The opinion of the court was delivered by: GEORGE MAROVICH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Jesus Alcala ("Mr. Alcala"), Maria Alcala ("Mrs.
Alcala") (together, the "Alcalas"), Jose Huerta and Macaela
Medina filed a nine-count complaint against Vincenzo Totaro ("Mr.
Totaro"), Maria Totaro ("Mrs. Totaro") (together, the "Totaros"),
Rocky Caruso ("Caruso"), Gary Lundeen ("Lundeen"), Audrey
Liverton ("Liverton"), Attorneys' Title Guaranty Fund, Inc., Mary
Lynn Chlada ("Chlada") and the Town of Cicero ("Cicero" or the
Two defendants, Chlada and Cicero, have moved pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure for an order
dismissing plaintiffs' four claims against them. For the reasons
set forth below, the Court denies defendants' motion to dismiss.
For purposes of this motion to dismiss, the Court takes as true
the allegations in the complaint. The alleged facts relevant to
this motion are described below. Jesus and Maria Alcala, a married couple, were looking to
purchase a home with an attached apartment so that they could
house Mrs. Alcala's parents, plaintiffs Jose Huerta and Micaela
Medina. In February 2002, the plaintiffs made an offer for a
property (the "Property") owned by the Totaros. On February 27,
2002, Mr. Alcala, Huerta, Medina and the Totaros signed a
contract for the Property, which contract provided that the
Totaros would convey title to the premises to Mr. Alcala, Huerta
and Medina in a recordable general warranty deed.
The Property at issue is located in the Town of Cicero. Cicero
is involved in every real estate transaction within its borders
by virtue of a transfer tax it imposes on real estate transfers.
The payment of the transfer tax is evidenced by the adhesion of a
Transfer Stamp to the face of the deed. The deed cannot be
recorded without the Transfer Stamp. In order to obtain a
Transfer Stamp, the seller must obtain a Certificate of
Compliance from the Building Commissioner, defendant Chlada. The
Building Commissioner is supposed to issue the Certificate of
Compliance only after the property is inspected and found to be
in full compliance with Cicero's housing code, building code,
electrical code and plumbing code, among others. Alternatively, a
seller can obtain a Transfer Stamp if the purchaser submits a
notarized affidavit that he or she is aware of the code
According to the complaint allegations, the Property never
received a Transfer Stamp. The difficulty seems to have started
with the inspection. The Property was inspected on March 5, 2002
by two Cicero inspectors, Ramiro Leon ("Leon") and Abner Vazquez
("Vazquez"). The two drafted an inspection report noting such
code violations as exposed wiring, an uncapped gas line, missing
Ground Fault Circuit Interrupters and an illegal basement
apartment. Mr. Totaro's son-in-law, defendant Caruso (who is
alleged to have given campaign contributions to Cicero politicians), was present at the inspection and insisted that
Leon and Vazquez write up a "clean" report that did not mention
any of the code violations. When Leon refused, Caruso asked Leon
if he knew who Caruso was and threatened him. When Leon continued
to refuse to draft a "clean" report, Caruso telephoned Building
Commissioner Chlada for assistance. Chlada spoke to Leon, asking
him whether he liked his job and warning him that he needed to
write a "clean" report if he wanted to retain his job. Leon
declined to write a "clean" report, and plaintiffs do not know
what happened to the original report. (Mr. Alcala claims that he
was not allowed to attend the inspection. Instead, it was not
until the fall of 2004 (when they were informed by Leon) that
plaintiffs learned that Chlada threatened Leon and that Leon had
found code violations at the March 2002 inspection.)
At the closing, plaintiffs' attorney noticed that the deed did
not contain a Transfer Stamp, although the closing statement
stated that the seller had paid for the Transfer Stamp. The
settlement agent (who also acted as the Totaros' attorney at the
closing) said he would purchase the Transfer Stamp the next day.
Although the settlement agent gave the Totaros the money for the
Property, he never purchased a Transfer Stamp. For more than two
years, the deed to the Property remained unrecorded, unbeknownst
to the plaintiffs.
In the summer of 2004, Mr. Alcala learned that deed had never
been recorded. Mr. Alcala attempted to obtain a building permit
from Cicero. The permit was rejected because Mr. Totaro was still
the recorded owner of the Property. Mr. Alcala then learned from
his attorney that the deed had never been recorded. The Property
was somehow scheduled for another inspection, which the Property
again failed. Despite the fact that the Property never received a Certificate of Compliance or a Transfer Stamp, another defendant
somehow managed to record the deed in December 2004, allegedly in
violation of state laws.
Based on these allegations, the plaintiffs bring four claims
against defendants Chlada and Cicero.*fn1 In Count I,
plaintiffs allege that Chlada and Cicero violated the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution by applying to plaintiffs a Certificate of
Compliance procedure that differed from the one applied to other
purchasers in Cicero. Plaintiffs also allege that defendants
wilfully and maliciously interfered with a building inspection.
In Count II, plaintiffs allege that defendant Cicero had a
systemic policy, custom or practice of utilizing and/or ignoring
the building code to serve the political and pecuniary interests
of Cicero's officials. In Count VI, plaintiffs allege that Cicero
and Chlada conspired with the Totaros and Caruso to commit fraud
against the plaintiffs by concealing from the plaintiffs the
building code violations discovered by Vazquez and Leon. In Count
IX, plaintiffs allege that pursuant to 745 ILCS 10/9-102 Cicero
is liable to pay damages for Chlada's conduct. Cicero and Chlada
have moved to dismiss these claims.
II. Standard on a motion to dismiss
The Court may dismiss claims pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure where the plaintiffs fail "to
state a claim upon which relief can be granted." Fed.R.Civ.P.
12(b)(6). In considering a motion to dismiss, the Court accepts
as true all well-pleaded factual allegations and draws all
reasonable inferences in the plaintiffs' favor. McCullah v.
Gadert, 344 F.3d 655, 657 (7th Cir. 2003). On a motion to
dismiss, the "issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims." Cole v. U.S. Capital, Inc., 389 F.3d 719, 724 (7th
Cir. 2004) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
A claim brought under 42 U.S.C. § 1983 against a municipality
is not subject to more stringent pleading requirements under
Rules 8 and 9 of the Federal Rules of Civil Procedure than are
other claims in federal court. Leatherman v. Tarrant Cty.
Narcotics Intell. & Coord. Unit, 507 U.S. 163, 168-169 (1993). A
plaintiff "need not plead facts; he can plead conclusions."
Jackson v. Marion Cty., 66 F.3d 151, 153 (7th Cir. 1995); see
also McCormich v. City of Chi., 230 F.3d 319, 324 (7th Cir.
2000) ("The smattering of phrases like `highest policymaking
officers' and `widespread custom' throughout [plaintiff's]
complaint is a common practice designed to ensure that the
complaint will withstand scrutiny under liberal notice pleading.
Some would assert that the inclusion of this language should be
`enough.' Others suggest ...