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Elrod v. City of Chicago


November 1, 2007


The opinion of the court was delivered by: Judge Mark Filip

Magistrate Judge Geraldine Soat Brown


Plaintiff Maria Elrod, as administrator of the estate of Kenneth Elrod, and plaintiff Cristina Centera, on her own behalf and as administrator of the estate of Demetri Centera (collectively, "Plaintiffs") filed separate complaints pursuant to 42 U.S.C. § 1983 against defendants City of Chicago ("the City") and individual police officer Edward Yerke. The lawsuits allege that on the same night, April 7, 2006, Yerke beat up Kenneth Elrod and shot and killed Demetri Centera. (Centera Comp. ¶¶ 6-8; Elrod Compl. ¶¶ 5-8.) Centera's lawsuit was reassigned to District Judge Filip as related to Elrod's. [Dkt 42.] In addition to claims under state law, both Plaintiffs bring § 1983 claims of excessive force against Yerke, and claims against the City pursuant to Monell v. Department of Social Servs. of City of New York, 436 U.S. 658 (1978), alleging that certain customs, policies, and practices of the City caused the alleged constitutional violations.

Presently before the court is Defendants' Motion to Bifurcate § 1983 Claims and to Stay Discovery and Trial On Those Claims ("Defs' Mot.") [dkt 43], which the District Judge referred to this court for decision. [Dkt 45.]*fn1 The City has offered to stipulate to the entry of judgment against it for any compensatory damages awarded to Plaintiffs if any City employee is found to have violated Plaintiffs' constitutional rights as alleged in their Complaints. (Defs.' Mot. Leave Cite Suppl. Auth., Ex. B, Stip. ¶ 5.) [Dkt 57.]

For the following reasons, Defendants' Motion is granted. Plaintiffs' claim against Yerke under § 1983 and Plaintiffs' state law claims are bifurcated from Plaintiffs' Monell claims against the City, and discovery on the Monell claims, including expert discovery, is stayed at least until after discovery on Plaintiffs' remaining claims has been completed.


Fed. R. Civ. P. 42(b) provides, in pertinent part, that "[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim . . . or of any separate issue or of any number of claims . . . ." District courts have discretion in determining whether to try issues separately pursuant to Rule 42(b). McLaughlin v. State Farm Mut. Auto Ins. Co., 30 F.3d 861, 870 (7th Cir. 1994); see also Medina v. City of Chicago, 100 F. Supp. 2d 893, 894 (N.D. Ill. 2000) (stating that "[t]here is no question that a district court has the discretion to sever a Monell claim against a municipality from claims against individual police officers and stay litigation of the Monell claim until the rest of the case is resolved") (citing Treece v. Hochstetler, 213 F.3d 360, 364 (7th Cir. 2000)).

The issue of whether to bifurcate a Monell claim from the discovery and trial of the underlying constitutional tort claim (and the related state law claims) is one that has been addressed by a number of courts in this district. Some judges have exercised their discretion in favor of bifurcating the Monell claims from the other claims.*fn2 Other judges have refused to bifurcate Monell claims.*fn3 Some of the judges denying motions to bifurcate indicated a willingness to revisit the issue again later or deferred discovery on the Monell claims until after the completion of fact discovery on the other claims. See, e.g., Medina, 100 F. Supp. 2d at 898 (stating intention to revisit issue of bifurcation at later point in the litigation and deferring discovery on Monell claim); Lopez, 2002 WL 335346 at *3 (deferring discovery on Monell claim).

Thus, there is a growing body of precedent in this district for both granting and denying bifurcation in § 1983 cases. Although most of the courts deciding the issue begin their discussions with the same general principles, the outcome of each decision is dependent upon the facts of that particular case. Thus, this opinion will not recite the analyses of the many various cases granting or denying bifurcation, but rather will consider the principles in light of the facts of this case and the parties' arguments.

Here, Defendants argue that bifurcation would expedite the litigation process and promote judicial economy, allowing the City to avoid potentially unnecessary discovery and litigation costs, and protecting Yerke from possible prejudice. (Defs.' Mot. at 2-4.) Plaintiffs respond that bifurcation will decrease efficiency because the same discovery will be needed to prove the Monell claims as the other claims and discovery disputes will increase, that bifurcation will result in two trials rather than one, that limiting instructions can be used to cure any prejudice to Yerke, and that there are non-economic benefits such as deterrence that would be lost if bifurcation is ordered. (Pls.' Resp. at 4-7, 9-10, 13.) [Dkt 47, 53.]

A. Avoiding a Trial of the Monell Claims

Defendants' primary argument is that bifurcation should be ordered because a trial on the Monell claims will not be necessary, and therefore, discovery on those claims can be dispensed with. In order to assess that argument, it is necessary to review the relationship between the Monell claims against the City and the claims against the individual officer, Yerke.

Monell held that a local government can be sued under 42 U.S.C. § 1983, but only "when execution of a government's policy or custom . . . inflicts the injury." 436 U.S. at 694. When the local government's failure to train its officers constitutes "deliberate indifference" to a person's rights and causes a deprivation of a person's constitutional rights, the local government is liable to that person for his injuries. See, e.g., Canton v. Harris, 489 U.S. 378, 388-89 (1989). However, "[m]isbehaving employees are responsible for their own conduct[;] 'units of local government are responsible only for their policies rather than misconduct by their workers." Estate of Sims v. County of Bureau, _____F.3d _______, 2007 WL 3036752 (7th Cir. 2007)(citations omitted). Thus, to prevail on a Monell claim, a plaintiff must go beyond proving that an individual municipal employee violated the plaintiff's constitutional rights. A fundamental issue here is whether the City's proffered Stipulation makes such additional proof, and the related discovery, unnecessary.

To start, if Plaintiffs cannot prove that Yerke violated their constitutional rights, their Monell claims against the City will fail as a matter of law, and the litigation will be over without the need for a trial on the Monell claims. See Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (stating that "neither [Monell] nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm").

If Plaintiffs prove that Yerke violated their constitutional rights, they are not entitled to recover any additional compensatory damages from the City because of their Monell claims. See, e.g., Spanish Action Committee of Chicago v. City of Chicago, 766 F.2d 315, 321 (7th Cir. 1985). Thus, the City argues, if Plaintiffs win a verdict against Yerke, Plaintiffs may decide as a practical matter that it is not necessary to go forward to try the Monell claim. However, although Plaintiffs may not recover any additional damages, if Plaintiffs prove that Yerke's violation of their rights was a result of the City's policy, the City as well as Yerke is liable to Plaintiffs for the damages caused thereby. Monell, 436 U.S. at 690, 691-92, 694.

Defendants argue that it is not necessary or efficient to have a trial of all of the additional issues necessary to prove the Monell claims just to obtain a judgment against the City for the same amount as the judgment against Yerke. Under Illinois law, a local government is required to pay tort judgments for compensatory damages for which its employees are liable for acts within the scope of their employment. 745 Ill. Comp. Stat. § 10/9-102. The Illinois statute permits a plaintiff to bring a claim directly against the municipality and obtain a judgment requiring the municipality to pay the amount due to the plaintiff from the officer. Wilson v. City of Chicago, 120 F.3d 681, 684-85 (7th Cir. 1997). Thus, if a plaintiff obtains a judgment for compensatory damages against the individual officer, he may recover the amount of the judgment from the municipality with no need to prove his Monell claim. See Patterson, No. 03 C 4433, dkt 298 at 5; Medina, 100 F. Supp. 2dat 895-96 (stating that, "from an economic standpoint, a prevailing plaintiff in a § 1983 excessive force case against police officers in Illinois gets nothing more from suing the municipality under Monell than he would get from suing just the officers. . . . As a result, plaintiffs generally choose to forego the more difficult route of seeking to hold the municipality liable under Monell"); Grant v. City of Chicago, 2006 WL 328265 at *1, 3 (N.D. Ill. Feb. 10, 2006) (Lefkow, J.) (stating that, "[i]n the final analysis, the plaintiff gains nothing in her pocket from a [Monell]judgment against the City").*fn4

There is no guarantee, however, that the municipality will concede liability under the Illinois statute if a verdict is rendered against an individual officer. The municipality may dispute payment, for instance, by arguing that the plaintiff cannot prove that the police officer was acting within the scope of his employment -- a requirement under the Illinois statute. See 745 ILCS 10/9-102. Here, the City has denied that Yerke acted within the scope of his employment with respect to plaintiff Elrod, but admitted that Yerke acted within the scope of his employment with respect to plaintiff Centera. See Elrod, No. 06 C 2505, Answer ¶ 4 [dkt 21]; Centera, No. 07 C 203, Answer ¶¶ 4, 73, 77 [dkt 16]. If liability under the statute is contested, the plaintiff may be forced to spend significant time litigating the issue, which would delay her ultimate recovery.

