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Michon v. Ugarte

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

February 15, 2017

DAVID MICHON, Plaintiff,


          Harry D. Leinenweber, Judge

         Before the Court is Defendant Martin Ugarte's Motion to Dismiss [ECF No. 26]. For the reasons stated herein, the Motion is denied except with respect to the negligence cause of action (Count IV). Count IV is dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(1).

         I. BACKGROUND

         Plaintiff David Michon (hereinafter, “Plaintiff” or “Michon”) brings a six-count Complaint, five of which are state-law claims, against the City of Chicago, its officers, and Defendant Martin Ugarte (“Ugarte”), a private citizen. For the purposes of deciding Ugarte's Motion to Dismiss, the Court accepts as true the following facts provided by Plaintiff. Katz-Crank v. Haskett, 843 F.3d 641, 646 (7th Cir. 2016).

         On December 27, 2014, Ugarte was driving behind Plaintiff when he “caused a bottle of water to strike” Plaintiff's car. The two parties then exited their vehicles, at which time Ugarte “falsely announced that he was a police officer.” Ugarte proceeded to hit Plaintiff. Plaintiff “stagger[ed]” and while “bracing his knee for support, Plaintiff tore his ACL and meniscus.” The Defendant Officers - Chicago Police Officers Campbell, Fueling, Oliver, Scott, and Clark - then arrived on the scene. The Officers intervened and stopped Ugarte. They then handcuffed and arrested him. Plaintiff alleges “upon information and belief” that while under arrest, Ugarte “spoke with the Defendant Officers and advised the officers that Ugarte was a police officer.” Shortly thereafter, the Defendant Officers released Ugarte and arrested Plaintiff.

         Plaintiff alleges that he repeatedly asked the Defendant Officers for medical care while he was handcuffed and transported to the police station. The Defendant Officers denied his requests. After Plaintiff arrived at the police station, he again asked to see a doctor. An unknown Defendant Officer threatened that he would be “lost in the system and not released until after the New Year” if he continued to request medical care. Plaintiff was charged with battery and criminal damage to property and then released. Plaintiff then asked for a ride to the hospital but was told by an unknown Defendant Officer to leave the station “or we'll throw you back in.” The charges against Plaintiff were dismissed on July 23, 2015.

         In this lawsuit brought a year and a half after the alleged incidents took place, Plaintiff sues the City of Chicago, its various officers, and Ugarte. The single federal-law claim in the suit is a § 1983 claim made against the Defendant Officers for denial of medical care (Count V). Against Ugarte, Plaintiff brings four state-law claims: false arrest (Count I), battery (Count III), malicious prosecution (Count IV), and negligence (Count IV). (Plaintiff mislabels both the malicious prosecution claim and the negligence claim as Count IV.) Against the City, Plaintiff asserts a respondeat superior claim (Count III), attempting to hold it liable for the acts of the Defendant Officers, its employees. The only claim against Ugarte that overlaps with a claim against any other Defendants is Count I in which Plaintiff accuses both the Defendant Officers and Ugarte of violating Illinois law by falsely arresting him.

         III. ANALYSIS

         Ugarte's Motion to Dismiss is a three-page document that simulatenously seeks to dismiss claims that do not exist (e.g., a Count VII, VIII, and IX in a six-count Complaint) and ignores those that do (e.g., the negligence claims). Despite the obvious deficiencies, the Court treats the Motion as a prayer to dismiss all counts of the Complaint against Ugarte.

         A. Waiver

         If brevity is the soul of wit, then the Court could have done with a bit more tediousness. Of three pages Ugarte devoted to his Motion, all but five paragraphs are spent regurgitating Plaintiff's Complaint. These five paragraphs constitute all of Ugarte's arguments as to why the Court should grant him relief, and yet, as Plaintiff points out, they cite precisely “nothing.” Ugarte's Motion contains not a single case or any other authority in support of his prayers for dismissal.

         As the Seventh Circuit “repeatedly ha[s] made clear, ” “perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.” United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991). This waiver principle is as true in a motion to dismiss as it is on appeal. For example, in Cannon v. Burge, No. 05 C 2192, 2006 U.S. Dist. LEXIS 4040, at *28 n.8, *33, *36, *66, *76-77 (N.D. Ill. Feb. 2, 2006), Judge Amy St. Eve dismissed several defenses that the defendants raised when they did not “support th[eir] argument with citations to any case law, ” “provide the Court with any pertinent case law, ” or furnish “any developed legal argument in support of their . . . conclusion.” While it is true that Ugarte's Reply Brief was more substantial than his initial Motion (a low bar to clear), the brief does not salvage his case. Arguments raised for the first time on reply are waived. See, e.g., Dye v. United States Farm Servs. Agency (In re Dye), 360 F.3d 744, 751 n.7 (7th Cir. 2004); Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508 (7th Cir. 1994). Moreover, Ugarte's Reply Brief does not at all address the waiver question, despite that being the only issue that Plaintiff raised in opposition to the Motion to Dismiss. The Court thus has no basis to attempt to rescue the Motion.

         In sum, Ugarte's Motion to Dismiss is spent reciting Plaintiff's allegations, denying them, and then asserting that “there is not a plausible basis to plead that the Defendant Ugarte was responsible.” Insofar as Ugarte raises any cognizable arguments, the arguments are ...

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