United States District Court, N.D. Illinois, Eastern Division
AMY J. ST. EVE, District Judge.
The Court grants Defendants' motion to dismiss Count II of the Second Amended Complaint without prejudice . The Court grants Plaintiff leave to file a Third Amended Complaint in compliance with this Order by no later than March 10, 2014. In addition, the parties must exchange Rule 26(a)(1) disclosures by March 14, 2014 and issue written discovery by March 21, 2014. The Court strikes the March 3, 2014 status and moves the next status date to March 12, 2014 at 1:30 p.m.
On December 20, 2013, Plaintiff David Petrovic filed a Second Amended Complaint against Defendants Enterprise Leasing Company of Chicago, LLC ("Enterprise"), Hans Uslar ("Uslar"), and an Unnamed Employee ("Unnamed Employee") alleging that Defendants violated his right to make and enforce contracts under 42 U.S.C. § 1981 based on his race (Count I), along with a state law claim of conversion of personal property (Count II). Before the Court is Defendants' motion to dismiss Count II of the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants Defendants' motion to dismiss Count II without prejudice.
"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); see also Agnew v. National Collegiate Athletic Ass'n, 683 F.3d 328, 334 (7th Cir. 2012) ("In reviewing the sufficiency of a complaint, we must accept all well pled facts as true and draw all permissible inferences in favor of the plaintiff.").
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 brought 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 an Amended Complaint.
On December 10, 2013, the Court granted in part and denied in part Defendants' Rule 12(b)(6) motion to dismiss Plaintiff's four-count Amended Complaint. In particular, the Court denied Defendants' motion to dismiss the Section 1981 claim because Plaintiff admitted that he was not basing his Section 1981 claim on his disability. The Court also dismissed Plaintiff's intentional and negligent infliction of emotional distress claims with prejudice because the claims were time-barred under the two-year limitations period for Illinois personal torts. Further, the Court granted Defendants' motion as to Plaintiff's conversion of personal property claim without prejudice, granting Plaintiff leave to amend his conversion claim. On December 20, 2013, Plaintiff, by counsel, filed the present Second Amended Complaint.
In his Second 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. 46, Second Am. Compl. ¶ 1.) Plaintiff further alleges that 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.) Defendant Hans 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.) Thereafter, Plaintiff arranged for a ride to the Northbrook facility and, upon arrival, an Unnamed Employee took his luggage and placed it in a white Chevrolet Blazer identified as an Enterprise vehicle. ( Id. ¶ 7.) Plaintiff further alleges that this Unnamed 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 ...