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Chicago Title & Land Trust Co v. David Rabin et al

January 30, 2012

CHICAGO TITLE & LAND TRUST CO., PLAINTIFF,
v.
DAVID RABIN ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court are Defendants' motions [26, 28, 60, and 74] to dismiss Plaintiff's six count complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and Plaintiff's motion [63] to strike. For the reasons below, Defendants' motions are granted and Plaintiff's motion is denied.

I. Background*fn1

In 2006, Plaintiff*fn2 purchased a parcel of land in a subdivision in Highland Park, Illinois. Plaintiff intended to build a house on the property, which was consists of four adjoining lots that cover an area of roughly 20,000 feet. Defendants David Rabin, Debbie Rabin, Hedy Berrocal, Daniel Kolleng, Luke Migala, Joel Kagan, William Schoenwald, Michael Lickerman, and Oded Orbach (collectively "Defendants") are Plaintiffs neighbors in the subdivision. Plaintiff alleges that, upon learning of Plaintiff's plans to build a house, Defendants decided to do whatever was necessary to keep Plaintiff from obtaining the permits from the City of Highland Park that Plaintiff needs in order to build his house. Specifically, Plaintiff claims that Defendants' actions were part of a racially motivated conspiracy that has led to Plaintiff's failure to get the necessary permits from the Highland Park Zoning Board.

On January 20, 2011, Plaintiff filed a complaint against Defendants' alleging that they conspired to violate his civil and constitutional rights. On April 12, 2011, Plaintiff Sheikh filed a six-count First Amended Complaint alleging that: (1) under 42 U.S.C. § 1985(3) Defendants conspired to deprived plaintiff of equal protection, or equal privileges and immunities under the law; (2) Defendants conspired to violate 42 U.S.C. § 3617 of the Fair Housing Act; (3) Defendants violated state and federal hate crime laws; (4) Defendants violated Plaintiff's right to due process under the Fifth and Fourteenth Amendments; (5) Defendants committed a crime under 18 U.S.C. § 241 when they conspired to intimidate, harass, and makes threats against Plaintiff's property; and (6) Defendants committed a crime under 18 U.S.C. § 1621 when they lied and made false statements under oath. Defendants have filed motions to dismiss all six counts [26, 28, 60, 74] pursuant to Federal Rule of Civil Procedure 12(b)(6). On August 2, 2011, Plaintiff filed a motion to strike [63] Defendant Lickerman's reply brief.

II. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). The factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 569 n.14). In other words, the pleading must allege facts that plausibly suggest the claim asserted. Twombly, 550 U.S.at 570. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). However, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007)(citing Twombly, 550 U.S. at 555) (omission in original). The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).*fn3

III. Analysis

A. Count I: 42 U.S.C. § 1985(3)

Defendants argue that Sheikh failed to allege that they conspired to deprive him of any rights or privileges under 42 U.S.C. § 1985(3). Under Section 1985(3), a claimant must allege "(1) a conspiracy (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Quinones v. Szorc, 771 F.2d 289, 291 (7th Cir. 1985) (citing United Brotherhood of Carpenters & Joiners Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)). In other words, "a claim under § 1985(3) requires a racially motivated conspiracy to violate or interfere with a plaintiff's federally protected rights." Brown v. JP Morgan Chase Bank, 334 Fed. Appx. 758, 759 (7th Cir. 2009) (emphasis in original). Because Plaintiff does not allege any state action, the constitutional right at stake must be "one that is entitled to protection against anyone, rather that merely protection from impairment by a state." Cohen v. Illinois Institute of Technology, 524 F.2d 818, 828 (7th Cir. 1975). Finally, the "complaint must indicate the parties, the general purpose, and approximate date of the agreement to form a conspiracy so that the defendant has notice of the charges against him." Estate of Sims ex rel. Sims v. County of Bureau, 506 F.3d 509, 517 (7th Cir. 2007) (citation omitted).

Here, Plaintiff alleges that certain actions of the Defendants prevented him from being able to build a house on his property. Defendants argue that this allegation fails to state a claim because Plaintiff's complaint does not cite any "federally protected rights" of which the alleged conspiracy has deprived him. The Court agrees with Defendants. In Cohen, the Seventh Circuit carefully distinguished between those rights that can only be violated by the state (14th Amendment) and those that can be violated by anyone, including private actors (13th Amendment). 524 F.2d at 828-29.

In this case, Plaintiff has failed to identify the federal right that he believes Defendants have deprived him of. Defendants correctly note that the City of Highland Park is the only entity that has the ability to prohibit Plaintiff from building a house on his property. As neighbors, Defendants have no authority to prevent the Zoning Board from granting Plaintiff's application. Because Plaintiff failed to plead-and the Court does not find-a federally protected right to a building permit that protects against discrimination in which there is no allegation of state involvement of any kind, the purported conspiracy is not covered by Section 1985(3). Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972) (refusing to extend Section 1985(3) to Fourteenth Amendment claim of racial discrimination based on arbitrary business discrimination by corporate landlord and its agents against lawyer engaged in practice of criminal law when there is no evidence of state involvement in the alleged discrimination).

Furthermore, the Court notes that under Twombly and Iqbal, Plaintiff's complaint has not "nudged [his] claims . . . across the line from conceivable to plausible." Iqbal, 129 S. Ct. at 1951 (citing Twombly, 550 U.S. at 570). Ignoring any "unrealistic and nonsensical" accusations in Plaintiff's complaint, the claim still fails because Plaintiff has failed to allege how Defendants' statements in the complaint-that building the house would cause flooding, increase noise and traffic, and would decrease property values-were made in furtherance of a racially motivated conspiracy to deprive Plaintiff of equal protection of the laws. Indeed, even taking into ...


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