The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
The plaintiff, Suburban Towing, Inc. ("Suburban") brings suit under 42 U.S.C. § 1983, alleging violations of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The defendants have moved to dismiss all counts, and for the reasons stated below, the court grants the motion.
Suburban brings suit under 42 U.S.C. § 1983, alleging that the defendants, the Village of Homewood ("the Village") and the Village's president, Richard Hofeld, violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The complaint alleges that since 1955, Suburban (or its predecessor) regularly and frequently towed vehicles at the request of the Village's police department, which was authorized to select towing service operators under Section 106-357(a) of the Village's Municipal Code. That changed on September 14, 2010, when the Village (by Hofeld and its Board of Trustees) enacted Ordinance No. MC-836 ("the Ordinance").
This Ordinance, which went into effect immediately, amended Chapter 34 of the Municipal Code to create a "Police Towing License System." According to the Ordinance, the amendment was intended to "establish regulations and standards" for private tow companies seeking referrals from the Village's police department, so as to "ensure that motorists are referred to reputable companies and individuals."
The Ordinance described three types of towing licenses that the Village would grant: light duty (three licenses available), medium duty (two licenses available), and heavy duty (two licenses available). The application period was to run from October 1st to October 15th each year. After the application period closed, the Village would create an "initial eligibility list" of names. The first names on each list were to be those firms that had been granted a license the previous year (assuming they had submitted a renewal application), while additional spots, if any, would be filled by a random drawing from the remaining applicants. The police department then would conduct an investigation into each applicant, verifying the information contained in the application and inspecting the applicant's towing equipment and business location. From those applicants that successfully completed the process, the Village would create a "final eligibility list" which it would use to issue police towing licenses. The licenses were valid from January 1st to December 31st of the following year.
Suburban satisfied the Village's investigation and approval process, and it was placed on the final eligibility list. However, Suburban ultimately did not receive a license. On information and belief, it claims that the Village's chief of police conducted only two drawings, even though the Ordinance created three license classes. Suburban now argues that the terms of the Ordinance required the Village to grant licenses to all towing services that satisfied the Village's approval process; Suburban also argues that it should have been treated as a prior licensee and received priority on the lists, because it had provided towing services for the Village in 2010-the year before the Ordinance was enacted-and the Village had created a legitimate expectation of a continued relationship.
Suburban filed a four-count complaint, alleging that the defendants (1) violated Suburban's rights under the Equal Protection Clause by intentionally treating Suburban differently than other similarly situated towing companies for no rational reason and without a legitimate government objective; (2) violated Suburban's rights under the Equal Protection Clause by treating Suburban as a "class of one" due to "an illegitimate, unjustified personal animus"; (3) violated Suburban's procedural due process rights, because Suburban did not receive a pre- or post-deprivation hearing; and finally (4) violated Suburban's substantive due process rights, because Suburban had a legitimate expectation of providing towing services and it has no adequate state remedy or administrative procedure by which to challenge the Village's decision. The defendants have moved to dismiss all counts.
Under Federal Rule of Civil Procedure 12(b)(6), the defendant may seek to dismiss the case if the plaintiff "fail[s] to state a claim upon which relief can be granted." The court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. Stayart v. Yahoo! Inc., 623 F.3d 436, 438 (7th Cir. 2010). But although Federal Rule of Civil Procedure 8(a) only requires the complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief," nonetheless the complaint must include "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 566 U.S. 662 (2009) (noting that while Rule 8 does not require detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). The relevant question is whether the complaint includes enough factual allegations to "raise a right to relief above the speculative level." Id. In other words, to survive a motion to dismiss post-Twombly, "'the plaintiff must give enough details about the subject-matter of the case to present a story that holds together,' and the question the court should ask is 'could these things have happened, not did they happen.'" Estate of Davis v. Wells Fargo Bank, 633 F.3d 529, 533 (7th Cir. 2011) (quoting Swanson v. Citibank, N.A., 614 F.3d 400, 404-05 (7th Cir. 2010)).
The court first turns to Suburban's equal protection claims. Suburban believes that it was treated differently than other similarly situated towing companies. The defendants in turn argue that the Ordinance created a police towing system where none previously existed, which meant that in 2011 no one was entitled to (or in fact received) priority under the licensing program. The defendants also point out that Suburban was not selected for a license by virtue of the same random drawing to which every company was subjected. They argue that Suburban does not want equal protection, but preferential treatment. The defendants are correct.
Because Suburban is not a member of a suspect class and it does not allege that the defendants deprived it of a fundamental right, the appropriate standard of review is rational basis. Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 943 (7th Cir. 2009) (citing Vision Church v. Vill. of Long Grove, 468 F.3d 975, 1000-01 (7th Cir. 2006)). In general, plaintiffs seeking to bring equal protection claims must establish that "(1) the state actor intentionally treated plaintiffs differently from others similarly situated; (2) this difference in treatment was caused by the plaintiffs' membership in the class to which they belong; and (3) this different treatment was not rationally related to a legitimate state interest." Id. (citing Smith v. City of Chi., 457 F.3d 643, 650-51 (7th Cir. 2006)). When a plaintiff alleges that it is a "class of one," however, the plaintiff does not need to demonstrate the second element. Id.
Even without getting into the "class of one" issue, Suburban's equal protection claims fail. First, Suburban has not alleged the existence of any similarly situated counterpart that was treated differently than Suburban was treated. Indeed, during the first year that the Ordinance was in effect, all towing companies-including those that had previously received referrals from the police department under Section 106-357(a)- were required to complete an application, pass the investigation, and be chosen by random drawing before they could receive a license. Suburban has not alleged that the defendants gave any other company priority on the eligibility lists or permitted any company to skip the random drawing during that first year. Instead, it complains that it did not receive a license. That was, as they say, the luck of the draw, and bad luck does not a constitutional violation make. See, e.g., Winters v. Ill. State Bd. of Elections, 197 F. Supp. 2d 1110, 1117-18 (N.D. Ill. 2001) ("Put simply, the Equal Protection Clause does not apply in the first instance because the tie-breaking provision does not create any sort of classification whatsoever. Instead, it treats both . . . parties exactly the same and singles neither party out for disparate treatment. . . . [E]ach candidate's name is thrown into the hat only once, so each party stands an equal chance of winning (or losing) the drawing. As a result, the tie-breaking provision does not fall ...