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Richard Smego et al v. Aramark Food Services Corp. et al

December 6, 2011


The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:


Tuesday, 06 December, 2011 01:12:10 PM

Clerk, U.S. District Court, ILCD


A status conference was held on October 17, 2011. Defense counsel appeared in person, and Plaintiff Smego appeared by video conference. Terry Williams and Chris Clayton, security officials at Rushville, appeared by telephone.

Defendants voiced valid concerns about the burden of proceeding with over 80 plaintiffs, and also voiced concerns that the appointment of Smego as spokesperson for Plaintiffs could be perceived as allowing Smego to act as Plaintiffs' de facto attorney, thus sanctioning the unauthorized practice of law by Smego. Defendants suggested that this case could proceed solely on Plaintiff Smego's claims while the rest of the 80-some Plaintiffs' claims are stayed.*fn1

Smego objected to Defendants' idea on the grounds that Plaintiffs all share the same claims arising from the same facts, which is why they sought class certification. Smego pointed out that the other Plaintiffs have authorized him to act as their spokesperson, and each Plaintiff will still have an opportunity to object to any filings or discovery documents prepared by Smego. He asserted that his filings have been a joint effort, with him collaborating with as many Plaintiffs as possible. He also offered ideas for making discovery less burdensome, such as limiting the number of discovery requests allowed by Plaintiffs.

The Court's concern about Defendants' idea to proceed only with Smego's claim and stay the rest of the claims is that the idea only kicks the can down the road.*fn2 The resolution of Smego's claim will not be res judicata as to the other Plaintiffs. The Court will still be left with 66 separate cases alleging unsanitary and inedible food, with each Plaintiff presumably entitled to conduct his own discovery. If Defendants are arguing that the result in Smego's case will bind the other Plaintiffs, then the other Plaintiffs must by definition be joined in this case because their interests may be impaired. Fed. Rule Civ. P. 19(a)(B)(i); see also Bouriboune v. Berge, 391 F.3d 852, 854 (7th Cir. 2004)("[D]istrict courts must accept complaints filed by multiple prisoners if the criteria for permissive joinder are satisfied."). The Court does not see how, in the long run, Defendants' burden will be lessened by separating this one case into over 60 cases and staying all but Smego's claim. After Plaintiffs file their amended complaint Defendants are free to file a motion to sever is they believe that these concerns of joinder and res judicata can be overcome.

Some possibilities may exist to ameliorate the burdens on Defendants if this case does proceed with all Plaintiffs and without appointed counsel.*fn3 For example, discovery at the outset could be limited to the one issue common to all claims: Do the food service practices or food served arise to an objectively serious condition under the Constitution?*fn4 If Plaintiffs do not survive summary judgment on that issue, the case is over. If Plaintiffs do survive summary judgment on whether their deprivations are objectively serious, perhaps that sole issue could go to trial, with damages and injunctive relief to be decided in later proceedings if the jury finds in favor of Plaintiffs. As to the logistical nightmare of sending copies to all Plaintiffs, Plaintiffs could consent to service by posting in the library, as suggested by the Rushville representatives at the status hearing. See Fed. R. Civ. P. 5(b)(2)(F)(service may be had by any means to which the person consents in writing). The library could also be used to obtain signatures from all Plaintiffs on pleadings, to ameliorate Defendants' concern about the unauthorized practice of law. And, Plaintiffs' discovery requests could be limited to a manageable number, as offered by Smego.

This discussion is hypothetical because there is no Complaint before the Court signed by all Plaintiffs. At this point the only Complaint officially before the Court is signed by Plaintiffs Smego, Schloss, Hyatt, Hoover, and Simons. (d/e 1). Simons voluntarily dismissed himself from this case on July 11, 2011.

The Court ruled orally at the status hearing that this case will proceed only with Plaintiff Smego, subject to an amended complaint filed by Smego adding in the other Plaintiffs. However, since the current Complaint is also signed by Schloss, Hyatt, and Hoover, the case will proceed with those Plaintiffs as well.

If an amended complaint is filed, signed by all Plaintiffs, the issues discussed above will be brought to the fore, as will the question whether Defendant Simpson should be severed from this case. The Court will be in a better position to determine exactly what claims and relief are common to all Plaintiffs.


1) Plaintiffs' motion to file an amended complaint is granted (d/e 340). The amended complaint is due January 9, 2011, and must be signed by all ...

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