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October 5, 2004.

RICHARD ROTHMAN, on behalf of himself and classes of persons similarly situated, Plaintiffs,

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 ...

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