Opinion
No. 01 C 8963
May 30, 2002
MEMORANDUM OPINION
Before the court are the following motions: (1) plaintiff's motion for leave to amend the complaint; (2) defendants Stephen Bednarczyk, Floyd Eppling, Digby's Detective and Security Agency, Inc., and the City of Chicago's motions to dismiss the complaint; and (3) defendant William Peterson's motion to compel discovery. For the following reasons, the motions are granted in part and denied in part.
BACKGROUND
The following facts, which are taken as true for purposes of defendants' motions to dismiss, are drawn from Akel's First Amended Complaint (which we grant him leave to file, see infra). Plaintiff is a limousine driver. On October 28, 2001, plaintiff was driving out of a parking lot at O'Hare Airport with his passenger, Dr. Alfred Todak. Plaintiff paid the required livery tax to defendant Shanalle Dixon, the cashier at the parking lot's exit. (Dixon is employed by defendant Standard Parking.) Plaintiff requested Dixon to punch or stamp his pre-arranged ticket; she refused, and plaintiff would not surrender the ticket to her. Dixon refused to raise the gate for plaintiff, and then telephoned defendants Floyd Eppling and Stephen Bednarczyk, who were security officers employed by defendant Digby's Detective and Security Agency, Inc. ("Digby's"). Eppling is also employed by the defendant City of Chicago (the "City") as a police officer. Bednarczyk is also employed by the Cook County Sheriff's Department, which is not named as a defendant.
Eppling asked to see plaintiff's chauffeur's license. Plaintiff asked to see Eppling's identification; Eppling first refused and when requested again, flashed it "too quickly for plaintiff to see." (First Amended Complaint, ¶ 15.) (Bednarczyk did not identify himself.) Eppling became agitated. Plaintiff then rolled up his windows and called 911 on his cell phone. Eppling became more angry and began beating on plaintiff's windows and atuempting to open the car door. One of the defendants called a tow truck to tow plaintiff's car.
Defendant William Peterson, a City of Chicago police officer, then arrived at the scene; he was on duty, in uniform, and in a Chicago police vehicle. He "attempted to clarify the situation" and "stated that the most he could [do]" was to ticket plaintiff for failing to show Eppling his chauffeur's license. (Id., ¶ 17.) Peterson then wrote the ticket and told plaintiff that he could leave. While Peterson was getting information about the incident, Bednarczyk observed two medalhons bearing quotations from the Qur'an (an Islamic religious text) that were hanging from the mirror of plaintiff's car. When Bednarczyk and Eppling learned plaintiff's name, Nasser Akel, they subjected him "to a barrage of ethnic: and religious epithets." Id. ¶ 18.) Plaintiff is Muslim and Arab-American.
After Peterson ticketed plaintiff, plaintiff proceeded to the cashier's window; Dixon again refused to stamp or punch plaintiff's pre-arranged ticket and refused to raise the gate. Plaintiff began looking through his documents and realized that Peterson had not returned his driver's license to him. He got out of the car and approached Peterson's car in order to retrieve the driver's license. When plaintiff approached the car, Bednarczyk and Eppling grabbed him and twisted his arms behind his back. Plaintiff called to Peterson several times for assistance, but Peterson did not help him or stop the other officers. At one point, one officer lost his footing on the curb and fell, pulling plaintiff and the other officer with him.
Peterson and Eppling then arrested plaintiff for assault, aggravated battery, and two counts of resisting arrest and transported him to the police station. Around 6:00 a.m. the next day, plaintiff was transferred to Resurrection Hospital. He had suffered many injuries, including injuries to his right eye. He now has permanent vision loss. Plaintiff was released from police custody. On November 26, 2001, he was acquitted of the charge on the ticket for failure to show his chauffeur's license to Eppling. On February 26, 2002, plaintiff was acquitted of the assault and aggravated battery charges.
