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Tonnie Nordmeyer, D/B/A Sunshinie Towing & Service, and v. Thomas Cundiff

September 28, 2011

TONNIE NORDMEYER, D/B/A SUNSHINIE TOWING & SERVICE, AND
SUNSHINE TOWING & SERVICE, L.L.C., PLAINTIFFS,
v.
THOMAS CUNDIFF, AND BENNIE VICK, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS SHERIFF, WILLIAMSON COUNTY, ILLINOIS, AND COUNTY OF WILLIAMSON, AN ILLINOIS COUNTY CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM AND ORDER

Now before the Court is defendants Thomas Cundiff and Bennie Vick, and Williamson Countys' (collectively, defendants) motion to dismiss plaintiffs Tonnie Nordmeyer, d/b/a Sunshine Towing & Service and Sunshine Towing & Service L.L.C.s' (Sunshine Towing) (collectively, plaintiffs) first amended complaint (Doc. 20). For the following reasons, defendants' motion to dismiss is GRANTED.

INTRODUCTION AND BACKGROUND

Plaintiffs allege defendants violated their equal protection rights when they removed Sunshine Towing from the Williamson County Sheriff's approved rotation list for towing services (See Doc. 17). Defendant Cundiff authorized Sunshine Towing's placement on the rotation list for the Sheriff's Department of Williamson County in November 2008 (Doc. 17, p. 3).

The allegations at issue stem from an incident involving a donkey in September 2009 (Donkey Incident). A sheriff's deputy responded to a complaint that plaintiff Nordmeyer's husband, Chris Nordmeyer, Sunshine Towing's main driver, neglected or abused a pet donkey kept on plaintiff Nordmeyer's property. The deputy eventually seized the donkey from plaintiff Nordmeyer's property pursuant to a court order. Chris Nordmeyer disputed the allegations of donkey neglect with the deputy. Plaintiffs allege defendant Cundiff, "or a person acting at his behest," advised the Sheriff's Department of the Donkey Incident and the need to remove them from the rotation list. Id. On or about October 3, 2009, plaintiffs allege Defendant Cundiff removed plaintiffs from the rotation list.

Plaintiffs further allege defendant Cundiff, until his retirement in December 2009, and since, defendant Vick, have "initiated or ratified an unofficial policy or practice within the Williamson County Sheriff's Office" of refusing to use Sunshine Towing and telling others that Sunshine Towing is no longer in business (Doc. 17, pp. 3-4). When plaintiffs confronted defendant Vick with the allegations of "discriminatory practice," defendant Vick allegedly stated their removal from the rotation list resulted from the Donkey Incident (Doc. 17, p. 4). Plaintiffs state defendants use seven "similarly situated" locally owned and operated small towing businesses to meet the towing needs of the Williamson County Sheriff Department. Id. Plaintiffs allege the defendants' practices demonstrate violations of their equal protection rights based on gender discrimination as plaintiff Nordmeyer is a female (Doc. 17, Counts 1, 3, 5, 7, 9, and 11). Further, plaintiffs allege "class-of-one" claims against all defendants asserting their removal from the rotation list resulted from the Donkey Incident (Doc. 17, Counts 2, 4, 6, 8, 10, and 12).

Plaintiffs filed their first amended complaint on March 17, 2011, alleging twelve counts of equal protection violations (Doc. 17). Defendants filed their motion to dismiss (Doc. 20) and memorandum in support (Doc. 21) on March 28, 2011, arguing plaintiffs' claims as to defendants Cundiff and Vick require dismissal as plaintiffs' discrimination claims fail to state causes of action. Further, defendants argue the claims against defendant Williamson County require dismissal as it cannot be held liable under a Monell theory of liability (Doc. 20; Doc. 21).

LAW AND APPLICATION

I.Claims Against Defendant Williamson County (Counts 5, 6, 11, and 12) Dismissed with Prejudice Defendants argue plaintiffs have improperly asserted Monell claims against defendant Williamson County. See Monell v. Dept. of Social Servs., 98 S. Ct. 2018 (1978) (holding under Section 1983, a municipality is only directly liable if it causes the alleged constitutional violation). However, both parties concede defendant Williamson County is a necessary party to the extent it is required under state law to pay in the event the Court enters a judgment against the Sheriff in his official capacity. See Askew v. Sheriff of Cook County, Ill., 568 F.3d 632, 636 (7th Cir. 2009) (citing Carver v. Sheriff of LaSalle County, Ill., 324 F.3d 947, 948 (7th Cir. 2003)) (stating, "a county in Illinois is a necessary party in any suit seeking damages from an independently elected county officer . . . [and] [b]ecause state law requires the county to pay, federal law deems it an indispensable party to the litigation."). In plaintiffs' response to defendants' motion to dismiss, they concede "inartful pleading" as the intention was to add Williamson County as an indispensable party to the litigation pursuant to

FEDERAL RULE OF CIVIL PROCEDURE

19; not assert claims of independent liability against Williamson County (Doc. 24, p. 11). Thus, claims five, six, eleven, and twelve against defendant Williamson County are dismissed with prejudice. However, defendant Williamson County remains a necessary party to the action solely as an indemnitor in the event the Court enters a judgment against the Sheriff in his official capacity.

II.Claims of Equal Protection Violations Against Defendants Cundiff and Vick (Counts 1, 2, 3, 4, 7, 8, 9, and 10) Dismissed Without Prejudice for Failure to State a Cause of Action

a.Legal Standards

i.Pleading Standards

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court concluded in an antitrust case that, in addition to providing notice, the complaint must "state a claim to relief that is plausible on its face." Id. at 570. The "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555. The Court reasoned that "[t]he need at the pleading stage for allegations plausibly suggesting (not merely consistent with)" success on the claim "reflects the threshold ...


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