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Onyango v. Nick & Howard, LLC

United States District Court, N.D. Illinois, Eastern Division

August 1, 2014

ERIC ONYANGO, Plaintiff,



Plaintiff, Eric Onyango, filed his second amended complaint against defendant Nick & Howard d/b/a Rockit Ranch Productions, Inc., The Underground Chicago ("Nick & Howard"), alleging violations of 42 U.S.C. §1981, defamation, negligence, negligent retention and supervision, intentional infliction of emotional distress, invasion of privacy, and a violation of the Illinois Fraud and Deceptive Business Practices Act, 815 ILCS 505/2. Onyango's claim for intentional infliction of emotional distress is also alleged against defendants Douglas B. Wexler ("Wexler"), and Samuel J. Manella ("Manella"). All defendants now move to dismiss Onyango's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Nick & Howard also move to strike certain allegations contained within the complaint. The Court requested oral arguments which were heard on May 2, 2014.

For the reasons contained herein, Nick & Howard's motion to dismiss [47] is granted. Counts I and III of Onyango's second amended complaint are dismissed. The Court declines to exercise supplemental jurisdiction over the Counts II, IV, V, VI, VII, VIII and XI as asserted against Nick & Howard. Nick & Howard's motion to strike [52] is moot. Wexler's and Manella's motions to dismiss [50, 55] are granted. Onyango's second amended complaint is dismissed with prejudice.


This action arises from two incidents that occurred at the Underground, a Chicago nightclub owned by Nick & Howard. Onyango, who is an African American attorney, visited the Underground with a friend on December 24, 2012. While there, Onyango alleges a Nick & Howard promoter, Carlos Rosales, yelled hateful and inciteful words at him, including calling him a "black motherfucker, " telling him he hated him, and asking him to "get out of" the Underground. (Dkt. #42, 2d. Am. Compl. ¶13.) Onyango alleges Rosales acted in part due to jealousy. ( Id. ) As a result, Onyango states that he "prematurely left [the] Underground, humiliated and embarrassed." ( Id. at ¶14.) On January 22, 2013, Onyango complained in writing to Nick & Howard about Rosales' behavior and later received a phone message response allegedly acknowledging receipt of his complaint. ( Id. at ¶¶15-16.)

Onyango again visited the Underground with a friend on August 2, 2013. While waiting in line to be admitted, Onyango alleges that Rosales approached the doorman and referred to Onyango as a sexual assailant. ( Id. at ¶17.) Onyango alleges that, as a result, he was denied entrance to the nightclub and left, again, humiliated and embarrassed. ( Id. at ¶19.)

Onyango alleges that Nick & Howard maintains an unlawful policy limiting the number of African American patrons they admit to the nightclub. On August 12, 2013, Onyango spoke with Wexler, general counsel for Nick & Howard about the alleged discriminatory practices. The following day, Onyango filed a motion to intervene in an employment discrimination lawsuit involving the Underground and attached to his motion a proposed complaint. (Dkt. #49-1, Def.'s Mot. to Dismiss, Ex. A.) The motion was denied.

Onyango also alleges that, after complaining to Wexler and prior to filing his complaint, Wexler and Rosales contacted at least two of Onyango's female friends, told them that Onyango had sexually assaulted women and asked them "to offer false statements" that Onyango had sexually assaulted them, too. (Dkt. #42, ¶¶25-29, 31.) At some point, Onyango also filed a complaint with the Federal Bureau of Investigation and a grievance with the Illinois Attorney Registration and Disciplinary Commission ("ARDC") against Wexler. Wexler hired Manella to represent him in the ARDC proceedings, who responded in writing to the allegations in a letter to the ARDC dated August 30. Onyango asserts that Manella's letter falsely and unnecessarily stated that Onyango had sexually assaulted women. ( Id. at ¶¶33-34.)

On September 3, 2013, Onyango commenced the instant lawsuit against Nick & Howard for discrimination and retaliation in violation of 42 U.S.C. §1981, negligence, intentional infliction of emotional distress, defamation, invasion of privacy and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, and moved for a preliminary injunction. On September 12, Onyango filed an amended complaint adding Wexler and Manella to his claim for emotional distress. All defendants subsequently moved to dismiss. Onyango was granted leave to file a second amended complaint adding claims of negligent retention and supervision against Nick & Howard, and subsequently withdrew and re-filed his motion for preliminary injunction. The Court ultimately denied the motion for preliminary injunction and Onyango appealed. The Seventh Circuit affirmed and denied rehearing. During the pendency of Onyango's appeal, the parties briefed the motions to dismiss and motion to strike now before this Court. As such, the motions are ripe for ruling.

Legal Standard

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint, not the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual allegations to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009). This standard is met when the plaintiff pleads factual content that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A motion to dismiss is decided solely on the face of the complaint and any attachments that accompanied its filing. Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010). Accordingly, the court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007).


1. Nick & Howard's Motion to Dismiss

Nick & Howard moves to dismiss Onyango's second amended complaint in its entirety for failure to state a claim. As an initial matter, Nick & Howard disputes it is liable for Rosales' alleged conduct or defamatory remarks.[1] Significantly, in affirming this Court's ...

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