United States District Court, N.D. Illinois, Eastern Division
KENNETH E. JONES, Plaintiff,
MILTON N. DIXON, JR.; CHARLOTTE C. DE LA TORRE; KEVIN M. STAPLETON; GERALD SHEPPARD; LAWRENCE R. LOWREY, JR.; MARIO M. MENDOZA; HECTOR VILLANUEVA; CORTNEY D. JACKSON; DEROD HENDERSON; PASQUELL D. ROBINSON; and CITY OF CHICAGO, a municipal corporation, Defendants.
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
Plaintiff Kenneth E. Jones commenced this action against various police officers and the City of Chicago ("City") alleging use of excessive force and failure to intervene in violation of 42 U.S.C. § 1983. The City moves to dismiss Jones' claim for recovery as third-party beneficiary of contract (Count V of the Complaint) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Specifically, the City asserts that Jones lacks standing as a third-party beneficiary to the contract at issue, that the Court has no subject matter jurisdiction over this claim, and that the claim is not ripe for adjudication. For the reasons stated below, the City's Motion to Dismiss is granted.
The following facts are taken from Jones' Second Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). On August 23, 2011, Jones was being chased on foot by two men in Chicago, Illinois. (Docket No. 24, Second Amended Complaint ¶ 17). One of the two men, an individual named Hermaine Ralsston, flagged down two Chicago police officers, Milton Dixon and Charlotte De La Torre, that he had been shoved by Jones and that Jones had stolen a chain he had been wearing. (Compl. ¶ 18). Officers Dixon and De La Torre pursued Jones on foot and caught up to him in the backyard of a residence, at which point he immediately and voluntarily dropped to his knees and raised his open hands above his head ( Id. at ¶19-21). Without speaking, Dixon drew his Taser and fired at Jones, hitting him with the electrical charge. ( Id. at ¶ 22). At no time prior to deploying the Taser did any of the police officer defendants speak to or warn Jones. ( Id. at ¶ 24).
At all relevant times, the City was a party to two collective bargaining agreements: (1) an Agreement Between the City of Chicago Department of Police and the Fraternal Order of Police Chicago Lodge No.7 ("Agreement 1") and (2) an Agreement Between the City of Chicago and the Policemen's Benevolent & Protective Association of Illinois, Unit 156-Sergeants ("Agreement 2") (collectively "the Agreements"). ( Id. at ¶¶ 51 and 54; Ex. A & B). Section 22.1 of Agreement 1 provides:
The Employer shall be responsible for, hold officers harmless from and pay for damages or monies which may be adjudged, assessed, or otherwise levied against any officer covered by this Agreement, subject to the conditions set forth in Section 22.4.
Agreement 1 Section 22.1. Section 22.1 of Agreement 2 provides a similar protection to Sergeants:
The Employer shall be responsible for, hold Sergeants harmless from and pay for damages or monies which may be adjudged, assessed, or otherwise levied against any Sergeant covered by this Agreement, subject to the conditions set forth in Section 22.4.
Agreement 2 Section 22.1. The Agreements provide this indemnification with the requirement that the officer or Sergeant is acting within the scope of employment. (Compl. ¶¶ 53 & 56).
Jones claims that he is a third-party beneficiary to the Agreements in Count V of his Second Amended Complaint such that he can enforce the indemnity provisions of the Agreements between the City and the police officer defendants in the event of a judgment in his favor. The City now moves this Court to dismiss Count V pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1); United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.2003). "If subject matter jurisdiction is... not evident on the face of the complaint, the motion to dismiss... would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true. United Phosphorus, 322 F.3d at 946; Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) citing Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). The party asserting jurisdiction must establish it by "competent proof." United Phosphorus, 322 F.3d at 946; NFIC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir.1995) citing McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780 (1936). This means that jurisdiction must be established by a preponderance of the evidence or "proof to a reasonable probability." NFIC, 45 F.3d at 237, citing Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir.1993).
When considering a motion to dismiss under Rule 12(b)(6), this court will accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A plaintiff need not allege all facts involved in the claim. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest ...