The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Counter-Defendant Javon Patterson's (Patterson) and Counter-Defendant Robert M. Stephenson's (Stephenson) motions to dismiss the counterclaim. For the reasons stated below, we grant the motions to dismiss.
Patterson alleges that in January 2006, he was asked by an individual (Individual) to assist the Individual in stealing certain cocaine (Cocaine). Patterson contends that, although he refused to help the Individual, the Individual proceeded to steal the Cocaine. According to Patterson, certain Defendants subsequently came looking for the Cocaine and demanded that Patterson return the Cocaine. Certain Defendants also allegedly threatened to frame Patterson for a crime if he did not return the Cocaine. In addition, Patterson alleges that Defendants conspired to falsely accuse him of a crime and that Patterson was wrongfully arrested and prosecuted. Patterson further alleges that certain Defendants provided false information in order to further the criminal prosecution against Patterson. Finally, Patterson contends that his conviction was eventually overturned on appeal.
Patterson included in his complaint claims alleging violations of his due process rights brought pursuant to 42 U.S.C. § 1983 (Section 1983) (Count I), Section 1983 unlawful arrest and detention claims (Count II), Section 1983 conspiracy claims (Count III), Section 1983 malicious prosecution claims (Count IV), a Section 1983 Monell claim (Count V), state law malicious prosecution claims (Count VI), abuse of process claims (Count VII), intentional infliction of emotional distress (IIED) claims (Count VIII), state law conspiracy claims (Count IX), and indemnification claims (Count X).
Defendant City of Harvey, Defendant Keith Price (Price), Defendant Eric Kellogg (Kellogg), Defendant Jonathan Cook (Cook), and Defendant Sam White (White) (collectively referred to as "Harvey Defendants") moved to dismiss Counts II-IV, VI-VII, and IX, as to certain Harvey Defendants. Defendant Detective Hollis Dorrough Jr. (Dorrough) moved to dismiss Counts I-IV and VI-IX.
The court granted the motion to dismiss all claims brought against White. The court also granted the motion to dismiss all Section 1983 malicious prosecution claims. In addition, the court denied the motion to dismiss the Section 1983 unlawful arrest and detention claims, the Section 1983 conspiracy claims, the state law conspiracy claims, the state law malicious prosecution claims, and the abuse of process claims brought against Kellogg, Price, Cook, and Dorrough. Finally, the court denied Dorrough's motion to dismiss the Section 1983 due process claim and the IIED claim brought against him.
Kellogg, Price, and Cook subsequently filed a counterclaim against Patterson and Stephenson, who is one of Patterson's attorneys in the instant action. The counterclaim includes a defamation per se claim brought against Patterson (Count I), a defamation per se claim brought against Stephenson (Count II), a defamation per quod claim brought against Patterson (Count III), and a defamation per quod claim brought against Stephenson (Count IV). Counter-Defendants now move to dismiss all claims in the counterclaim, arguing that the claims should be dismissed under Federal Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)) for lack of subject matter jurisdiction and under Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)) for failure to state a valid claim for relief.
Rule 12(b)(1)requires a court to dismiss an action when it lacks subject matter jurisdiction. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). If the concern of the court or party challenging subject matter jurisdiction is that "subject matter jurisdiction is not evident on the face of the complaint, the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true." Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that when reviewing a motion to dismiss brought under Rule 12(b)(1), this court "must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff"). However, if the complaint appears on its face to indicate that the court has subject matter jurisdiction, "but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion." United Phosphorus, Ltd., 322 F.3d at 946. For the purpose of determining subject matter jurisdiction, this court "'may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'" Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir. 1993)). The burden of proof in regards to a Rule 12(b)(1)motion is "on the party asserting jurisdiction." United Phosphorus, Ltd., 322 F.3d at 946.
In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), a court must "accept as true all of the allegations contained in a complaint" and make reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is "inapplicable to legal conclusions"); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that contains factual allegations that are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).
I. Lack of Subject Matter Jurisdiction
Counter-Defendants argue that this court lacks subject matter jurisdiction over the claims in the counterclaim. Counter-Plaintiffs contend that this court has supplemental jurisdiction over the state law claims that are included in the counterclaim. (CC Par. 1). Pursuant to 28 U.S.C. § 1367(a), with limited exceptions, a federal court has supplemental jurisdiction "in any civil action of which the district courts have original jurisdiction, . . . over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Id. Two claims are deemed to be a "part of the same case or controversy if they derive from a common nucleus of operative facts." Sanchez & Daniels v. Koresko, ...