United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Rowland United States District Judge
Endencia owned the Pampered Pet Veterinary Service, which she
says experienced multiple break-ins between 1999 and 2007.
According to Endencia's complaint, after one such
break-in in 2005, she contacted the police. At the police
department's recommendation, the Illinois Department of
Financial & Professional Regulation (“IDFPR”)
required her to undergo a psychiatric evaluation. The result
of the evaluation was that IDFPR suspended Endencia's
brings this suit against Defendants for violating the Federal
Trade Commission Act (Count I) and for negligent
misrepresentation (Count II). Defendants moved to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). After the motions were fully briefed, Endencia
filed motions to amend her complaint and add defendants. For
the reasons explained below, the Court grants Defendants'
motions to dismiss  and , and denies Endencia's
motions for leave to amend and add defendants  and .
Plaintiff Frances Endencia (“Endencia”) brings
suit against the American Psychiatric Association
(“APA”), Dr. Stafford Henry,
“representing” the APA, and the IDFPR
(collectively, “Defendants”) for violating the
Federal Trade Commission Act (FTCA), 15 U.S.C. §§
41-58 and for negligent misrepresentation. (Dkt. 1,
Compl.).Endencia worked as a veterinarian until the
IDFPR suspended her license in August 2008. (See Id.
¶ 5.). Endencia alleges that the basis for that
suspension was a psychiatric diagnosis based on APA
procedures. (Id. ¶¶ 1,
Endencia states in her complaint, her claims focus on the
“diagnostic procedures of Psychiatry.”
(Id. ¶ 1). She alleges that the diagnostic
tests are not “transparent to the public”, are
“distorted” and “not based on medical
science.” (Id. ¶¶ 8-9.) She further
alleges that psychiatrists (none specifically named)
negligently fail to inform the public that their treatments
cause harm. (Id. ¶ 11.)
argues that dismissal is appropriate under Rule 12(b)(6)
because the FTCA does not provide a private right of action,
Endencia fails to state a claim for negligent
misrepresentation, and her negligent misrepresentation claim
in any event is time-barred. (Dkt. 11.) The APA also argues
that she fails to allege facts that show an agency
relationship between the APA and Dr. Henry, such that the APA
could be liable for his actions. (Id.) IDFPR argues
that dismissal is warranted under Rules 12(b)(6) and 12(b)(1)
because Endencia fails to state a claim and because the IDFPR
is immune from suit under the Eleventh Amendment. (Dkt.
15-1.) Both Defendants seek dismissal with prejudice.
motions to dismiss were fully briefed on August 5, 2019.
Endencia sought leave to file an amended complaint on August
motion to dismiss tests the sufficiency of a complaint, not
the merits of the case. Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990). “To survive a
motion to dismiss under Rule 12(b)(6), the complaint must
provide enough factual information to state a claim to relief
that is plausible on its face and raise a right to relief
above the speculative level.” Haywood v. Massage
Envy Franchising, LLC, 887 F.3d 329, 333 (7th Cir. 2018)
(quotations and citation omitted). See also Fed. R.
Civ. P. 8(a)(2) (requiring a complaint to contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.”). A court deciding
a Rule 12(b)(6) motion accepts plaintiff's well-pleaded
factual allegations as true and draws all permissible
inferences in plaintiff's favor. Fortres Grand
Corp., 763 F.3d at 700. A plaintiff need not plead
“detailed factual allegations”, but “still
must provide more than mere labels and conclusions or a
formulaic recitation of the elements of a cause of action for
her complaint to be considered adequate under Federal Rule of
Civil Procedure 8.” Bell v. City of Chi., 835
F.3d 736, 738 (7th Cir. 2016) (citation and internal
quotation marks omitted). Dismissal for failure to state a
claim is proper “when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558, 127 S.Ct. 1955, 1966 (2007).
the plausibility of the claim is “‘a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.'”
McCauley v. City of Chi., 671 F.3d 611, 616 (7th
Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
679, 129 S.Ct. 1937, 1950 (2009)). In addition, the Court
construes the pro se complaint liberally, holding it
to a less stringent standard than lawyer-drafted pleadings.
Cesal v. Moats, 851 F.3d 714, 720 (7th Cir.
motion to dismiss under Rule 12(b)(1) tests the
jurisdictional sufficiency of the complaint, accepting as
true all well-pleaded factual allegations and drawing
reasonable inferences in favor of the plaintiffs.”
Bultasa Buddhist Temple of Chi. v. Nielsen, 878 F.3d
570, 573 (7th Cir. 2017). A court may look beyond the
jurisdictional allegations of the complaint and “view
whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction
exists.” Ezekiel v. Michel, 66 F.3d 894, 897
(7th Cir. 1995) (citations and internal quotations omitted).
“[T]he party invoking federal jurisdiction bears the
burden of demonstrating its existence.” Boutte v.
Nw. Med. Faculty Found., 276 Fed.Appx. 490, 491 (7th
Cir. 2008) (citation and quotations omitted).