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SMJ TOWING, INC. v. VILLAGE OF MIDLOTHIAN

December 16, 2005.

SMJ TOWING, INC., STEVEN JERITSKI, DAVID BROWN, and RON COHEN, Plaintiffs,
v.
VILLAGE OF MIDLOTHIAN, ILLINOIS VINCE SHAVONE, TERRY SULLIVAN, MATTHEW KNEELAND, DANIEL DELANEY, DETECTIVE RICH BELL, DETECTIVE HAL KAUFFMAN, JR., SERGEANT TOM STEEL, PATROL COMMANDER JOHN WINKLE, SERGEANT MIKE AMREIN, and others, Defendants.



The opinion of the court was delivered by: AMY ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs SMJ Towing, Inc. ("SMJ Towing"), Steven Jeritski, David Brown, and Ron Cohen filed a five-count First Amended Complaint against Defendants Village of Midlothian, Illinois, Vince Shavone, Terry Sullivan, Matthew Kneeland, Daniel Delaney, Detective Hal Kauffman, Jr., Sergeant Tom Steel, Patrol Commander John Winkle, Sergeant Mike Amrein, and other unknown officers, agents, and detectives of the Village of Midlothian Police Department, both individually and in their official capacities. Before the Court is the Defendants' Partial Motion to Dismiss SMJ Towing's claims in the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). As discussed below, the Court grants in part and denies in part Defendants' Partial Motion to Dismiss. LEGAL STANDARD

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of a complaint, not the factual sufficiency. Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). The Court will only grant a motion to dismiss if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Centers v. Mortgage, Inc., 398 F.3d 930, 933 (7th Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In making its determination, the Court must assume the truth of the facts alleged in the pleadings, construe the allegations liberally, and view them in the light most favorable to the plaintiff. Centers, 398 F.3d at 333.

  BACKGROUND

  I. Parties

  Plaintiff Steven Jeritski owns SMJ Towing, Inc., an Illinois corporation with its headquarters in Harvey, Illinois. (R. 33-1; Pls.' First Am. Compl. ¶¶ 1, 2.) SMJ Towing is in the business of relocating trespassing vehicles from private property to its impound lot in Harvey, Illinois. (Id.) SMJ Towing has been a licensed commercial relocator since 1998 and has complied with all relocation towing industry laws and regulations under that license. (Id. ¶¶ 12, 14.) As a licensed commercial relocator, SMJ Towing owns numerous contracts to remove unauthorized and trespassing vehicles from private properties within a 10-mile radius of SMJ Towing's impound lot. (Id. ¶ 13.) Once removed, SMJ Towing transports the vehicles to its impound lot, and the vehicle owners must then pay towing and storage fees to recover their vehicles. (Id.) SMJ Towing conducts some of its relocation towing business within the municipal boundaries of Midlothian. (Id.) Defendant Village of Midlothian, Illinois is an Illinois municipality that employed Defendants Vince Shavone, Terry Sullivan, Matthew Kneeland, Daniel Delaney, Hal Kauffman, Jr., Tom Steel, John Winkle, Mike Amrein, and other unknown police personnel at the Midlothian Police Department during all times relevant to the allegations in Plaintiffs' First Amended Complaint. (Id. ¶¶ 3-5.) All of the Midlothian Police Department employees were acting under the color of state law during the relevant time period. (Id. ¶¶ 4, 5.)

  II. SMJ Towing's Claims

  On September 8, 2005, Plaintiffs filed their First Amended Complaint against Defendants. Therein, Plaintiffs allege that despite SMJ Towing's legitimate operations in the municipal boundaries of Midlothian, "Defendants have implemented an unwritten practice, procedure, and course of conduct aimed at SMJ Towing, which has the improper and illegal purpose of preventing SMJ Towing from conducting its lawful relocation activities within Midlothian for which it was licensed." (Id. ¶ 15.) Further, Plaintiffs allege that Vince Shavone and other Midlothian Police Department employees have "designed, approved, and/or countenanced" this unwritten practice and conduct. (Id.) These allegations are based upon numerous incidents and statements involving the Midlothian Police Department and its employees occurring between January 2004 and February 2005. (Id. ¶¶ 15-26.)

  Relevant to this Motion to Dismiss are Counts I, III, and V of the First Amended Complaint. In Count I, SMJ Towing alleges that Defendants violated its constitutional right to procedural due process under the Fourteenth Amendment. (Id. ¶¶ 29-34.) Count III alleges that Defendants violated SMJ Towing's constitutional right to equal protection under the Fourteenth Amendment. (Id. ¶¶ 42-46.) Last, in Count V, SMJ Towing alleges that Defendants defamed it in violation of Illinois common law. (Id. ¶¶ 52-59.) ANALYSIS

  I. Procedural Due Process Claim (Count I)

  In Count I of their First Amended Complaint, Plaintiffs allege that Defendants have intentionally or recklessly deprived SMJ Towing of its property interest in its relocator's license and its authority to legally relocate trespassing vehicles covered by its contracts. SMJ Towing also alleges that there are no adequate state law remedies to compensate it for the Defendants' interference with its use and enjoyment of these property interests.

  A party asserting a procedural due process claim must allege that (1) a state actor deprived the party of a protected interest, and (2) the deprivation occurred without due process of the law. See Brooks v. University of Wis. Bd. of Regents, 406 F.3d 476, 481 (7th Cir. 2005); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). When property rights are involved, the due process clause is not violated if a meaningful post-deprivation remedy for the loss is available to the plaintiff. See Veterans Legal Defense Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003). Thus, where state remedies exist, a party must either avail himself to the remedies guaranteed by state law or demonstrate that these remedies are inadequate. Doherty, 75 F.3d at 323.

  Assuming, arguendo, that SMJ Towing is asserting a protected property interest, the Court must still dismiss this procedural due process claim because adequate state remedies are available to SMJ Towing. See Veterans Legal Def. Fund, 330 F.3d at 941(dismissing plaintiffs' procedural due process claim because plaintiffs did not deny the availability of state remedies or provide a coherent argument why the remedies would be inadequate); Gable v. City of Chicago, 296 F.3d 531, 539-40 (7th Cir. 2002) (dismissing plaintiff's procedural due process claim because adequate state remedies existed). Here, Defendants contend that the state remedy of tortious interference with contract is an adequate remedy. SMJ Towing does not argue that a claim based on the tortious interference of its contracts is not an adequate remedy, but that only injunctive relief and compensatory damages can justifiably make it whole. SMJ Towing, however, fails to explain why it cannot bring an action for both injunctive relief and compensatory damages based on the tortious interference of a contract in Illinois state court. Indeed, such practice is not uncommon. See, e.g., Garibaldi v. ...


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