Here, the City has offered to stipulate to the entry of judgment against it for any compensatory damages awarded against Yerke or any other City employee as a result of a finding of a constitutional violation as alleged by Plaintiffs. (Mot. Leave Cite Suppl. Auth., Ex. B, Stip.) [Dkt 57.] Thus, if Plaintiffs establish a constitutional injury, the City's Stipulation requires the City to pay any award of compensatory damages without Plaintiffs' proving the Monell prerequisites to the City's liability, in other words, without any trial on Plaintiffs' Monell claims.

The Stipulation is not an admission of liability that the City's policies or practices caused Plaintiffs' injuries; on the contrary, the City deniesin its Stipulation that it "has any 'policies, customs or practices' that cause constitutional deprivation" or that "caused the alleged violations that would give rise to liability under section 1983." (Stip. ¶ 4.) However, significantly, the City is not merely waiving Plaintiffs' need to prove certain elements required in a Monell claim, it is agreeing to "entry of judgment against the City for compensatory damages" if the finder of fact finds that "any City employee violated plaintiffs' constitutional rights as alleged in their Complaints." (Defs.' Mot. Leave Cite Suppl. Auth., Ex. B, Stip. ¶ 5.)

The City's submission of similar stipulations has been cited as justifying bifurcation orders in several cases. See, e.g., Parker, 479 F. Supp. 2dat 828, 829, 834 (granting bifurcation where city stipulated to paying monetary judgment entered against its employee); Patterson, No. 03 C 4433, dkt 410 (same); Coffie, No. 05 C 6745, dkt 136 at 1 (same); Grant, 2006 WL 328265 at *1, 3 (barring trial of Monell claims where city provided stipulation to entry of judgment against it); Lopez, No. 01 C 1823, dkt 160 at 2 (same). Indeed, in at least one case, the judge modified his recommended ruling denying bifurcation based on the City's submission of a clearer, more comprehensive stipulation to judgment against it if the plaintiff were to establish a violation by any City employee. Booker, No. 04 C 6371 [dkt 249]. Conversely, in several cases in which the City did not offer a stipulation of judgment against it, its motion to bifurcate was denied. See, e.g., Lopez, 2002 WL 335346 at *3 (denying bifurcation and noting that the city had not offered to stipulate to a judgment against it for compensatory damages awarded to the individual officers); Medina, 100 F. Supp. 2dat 897-98 (same); Nessel, 1994 WL 685508 at *2.

In some cases the assertion of a defense of qualified immunity by the individual officer raises the potential scenario in which a plaintiff who proves a constitutional violation loses his claim against the individual defendant because of the defense of qualified immunity, but could prevail against the City under Monell by proving that the violation was the result of a municipal policy or custom. See Owen v. City of Independence, 445 U.S. 622, 625 (1980); Medina, 100 F. Supp. 2d at 896. In such a case, unless the City stipulates to pay damages notwithstanding the individual officer's qualified immunity, a trial on the City's Monell liability would not be avoided, and bifurcation would result in the possibility of two trials with at least some duplicative evidence.

Although Yerke has pleaded the defense of qualified immunity in this case (Def. Yerke's Answer at 12 [dkt 25]), the likelihood of a defendant prevailing on that defense in the context of an excessive force claim has not been a persuasive argument against bifurcation. See Grant, 2006 WL 328265 at *3 (citation omitted) (stating that court was "at a loss to imagine how the scenario could occur in this case, where the facts alleged clearly state a claim for excessive force, and the right to be free from excessive force is clearly established"); Bailey v. City of Chicago, No. 07 C 204, dkt 41 at 2 (April 18, 2007) (Conlon, J.) (finding plaintiff's argument that officers might prevail on qualified immunity to be "speculative, and unpersuasive in light of the other factors supporting bifurcation"); Parker, 479 F. Supp. 2d at 828, 833 (finding that a qualified immunity defense was a "remote possibility, given the allegations in this complaint," which involved a police officer's misconduct).*fn5

In summary, there is no doubt that including the Monell claims pleaded by Plaintiffs would add to the length and complexity of the trials of this case. If the Monell claims are omitted, the trial of the remaining claims "is likely to be shorter, and perhaps significantly shorter, than a trial also involving Monell claims." Medina, 100 F. Supp. 2dat 895; see also Myatt, 816 F. Supp. at 1264 (noting plaintiff's acknowledgment that proof of a "code of silence" policy relating to Monell claims would take one to two additional trial days). To the extent that a successful Monell claim serves to ensure payment of the damages to Plaintiffs, that goal is achieved by the Stipulation. Thus, bifurcation under the condition of the proposed Stipulation would promote the goals of judicial economy, expediency, and convenience.

