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Dean v. City of Chicago

August 31, 2009


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Nineteen plaintiffs have sued the City of Chicago and police officer Richard Fiorito pursuant to 42 U.S.C. § 1983. The defendants have moved to sever the plaintiffs' claims or in the alternative for a separate trial of each plaintiff's claim.


The case began as a single-plaintiff suit by James Dean, Jr. against the City, officer Fiorito, and another officer named Hazard. After the defendants answered the complaint, Dean moved pursuant to Local Rule 40.4 for reassignment to the undersigned judge's calendar of five other suits by different plaintiffs against the City and Fiorito, arguing that the cases were "related" within the meaning of the Rule. The same attorneys represented the plaintiff and defendants in all of the cases; the cases all named the same defendants; and they all included a claim against the City alleging that the constitutional violations were caused by the same policy or practice of the City. The Court entered and continued the motion on the ground that it was premature, largely because the defendants had not yet answered the complaints in the other cases. The Court suggested to plaintiffs' counsel, however, the possibility of filing a single complaint including the claims of all of the plaintiffs.

About two weeks later, Dean filed an amended complaint joining eighteen other plaintiffs. All of the plaintiffs allege that Fiorito falsely arrested them for driving under the influence (DUI) on various dates from 2003 through early 2009, most of them during the 2007-2009 period. Plaintiffs allege that Fiorito made these false arrests as part of a continuing course of conduct motivated by, among other things, pecuniary gain and anti-gay and lesbian animus.*fn1 See Am Compl. ¶¶ 12, 21. They allege that Fiorito, who worked a night shift and allegedly resisted shift changes, is paid overtime whenever he goes to court because court appearances always take place outside his shift. Id. ¶ 24. Plaintiffs also allege that although most police officers have a single monthly "key date" for court appearances, which they use on traffic citations they issue, Fiorito is permitted to have four key dates and routinely appears in court on additional days beyond those four -- as many as four days per week, plaintiffs allege. Id. ¶ 26.

Plaintiffs allege that the City maintained a common set of policies that caused their false arrests: the agreement to provide overtime pay to officers making court appearances outside their shifts; the absence of limits on overtime pay; the absence of oversight for unnecessary or excessive court appearances and for abuse of the overtime system; the failure to limit the number of key dates per officer; acquiescence in Fiorito's refusal to allow a video camera to be installed in his squad car; and the failure to follow up on complaints by other officers about Fiorito's abuse of overtime pay claims. Id. ¶ 27. Plaintiffs contend that these policies encouraged Fiorito to make false arrests to increase the amount of his overtime pay. Plaintiffs also allege that Fiorito engaged in a common practice of falsifying certain recurring items in his reports of his DUI arrests and of giving false testimony at trials and other proceedings relating to the arrests. Id. ¶¶ 13-19.


Defendants have moved to sever the claims of the plaintiffs pursuant to Federal Rule of Civil Procedure 21, arguing, in essence, that each plaintiff should have to file a separate suit. See Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117, 1122 (7th Cir. 1999) (successful Rule 21 motion results in independent actions). In the alternative, they seek a separate trial of each plaintiff's claim pursuant to Federal Rule of Civil Procedure 42(b).

Rule 21 is simple and straightforward; it states that "[m]isjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party." Fed. R. Civ. P. 21. The rule gives a court "broad discretion" in determining whether to sever a claim. Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th Cir. 2000).

The propriety of joinder is determined pursuant to Federal Rule of Civil Procedure 20(a). Under Rule 20(a)(1), [p]ersons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action. Fed. R. Civ. P. 20(a)(1). Rule 20(a)'s purpose in permitting joinder of separate plaintiffs' claims is "is to enable economies in litigation." Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000).

It is relatively obvious that the arrest of each plaintiff in this case is a different transaction or occurrence as Rule 20(a) uses those terms. But it is equally true that the arrests are part of a "series of transactions or occurrences," a separate basis permitting joinder under Rule 20. This term "comprehend[s] a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir.1974).

The defendants rely heavily on the Seventh Circuit's decision in Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994). In Thompson, the first plaintiff alleged that the defendant police officer had subjected him to excessive force in arresting him following a high-speed chase. The district judge denied a motion to add a second plaintiff who also alleged that he was a victim of excessive force by the defendant officer and that the municipality that employed the officer had a policy of condoning his use of excessive force. The court of appeals, noting the broad discretion accorded to a district judge under Rule 20, see id. at 858, concluded that the trial had had not "abuse[d] its wide discretion" in denying the second plaintiff's motion to join the case. Id. The court noted that the two incidents were separated by about two years, a factor that also exists in the present case. Id. Another significant factor not existing in the present case, hwoever, was the fact that the second plaintiff in Thompson sought to join the case over a year after Thompson filed suit. The court noted that allowing joinder ...

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