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City of Chicago v. Smollett

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

October 22, 2019

CITY OF CHICAGO, Plaintiff,
v.
JUSSIE SMOLLETT, Defendant.

          MEMORANDUM OPINION AND ORDER

          Virginia M. Kendall United States District Judge.

         The City of Chicago alleges that Jussie Smollett falsely reported that he was physically assaulted by two masked perpetrators who hurled racist and homophobic slurs at him. The City sued Smollett to recoup the costs it incurred investigating the attack. According to the City, the investigation revealed that the attack was actually an elaborate hoax staged by Smollett and two acquaintances. Smollett now moves to dismiss the City's complaint for failing to state a claim for relief under Rules 12(b)(6) and 9(b). Smollett's motion to dismiss [Dkt. 14] is denied.

         BACKGROUND

         The following factual allegations are drawn from the City's complaint (Dkt. 1-1) and are accepted as true for purposes of this motion to dismiss. W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016).

         I. The Attack

         Defendant Jussie Smollett is an actor on the television show “Empire, ” which is filmed primarily in Chicago. (Dkt. 1-1 ¶ 2.) While working on Empire, Smollett lived in the Streeterville neighborhood of Chicago. (Id.) In the fall of 2017, Smollett became friends with Abimbola Osundario (“Abel”), who had worked with Smollett on Empire. (Id. ¶ 6.) Smollett and Abel exercised and socialized together. (Id.)

         On the morning of January 25, 2019, Smollett texted Abel and asked him when he was leaving for his upcoming trip to Nigeria with his brother, Olabinjo Osundario (“Ola”). (Id. ¶ 7.) Abel responded that he and his brother were leaving four days later, on the evening of January 29. (Id. ¶ 8.) Smollett then texted Abel, “Might need your help on the low. You around to meet up and talk face to face?” (Id. ¶ 9.) Later that day, Smollett drove Abel from Cinespace Studio, where Empire is filmed, to Abel's apartment. (Id. ¶ 10.) During the drive, Smollett told Abel he was unhappy with the way his employers handled a racist and homophobic letter he had received three days earlier and, as a result, Smollett wanted to stage an attack where Abel would appear to batter him. (Id.) Smollett and Abel arrived at Abel's apartment around 5:00 p.m. (Id. ¶ 11.) When they arrived, Ola (who lived with Abel) came outside and got into Smollett's car. (Id.) Smollett asked Ola if he could trust him. (Id.) Ola told Smollett that he could, and the three began discussing their plan to stage a fake racist and homophobic attack on Smollett. (Id. ¶¶ 11-12.) Smollett directed Abel and Ola to stage the attack on the evening of January 28, 2019, near Smollett's Streeterville apartment. (Id. ¶ 12.) The three agreed that Abel and Ola would catch Smollett's attention and call him “an ‘Empire F ____ Empire N ____ .'” (Id.)

         Two days later, on January 27, Smollett met with Abel and Ola again to finalize the details of the staged attack. (Id. ¶ 13.) Smollett drove them to the location where he wanted the attack to take place, on the corner of New Street and North Water Street in Streeterville. (Id.) While at the location, Smollett pointed out a surveillance camera that he believed would capture the incident. (Id. ¶ 14.) Smollett and the brothers agreed that Abel would attack Smollett, but would not hurt him too badly, and would give Smollett a chance to appear to fight back. (Id. ¶ 15.) They also discussed having the brothers place a rope around Smollett's neck and pour liquid on him. (Id. ¶ 16.) Smollett told Abel and Ola he wanted the attack to occur the following night at 10:00 p.m. and told the brothers not to bring their cell phones with them. (Id. ¶ 17.) Smollett gave Abel a $100 bill to purchase clothing and materials needed for the attack. (Id. ¶ 18.) During the same conversation, Smollett also gave Abel a personal check for $3, 500. (Id. ¶ 19.) The check was made payable to Abel and the check's memo line read “5 week nutrition/ workout program (don't go).” (Id.) The next day, Abel and Ola bought a rope at a hardware store and clothing items at a beauty supply store, and Abel deposited the $3, 500 check from Smollett in his bank account. (Id. ¶¶ 20-21.) The day after that, Abel transferred half that amount ($1, 750) to Ola's bank account. (Id. ¶ 21.)

         After Smollett met with Abel and Ola to finalize the details of the attack, he traveled to New York and was scheduled to return on January 28. (Id. ¶ 22.) On the evening of January 28, Smollett's flight back to Chicago was delayed, and he called Abel and told him he needed to delay the attack. (Id. ¶ 23.) Smollett's flight landed at Chicago O'Hare International Airport at 12:30 a.m. on January 29. (Id. ¶ 24.) At 12:49 a.m., Smollett and Abel spoke on the phone and Smollett told Abel the attack should take place at 2:00 a.m. at the agreed-upon location. (Id. ¶ 25.) Minutes later, Ola ordered an Uber to pick the brothers up at their apartment. (Id.)

