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Nguyen v. Cumbo

November 23, 2010


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


Defendants Anna Cumbo, Sam Beccara, and Angela Beccara ("Defendant Lessors") move this court to dismiss the counts pled against them in Plaintiffs' Fourth Amendment Complaint under Federal Rule of Civil Procedure 12(b)(1). Plaintiffs Dung Nguyen ("Danny"), Mydung Nguyen ("Mydung"), and Linh Nguyen ("Linh"), collectively "Plaintiffs," oppose this motion. For the following reasons, the Court grants Defendant Lessors' motion to dismiss [39] Plaintiffs' claims against them without prejudice for lack of subject-matter jurisdiction.

I. Background*fn1

On January 25, 2010, Plaintiffs filed the instant lawsuit against Defendant Lessors, the City of Countryside, Illinois ("the City"), the Countryside Police Department, Countryside Police Officers James Stern and Steve Muszynski, and Countryside Police Sergeant John Mikel ("Defendant Officers") [1]. On March 19, 2010, Plaintiffs filed a Third Amended Complaint, withdrawing the Countryside Police Department from their lawsuit [27]. On April 27, 2010, Plaintiffs filed a Fourth Amended Complaint [37], and on May 12, 2010, Defendant Lessors filed the instant motion to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(1) [39].

Plaintiffs are sibling Vietnamese immigrants who together own and operate Lee Nails, a nail salon in Countryside, Illinois that was located in the strip mall owned by Defendant Anna Cumbo ("Cumbo"). ¶¶ 8-9. Cumbo also owns a diner inside the strip mall called "Little Joe's." ¶ 9. Defendant Angela Beccara is Cumbo's daughter. Angela is married to Defendant Sam Beccara. ¶¶ 4-5.

On March 17, 2005, Lee Nails entered into a five-year commercial lease with Cumbo to rent space in her strip mall. ¶ 11. Plaintiffs allege that soon after their lease began, Anna Cumbo, and eventually her daughter and son-in-law, began a pattern of harassment towards Lee Nails and its customers that continued until Plaintiffs were forced to move out of their salon. Plaintiffs allege that Cumbo repeatedly inspected Lee Nails without reasonable notice as required by their lease (¶¶ 17-22; 28), that she harassed and prevented customers from parking in the parking lot (¶¶ 19, 25-26, 32), that she destroyed the business's telephone cords (¶ 27), that she placed glue in their locks (¶ 29), that she repeatedly turned off the water to the salon, rendering them unable to perform manicures (¶¶ 30, 38-40, 38-42, 59), and that she ripped an "AUTHORIZED PERSONNEL ONLY" sign from the front door of Lee Nails (¶ 31). Defendants Sam and Angela Beccara allegedly assisted in some of these acts. Plaintiffs suggest that this behavior began because Cumbo was upset over being denied free manicures by the salon. ¶¶ 23-24.

According to Plaintiffs, as the harassment by Cumbo escalated, Cumbo began utilizing the City police force against the salon. Plaintiffs allege that numerous officers in the Countryside Police Department, including the Defendant Officers, receive free food from Little Joe's and are friends with Cumbo and the Beccaras. ¶ 10. On August 2, 2007, Linh and Angela Beccara got into a screaming match over a parking space, and the police were called. ¶ 33. Defendant Officer Stern and another Countryside police officer responded and told the Nguyens that they would be arrested if they did not settle the ongoing dispute with their landlord. Id. The next day, Cumbo had an electrician shut off the power to Lee Nails. ¶ 35. Later that day, Cumbo was escorted by Defendant Officer Mikel and two other officers as Cumbo delivered a notice regarding repairs needed at the salon. Id. On October 24, 2007, one of these officers (Officer Wherry) filed a police report documenting an "ongoing civil lease problem" between Cumbo and Lee Nails involving the electrical fix to the exterior lights. ¶ 36. On April 28, 2008, Officer Agostino Alonzo escorted Cumbo when as she delivered a $190 bill for excess water usage. ¶ 37. Plaintiffs allege that under the terms of the Lease, sewer and water bills are to be paid by the Lessor. ¶ 12. On June 14, 2008 Defendant Officer Stern came to the salon to attempt to resolve the water dispute, but was unable to do so. ¶ 42.

According to Plaintiffs, on September 15, 2008, at approximately 8 p.m., Angela Beccara called the Countryside Police to report water running in a sink at Lee Nails. ¶ 43. Officer Stern and Muszynski responded to the call. At approximately 8:15 p.m., Sam Beccara witnessed Linh Nguyen outside of the salon, using a gun-shaped cigarette lighter to light incense as part of her daily Buddhist prayer ritual. ¶ 44. Sam called 911 to report a "lady with a gun." Id. Defendant Officers Stern and Muszynski returned to the nail salon. ¶ 44. The officers called for backup to handle the situation, and several other officers in squad cars arrived, including Defendant Sergeant Mikel. Id.

