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Petrovic v. Enterprise Leasing Co. of Chicago, LLC

United States District Court, Seventh Circuit

December 10, 2013



AMY J. ST. EYE, District Judge.

The Court grants in part and denies in part Defendants' motion to dismiss [37]. Plaintiff's Second Amended Complaint is due on or before December 20, 2014. Rule 26(a)(1) disclosures due on January 10, 2014. Written discovery should be issued by January 17, 2014. Status hearing set for February 4, 2014 is stricken and reset to January 22, 2014 at 8:30 a.m.


On July 31, 2013, Plaintiff David Petrovic filed a five-count Amended Complaint against Defendants Enterprise Leasing Company of Chicago, LLC ("Enterprise") and Hans Uslar ("Uslar") alleging that Defendants violated his right to make and enforce contracts under 42 U.S.C. § 1981, along with three state law claims. Before the Court is Defendants' motion to dismiss Counts I through IV of the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants Defendants' motion to dismiss Counts II and III with prejudice and Count IV without prejudice. The Court denies Defendants' motion to dismiss Count I.


"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Put differently, a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570).

"In reviewing the sufficiency of a complaint under the plausibility standard, [courts] accept the well-pleaded facts in the complaint as true." Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013). In ruling on a Rule 12(b)(6) motion, district courts may consider documents attached to the pleadings without converting the motion into a motion for summary judgment, as long as the documents are referred to in the complaint and central to the claims. See Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). Also, although a plaintiff not need anticipate affirmative defenses, a plaintiff may plead himself out of court if the complaint sets forth facts establishing an affirmative defense. See Peterson v. McGladrey & Pullen, LLP, 676 F.3d 594, 600 (7th Cir. 2012).


Plaintiff originally filed a pro se Complaint on October 30, 2012, that the Court dismissed pursuant to 28 U.S.C. § 1915(e)(2) on November 6, 2012. Plaintiff appealed, and on May 9, 2013, the United States Court of Appeals for the Seventh Circuit remanded his claim under 42 U.S.C. § 1981, which prohibits private actors from discriminating on the basis of race against those seeking to make and enforce contracts. On July 6, 2013, the Court appointed Plaintiff counsel, and on July 31, 2013, Plaintiff, by counsel, filed the present Amended Complaint.


In his Amended Complaint, Plaintiff alleges that he is a white male of Eastern European descent, who during the relevant time period had a visible physical disability. (R. 31, Am. Compl. ¶ 1.) Enterprise is a Delaware limited liability company qualified to do business in the State of Illinois. ( Id. ¶ 2.) During the relevant time period, Enterprise operated an automobile rental business at 933 Skokie Boulevard in the Village of Northbrook, Illinois. ( Id. ¶ 4.) Uslar was an employee and authorized agent of Enterprise at its Northbrook location. ( Id. ¶ 5.)

On October 31, 2008, Plaintiff returned from a trip abroad, at which time he contacted Enterprise's Northbrook office to arrange for a rental vehicle. ( Id. ¶ 5a.)[1] Thereafter, Plaintiff arranged for a ride to the Northbrook facility and, upon arrival, an unidentified Enterprise employee took his luggage and placed it in a white Chevrolet Blazer identified as an Enterprise vehicle. ( Id. ¶ 7.) Plaintiff further alleges that this unidentified employee assured him that his luggage would be safe. ( Id. )

Plaintiff then entered the Enterprise office to inquire about renting a vehicle and spoke with Uslar, the manager for the Northbrook Enterprise office. ( Id. ¶ 8.) Immediately, Uslar made a comment about Plaintiff's use of a cane, after which Plaintiff responded that he had a disability and needed the cane to assist him with walking. ( Id. ¶ 9.) In addition, Plaintiff contends that Uslar made a derogatory comment about Plaintiff being white and disabled. ( Id. ¶ 10.) Plaintiff also alleges that Uslar told him - "I cannot rent a car to you without having proof of income because you are white and disabled and not black and disabled." ( Id. ) Uslar then told Plaintiff, "I need to see a hard copy of your social security payments and stubs." ( Id. ) Plaintiff explained to Uslar that his disability payments were transferred electronically into his account, and thus he had no hard copy of his records. ( Id. ¶ 11.) According to Plaintiff, Uslar continued to refuse to rent him a vehicle. ( Id. )

Pausing from his discussion with Uslar, Plaintiff stepped aside and allowed other customers to go ahead of him. ( Id. ¶ 12.) Plaintiff maintains that one customer was an African-American male and another customer appeared to be a Latino women, neither of whom had disabilities. ( Id. ) Uslar rented vehicles to these two individuals without asking for proof of insurance or verification of income. ( Id. ¶¶ 12, 13.) Plaintiff then asked Uslar why he rented vehicles to the other customers, to which Uslar allegedly responded, "[b]ecause you are disabled and, worse, you ...

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