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Stoller v. Costco Wholesale Corp.

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

January 16, 2020

COSTCO WHOLESALE CORP., et al., Defendants.


          Robert M. Dow, Jr. United States District Judge.

         This case has its genesis in Plaintiff's decision to consume part of a shrimp platter while shopping at a Costco in the Chicago suburbs. After Plaintiff left the store without paying for the shrimp (and possibly a pair of gloves), the store declined to press criminal charges but asked the local police department to issue an administrative ticket for retail theft. The police obliged. Not content to settle for a modest measure of vindication when the hearing officer tossed the ticket on a technicality, Plaintiff launched this federal lawsuit, ultimately dragging in more than three dozen named defendants and a host of other as-yet unnamed individuals and entities.

         The litigation suffers from many flaws, the most notable of which is that in waiting more than two years after the Costco incident to file suit, most of Plaintiff's claims were time-barred from the start. And though no malicious prosecution claim could accrue until the dismissal of the ticket, the absence of a victory on the merits in that litigation foreclosed that claim too. Plaintiff's satellite motions-seeking disqualification of lawyers, early discovery, and other miscellaneous relief-also lack merit. In short, this entire litigation is completely frivolous and it ends on the merits, such as they are, today. Defendants' motions to dismiss [71, 73, 75] and for summary judgment [87, 91] are granted. Plaintiff's motions to disqualify counsel [36, 38, 40, 56], for discovery [42, 44, 46, 77, 101], for an evidentiary hearing [58, 67], for Rule 11 sanctions [64], and to strike the Lipe Lyons Defendants' motion for summary judgment [95] are denied. Plaintiff's motions for extension of time [67, 83] and his motion for leave to file a reply brief [122] are granted. Defendants' motions for sanctions under Rule 11 [48, 50, 69] are granted in part, and any Defendant interested in pursuing sanctions should file a position paper by January 30, 2020, in regard to how it believes the Court should proceed in view of the bar order imposed by the Seventh Circuit (see below). Plaintiff's motion to substitute [130] is denied in view of the Seventh Circuit's December 23, 2019 order barring Plaintiff from making any filings (directly or indirectly) in all federal courts in this circuit until he makes full payment of $19, 028 in outstanding sanction for the filing of numerous frivolous appeals. See Wilmington Trust, N.A. v. Stoller, et al., Nos. 19-2561 & 19-2591, and Stoller v. Altisource Residential, L.P., et al., No. 19-2923, Order (7th Cir. Dec. 23, 2019).[1] Defendant Law Offices of Lisa T. Damico's motion to join the Lipe Lyons Defendants' response in objection to Plaintiff's motion to substitute [137] is granted.

         In view of the dismissal of all of Plaintiff's substantive claims-leaving only the collateral matter of sanctions pending in the district court-the Court will enter a final and appealable judgment under Federal Rule of Civil Procedure 58. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395-96 (1990) (“Like the imposition of costs, attorney's fees, and contempt sanctions, the imposition of a Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.”); Bigby v. City of Chicago, 927 F.2d 1426, 1427-28 (7th Cir. 1991) (“where a case has been resolved on the merits and a fee petition or a motion for sanctions remains pending in the district court * * * the judgment on the merits is final and appealable despite the pendency of collateral matters in the district court”).

         I. Background[2]

         Plaintiff Christopher Stoller has sued literally everyone he can find who had anything to do with his prosecution for retail theft-from Costco employees, to arresting officers, to prosecutors, to defense attorneys in this litigation, to public officials in the arresting municipality, and others. According to Plaintiff's complaint, “this action is brought against the Defendants for their violations of 42 U.S.C. § 1983, the Americans with Disabilities Act of 1990, 42 USC § 12101 et seq., ” several state laws, and the common law. [1, at 2.] Plaintiff alleges false arrest, false imprisonment and conspiracy under Section 1983, as well as claims for battery, fraud, intentional and negligent infliction of emotional distress, and defamation.

         On November 19, 2016, Plaintiff went shopping at the Costco Wholesale warehouse in Melrose Park, Illinois. While shopping inside the store, Plaintiff used a motorized scooter owned by Costco. Among the items that he added to his cart was a pre-made deli shrimp platter. Costco Loss Prevention Officer Christine Carlson personally observed Plaintiff open the container and begin eating the shrimp as he rode around the store. According to Carlson, Plaintiff discarded the container into a trash can after consuming approximately ten shrimp. Carlson retrieved the container from the trash and confirmed it was a Costco product and that it was not paid for.