Plaintiff filed the complaint in this action on December 19, 2001. The City, Digby's, Eppling, and Bednarczyk have moved to dismiss the complaint. Peterson moves to compel discovery. Plaintiff moves to file a First Amended Complaint. Counts I-IV of the First Amended Complaint allege a conspiracy to violate plaintiff's civil rights in violation of 42 U.S.C. § 1983 against, respectively, Eppling, Peterson, Bednarczyk, and Dixon. Eppling, Peterson, and Bednarczyk are sued only in their individual capacities. Counts V-VIII allege state law claims for assault, battery, and intentional and/or reckless infliction of emotional distress against, respectively, Eppling, Peterson, Bednarozyk, and Dixon. Counts IX-XI allege state law respondeat superior claims (based on the alleged assault, battery, and infliction of emotional distress) against the City, Digby's, and Standard Parking.
DISCUSSION
A. Plaintiff's Motion for Leave to Amend the Complaint
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings. Rule 15(a) provides that once a responsive pleading has been filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a). Rule 15(a) embodies a liberal approach to amendments, see Diersen v. Chicacio Car Exch., 110 F.3d 481, 489 (7th Cir. 1997), and states that leave to amend "shall be freely given when justice so requires." The rule thus "reflects a policy that cases should generally be decided on the merits and not on the basis of technicalities." McCarthy v. PaineWebber, Inc., 127 F.R.D. 130, 132 (N.D. Ill. 1989); see also Stern v. United States Gypsum, Inc., 547 F.2d 1329,1334 (7th Cir. 1977) (stating that "this circuit has adoptad a liberal policy respecting amendments to pleadings so that cases may be decided on the merits"). As a result,
[i]n the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."Foman v. Davis, 371 13.5. 178, 182 (1962).
The City has filed a brief opposing plaintiff's motion for leave to amend the complaint, but it gives us no good reason (such as the reasons listed in the above paragraph) to deny the motion, and we see none. Therefore, plaintiff's motion for leave to amend the complaint is granted.
The City contends that the amendment does not cure all of the purported defects in the complaint that are raised in its motion to dismiss. Therefore, we will consider the defendants' motions to dismiss in relation to the complaint as amended.
Plaintiff's statement that the City has "effectively acknowledged the sufficiency of the Amended complaint" (Plaintiff's Motion to Amend the Complaint, ¶ 8) is inaccurate.
B. Defendants' Motions to Dismiss
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1356, at 294 (2d ed. 1990). When evaluating such a motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Hentosh v. Herman M. Finch Univ. of Health Sciencs, 167 F.3d 1170,1173 (7th Cir. 1999); Jang v. A.M. Miller Assocs., 122 F.3d 480,483 (7th Cir. 1997). Dismissal is appropriate only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Ledford v. Sullivan, 105 F.3d 354,356 (7th Cir. 1997) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)); Jones v. General Elec. Co., 87 F.3d 209,211 (7th Cir.), cert. denied, 519 U.S. 1008 (1996).
1. The City's Motion
The City first argues that plaintiff's § 1983 claim against the City based on respondeat superior is foreclosed by Monell v. Department of Social Services, 436 U.s. 658 (1978). As the City acknowledges in its reply, this argument is moot due to the amendment of the complaint; the first amended complaint does not assert a § 1983 claim against the City.
The only claim plaintiff asserts against the City in the Amended Complaint is a common-law respondeat superior claim for the alleged conduct of Officers Eppling and Peterson. The City urges that we decline to exercise our supplemental jurisdiction and dismiss the claim, but offers no reason why we should do so. As we have not dismissed the federal claims against other defendants in this action, see infra, we will retain jurisdiction over the state law claim against the City.
The City also contends that it cannot be vicariously liable under the common law for the alleged conduct of Eppling and Peterson. As for Epplirig, the City argues that he was not "on duty" at the time of the alleged incident; thus, the tort was not committed within the scope of employment, and the City cannot be vicariously liable. Aside from the fact that this argument addresses the merits of the case rather than the sufficiency of the amended complaint's allegations, it is clear that under illinois law, an off-duty officer "may often be found to be acting within the scope of his employment." Brown v. King, 767 N.E.2d 357, 361 (Ill.App.Ct. 2001) (citing cases).
The City's argument regarding vicarious liability for Bednarczyk's alleged actions is moot because it is now alleged that Bednarczyk is employed by the Cook County Sheriff's Department, not the City of Chicago.
