United States District Court, N.D. Illinois, Eastern Division
For ADT Security Services, Inc., Plaintiff: A. Christopher Young, PRO HAC VICE, Robert L. Hickok, Pepper Hamilton LLP, Philadelphia, PA; Bruce Lee Goldsmith, Dykema Gossett Rooks Pitts PLLC, Lisle, IL; Jason Lawrence Pyrz, John A. Leja, Polsinelli Shughart, P.C., Chicago, IL.
For Alarm Detection Systems, Inc., D.M.C. Security Services, Inc., Illinois Alarm Services, Inc., SMG Security Systems, Inc., Plaintiffs: Bruce Lee Goldsmith, David Joel Bressler, Dykema Gossett Rooks Pitts PLLC, Lisle, IL; Michelle Kramer Schindler, Dykema Gossett PLLC, Chicago, IL.
For Lisle-Woodridge Fire Protection District, The, Defendant: Martin K. LaPointe, LEAD ATTORNEY, Burke, Warren, MacKay & Serritella, P.C., Chicago, IL; Susan Marie Troester, Attorney, Chicago, IL.
For Chicago Metropolitan Fire Protection, Inc., Defendant: Christopher W Carmichael, Simon B. Auerbach, Holland and Knight, LLP, Chicago, IL; Martin G. Durkin, Peter Michael Friedman, Holland & Knight LLC, Chicago, IL.
Milton I. Shadur, United States District Judge.
MEMORANDUM 0PINION AND ORDER
More than 2-1/2 years after this action was instituted and almost exactly a year after it has survived (albeit with some limitations) at the appellate level (672 F.3d 492 (7th Cir. 2012, cited for convenience as simply " ADT, 672 F.3d at 496" ), codefendant Chicago Metropolitan Fire Prevention Company (" Chicago Metro" ) has come forward with a motion to dismiss Counts II, III and V of the Supplemental Complaint here--a motion whose substance, if sound, should have been presented earlier in the case. Little wonder, then, that the plaintiff Alarm Companies'  responsive memorandum begins its " Introduction" section with this sentence:
While in the abstract a party may test the sufficiency of the pleadings at any time during a case, this does not mean that Chicago Metro is entitled to submit such motion almost two and one-half years after the case was filed to first test the pleadings as if this case were a tabula rasa.
What Chicago Metro's counsel have obviously forgotten (or more likely have never learned) is the truth expounded so lucidly a full two decades ago in then Judge (now Chief Judge) Frank Easterbrook's opinion for our Court of Appeals in N.A.A.C.P. v. Am. Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992): that the federal pleading system deals in claims, not in the state law concept of " causes of action." In the state law system the congeries of facts that entitle a plaintiff to relief (thus on their own stating a " claim" in the federal sense) must be linked to a particular theory of recovery (with the combination thus constituting a " cause of action" in the state court sense).
Because among too many federal practitioners that latter approach shows no signs of disappearing, this Court--which has tried without success to eradicate those weeds that tend to choke out the garden of proper federal pleading--will try once again by quoting liberally from Judge Easterbrook's teaching at the page cited earlier (most citations omitted):
Identifying legal theories may assist defendants and the court in seeing how the plaintiff hopes to prevail, but this organization does not track the idea of " claim for relief" in the federal rules. Putting each legal theory in a separate count is a throwback to code pleading, perhaps all the way back to the forms of action; in both, legal theory and facts together created a " cause of action." The Rules of Civil Procedure divorced factual from legal aspects of the claim and replaced " cause of action" with " claim for relief" to signify the difference. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). A complaint should limn the grievance and demand relief. It need not identify the law on which the claim rests, and different legal theories therefore do not multiply the number of claims for relief.
One set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violate.
Indeed, Tolle v. Carroll Touch, Inc.,
977 F.2d 1129, 1134 (7th Cir. 1992), decided on the very same day as N.A.A.C.P. but by a different panel, ...