One of the officers immediately grabbed Linh, arrested her, handcuffed her, and sat her down in front of the salon. ¶ 45. Officers then entered the salon and arrested Danny, who was in the back room. ¶ 46. When Linh attempted to stand and see what was happening, Defendant Officers Stern and Muszynski allegedly pushed her down to the pavement, and she then lost her balance, the impact of the fall causing serious bruising and injuries. ¶ 47. Mydung attempted to call a friend from the back room, but an officer grabbed the phone while Sergeant Mikel roughly handcuffed her and placed her under arrest. ¶ 50. Plaintiffs allege that the officers were intimidating and verbally abusive throughout the incident.

Plaintiffs were brought to the police station in separate squad cars and placed in separate cells. ¶ 50. Mydung was handcuffed to a bench so tightly that her hands turned purple. ¶ 54. Mydung wanted to use the bathroom, but was told that in order to do so, she had to remove her jewelry. She initially decided against using the bathroom because she did not want to take off her jewelry, but as time passed the urge grew so powerful that she was forced to urinate on the floor of her cell, still handcuffed to the bench, and in full view of a security camera. ¶¶ 53, 55-56. Linh was denied the ability to make a phone call for approximately an hour. ¶ 52. None of the Plaintiffs were told why they were being arrested or read their Miranda rights. ¶ 51. At 1:40 a.m., after approximately four and a half hours in detention, Plaintiffs were released. ¶ 57.

Plaintiffs allege that the harassment, sometimes with police involvement, continued after the arrest. On September 18, 2008, two police officers allegedly came to Plaintiffs' house, inspecting and taking pictures of it, which frightened Plaintiffs' mother inside. ¶ 58. On October 1, 2008, following a complaint by one of the Defendant Lessors, three Countryside police officers issued a citation to Lee Nails for theft of water. ¶ 61. This citation was later dismissed. ¶ 62. Beginning on October 15, 2008, the salon allegedly started experiencing harassment from unidentified men, who at various times shined car headlights into the salon (¶ 63), entered the salon and asked "What time is it?" before entering Little Joe's (¶¶ 64, 68), and intimidated Danny Nguyen (¶ 74). Meanwhile, Sam Beccara began loitering in front of the salon and harassing customers (¶¶ 65-66), and allegedly ordered an unknown man to approach Danny and "get" him and Linh. ¶¶ 69-71. Plaintiffs called the police, who filed an incident report but did not come to the scene. ¶ 71. Angela Beccara approached a Lee Nails customer in the parking lot, turning around when the customer started to take a cell phone photo (¶ 67), and later took pictures of other Lee Nails customers. Plaintiffs allege that one night the Countryside Police called to inform them that the back door to the salon was unlocked and open, despite Plaintiffs' certainty that they had locked it. ¶ 72. The door was later found to be securely locked. Id. The Countryside Police reported to Linh that the basis for their information was a call from Angela Beccara. ¶ 73. Plaintiffs later received a lecture from the Fire Marshal that they characterize as harassing (¶ 75), and were told by Countryside Police to stop taking pictures because it was making Cumbo nervous (¶ 76).

This state of affairs eventually became untenable for Plaintiffs, and they moved out sometime before November 12, 2009, although they continued paying rent. ¶ 78. Plaintiffs allege that soon after Plaintiffs moved out, Defendant Lessors changed the locks on the property, unplugged Plaintiff's surveillance equipment inside (which the police refused to investigate, calling the incident a "civil matter"), took down signs directing customers to the salon's new location, and stored their personal property inside the empty space in violation of the lease agreement. ¶¶ 78-82.

Plaintiffs' complaint alleges a battery of claims against Defendant Lessors, the City of Countryside, and Defendant Officers. Defendant Officers and the City of Countryside are charged with seven violations of 42 U.S.C. § 1983: Excessive Force (Count I), Unlawful Detention (Count II), False Arrest (Count III), Deliberate Indifference to Medical Needs of a Pretrial Detainee (Count IV), Civil Conspiracy (Count V), and Failure to Intervene (Count VII). Defendant Officers and the City are also charged with state law Malicious Prosecution (Count VIII). Defendant Lessors are accused of a civil conspiracy under Illinois state law (Count VI), Intentional Infliction of Emotional Distress (Count X), Private Nuisance (Count XII), Intrusion Upon Seclusion (Count XIII), Tortious Interference with Prospective Economic Advantage (Count XIV) and Breach of Contract (against Cumbo alone) (Count XI). Finally, Plaintiffs assert a claim for indemnification against the City of Countryside under 42 U.S.C. § 1983 (Count IX).

The only basis for federal jurisdiction for the claims asserted against Defendant Lessors is supplemental jurisdiction. 28 U.S.C. § 1367(a). Defendant Lessors contend that Plaintiffs' federal claims against the City and the Defendant Officers under 42 U.S.C. § 1983 are insufficiently related to the state law claims against them for supplemental federal jurisdiction to lie under 28 U.S.C. § 1367(a), and accordingly move ...

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