The opinion of the court was delivered by: Judge George W. Lindberg
MEMORANDUM OPINION AND ORDER
Before the Court are defendants P & B All-Star Construction, Inc. ("P & B") and Paulette S. Hollingsworth's motion to dismiss plaintiff's amended complaint, plaintiff Innocent Obi's motion for leave to file a second amended complaint, and plaintiff's motion to strike and moot defendants' motion to dismiss. For the reasons stated below, the motion to dismiss is granted, the motion for leave to file a second amended complaint is denied, and the motion to strike and moot the motion to dismiss is denied.
On April 8, 2011, plaintiff filed a pro se complaint against P & B and Hollingsworth in the Circuit Court of Cook County. P & B and Hollingsworth removed the action to this Court on June 10, 2011. Plaintiff subsequently filed a pro se amended complaint that added Lilian Allen as a defendant.
The amended complaint alleges that during the time relevant to this case, plaintiff had a right to possession of two units at 1407 East 71st Place, Chicago ("Units 1 and 2"). According to the amended complaint, "co-conspirator" Safeguard hired P & B to evict plaintiff from Unit 2, and authorized P& B and Hollingsworth to "inspect, change locks, winterize, [and remove] all persons and properties on plaintiff property." Plaintiff alleges that on February 22, 2010, P & B and Hollingsworth entered Unit 2 without plaintiff's consent, changed the locks, and winterized the unit. Plaintiff further alleges that P & B and Hollingsworth caused water to leak from Unit 2 into Unit 1, which damaged plaintiff's property in Unit 1.
Plaintiff's amended complaint asserts the following claims against P & B and Hollingsworth relating to the damage he contends resulted to Unit 1: trespass to personal property and chattels, intentional infliction of emotional distress, punitive damages, fraud, civil rights violations, civil conspiracy, negligence, unfair and deceptive business practices, and lack of standing. P & B and Hollingsworth have moved to dismiss plaintiff's claims against them, pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court extended plaintiff's time to respond to the motion, at his request, to September 7, 2011; however, plaintiff did not file a response.
P & B and Hollingsworth first argue that all of plaintiff's claims against them are barred by res judicata, based on the dismissal of his claims in a prior case, Obi v. Chase Home Finance, LLC, No. 10 C 3154 ("Obi I"). The Court may take judicial notice of the court records in Obi I for the purpose of determining what claims were brought in that case, and the disposition of those claims. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (stating that the court may take judicial notice of matters of public record without converting a Rule 12(b)(6) motion to dismiss into a motion for summary judgment); Green v. Warden, 699 F.2d 364, 369 (7th Cir. 1983) (the court may take judicial notice of other court proceedings that have "a direct relation to matters at issue").
In his amended complaint in Obi I, plaintiff alleged that the defendants in that case, Chase Home Finance, LLC; JPMC Specialty Mortgage LLC; and JP Morgan Chase Bank, issued a work authorization to another defendant, Safeguard Properties, Inc., to change the locks at Unit 2 at 1407 East 71st Place, board it up, winterize it, and evict plaintiff and his family from the property. The amended complaint alleged that on February 22, 2010, these defendants, "through their sub-contractor," entered the property without plaintiff's consent, changed the locks, boarded it up, and removed his property from the unit. It further alleged that plaintiff contacted the defendants "for repairs of the damaged items in his unit by them such as destroyed hard wood floors by water that came out of the boiler during the winterization carried out by Safeguard Properties Inc. sub-Contractor R&B allstars." Based on these allegations, plaintiff asserted claims of trespass, trespass to chattels, intentional infliction of emotional distress, conversion, punitive damages, fraud, civil rights violations, violation of the Fair Debt Collection Practices Act, and conspiracy against Chase Home Finance, JPMC Specialty Mortgage, JP Morgan Chase Bank, and Safeguard Properties.
Obi I was assigned to Judge Suzanne Conlon. On March 2, 2011, Judge Conlon dismissed Obi I with prejudice, on the basis that plaintiff had committed a fraud on the court by making material omissions and misrepresentations on his in forma pauperis application. Plaintiff filed an appeal, which remains pending.
Res judicata "prohibits parties 'from re-litigating issues that were or could have been raised in' a previous action in which there was final judgment on the merits." Johnson v. Cypress Hill, 641 F.3d 867, 874 (7th Cir. 2011) (quoting Highway J Citizens Group v. U.S. Dep't of Transp., 456 F.3d 734, 741 (7th Cir. 2006)). Thus, a plaintiff must join his claims "based on the same, or nearly the same, factual allegations," and "a prior judgment can 'foreclos[e] litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit.'" Id. (citations omitted). The doctrine of res judicata applies where the following elements exist: (1) the same parties or their privies; (2) the same causes of action; and (3) a final judgment on the merits in the previous action. Id.
The Court notes that a res judicata argument ordinarily should be presented in a motion for judgment on the pleadings (or a motion for summary judgment), because res judicata is an affirmative defense. See Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010). However, because plaintiff has not challenged defendants' argument on this basis, the amended complaint in this case refers to Obi I, and the Court has the information required to rule on defendants' res judicata argument, the Court will consider the argument at this juncture. See Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008) (noting that it is appropriate for a court to consider a res judicata argument raised in a Rule 12(b)(6) motion to dismiss where the plaintiff has disclosed the affirmative defense in the complaint).
First, although P & B and Hollingsworth were not parties in Obi I, they are in privity with the defendants in that case. For the purposes of res judicata, "privity" is "a descriptive term for designating those with a sufficiently close identity of interests." Tice v. Am. Airlines, Inc., 162 F.3d 966, 971 (7th Cir. 1998). P & B and Hollingsworth were acting as agents of the defendants in Obi I when they took the actions at issue here, and have a sufficiently close identity of interests with the interests of the Obi I defendants to warrant applying the ...