United States District Court, N.D. Illinois, Eastern Division
October 5, 2004.
RICHARD ROTHMAN, on behalf of himself and classes of persons similarly situated, Plaintiffs,
CITY OF CHICAGO, BENTANCOURT REALTY NETWORK, et al., Defendants.
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 declaration before us as to
Count V, Rothman's prior indication of a lack of interest in
injunctive relief is instructive.
In addition, regardless of Rothman's interest or lack of
interest in injunctive relief, he fails to make the allegations
necessary to assert standing for pursuing such relief under the
ADA. Rothman claims that Defendants' criminal contempt petition
damaged his reputation and caused him public embarrassment and
emotional distress. (SA Compl. Par. 166). Even if we take these
allegations as true, Rothman does not have standing to pursue
injunctive relief under the ADA. Past wrongs are not enough to
create standing for injunctive relief. The litigant must
demonstrate a "realistic threat" of suffering similar wrongs in
the future or "continuing, present adverse effects" flowing from
the initial wrong. Perry v. Sheahan, 222 F.3d 309, 313-14 (7th
Rothman's complaint does not include any claim that Defendants
will subject him to similar actions in the future, and thus does
not proffer any claim of injury that preventive relief might
redress. As that is the only remedy available under
42 U.S.C. 2000a-3(a), Rothman lacks standing to proceed with Count V of his
complaint. Therefore, we grant Defendants' motion to dismiss that
count. II. Doctrine of Res Judicatta (Count IV)
Defendants argue that Count IV of Rothman's complaint is barred
under the doctrine of res judicata. We need not address
Defendants' argument concerning the doctrine of res judicatta
because, even if the claim in Count IV is not barred in the
instant action, the claim is the only remaining claim in this
action and we decline to exercise supplemental jurisdiction over
this remaining claim. Rothman states specifically in his second
amended complaint that this court has subject matter jurisdiction
in this action pursuant to 28 U.S.C. § 1331 and has subject
matter over the state law claims pursuant to 28 U.S.C. § 1367 and
the doctrine of supplemental jurisdiction. (SA Compl. Par. 16).
Under 28 U.S.C. § 1367(c)(3), a federal district court may
dismiss a plaintiff's supplemental state law claims if it "has
dismissed all claims over which it has original jurisdiction."
28 U.S.C. § 1367(c)(3). The decision to dismiss supplemental claims
is discretionary. Larsen v. City of Beloit, 130 F.3d 1278, 1286
(7th Cir. 1997). In exercising that discretion, the court should
consider a number of factors, including "the nature of the state
law claims at issue, their ease of resolution, and the actual,
and avoidable, expenditure of judicial resources. . . ." Timm v.
Mead Corp., 32 F.3d 273, 277 (7th Cir. 1994).
In this case, the factors listed above strongly support the
dismissal of Rothman's malicious prosecution claim in the instant
action. A malicious prosecution claim concerning a matter in
state court is by its nature more appropriately addressed in
state court. Also, Defendants have shown that Rothman chose to file his claims for malicious prosecution both in this
court and in Illinois state court, a litigation strategy that the
Seventh Circuit has sharply criticized. See Rogers v.
Desiderio, 58 F.3d 299, 300 (7th Cir. 1995) (stating that the
Seventh Circuit "deprecates the practice of filing two suits over
one injury. . . ."). In addition, while the precise status of
Rothman's state claims is uncertain, it is clear that the
litigation in that court is closer to final disposition than the
case before us. The state court, though it dismissed Rothman's
malicious prosecution claim and denied his motion to reconsider,
also gave him leave to file an amended claim on that count. Thus,
Illinois courts have already expended their judicial resources on
this case, and there is no justification for continuing to
duplicate their efforts in this court. As the Seventh Circuit
explained in Rogers, courts do not reward plaintiffs for filing
duplicate litigation, and we decline to do so here. Id. We find
that under the circumstances in the instant action that a
dismissal of Count IV would promote the efficient use of judicial
There is also more recent case law in the Seventh Circuit that
indicates that a district court should avoid addressing remaining
supplemental claims when possible. The Seventh Circuit has stated
that where a court dismissed a federal claim and the sole basis
for invoking federal jurisdiction is now nonexistent, that court
should not exercise supplemental jurisdiction over remaining
state law claims. See Williams v. Aztar Indiana Gaming Corp.,
351 F.3d 294, 300 (7th Cir. 2003) (stating that if there is a
dismissal of the original jurisdiction claim and only a
supplemental jurisdiction claim remains "the sole basis for
invoking federal jurisdiction is nonexistent and the federal courts should not exercise supplemental jurisdiction over
his remaining state law claims."); Wright v. Associated Ins.
Cos. Inc., 29 F.3d 1244, 1251 (7th Cir. 1994) (stating that "the
general rule is that, when all federal-law claims are dismissed
before trial, the pendent claims should be left to the state
courts."). Therefore, we decline to exercise continuing
supplemental jurisdiction over Count IV of Rothman's complaint.
Based on the foregoing analysis, we grant Defendants' motions
to dismiss Counts IV and V of the second amended complaint.
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