Regarding Peterson, the City asserts that it cannot be liable for his alleged actions under the theory of respondeat superior because those actions "rise to the level of outrageous conduct" and therefore fall outside the scope of Peterson's employment. The City points out that Count IX of the Amended Complaint, the respondeat superior claim against the City, explicitly alleges that Eppling "acted in an outrageous manner." (Amended Complaint, ¶ 69.) As with the City's argument regarding Eppling, this contention confuses a motion to dismiss with a motion on the merits. Although outrageous conduct can be evidence that an employee acted for purely personal reasons and thus not within the scope of employment, it is not conclusive because an employee may have been acting with dual purposes, under which circumstances respondeat superior liability would attach. See Sunseri v. Puccia, 422 N.E.2d 925, 930 (Ill.App. Ct. 1981). The City's argument that Peterson was acting solely for his own benefit is a factual issue that cannot be decided on a motion to dismiss.
2. Digby's Motion
Digby's first argument is that the plaintiff "lumps" the defendants together and fails to allege each of his claims in separate counts. This argument is mooted by the amended complaint, which alleges separate claims and clarifies which claims are alleged against which defendants.
Digby's also contends that plaintiff has failed to properly plead whether any of the individual defendants were acting within the scope of their employment with Digby's, as required for respondeat superior claims. We agree. Count X, the only count against Digby's, alleges that "Eppling and Bednarcyzk [sic] are employed by Defendant Digby Detective Agency, and were so employed on behalf of such Defendant at all times relevant hereto." (First Amended Complaint, ¶ 76.) This statement is in contrast to the claims against the City and Standard Parking, which allege that certain of the individual defendants were acting at the direction of or on behalf of their employer. Accordingly, Count X is dismissed with leave to replead.
Illinois courts consider the following factors in determining whether an employee's acts are within the scope of employment so that the employer may be held liable under the doctrine of respondeat superior: (1) whether the acts were of the type the employee was employed to perform; (2) whether the acts at issue occurred substantially within the authorized time and space limits; and (3) whether the acts were done, at least in part, with an intent to serve the employer. See Twardy v. Northwest Airlines Inc., No. 00 C 6493, 2001 WL 199567, at *3 (N.D. Ill. Feb. 28, 2001) (citing Hargan v. Southwestern Elec. Coop., Inc., 725 N.E.2d 807,809 (Ill.App.Ct. 2000)).
3. Eppling and Bednarczyk's Motions
Like Digby's, Eppling and Bednarczyk assert that plaintiff "lumps" the defendants together and fails to allege each of his claims in separate counts. As explained supra, this argument is mooted by the amended complaint.
Eppling and Bednarczyk also argue that plaintiff has failed to state a claim for a conspiracy under § 1983 because the complaint fails to allege that the defendants formed an agreements — in other words, that there was a "meeting of the minds" — to deprive plaintiff of his constitutional rights. Defendants rely on Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir. 1991), to support their argument. Kunik's requirement of factual pleading for § 1983 claims, however, did not survive Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993), in which the Supreme Court held that there is no heightened standard of pleading for § 1983 cases.See Glover v. Village of Oak Lawn, No. 00 C 2515, 2000 WL 1847599, at *3 (N.D. Ill. Dec. 14, 2000). It is clear from the complaint that Eppling and Bednarczyk are alleged to have conspired with each other, Peterson, and Dixon to deprive plaintiff of his constitutional rights. This is sufficient to put those defendants on notice of the conspiracy claim; thus, plaintiff has adequately pled a § 1983 conspiracy claim.
C. Peterson's Motion to Compel
Peterson moves to compel plaintiff's responses to interrogatories and requests for production, or alternatively that plaintiff agree to a discovery plan. Plaintiff responds that discovery cannot proceed until the City has answered the complaint. Whether or not this argument has merit, it is moot because the City's motion to dismiss has been denied, and the City's answer will now be fortheoming. Accordingly, defendant's motion to compel is granted. The parties are directed to proceed with discovery.
CONCLUSION
Plaintiff's motion for leave to amend the complaint is granted.
The defendants' motions to dismiss are considered in relation to the amended complaint. The City of Chicago's motion to dismiss is denied. Digby's motion to dismiss is granted, and plaintiff is given leave to replead the claim alleged in Count X by an amendment to the First Amended Complaint, to be filed by June 7, 2002. Eppling and Bednarczyk's motions to dismiss are denied.