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Terry v. Woller

April 22, 2010


The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge


The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the court is the defendant's motion (#39) to dismiss Counts III and IV and to strike plaintiff's prayer for punitive damages. As explained herein, the motion is GRANTED IN PART AND DENIED IN PART.


In the Supreme Court's most recent articulation of the standards that govern motions to dismiss, the Court made it clear that notice pleading is still the rule. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court did emphasize, however, a plaintiff's obligation to plead more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 1964. The complaint must include enough factual allegations to "to raise a right to relief above the speculative level." Id.. The Court went on to note that:

Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only "fair notice" of the nature of the claim, but also "grounds" on which the claim rests.

Id. at 1965. The Seventh Circuit has cautiously applied Bell. See discussion in Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008).

In Lang v. TCF Nat'l Bank, - F.3d -, No. 07-1415, 2007 WL 2752360, Sept. 21, 2007 (7th Cir.), the court noted that notice-pleading is still all that is required: a plaintiff still must provide only "enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, and, through his allegations, show that it is plausible, rather than merely speculative, that he is entitled to relief." Lang, 2007 WL 2752360, at *2.

Notice pleading means that, for purposes of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff; its well-pleaded factual allegations are taken as true, and all reasonably-drawn inferences are drawn in favor of the plaintiff. Bell Atlantic, 550 U.S. at 555.

Where fraud or mistake is alleged, the complaint "must state with particularity the circumstances constituting the fraud or mistake." Fed.R.Civ.P. 9(b). This means the plaintiff must plead the who, what, when, where, and how of the fraud. DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). See Siegel and Siegel v. Shell Oil Co., 480 F.Supp. 2d 1034, 1039 (N.D.Ill 2007), citing Vicom Inc. v. Harbridge Merchant Svcs, Inc., 20 F.3d 771,777 (7th Cir. 1994).


This four count complaint arises out of Edward Woller's legal representation of Gregory Terry during criminal proceedings. The following factual recitation is taken from the allegations of the complaint, which are accepted as true for purposes of this motion,.

Terry was a passenger in a car driven by Keith Sanders; the car was owned by Sanders' girlfriend. Plaintiff went with Sanders from Flint, Michigan (where Sanders' girlfriend lived) to Des Moines, Iowa, to watch a basketball game in which Sanders' cousin was playing. The men drove all night to get to Iowa. They stopped briefly at the home of a friend of Sanders and then began to return to Michigan when Sanders was unable to locate his cousin. Sanders was stopped for speeding in Illinois, and a sealed box containing cannabis was found in the trunk of the car. The pair were arrested and charged with cannabis trafficking, unlawful possession with intent to deliver, and unlawful possession of cannabis. Terry told the arresting officer all of the above. Sanders, on the other hand, made incriminating statements, indicating he was solely responsible for the existence of the cannabis in the car.

Woller represented both Terry and a co-defendant in their subsequent criminal trials. Prior to entering into this arrangement, Woller did not explain to Terry all the implications of common representation, including benefits and/or consequences, nor did he explain matters sufficiently to allow Plaintiff to make informed decisions about the joint representation.

In opening statements during Terry's trial, Woller told the jury that Sanders might testify. Terry testified at his trial, consistently with what he had told the arresting officer. The arresting officer also testified that Sanders had stated Terry had nothing to do with the drugs. On further questioning, he clarified that Sanders' statement meant that Sanders was the sole owner of the cannabis. Although Sanders was willing to waive his Fifth Amendment rights, Woller did not call him to testify in Terry's trial, and Terry was ...

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