The opinion of the court was delivered by: James F. Holderman, Chief Judge:
MEMORANDUM OPINION AND ORDER
On February 28, 2011, plaintiff Germaine Nixon ("Nixon"), as independent administrator of the estate of Mycol French, decedent, and as next friend of minors T.J., A.F., Z.F., Z.F., and M.F., filed an eight-count Second Amended Complaint against defendants Lake County Metropolitan Enforcement Group ("LCMEG"), LCMEG Agents Charles Smith, Bernard Fapso, Jeremy Gaughan,*fn1 Jeffrey Padilla, and Patrick Gara, the Village of Antioch, the City of North Chicago, the Sheriff of Lake County, and Lake County. (Dkt. No. 29 ("2d. Am. Compl.").) Pending before the court is LCMEG's "Motion to Dismiss the Plaintiff's Second Amended Complaint," which the parties have fully briefed. (Dkt. No. 49.) For the reasons set forth below, LCMEG' s motion to dismiss is denied. Defendant LCMEG's answer is due August 2, 2011.
The following background facts are set forth as alleged in Nixon's Second Amended Complaint. (Dkt. No. 29.)
On February 1, 2010, Mycol French ("French") was sitting in his white SUV waiting for his friend to return from shopping when several of the individual defendants approached the vehicle with their guns drawn. (2d. Am. Compl. ¶¶ 13-15.) Without probable cause, the individual defendants shot into the vehicle several times piercing French's chest. (Id. ¶ 16.) French then drove out of the parking lot, lost control of the vehicle after driving several blocks, and slammed into the side of a building. (Id. ¶ 17.) The defendant officers thereafter impeded the investigation into the shooting, and prevented paramedics and medical staff from providing emergency medical treatment immediately after the incident and prior to French's death. (Id. ¶¶ 13, 24.)
Nixon claims that the defendant officers used excessive force in their altercation with French in violation of French's Fourth Amendment right to freedom from unreasonable searches and seizures and 42 U.S.C. § 1983 (Count I), causing French's wrongful death under Illinois state law (Count II), and establishing a claim for relief under the Illinois Survival Act (Count III). Nixon also claims that LCMEG, as "the employer of some or all of the individual defendants," is liable for "reimbursement" of the judgment (Counts VI).
To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a plaintiff's claim must only "raise a right to relief above the speculative level" such that the claim is "plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). If the allegations of a complaint "fail[ ] to state a claim upon which relief can be granted," the complaint will be dismissed. Fed. R. Civ. P. 12(b)(6). In reviewing the sufficiency of a complaint, the court accepts the well-pleaded allegations as true and draws all inferences in the light most favorable to the plaintiff. Wilson v. Price, 624 F.3d 389, 391 (7th Cir. 2010).
LCMEG sets forth a number of arguments in support of its contention that it is either an entity that is not amenable to suit or, in the alternative, that it is a state entity entitled to Eleventh Amendment immunity. (Dkt. No. 50 ("LCMEG's Mem.").) Because Nixon has not clearly set forth the legal basis for her "reimbursement" claim, LCMEG argues its position regarding the Second Amended Complaint under both federal and state law. First, LCMEG argues that it cannot be sued as a "person" under 42 U.S.C. § 1983 because it is not a local government entity or municipality. (Id. at 5-6.) Next, LCMEG argues that it cannot be sued under Illinois law because it is not a separate legal entity, and lawsuits against nonexistent legal entities under Illinois law are void ab initio. (Id. at 7-11.) Finally, LCMEG maintains that if it is a separate legal entity, it is a state entity and is afforded the privileges of Eleventh Amendment immunity from suit. (Id. at 11-13.) The court begins its analysis by addressing LCMEG's legal existence under Illinois law.
1. LCMEG as a Separate Legal Entity Federal Rule of Civil Procedure 17(b) governs a defendant's capacity to sue or be sued. If the defendant is not an individual or a corporation, "[c]apacity to sue or be sued is determined . . . by the law of the state where the court is located." Fed. R. Civ P. 17(b)(3).Under Illinois law, "[a] party to litigation must have a legal existence, either natural of artificial, to sue or be sued." Jackson v. Vill. of Rosemont, 536 N.E.2d 720, 723 (Ill. App. Ct. 1st Dist. 1988). As a general matter, "departments within a governing unit lack the requisite separate legal existence" to be sued. Jackson v. Cook Cnty. Sheriff Police Dep't, No. 04 C 2344, 2004 WL 2632927, at *2 (N.D. Ill. Nov. 17, 2004) (Filip, J.); see also Williams v. Fairman, No. 94 C 206, 1996 WL 164289, at* 1 (N.D. Ill. Apr. 2, 1996) (Coar, J.). On the other hand, if pursuant to statute the defendant operates under its own control and authority, it will be considered a separate suable entity. See DeGenova v. Sheriff of DuPage Cnty., 209 F.3d 973, 977 n.2 (7th Cir. 2000).
In this case, LCMEG argues that it "is not a separate entity which can be sued because its powers are co-extensive with the State of Illinois." (LMEG's Mem. 11 (citing Richardson v. Cnty. of Cook, 621 N.E.2d 114 (Ill. App. Ct. 1st Dist. 1993), and Mayes v. Elrod, 470 F. Supp. 1188 (N.D. Ill. 1979) (Marshall, J.)).) In support of this argument, LCMEG relies on various provisions set forth in the Intergovernmental Drug Laws Enforcement Act, 30 ILCS 715/1, et seq., concluding that "the Illinois Department of State Police's authority over LCMEG (or all MEGs, for that matter) is quite broad," and LCMEG should be dismissed because it acts on behalf of the State of Illinois. (Id. at 10.)
In Mayes, the court held that the Cook County Board of Commissioners was not a separate legal entity capable of being sued because "[t]he Board's governmental authority is coextensive with that of the County, since it is authorized to exercise all the corporate powers of the County." Mayes, 470 F. Supp. at 1192; see also Richardson, 621 N.E.2d at 117 ("[t]he powers of the county . . . shall be exercised by a county board") (quoting 55 ILCS 5/5-1004). Here, by contrast, while the Illinois Department of State Police may have certain responsibilities with respect to LCMEG, it cannot be said that LCMEG is authorized to exercise all the powers of the State of Illinois. Thus, Mayes and Richardson are distinguishable on this point.
Moreover, LCMEG has not argued that it was created within a separate governing body, and the court finds that such an argument would be futile. Pursuant to statue, Metropolitan Enforcement Groups ("MEGs") are defined as "a combination of units of local government established under [the Intergovernmental Drug Laws Enforcement Act] to enforce the drug laws of [the State of Illinois]." 30 ILCS 715/2.02. MEGs are "established . . . pursuant to intergovernmental contracts written and executed in conformity with the Intergovernmental Cooperation Act." 30 ILCS 715/3(1). While MEGs are required to "[c]ooperate with the Department of State Police" to receive state funding, 30 ILCS 715/3(5), this statutory language suggests that MEGs are not, in fact, subject to the Illinois Department of State Police's control. Cf. Williams, 1996 WL 164289, at *2 (finding that Cermak Health Service is not a separate legal entity because the Chief of Health Services "is 'under the direction and control of the President [of the Cook County Board of Commissioners] and subject to policy as set by the County Board'") (quoting County of Cook, Ill., Ordinance 91-0-52, Sec. 3); Mayes, 470 F. Supp. at 1192 (finding that the Cook County Department of Corrections ...