B. Deferring discovery relating to Monell issues

Discovery relating to a Monell claim regarding a municipality's policies and practices "can add significant time, effort, and complications to the discovery process." Medina, 100 F. Supp. 2d at 895. Many courts have referred to that fact in granting motions to bifurcate. See, e.g., Jones, 1999 WL 160228 at *3 (stating that bifurcating can avoid the potential for "extremely costly and burdensome, yet ultimately unnecessary, discovery"); Parker at 834 (stating that Monell discovery "may inflict needless, wasteful expense of time and money upon the parties and the court"); Bailey, No. 07 C 204, dkt 41, at 2 (ordering bifurcation where Monell discovery was likely to be extensive and time consuming yet probably unnecessary); Patterson, No. 03 C 4433, dkt 410 (determining that bifurcating would be more efficient based on fact that plaintiff identified numerous witnesses who would testify solely on issue of Monell liability, and that the need for expert discovery on municipal policy issues would be eliminated).

In this case, the parties dispute the extent to which the discovery process can be abbreviated by bifurcation. Citing Plaintiffs' discovery requests relating to the Monell claims, Defendants assert that the discovery and litigation costs involved with Plaintiffs' policy claims alone consist of producing "thousands of documents" from the Chicago Police Department, the City Council and its committees, and the Police Board, as well as numerous Rule 30(b)(6) witnesses for deposition, and retaining and defending expert witnesses and busy public officials, including Aldermen. (Defs.' Mot. at 3; Defs.' Reply at 3.)*fn6 Plaintiffs counter that much of the Monell discovery has in fact already been completed because it overlaps with the discovery in four other shooting cases being litigated by Plaintiffs' counsel against the City, and that "the primary discovery needed here is only "to fill in the gap with the missing files to catch the documents up to this April 2006 shooting." (Pls.' Resp. at 2.) They claim that "[w]hat is really at stake is around a half-dozen extra depositions and several boxes of documents." (Pls.' Resp. at 9.)

Plaintiffs' argument is hard to reconcile with the scope of Plaintiffs' discovery requests.*fn7

A similar argument was raised by the plaintiff in Bailey, No. 07 C 204 [dkt 41], and rejected by the court. In that case, the plaintiff also claimed that the discovery burden associated with the Monell issues would be modest and would require only "a half-dozen extra depositions and several boxes of documents." Id. at 2. The court found the plaintiff's estimate of the discovery burden to be unrealistic considering her discovery requests to the City, which included a request for "[a]ll documents relating to any discharge of a weapon by any Chicago Police Officer for the five years preceding May 2, 2006, including all Complaint Register files and U-files." Id. Plaintiffs in this case served an identical request on the City, which is just part of the Monell discovery sought.

(Defs.' Mot., Ex. B, Centera's Req. to Prod. No. 37.) If Plaintiffs were confident that all they need is "to fill in the gap" of other evidence, there would be no need for requests of the breadth served here. Furthermore, whether the discovery produced in other, unrelated cases would be admissible in the trial of these cases is not certain. Thus, discovery on the Monell claims is likely to be substantial, notwithstanding Plaintiffs' attempts to minimize it.

Of greater force is Plaintiffs' argument that the discovery on the Monell claims is also discovery that is relevant to the remaining claims. (Pl.'s Resp. at 4-5.) For example, they argue that evidence regarding other shooting investigations (such as the manner in which shooting investigations are conducted) is relevant to both the underlying claims and the Monell claims, to show that the investigations are conducted in a manner so as to shield the officers, which could help impeach or undermine statements made by supposedly unbiased investigators. (Pls.' Resp. at 4-5, 7.) They suggest that bifurcation will result in discovery disputes regarding "what types of discovery fall on which side of the artificial line," ultimately slowing down discovery. (Pls.' Resp. at 2, 7-8) That concern has been expressed by other courts. See Jones, 1999 WL 160228 at *3; Myatt, 816 F. Supp. at 1264; Patterson, No. 03 C 4433, dkt 298at 4 (denying bifurcation, although granting bifurcation in later decision).

Whether the Monell claims so overlap with the remaining claims as to undermine any efficiencies to be derived from bifurcation of discovery is a decision that must be made on a case-by-case basis. After reviewing the claims in this case, the court is not persuaded that proof of the § 1983 claim against Yerke and state law claims would include substantially all of the evidence that would need to be presented to prove the Monell claims. Nor is it persuaded that distinguishing the Monell discovery from the other discovery will be unusually problematic in this case. Plaintiffs' excessive force claims each involve a single incident relating to Yerke's actions on the one night in question. There are no other defendants, no other allegations of constitutional violation except excessive force. Those facts suggests that it is more efficient to bifurcate the Monell claims and to stay Monell discovery until at least after discovery regarding the underlying claims is completed (and perhaps ultimately bypassing that discovery altogether). See, e.g., Parker, 479 F. Supp. 2dat 828, 834 (granting bifurcation and noting that "[t]he commonplace nature of the case -- an allegation of police officer's misconduct -- is significant").*fn8

Discovery in this case can proceed on the claim against Yerke and related state law claims, while deferring discovery relating to the Monell claims. Notably, even Defendants acknowledge that discovery on the claim against Yerke involves certain areas of municipal practice. (Defs.' Reply at 4.) In the event that, in fact, the expected economies and efficiencies do not develop, the issue of bifurcation can be revisited.