         Abel and Ola took an Uber from their apartment to the 1400 block of North Wells Street, where they hailed a taxi that dropped them off within three blocks of the agreed-upon attack location. (Id. ¶ 26.) From around 1:22 a.m. to 2:03 a.m., the brothers were on foot in an area bordered by Lake Shore Drive, the Chicago River, Columbus Drive, and Illinois Street. (Id. ¶ 27.) Smollett returned to his apartment around 1:30 a.m. (Id. ¶ 28.) At 1:45 a.m., Smollett left his apartment building on foot and walked to a nearby Subway restaurant at Illinois Street and McClurg Court. (Id. ¶ 29.) Surveillance video shows Abel and Ola waiting near New Street and North Water Street at 2:00 a.m. (Id. ¶ 30.) Smollett was later interviewed on ABC's Good Morning America, which aired on February 14, 2019, and he positively identified the people shown in a still photo from this surveillance video (the “Still Photo”) as his attackers. (Id. ¶ 31.) The two individuals in the Still Photo are Abel and Ola Osundario. (Id. ¶ 32.) Shortly after 2:00 a.m., Abel and Ola staged the attack on Smollett and then ran from the location, hailed a taxi, and were dropped off near their apartment at 2:25 a.m. (Id. ¶¶ 33-34.)

         II. Smollett's First Report to the Chicago Police Department

         Shortly after the incident, Smollett told his manager, Frank Gatson, that he had been attacked. (Id. ¶ 35.) At 2:27 a.m., Gatson called the Chicago Police Department (“CPD”) to report the attack on Smollett. (Id.) At 2:42 a.m., CPD officers arrived at Smollett's apartment and found Smollett with a rope draped around his neck. (Id. ¶ 36.)

         Smollett then proceeded to make a false police report. (Id. ¶ 37.) Smollett told CPD officers that he was a victim of a racist and homophobic physical attack. (Id. ¶ 38.) He gave this report to CPD officers despite knowing that the purported attack was not racially or homophobically motivated, that his attackers were actually his acquaintances Abel and Ola Osundario, and that he had asked them to stage the attack. (Id. ¶ 39.) Smollett told the CPD officers that his attackers placed a rope around his neck, poured a liquid chemical on him, and told him “this is ‘MAGA Country.'” (Id. ¶ 40.) He did not tell the officers that the attacked was staged at his direction and with the cooperation of Abel and Ola, nor did he tell the officers that he knew his attackers or recognized their appearances or voices. (Id. ¶¶ 41, 43.) Smollett told the officers that his primary attacker (now known to be Abel) was wearing a ski mask that covered his entire face except for the area around his eyes, by which Smollett could tell that the attacker was white. (Id. ¶ 45.) Smollett made this statement despite knowing that Abel and Ola are not white. (Id.) By providing a false description, Smollett misled the officers to believe his attackers were white, when Smollett in fact knew that the attackers were Abel and Ola. (Id. ¶ 46.) Smollett also told the officers the attack happened near a surveillance camera that should have captured the events, referring to the same camera he had pointed out to Abel and Ola a few days earlier. (Id. ¶ 42.) Smollett remained in contact with Abel and Ola after the staged attack. (Id. ¶ 47.)

         III. CPD's Investigation and Smollett's Second Report to CPD

         For the next two weeks, CPD expended significant resources investigating Smollett's false report of a “high-profile hate crime and physical assault.” (Id. ¶ 48.) Over two dozen CPD officers and detectives participated in the weeks-long investigation. (Id.) CPD incurred 1, 836 overtime hours during the course of the investigation, which resulted in the City paying $130, 106.15 in overtime pay as a result of Smollett's false statements to police. (Id.) After an extensive investigation using interviews, surveillance videos, Office of Emergency Management pod videos, in-car taxi camera videos, rideshare records, bank records, and a store receipt, CPD identified Abel and Ola as the perpetrators of the attack. (Id. ¶ 49.)

         On February 13, 2019, Abel and Ola returned to Chicago from Nigeria. (Id. ¶ 50.) They were immediately and separately detained upon arrival at O'Hare. (Id.) CPD investigators obtained testimony and corroborating evidence from Abel and Ola showing that Smollett had orchestrated and staged the attack with Abel and Ola's cooperation and that Smollett's police report was false. (Id.)

         On February 14, 2019, CPD officers interviewed Smollett about the Still Photo he identified on Good Morning America as depicting his attackers. (Id. ¶ 51.) Smollett again stated that he was certain the Still Photo depicted the men who attacked him. (Id.) CPD officers then told Smollett that the men in the Still Photo had been identified as Abel and Ola Osundario. (Id. ¶ 52.) Smollett then falsely stated that he knew Abel and Ola only as trainers and social acquaintances and that they could not have been his attackers. (Id. ¶ 53.) During the February 14 interview, Smollett again failed to inform CPD officers that he knew Abel and Ola were his attackers and that he had orchestrated the attack with their cooperation. (Id. ¶ 54.)

         IV. Relief Sought

         The City's two-count complaint brings claims under two sections of the Municipal Code of Chicago (“MCC”). The first section prohibits individuals from making false statements of material fact to the City (the “False Statements Ordinance” or “FSO”). MCC § 1-21-010. The second section provides that any person who engages in illegal activities and causes the City to incur costs while providing services reasonably related to those illegal activities is liable to the City for those costs (the “Cost Recovery Ordinance” ...


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