Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Torrence v. Advanced Home Care

May 21, 2009

WANDA TORRENCE, PLAINTIFF,
v.
ADVANCED HOME CARE, INC., ARAM APPAVU, AND SUGANTHI APPAVU, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff, Wanda Torrence ("Torrence"), filed a pro se complaint [1] on May 15, 2008, against Advanced Home Care, Inc. ("Advanced Home Care"), Aram Appavu ("Aram"), and Sue Appavu (collectively "Defendants"). Subsequently, Plaintiff amended her complaint [18] on November 10, 2008, replacing Sue Appavu with Suganthi Appavu, and asserting additional claims against Defendants. Currently before the Court is Defendants'motion to dismiss [22] Plaintiff's first amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 For the reasons stated below, Defendants' motion to dismiss is granted.

I. Background*fn2

Torrence suffers from hearing loss, carpal tunnel syndrome, osteoarthritis, and clinical depression. Advanced Home Care is a healthcare corporation owned by Aram and Suganthi Appavu. Advanced Home Care conducted monthly healthcare meetings in the building in which Torrence resides. On or about October 17, 2007, Torrence attended a healthcare meeting in her building conducted by Advanced Home Care. During the meeting, Torrence had her blood pressure taken by Aram. At that time, Aram recorded Torrence' s name, phone number, and blood pressure in a log.

Torrence alleges that between October 17, 2007 and November 1, 2007, Aram placed approximately 100 telephone calls to Torrence, and left approximately 50 messages on her voicemail. According to Torrence, Aram made sexual advances toward Torrence during the calls, which Torrence rebuffed. Torrence asked Aram to stop calling her house, but the calls continued. On or about October 31, 2007, Torrence telephoned Advanced Home Care and complained about Aram's harassing phone calls to a woman who identified herself as "Sue." Torrence later learned that the woman with whom she lodged her complaint was Aram's wife, Suganthi Appavu. Following Torrence's complaint, Advanced Home Care stopped conducting healthcare meetings at Torrence's residence.

Torrence then reported Aram' s sexual harassment to the Illinois Department of Financial and Professional Regulation and the Illinois Department of Health. Neither agency found any violation or carried out any disciplinary action against Advanced Home Care or Aram.

On March 12, 2008, an attorney for Advanced Home Care sent a letter to Torrence, stating that he understood that she had placed harassing phone calls to the Appavus and had made false allegations about Advanced Home Care to various state and federal agencies. The letter also suggested that Torrence was attempting to blackmail Defendants, and that she had a history of making false accusations. In the March 12th letter, the attorney requested that Torrence stop making complaints against Advanced Home Care, and stated that if she did not, Advanced Home Care would take legal action against her.

Counts I, II, III, and XIII of Plaintiff's first amended complaint assert claims under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.). Count XII alleges a violation of the Rehabilitation Act (29 U.S.C. § 791 et seq.). Count VIII seeks recovery pursuant to section 1983 (42 U.S.C. § 1983). Count XI alleges a breach of fiduciary duty in violation of section 404 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1104). Counts IV, V, VI, VII, IX, and X allege various Illinois state common law and statutory claims.

II. Legal Standard On Motion To Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).*fn3 To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005). While "[a] pro se complaint is held to ' less stringent standards than formal pleadings drafted by lawyers,'. a pro se complainant can plead himself out of court by pleading facts that undermine the allegations set forth in his complaint." Henderson v. Sheahan, 196 F.3d 839, 845-46 (7th Cir. 1999) (citation omitted). In ruling on a motion to dismiss, the Court may consider the complaint, the answer, and any written instruments attached to the complaint as exhibits. See Beanstalk Group, Inc. v. AM Gen. Corp., 283 F.3d 856, 858 (7th Cir. 2002); Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988).

III. Analysis

A. Plaintiff's Americans with Disabilities Act Claims (Counts I, II, III, and XIII)

Counts I, II, III, and XIII of Plaintiff's first amended complaint assert claims under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) ("ADA"). The ADA "forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III." Tennessee v. Lane, 541 U.S. 509, 516-17 (2004).

1. Count I

In Count I, Plaintiff alleges a deprivation of her "right to full and equal enjoyment of goods and services, privileges, and advantages of home healthcare."Count I appears to be based on Title III of the ADA, which provides that [n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. ยง 12182(a). To state a claim under Title III, Plaintiff must allege that: (1) she is disabled; (2) Defendant is a "private entity" which owns, leases or operates a "place of public accommodation"; and (3) she was denied the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.