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Airborne Beepers & Video, Inc. v. SouthWestern Bell Mobile Systems

April 11, 2006

AIRBORNE BEEPERS & VIDEO, INC., AN ILLINOIS CORPORATION, PLAINTIFF,
v.
SOUTHWESTERN BELL MOBILE SYSTEMS, LLC, D/B/A CINGULAR WIRELESS AND PARK MANAGEMENT & INVESTMENT, LTD., DEFENDANTS.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

Before the court is defendant Cingular Wireless's motion to dismiss the Third Amended Complaint. For the following reasons, the motion is granted in part and denied in part.

BACKGROUND

Plaintiff Airborne Beepers & Video, Inc. ("Airborne") originally brought this suit against defendant Southwestern Bell Mobile Systems, LLC, doing business as Cingular Wireless ("Cingular"). In the latest amendment to the complaint, plaintiff added another defendant: Park Management & Investment, Ltd. ("Park"). Gustavo R. Calderon, who was formerly a plaintiff, is the president and majority shareholder of Airborne. We have recounted many of the facts at issue in this case in prior memorandum opinions and will not repeat them here.

The instant motion to dismiss concerns the Third Amended Complaint. We previously dismissed all of the claims alleged in the original complaint, some with prejudice and some without, and gave plaintiffs leave to file an amended complaint. Plaintiffs did so; another motion to dismiss resulted; and we again dismissed some of the claims with prejudice and some without and gave plaintiffs leave to file a second amended complaint.

Another motion to dismiss followed the filing of the second amended complaint. In ruling on that motion, we noted that plaintiffs had not followed our instructions regarding curing the deficiencies in their complaints and stated: "We would be more than justified in dismissing the entire Second Amended Complaint, but we will attempt to salvage what we can notwithstanding plaintiffs' failure to comply with our prior order." (Memorandum Opinion of June 23, 2005 at 3-4.) Once again, we dismissed some of the claims with prejudice and some without, and gave plaintiffs leave to file a third amended complaint. We warned that if the third amended complaint did not comply with the pleading requirements set forth in our opinion, it would be dismissed summarily with prejudice.

Shortly after we issued our memorandum opinion regarding the second amended complaint, plaintiffs' attorney filed a motion for leave to withdraw as counsel for plaintiffs, which was granted. At that time, Calderon indicated that he was attempting to hire another attorney, so we extended by over a month the time we had previously given plaintiffs to file a third amended complaint. We told Calderon that the Third Amended Complaint would have to comply with our instructions and warned that "[i]f you strike out, that will be the end of it." (Tr. of July 13, 2005 Motion Hearing at 5.)

A Third Amended Complaint Was Then Tiled, Which Removed

Calderon as a plaintiff, leaving only Airborne, and added Park as a defendant as well as additional claims. The problem with the complaint was that Calderon filed it "pro se"--not on behalf of himself but on behalf of Airborne, a corporation. Cingular moved to strike the complaint, asserting correctly that a corporation cannot proceed "pro se."

By the time of the next hearing, which was on September 7, 2005, Calderon had hired a new attorney to represent Airborne, Michael Vitale. At the hearing, we asked Mr. Vitale (aside from the issue of the complaint having been filed pro se) whether in his view, the allegations of the Third Amended Complaint stated a claim. Mr. Vitale stated that he believed that they did, and he requested leave to re-file the first and last pages of the Third Amended Complaint with his signature so that Airborne would be properly represented. We struck the Third Amended Complaint that had been filed by Calderon and gave plaintiff leave to file a new Third Amended Complaint, filed by counsel. Because Cingular indicated that it would be moving to dismiss the anticipated Third Amended Complaint, we set a prospective briefing schedule.*fn1 Then, after Cingular's attorney requested that no additional amendments to the complaint be allowed, we specifically advised counsel: "I'll deal with any question of another complaint if I dismiss this one, but I do suggest to you, Mr. Vitale, if you can improve this one in some way that would avoid a dismissal, now is the time to do it." Counsel replied: "I understand that, Your Honor. I've advised my client of that." We also instructed plaintiff's counsel as follows: "If you do make any changes [to the complaint], let [defendant's] counsel know what the changes are so she doesn't have to pore through the voluminous third amended complaint to find out what they are." (Tr. of Tr. of September 7, 2005 Motion Hearing at 7-8.)

Plaintiff's counsel did not make any substantive changes to the complaint. On October 14, 2005, Cingular moved to dismiss the Third Amended Complaint. Shortly thereafter, Mr. Vitale moved to withdraw as counsel for plaintiff. The motion was granted. Plaintiff then hired another attorney--plaintiff's fourth attorney in this case--who requested, and received, an extension of time to respond to the motion to dismiss. The motion to dismiss is now fully briefed.

DISCUSSION

A. Plaintiff's Request for Leave to File a Fourth Amended Complaint

We will first address a threshold issue. In its response to Cingular's motion to dismiss, plaintiff requests leave to file yet another amended complaint: "Plaintiff's former lawyers failed to modify or edit any of the pleadings supplied by the Plaintiff. Plaintiff consequently has had to obtain other counsel in his attempt to cure any deficiency in accordance with this Court's prior opinions. To that ...


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