         After bringing the container to the store security office, Carlson informed management that she would approach Plaintiff if he attempted to leave the store without paying for the item. Carlson continued to watch Plaintiff through security cameras as he shopped. At one point, Carlson observed Plaintiff take three pairs of gloves from a display. He removed one pair from the box and concealed them in his jacket pocket, while placing the other two pairs, still in their boxes, under some jackets on a table near the center of the store. Plaintiff proceeded to the checkout and purchased the remaining items in his basket. He then stopped to purchase a meal at the food court and make a stop at the restroom. After eating his meal, Plaintiff headed for the exit of the store on the scooter. Once Plaintiff reached the vestibule-beyond the last point of purchase-Carlson approached him to ask if he would return to the store to discuss the shrimp platter. In an effort to entice Plaintiff back to the store, Carlson removed the purchased groceries from Plaintiff's cart. Plaintiff said to keep the groceries and proceeded to drive the scooter into the parking lot.

         Carlson did not try to stop Plaintiff at that time. Shortly thereafter, four Costco employees (including Carlson) confronted Plaintiff at the far end of the parking lot. After a brief interaction, they decided not to try holding him on their own, and instead called Melrose Park police to report the theft. The police responded to the scene and located an individual matching the description of the alleged offender a short distance from Costco. Not surprisingly, the individual was Plaintiff. The officers handcuffed Plaintiff, placed him in a squad car, and returned to Costco for a positive identification. Carlson identified Plaintiff as the person who had eaten the shrimp without paying for them. On behalf of Costco, she indicated that the store did not wish to press charges, but asked instead that Plaintiff be issued a ticket. Melrose Police Officer DeCarlo issued Plaintiff a village citation for retail theft-a civil municipal offense that carries a $100 fine-and a verbal warning for trespass. Plaintiff was then offered the items that he had actually purchased at the store, but he refused them and walked away.

         Plaintiff contested the village citation, which proceeded to an administrative hearing at the Melrose Park police station on November 21, 2017. Two attorneys represented Plaintiff at the hearing, along with a prosecuting attorney for the Village and separate counsel retained by Costco to represent Carlson in her capacity as a witness. In the Village's case-in-chief, Carlson and DeCarlo presented testimony regarding the incident. At the close of the Village's evidence, counsel for Plaintiff moved for a directed finding on the ground that the charging document-the ticket-was defective because it referenced a motor vehicle offense rather than retail theft. The hearing officer commented that “as far as the evidence that I have heard thus far, I believe there is sufficient evidence to support the violation.” [93, at 3.] However, he determined that “due to the defect in the complaint, I'm going to dismiss the complaint.” Id.

         More than a year later, on January 8, 2019, Plaintiff commenced the instant lawsuit. On May 30, 2019, Plaintiff filed the currently operative first amended complaint [55], which asserts the following claims: “(a) Violation of 42 U.S.C. 1983: arrest, (b) Violation of 42 U.S.C. 1983: detention and confinement, (c) Violation of 42 U.S.C. 1983: strip search, (d) Violation of 42 U.S.C. 1983: conspiracy, (e) Violation of 42 U.S.C. 1983: refusing or neglecting to prevent, (f) Malicious prosecution, (g) Malicious abuse of process, (h) Violation of Ill. Civil Rights Act, (i) False Arrest and imprisonment, (j) Battery, (k) Conspiracy, (1) Intentional infliction of emotional distress, (m) Perjury, (n) Subornation of Perjury.” Id. at 34-35. Defendants in this case fall roughly into five camps: (1) Costco Defendants (the store where the incident occurred and its employees), (2) Village of Melrose Park Defendants (the municipality whose officers issued a ticket to Plaintiff and the municipality's employees), (3) Damico Law Defendant (the lawyer who prosecuted the ticket), (4) Lipe Lyons Defendants (another law firm that worked for Costco), and (5) Cray Defendants (lawyers representing the Lipe Lyons firm in this case). All Defendants except for the Cray Defendants have either moved to dismiss the complaint or have moved for summary judgment. Plaintiff has filed a plethora of motions seeking to disqualify opposing counsel, conduct limited discovery, and for other relief. Parties on both sides of the case have sought sanctions. All told, approximately two dozen motions have been briefed and are ripe for decision.

         II. Discussion

         A. Motions to Dismiss and Motions for Summary Judgment

         Defendants have filed both motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) and motions for summary judgment under Federal Rule of Civil Procedure 56. Their 12(b)(6) motions challenge the sufficiency of Plaintiff's amended complaint. For purposes of a motion to dismiss under Rule 12(b)(6), the Court “‘accept[s] as true all of the well-pleaded facts in the complaint and draw[s] all reasonable inferences in favor of the plaintiff.'” Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th Cir. 2017) (quoting Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016)). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff's complaint must allege facts which, when taken as true, “‘plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level.'” Cochran v. Illinois State Toll Highway Auth., 828 ...

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