
included fourteen counts in his second amended complaint filed on
December 26, 2002. On May 14, 2003, Judge Darrah, the prior judge
in this action dismissed without prejudice Counts I, II, III, VI,
VII, XI, XII, XIII, and XIV. Rothman was given leave to amend the
counts within fourteen days of the ruling and Rothman failed to
file any amendments for those counts. On May 14, 2003, Judge
Darrah also dismissed with prejudice Counts VIII, IX, and X, and
denied Rothman's motion for a preliminary injunction on Counts
VI, VII, VIII, XI, and XII. Thus, after May 14, 2003, the only
remaining counts pending were Counts IV and V of the second
amended complaint. In Count IV Rothman alleges that Defendants'
actions constitute malicious prosecution under Illinois state
law. In Count V Rothman alleges that the same misconduct constituted retaliation against him for asserting his
rights under the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq.
On December 10, 2003, we dismissed this action pursuant to
Local Rule 41.1 for want of prosecution. We subsequently granted
Rothman's motion to reinstate the action. Defendants Bernard
Rivkin and McNish, Knabe & Kroning have filed a motion to dismiss
the remaining counts. Defendants Betancourt Realty Network and
Saul Waimbeck have also filed a motion to dismiss the remaining
counts. Defendants move to dismiss Counts IV and V which are the
remaining counts that are pending.
In ruling on motions to dismiss, the court must draw all
reasonable inferences that favor the plaintiff, construe the
allegations of the complaint in the light most favorable to the
plaintiff, and accept as true all well-pleaded facts and
allegations in the complaint. Thompson v. Illinois Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins
v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The
allegations of a complaint should not be dismissed on a 12(b)(6)
motion for failure to state a claim "unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a
motion to dismiss, a complaint must allege the "operative facts"
upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien
v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). The plaintiff
need not allege all of the facts involved in the claim and can
plead conclusions. Higgs v. Carter, 286 F.3d 437, 439 (7th Cir.
2002); Kyle, 144 F.3d at 455. However, any conclusions pled
must "provide the defendant with at least minimal notice of the
claim," id., and the plaintiff cannot satisfy federal pleading
requirements merely "by attaching bare legal conclusions to
narrated facts which fail to outline the bases of [his] claim."
Perkins, 939 F.2d at 466-67.
Defendants argue that we should dismiss Count V as to all
defendants because Rothman seeks relief in Count V that is not
available under the applicable provisions of the ADA. Defendants
also argue that this court should dismiss Count IV of Rothman's
complaint under the doctrine of res judicata. We also note that
on June 15, 2004, by minute order we indicated that Rothman was
required to file an answer to the instant motions to dismiss by
July 29, 2004. Rothman never filed an answer brief to either
motion to dismiss. Therefore, we shall only be addressing the
merits of Defendants' arguments since Rothman failed to file any
brief in opposition to the instant motions. I. ADA Claim (Count V)
Defendants contend that Rothman improperly seeks damages in
Count V under the ADA and does not include a request for
injunctive relief. At the end of Count V of Rothman's second
amended complaint is a heading entitled "RELIEF REQUESTED." (SA
Compl. 167). Under that heading Rothman states specifically that
he is seeking compensatory damages, punitive damages, attorneys'
fees, and costs. Id. Rothman has the same "RELIEF REQUESTED"
heading at the end of each count. Rothman seeks a remedy in Count
V under 42 U.S.C. § 12203(a), (SA Compl. 165), which is the
retaliation provision of the ADA. The retaliation provision
outlines the remedies available for ADA retaliation claims,
providing that "[t]he remedies and procedures available under
sections 12117, 12133, and 12188 of this title shall be available
to aggrieved persons for violations of subsections (a) and (b) of
this section, with respect to subchapter I, subchapter II and
subchapter III of this chapter, respectively."
42 U.S.C. § 12203(c). Section 12188(a)(1) provides remedies for a public
accommodation claim. Where the plaintiff alleges retaliation
based on a defendant's position as an owner, lessor, or operator
of "a place of public accommodation," then the available remedies
are those provided under 42 U.S.C. § 12188(a)(1). See Van Hulle
v. Pacific Telesis Corp., 124 F. Supp. 2d 642, 646 (N.D. Cal.
2000) (noting that the remedy for retaliation depends upon
whether that retaliation "occurred with respect to employment
[subchapter I], public services [subchapter II], or public
accommodations [subchapter III]").
Section 12188(a)(1) states that "[t]he remedies and procedures
set forth in section 2000a-3(a) of this title are the remedies and procedures
this subchapter provides. . . ." 42 U.S.C. § 12188(a)(1). Section
2000a-3(a) in turn permits a plaintiff to initiate "a civil
action for preventive relief, including an application for a
permanent or temporary injunction, restraining order, or other
order." 42 U.S.C. § 2000e-3(a). Thus, a plaintiff alleging
retaliation based on public accommodation discrimination may seek
only injunctive relief under the ADA. See Newman v. Piggie Park
Enters., Inc., 390 U.S. 400, 402 (1968) (noting that plaintiffs
proceeding under Title II of the Civil Rights Act of 1964, which
includes 42 U.S.C. § 2000a-3(a), "cannot recover damages"); A.R.
v. Kogan, 964 F.Supp. 269, 271 (N.D. Ill. 1997) (stating that
42 U.S.C. § 2000a-3 "(which was originally enacted as part of the
public accommodation provisions of the Civil Rights Act of 1964)
is specifically limited to providing injunctive relief and not
damages."). Rothman alleges in his complaint that "Defendant
Betancourt Realty Network is a place of public accommodation" and
cites to 42 U.S.C. § 12182, which relates to public accommodation
discrimination. (SA Compl. Par. 133, 135, 159). It is evident
from these allegations that Rothman bases his ADA retaliation
claim upon Betancourt's alleged status as a place of public
accommodation. See Early v. Bankers Life and Cas. Co.,
959 F.2d 75, 79 (7th Cir. 1992) (stating that "a plaintiff can plead
himself out of court . . . [o]f he alleges facts that show he
isn't entitled to a judgment. . . ."). Thus, Rothman may only
seek injunctive relief for Count V.
Rothman asks only for damages and does not include a prayer for
injunctive relief in Count V of his complaint. In his order
dismissing several counts of Rothman's complaint on May 14, 2003, Judge Darrah, the prior
judge in this case, noted that Rothman "concedes that he is not
seeking injunctive relief" in the dismissed counts "because
injunctive relief will not compensate him for the loss of his
home." While we do not have such a ...