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Eric Onyango v. Downtown Entertainment

July 30, 2012


The opinion of the court was delivered by: Judge Sharon Johnson Coleman


This matter comes before the Court on Downtown Entertainment, LLC's ("Downtown Entertainment") and James D. Pohl's, collectively ("Defendants") motion to dismiss and motion to strike. Plaintiff, Eric Onyango, ("Onyango") has filed a second amended complaint alleging one federal law claim, violation of 42 U.S.C. § 1981, and three state law claims, including, breach of contract, assault and negligence.*fn1 Downtown Entertainment seeks to strike certain allegations from complaint and James D. Pohl seeks to dismiss all claims against him. For the following reasons, Pohl's motion to dismiss is granted with respect to all claims. Downtown Entertainment's motion to strike is granted in part and denied in part.


On or about August 5, 2011, Plaintiff, Eric Onyango, paid $20 to attend Cuvee Nightclub ("Cuvee"), an nightclub owned by Downtown Entertainment. James D. Pohl is part owner of both Cuvee and Downtown Entertainment.

While at Cuvee, Onyango got into a dispute with another patron who solicited Onyango for illegal drugs. After Onyango took offense to this request, the man, who was white, called Onyango a "black shit". An altercation ensued after which, Onyango, who is African-American, was approached by employees of Downtown Entertainment, who directed security personnel to forcibly remove him from Cuvee, while the white patron remained inside.

Onyango alleges that his removal from Cuvee was racially motivated and caused him to sustain physical injuries. Onyango brings this action under 42 U.S.C § 1981 against Downtown Entertainment and James D. Pohl alleging discrimination, as well as breach of contract, assault and negligence. James D. Pohl ("Pohl") has brought forth a motion to dismiss for failure to state a claim under the Federal Rule of Civil Procedure 12(b)(6). Downtown Entertainment has brought forth a motion to strike certain allegations in the complaint.

Legal Analysis

In granting a motion to dismiss under FRCP 12(b)(6), the court considers the allegations in the complaint to be true and views all well-pleaded facts and any reasonable inferences drawn from the facts in the light most favorable to the plaintiff. Dornhecker v. Ameritech Corp., 99 F. Supp. 2d 918,924 (2000). The complaint must describe the plaintiff's claims and grounds in sufficient detail to give the defendant fair notice. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In order to survive a motion to dismiss the plaintiff must allege sufficient factual matter to plausibly suggest that they have a right to relief, raising that possibility above a speculative level. Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1949-50.


Defendant Pohl's Motion to Dismiss

Pohl argues that Onyango has failed to state a cognizable claim under 42 U.S.C. § 1981. To state a claim under Section 1981, a plaintiff must establish that: (1) he is a member of a racial minority, and (2) that the Defendants intended to discriminate against him on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute. Morris v. Off. Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996). Furthermore, to succeed under Section 1981 against a private individual, a plaintiff must allege personal involvement on the part of the individual defendant. Musikiwamba v. ESSI, Inc., 760 F.2d 740, 753 (7th Cir. 1985).

Onyango offers no facts that demonstrate that Pohl individually discriminated against him. Onyango does not allege that Pohl was present at Cuvee during his altercation and removal nor does he allege any facts that suggest that Pohl had any knowledge of these events. Without alleging these facts, Onyango's claim fails to rise above the speculative level. Accordingly, Onyango's Section 1981 claim against Pohl is dismissed with prejudice.

Pohl also argues that all state law claims against him should be dismissed because Onyango has failed to allege any facts that would subject him to personal liability as required by Illinois state law. Under Illinois law, corporations and limited liability companies exist as legal entities separate from their officers, shareholders and directors, and as a general rule, these officers, shareholders and directors will not be held personally liable for the corporation's obligations. Judson Atkinson Candies v. LatiniHohberger Dhimantec, 529 F.3d 371, 378 (7th Cir. 2008). Thus, in order to hold an individual shareholder liable for a company's conduct, a plaintiff must pierce the corporate veil of liability. Wachovia Securities, LLC v. Banco Panamericano, Inc., 674 F.3d 743, 751 (7th Cir. 2012). The corporate veil of liability is only pierced when there is such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist. Van Dorn Co. v. Future Chem. & Oil Corp., 753 F.2d 565, 569 (7th Cir. 1985). Therefore, Illinois courts are reluctant to pierce the corporate veil and concrete evidence must be shown in order to do so. Judson, 529 F.3d at 379. This includes evidence that demonstrates: (1) a company's failure to maintain adequate corporate records or adhere by corporate formalities, (2) the commingling of funds or assets, (3) undercapitalization, and (4) one corporation treating the assets of another as its own. Van Dorn Co., 753 F.2d. at 570.

In his amended complaint, Onyango alleges that Downtown Entertainment is Pohl's alter ego and that it is undercapitalized and commingling funds. Onyango, however, offers no factual allegations in support of these claims. Relying upon a restatement of the elements necessary to succeed on a claim is insufficient to demonstrate a viable cause of action. See Iqbal, 129 S. Ct. 1937, 1949-51 (holding that legal conclusions, unsupported by alleged underlying facts, do not suffice and are not entitled to assumption of truth). Onyango's threadbare recital of the ...

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