C. Potential Prejudice from Trial of Both Monell and Individual Liability

Defendants argue that bifurcation of the trial will protect Yerke from the possible prejudice of introducing at trial evidence regarding police shootings in which Yerke was not involved, or other evidence regarding the City's policies for addressing police officer misconduct, such as how the Police Department investigates and disciplines its officers after shooting incidents. (Defs.' Reply at 7-8.) While some courts have considered the potential prejudice to the individual defendant in granting motions to bifurcate, see, e.g., Myatt, 816 F. 1264 n. 8; Jones, 1999 WL 160228 at *3, other courts have noted that such prejudice can be cured by limiting instructions. See, e.g.,Medina, 100 F. Supp. 2dat 897 (stating that "[t]hough the court is cognizant of the possibility of prejudice to the individual officers if the claims are tried together, our system generally trusts jurors to understand and follow limiting instructions regarding consideration of evidence against some defendants and not others"); Nessel, 1994 WL 685508 at *2.

The City's argument could, in theory, apply to virtually every case that involved both individual liability and Monell policy claims, because the nature of a Monell claim requires evidence that goes beyond the actions of the individual defendant. Generally, the issue of avoiding prejudice at trial is better addressed by application of the Rules of Evidence, rulings in limine, and limiting instructions. This argument is not, in itself, a persuasive reason for bifurcation.

D. Accountability for, and Deterrence of, Civil Rights Violations

Plaintiffs raise one final argument to be considered, namely, that there are non-economic benefits to suing a municipality which may be less likely to occur when a plaintiff pursues only the individual officer in a § 1983 case. Plaintiffs here intend to prove that the City's system for investigating and disciplining shootings is so "thoroughly broken" that officers can act "virtually guaranteed of impunity, a climate that encourages the sorts of abuses alleged here." (Pls.' Resp. at 13.) Plaintiffs argue that the goal of deterrence will be lost if they cannot pursue their Monell claims against the City, and argue that it is important for them to hold all parties accountable, especially the City. (Pls.' Resp. at 11-12.)

There is no doubt that holding municipalities to account for constitutional violations resulting from the municipality's policies, customs or practices is an important goal of § 1983. See Owen, 445 U.S. at 650. Notably, in Owen, the Supreme Court referred to "[a] damages remedy against the offending party" as "a vital component of any scheme for vindicating cherished constitutional guarantees . . ." Id. at 651. In its Stipulation here, the City agrees to be liable for any constitutional violation committed by its employees, even without proof that the violation is the result of a policy, custom or practice.

Plaintiffs argue that more than mere monetary liability is necessary to deter unconstitutional acts that have their root in the City's policies, customs and practices. Several courts have opined that a judgment against a police officer (even one paid for by the municipality) may be less likely to prompt the municipality to act to prevent future violations than a judgment naming the municipality itself as responsible based on its policies and customs.*fn9 Other courts conclude that an obligation to pay the judgment is sufficient deterrent.*fn10

It is important to remember that bifurcation does not mean dismissal of the Monell claims. Plaintiffs retain the right to discover and try their Monell claims. Bifurcation in this case means structuring the process to facilitate a more economical and efficient process of discovering the merits of the underlying § 1983 claim, at the conclusion of which the parties will have the opportunity to consider possible settlement or go to trial on the underlying claim, without having incurred the expense of discovery relating to the Monell claims. If settlement is not reached and the trial results in a verdict for one or both of the Plaintiffs, the Plaintiffs reserve their right to discover and try the Monell claims. The City's Stipulation does not eliminate that right.


For the foregoing reasons, Defendants' Motion to Bifurcate § 1983 Claims and to Stay Discovery and Trial On Those Claims is granted. Discovery on Plaintiffs' Monell claims, including expert discovery, is stayed until after discovery on Plaintiffs' remaining claims has been completed. A status hearing before this court is set for November 6, 2007 at 9:45 a.m..


GERALDINE SOAT BROWN United States Magistrate Judge

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