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Kane v. Village of Southern View

November 1, 2007

RON KANE AND KAREN KANE, PLAINTIFFS,
v.
THE VILLAGE OF SOUTHERN VIEW, AN ILLINOIS MUNICIPAL CORPORATION, JANIE STANLEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, NORA PETROSKY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, THE V.O.I.C.E. OF SOUTHERN VIEW, INC., AN ILLINOIS NOT-FOR-PROFIT CORPORATION, JANIS GRAY, INDIVIDUALLY, WALTER ADE, INDIVIDUALLY, AND LEROY SOLOMON, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

In an Opinion and Order entered on July 30, 2007, the Court allowed the Defendants' joint motion for summary judgment. Judgment was entered in favor of the Defendants and against the Plaintiffs. Pending before the Court are motions for attorney's fees [d/e 100] and bills of costs [d/e 99] submitted by Defendants Village of Southern View, Janie Stanley and Nora Petrosky and motions for attorney's fees [d/e 101] and bills of costs [d/e 104] submitted by Defendants Janis Gray, Walter Ade, Leroy Solomon, The V.O.I.C.E. of Southern View, Inc.

Plaintiffs Ron and Karen Kane's complaint under 42 U.S.C. § 1983 was premised on their assertion that their constitutional rights were violated when a group of citizens of the Village of Southern View, one of the Defendants, began organizing and meeting in opposition to the construction of a structure on Plaintiffs' property. The Court concluded that the Defendants were entitled to summary judgment because they were not state actors acting under color of state law and thus could not be liable under section 1983. Moreover, the Plaintiffs did not show that they were deprived of a federally guaranteed right.

I. Motions for Attorney's Fees

A. Motion filed by the Village, Stanley and Petrosky

In support of their motion for attorney's fees, Defendants Village of Southern View, Janie Stanley and Nora Petrosky argue that the claims brought pursuant to 42 U.S.C. § 1983 were utterly groundless and without foundation.*fn1 Throughout the litigation, the Defendants have contended that the Plaintiffs have failed to plead any facts to establish that any individual Defendant deprived Plaintiffs of a federally guaranteed right or acted under the color of law. The Defendants note that they have also consistently asserted that Plaintiffs have not pled, and would not be able to prove, that a municipal policy or custom caused their injury.

The Defendants further contend that when they filed a motion for summary judgment, the Plaintiffs made no responsive attempt to articulate how they were deprived of a federally guaranteed right by Janie Stanley's alleged act of reporting to the police, or Nora Petrosky's purported act of instructing other Defendants to take photographs. The Defendants allege that Plaintiffs make no attempt to explain how they could prove any named Defendant was acting under "color of law" and also failed to identify a municipal policy or custom to establish the Village's liability.

The Defendants assert that in lieu of a responsive argument to refute the Defendants' summary judgment arguments, the Plaintiffs appeared to assert a new basis for recovery in their response. They claim, however, that minimal research revealed that under the "Noerr-Pennington" doctrine, the Defendants were immune from liability for their effort to band together, file suit, win election and pass legislation in opposition to Plaintiffs' pole barn and/or neighborhood auto repair business. According to the Defendants, the Plaintiffs' failure to even attempt to provide the Court with an argument to support the original factual allegations in their complaint clearly demonstrates that those allegations were groundless and without foundation. Morever, the Plaintiffs have not explained how the newly asserted conduct caused the deprivation of federally protected rights; how they could prove Defendants were acting "under color of law;" or how this conduct became a "municipal policy or custom." The Defendants contend that not only do the Plaintiffs provide no argument, or case citation, to connect the newly asserted facts to a legal theory of liability, the facts of the new theory described the Defendants' political advocacy, which is protected under the "Noerr-Pennington" doctrine. See Tarpley v. Keistler, 188 F.3d 788, 793-97 (7th Cir. 1999).

The Defendants also contend that Plaintiffs failed to develop any evidence to support their claim for intentional infliction of emotional distress. In their response to the Defendants' motion for summary judgment, the Plaintiffs conceded that the Defendants did not engage in extreme or outrageous conduct which is required to support such an action. They acknowledged, moreover, that no Defendant caused the Plaintiffs to suffer severe emotional distress. Thus, the Defendants allege that Plaintiffs' original factual allegations were groundless and without foundation.

Counsel for these Defendants states that the total fees incurred and paid in defense of Plaintiffs' allegations in this case exceed $18,818.20, which does not include the fees incurred in preparing the motion for attorney's fees.

B. Motion filed by The V.O.I.C.E., Gray, Ade and Solomon

For many of the same reasons, Defendants The V.O.I.C.E. of Southern View, Inc., Janis Gray, Walter Ade and Leroy Solomon also contend that they are entitled to attorney's fees. Count IV alleged that Ade and Solomon violated Plaintiff's civil rights when Ade drove his car down the public street while Solomon took two photographs of Plaintiffs' garage from the passenger seat. It was alleged that Petrosky, a Southern View Board trustee, advised them to take pictures of the activities happening in Plaintiff's garage. The Defendants contend that Plaintiffs did not offer any further evidence to bolster their "color of law" argument. Even if the Plaintiffs could have provided evidence that the Defendants were state actors, the Plaintiffs would still be unable to establish that taking photographs from a public street violate a person's constitutional rights.

The Defendants note that in Count V, the Plaintiffs allege that their civil rights were violated when Gray took pictures of their home while parked in her car on a public street across from the home. The Defendants claim that Plaintiffs attempted to show state action by asserting that Gray took the pictures from the property of Southern View Village Trustee Stanley. However, the police report states that Gray took the photos from a public road. The Defendants note that the "color of law" argument would fail anyway because Stanley had not yet been sworn in as a trustee at the time she allegedly instructed Gray to take the pictures.

In Count VI, the Plaintiffs alleged that Defendant V.O.I.C.E. violated their rights by acting in conspiracy with other Defendants and in conspiracy with Petrosky and/or Stanley. The Defendants assert that no facts were alleged to support these allegations, and V.O.I.C.E. did nothing at all by way of involvement in the allegations contained in the case. The Defendants state that on this point particularly, they join the arguments made by Stanley and Petrosky in their motion. Regarding the intentional infliction of emotional ...


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