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Spiezer v. Dicker, Kahn, Slowikowski and Zavell Ltd.

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

December 16, 2019

JOSEPH SPIEZER. Plaintiff,
v.
DICKLER, KAHN, SLOWIKOWSKI and ZAVELL, Ltd.; THE NORTHBROOK COUNTRY CONDOMINIUM ASSOC.; and BERKSON & SONS, Ltd., Defendant.

          MEMORANDUM OPINION AND ORDER

          SUSAN E. COX, U.S. MAGISTRATE JUDGE

         For the reasons discussed herein, the Court rules as follows:

         1) Defendant Dicker, Kahn, Slowikowski and Zavell Ltd.'s (“DKSV”) Motion to Dismiss [10] is granted. All claims against DKSV are dismissed.

         2) Defendants Northbrook Country Condominium Association and Berkson & Sons Ltd.'s Motion to Dismiss [15] is granted as to Count I, and entered and continued as to Count II.

         3) Plaintiff and Defendants Northbrook Country Condominium Association and Berkson & Sons Ltd. shall provide additional briefing regarding Count II. Defendants' brief is due 12/23/2019 and Plaintiff's brief is due 1/13/2020.

         BACKGROUND

         From the Court's review of Plaintiff's pro se Complaint and the accompanying materials, this case is the latest in a heavily litigated property dispute. The Court will focus only on the facts that are relevant to the pending motions as alleged in Plaintiff's Complaint. Where Plaintiff's Complaint is confusing or incomplete, the Court refers to the facts recited in the state court litigation that preceded the instant suit.[1]

         Plaintiff's mother, June Spiezer, died in November 2011. (Dkt. 1 at ¶ 4.) Defendant Northbrook Country Condominium Association (“the Association”), acting through its Board of Directors (“the Board”), [2] filed a forcible entry complaint against the June Spiezer Trust and June Spiezer as Trustee in September 2012, seeking to recover common expenses owed on her condominium. (Id. at ¶ 2); Bd. of Mgrs of Northbrook Country Condo. Assoc. v. Spiezer, 103 N.E.2d 870, 871, at ¶ 1 ( Ill. App. 2018). After the trial court entered default judgment and an order of possession in favor of the Association, Plaintiff successfully moved to have those orders vacated; the trial court then denied Plaintiff's motion to quash service and entered another order in favor of the Board. Bd. of Mgrs. of Northbrook Country Condo. Assoc., 103 N.E.2d at 871, at ¶ 1.

         Plaintiff was eventually named trustee over his mother's trust, and transferred the condominium from the trust to himself on January 4, 2013 via quitclaim deed. (Dkt. 1 at ¶ 12.) In 2014, the Board rented the subject unit and had paid off the overdue common expenses by January 2015. (Id. at ¶ 16.) At some point, Plaintiff became aware that Board had rented the unit and filed a motion in the state court seeking an accounting. (Id. at ¶ 19.) Plaintiff claims that the Board had obtained $14, 000 in “surplus” as of November 2015, and that Defendant Berkson & Sons Ltd. (“Berkson & Sons”) “improperly held such sums and failed and refused to turnover said sums to the plaintiff.” (Id., Count II at ¶¶ 4-5.) Plaintiff alleges that the positive balance on the unit was approximately $78, 000 as of the filing of his complaint in the instant action. (Id., Count II at ¶ 10.)

         Ultimately, for reasons that are not germane to the instant motions, Plaintiff was unsuccessful in all his state court litigation. Plaintiff alleges that attorneys for the Board (presumably Defendant DKSV) hand delivered a letter and all documents filed related to the state court case, and that the attorneys, the Board, and the state court judge “engaged in ex parte communications in violation of Supreme Court Rule 63.” (Id. at ¶28, ¶ 31.) Plaintiff also alleges that an attorney for the Board warned Plaintiff not to appeal an unfavorable ruling because they had “friends [on the Illinois Appellate Court], too.” (Id. at ¶ 40.)

         Plaintiff filed the instant suit on March 25, 2019, and the parties consented to this Court's jurisdiction on October 25, 2019. (Dkt. 1, 29.) Plaintiff's complaint brings two causes of action. Count I is brought pursuant to 42 U.S.C. § 1983, and appears to be against the Association and DKSV (Berkson & Sons are not mentioned anywhere in this Count). Count II is slightly less clear, but from the Court's review of the allegations appears to be a claim under 735 ILCS 5/9-111.1.[3] All Defendants filed to dismiss Plaintiff's complaint, and those motions are now fully briefed and ripe for disposition.

         DISCUSSION

         I. LEGAL STANDARD

         Defendants have moved to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In ruling on a motion pursuant to Rule 12(b)(6) the Court must treat the allegations in the complaint as true and give the Plaintiff the benefit of any reasonable and favorable inferences ...


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