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McDorman v. Smith

August 11, 2006

KIMBERLY MCDORMAN AND JOSEPH PIEKIELKO, PLAINTIFFS,
v.
OFFICER KEVIN SMITH, MICHAEL SANCHEZ, SGT. DANIEL MCDONALD, LT. DENNIS WALSH, KELLY HJELLUM, KARI HJELLUM, DONALD LEWIS, MICHAEL SHIELDS, CHRIS DINGLE, JOSE TORRES, GABRIELLE KRUPA, BRIAN RIVERA AND CITY OF CHICAGO, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiffs Kimberly McDorman ("McDorman") and Joseph Piekielko ("Piekielko") allege that McDorman was seriously injured when the car she was driving, which is co-owned by Piekielko, was struck by a vehicle driven by defendant Michael Sanchez ("Sanchez"), an off-duty Chicago Police Department ("CPD") officer. Plaintiffs allege that Sanchez was intoxicated at the time of the accident. Plaintiffs also allege that pursuant to a custom or practice of the CPD, CPD officers responding to the accident conspired to falsify a police report to conceal Sanchez's identity and other information regarding the incident, and wrongfully charged plaintiff with traffic violations.

In a Memorandum Opinion and Order dated June 14, 2006, this court granted in part and denied in part Sanchez's motion to dismiss plaintiff's corrected third-amended complaint. McDorman v. Smith, 2006 WL 1641548 (N.D.Ill. June 14, 2006). This court dismissed Count XI, plaintiffs' equal protection claim under 42 U.S.C. § 1983, as to all defendants. On June 26, 2006, the City of Chicago ("City") filed a motion for clarification, arguing that Count I of the corrected third amended complaint, a claim under Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91 (1978), must be dismissed in the absence of an underlying constitutional deprivation. On July 7, 2006, plaintiffs' filed a motion under Fed. R. Civ. P. 59(e) to reconsider the dismissal of Count XI, the equal protection claim, or, in the alternative, to grant plaintiffs leave to file an amended complaint under Fed. R. Civ. P. 15(a).

On July 12, 2006, plaintiffs filed a motion for leave to file a fourth amended complaint. On July 13, 2006, the court granted the City's motion to clarify, stating that unless it granted plaintiffs' motion to reconsider the dismissal of the equal protection claim, the Monell claim would be dismissed. On July 27, 2006, defendants Kari and Kelly Hjellum (the "Hjellums") filed a motion to dismiss, arguing that if the federal claims were dismissed, the court should decline to exercise supplemental jurisdiction over the remaining state law claims. On July 28, 2006, defendant Donald Lewis ("Lewis") filed a motion to dismiss joining the Hjellums' motion. On August 1, 2006, this court entered and continued the motions to dismiss.

For the reasons stated below, plaintiffs' motion to file a fourth amended complaint is granted, and plaintiffs' motion to reconsider the dismissal of the equal protection claim is denied as moot. The Hjellums' and Lewis's motions to dismiss are denied as moot because federal claims remain in the fourth amended complaint.

FACTS

The facts of this case are discussed at length in this court's two previous opinions. 2006 WL 1641548; McDorman v. Smith, 2005 WL 1869683 (N.D.Ill. Aug. 2, 2005). The factual allegations in the proposed fourth amended complaint are nearly identical to earlier complaints, with a few noteworthy changes that are discussed below.

Briefly stated, plaintiffs allege that McDorman was seriously injured on December 12, 2004, when the car she was driving, which was co-owned by Piekielko, was struck by a car driven by Sanchez. Plaintiffs allege that Sanchez was off-duty and intoxicated at the time of the accident, and that the Hjellums were passengers in the car driven by Sanchez. Defendants Kevin Smith ("Smith"), Sergeant Daniel McDonald ("McDonald"), Lieutenant Dennis Walsh ("Walsh"), Michael Shields ("Shields"), Chris Dingle ("Dingle"), Jose Torres ("Torres"), Gabrielle Krupa ("Krupa"), and Brian Rivera ("Rivera") (collectively, "Responding Officers") are CPD officers who responded to the scene of the accident. Defendant Lewis works for the City as an investigator for the Office of Professional Standards ("OPS").

Plaintiffs allege that the Hjellums knew and the Responding Officers became aware that Sanchez was inebriated, that he was the driver of the vehicle that collided with the car driven by McDorman, and that he was at fault for the collision. Plaintiffs allege that all of the individual defendants conspired to conceal these facts by generating a false police report, issuing two citations to McDorman, which were subsequently dismissed, providing false information, and covering up Sanchez's conduct. Plaintiffs allege that the CPD officers acted pursuant to a "code of silence" between CPD officers "so as to obstruct the legal process, to wit, to prevent honest information from coming forward relative to acts of misconduct." Plaintiffs allege a CPD custom and/or practice of withholding and falsifying information in police reports to protect fellow CPD officers, and that this practice is facilitated by the lack of legitimate investigations into misconduct by CPD officers by OPS investigators including Lewis.

DISCUSSION

The decision to grant a Rule 15(a) motion for leave to file an amended pleading is a matter "purely within the sound discretion of the district court" and shall be freely given when justice so requires. Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004); J.D. Marshall Int'l, Inc. v. Redstart, Inc., 935 F.2d 815, 819 (7th Cir. 1991); Fed. R. Civ. P. 15(a).

A district court may deny leave for several reasons including undue delay, bad faith, dilatory motive, undue prejudice to the opposing party due to allowance of the amendment, or futility of amendment. Dubicz, 377 F.3d at 787 (citing Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir. 2002)). Defendants argue that leave to amend should be denied because of plaintiffs' undue delay and dilatory tactics, and futility of the amendment.

I. Delay and Dilatory Tactics

Defendants argue that they will be prejudiced if plaintiffs are allowed to file a fourth amended complaint because plaintiffs have been dilatory in conducting discovery and have delayed the progress of the case. In support of this argument, defendants state that plaintiffs delayed having their depositions taken until March, 2006, that they have taken only one deposition (of the nurse who treated Sanchez), and that plaintiffs first expressed interest in scheduling the depositions of paramedics on July 17, 2006, after plaintiffs filed their motions to reconsider and for leave to amend again. Defendants also assert that plaintiffs have engaged in discovery "gamesmanship" by filing multiple discovery motions to prejudice the court against defendants. Plaintiffs respond that much of the delay is due to defendants' attempts to stymie plaintiffs' discovery by withholding documents and information, which has required plaintiffs to file five motions to compel and to put off scheduling depositions. The court need not, and will not, referee the parties' discovery disputes, which are being handled ably by Magistrate Judge Michael Mason. A brief review of the extensive docket before Judge Mason, ...


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