United States District Court, N.D. Illinois, Eastern Division
DER-YEGHIAYAN, District Judge
matter is before the court on Defendant City of Chicago's
(City), Defendant County of Cook's (County), Defendant
American Federation of State, County and Municipal
Employee's (AFSCME), and Defendant Vito Barbara's
(Barbara) motions to dismiss. For the reasons stated below,
the motions to dismiss are granted in part and the remaining
state law claims are dismissed without prejudice.
Elizabeth J. Olson and Edward E. Olson allegedly own the
property at 3359 S. Lowe Avenue in Chicago, Illinois (Subject
Barbara allegedly owns the neighboring property located at
3361 S. Lowe Avenue in Chicago, Illinois (Neighboring
Property). Plaintiffs contend that on August 14, 2008,
Barbara erected a fence in a walkway between the Subject
Property and the Neighboring Property. According to
Plaintiffs, the fence is approximately ten to thirteen inches
away from the Subject Property and prevents all use and
access to the Subject Property. Plaintiffs contend that
Defendants engaged in a civil conspiracy to deny Plaintiffs
the use of the Subject Property in violation of
Plaintiffs' equal protection rights. Plaintiffs include
in their complaint claims against all Defendants alleging
equal protection violations brought pursuant to 42 U.S.C.
§§ 1983 and 1985(3).
Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)) requires a
court to dismiss an action when it lacks subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1); see also Ezekiel v.
Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that
when reviewing a motion to dismiss brought under Rule
12(b)(1), the court “must accept as true all
well-pleaded factual allegations, and draw reasonable
inferences in favor of the plaintiff”). When subject
matter jurisdiction is not apparent on the face of the
complaint and is contested, “the district court may
properly look beyond the jurisdictional allegations of the
complaint . . . to determine whether in fact subject matter
jurisdiction exists.” Sapperstein v. Hager,
188 F.3d 852, 855-56 (7th Cir. 1999)(internal quotations
omitted)(quoting United Transportation Union v. Gateway
Western Railway Co., 78 F.3d 1208, 1210 (7th Cir.
1996)). The burden of proof in regards to a Rule 12(b)(1)
motion is on the party asserting that the court has subject
matter jurisdiction. Id.
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court must draw all reasonable inferences that
favor the plaintiff, construe the allegations of the
complaint in the light most favorable to the plaintiff, and
accept as true all well-pleaded facts and allegations in the
complaint. Appert v. Morgan Stanley Dean Witter,
Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v.
Ill. Dep't of Prof'l Regulation, 300 F.3d 750,
753 (7th Cir. 2002). A plaintiff is required to include
allegations in the complaint that “plausibly suggest
that the plaintiff has a right to relief, raising that
possibility above a ‘speculative level'” and
“if they do not, the plaintiff pleads itself out of
court.” E.E.O.C. v. Concentra Health Services,
Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965
(2007)); see also Morgan Stanley Dean Witter, Inc.,
673 F.3d at 622 (stating that “[t]o survive a motion to
dismiss, the complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face, ” and that “[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged”)(quoting Ashcroft v. Iqbal, 556 U.S.
662 (2009))(internal quotations omitted).
Claims Brought Against the City of Chicago
instant action, Plaintiffs allege that the City participated
in a conspiracy to violate Plaintiffs' equal protection
rights. The City argues that Plaintiffs' complaint should
be dismissed because the claims against the City are barred
by res judicata and the complaint was not filed within the
statute of limitations period.
City argues that Plaintiffs' claims brought against the
City are barred by the doctrine of res judicata. Under the
doctrine of res judicata, “a final judgment on
the merits of an action precludes the parties or their
privies from relitigating issues that were or could have been
raised in that action.” Barr v. Bd. of Trustees of
W. Illinois Univ., 796 F.3d 837, 839 (7th Cir.
2015)(internal quotations omitted)(quoting Allen v.
McCurry, 449 U.S. 90, 94 (1980)). In Illinois, a party
seeking to invoke the doctrine of res judicata must show: (1)
that there was “a final judgment on the merits rendered
by a court of competent jurisdiction, ” (2) that the
prior action was “the same cause of action, ” and
(3) that the prior action involved “the same parties or
their privies.” Chicago Title Land Trust Co. v.
Potash Corp. of Saskatchewan *975 Sales, 664
F.3d 1075, 1079 (7th Cir. 2011)(citing Hudson v. City of
Chicago, 889 N.E.2d 210, 215 (Ill. 2008)); see also
Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723,
727-28 (7th Cir. 2014)(stating that under Illinois law the
doctrine applies when “(1) there was a final judgment
on the merits rendered by a court of competent jurisdiction;
(2) there is an identity of cause of action; and (3) there is
an identity of parties or their privies”)(internal
quotations omitted)(quoting River Park, Inc. v. City of
Highland Park, 703 N.E.2d 883, 889 (Ill. 1998)).
2012, Plaintiffs filed a federal civil rights claim (2012
Lawsuit) against the City for alleged violations of
Plaintiffs' equal protection rights. Plaintiffs do not
dispute that there was a final judgment on the merits in the
previous action. In the 2012 Lawsuit, the court granted the
City's motion to dismiss on June 12, 2013, finding that
Plaintiffs' claims were not filed within the statute of
limitations period. The Seventh Circuit upheld the district
court's dismissal on February 13, 2014 and on April 22,
2014 Plaintiffs' request for rehearing en banc was
denied. The United ...