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.
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.)
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. ...