Moore v. City of Chicago Heights et al

Filing 221

WRITTEN Opinion entered by the Honorable Virginia M. Kendall on 7/8/2011:Cooper's motion to amend the complaint 202 is denied. Entered by the Honorable Virginia M. Kendall on 7/8/2011.Mailed notice(tsa, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Virginia M. Kendall

CASE NUMBER

9 C 3452

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

7/8/2011

Moore vs. City of Chicago Heights et al

DOCKET ENTRY TEXT

Cooper’s motion to amend the complaint (Doc. 202) is denied.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Alvin Perkins murdered his girlfriend Teresa Iacovetti in 2007. Plaintiff Jason Cooper1 has brought suit
on behalf of Iacovetti’s estate against the City of Chicago Heights (“the City”) and Parole Agent Eric Bradley,
alleging that they did not protect Iacovetti after she complained about Perkins on account of her sex in violation
of the Equal Protection Clause. (See Doc. 1.) Now, after discovery has been closed and in the middle of
summary judgment briefing, Cooper seeks to amend the complaint under Rule 15 to add a claim that Agent
Bradley violated the Due Process clause when he failed to protect Iacovetti, asserting that Agent Bradley had a
“special relationship” with Iacovetti. Cooper asserts that this amendment will not prejudice the City and Agent
Bradley because the parties have “implicitly litigated the issue,” as reflected in the parties’ briefing on summary
judgment and on the issue of whether their experts passed muster under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 573 (1993). For the reasons below, the Court denies the motion.
STANDARD
While courts “give freely” leave to amend a complaint, under Rule 15, a court may deny leave to amend
if there is undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or if the amendment
would be futile. See Park v. City of Chi., 297 F.3d 606, 612-13 (7th Cir. 2002). Though delay by itself is not
sufficient, “the longer the delay, the greater the presumption against granting leave to amend . . . .” King v.
Cooke, 26 F.3d 720, 723 (7th Cir.1994) (internal citation omitted).
9C3452 Moore vs. City of Chicago Heights et al

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STATEMENT
DISCUSSION
As the Court has noted previously in this case (see Docs. 49, 200), “[g]enerally, there is no constitutional
right, either in the due process clause or the equal protection clause, to be protected against being attacked . . .
by a member of the general public.” Lowers v. City of Streator, 627 F. Supp. 244, 246 (N.D. Ill. 1985); Sandage
v. Bd. of Com’rs, 548 F.3d 595, 596 (7th Cir. 2008) (“there is no constitutional right to be protected by the state
against being murdered by criminals or madmen.”). However, there is an exception to general rule where the state
has a “special relationship” with the plaintiff. King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 817 (7th Cir.
2007).
Here, there is both undue prejudice to Agent Bradley and undue delay. Cooper asserts that the parties
have “implicitly litigated [the due process issue] as reflected in the defendants’ Daubert and summary judgment
motions” and that the parties “explored the issue” in discovery. However, the defendants have been operating
on the assumption that only equal protection was at issue in this case since the beginning. Indeed, the Court
denied the City’s motion to dismiss on the grounds that Cooper had stated a claim for equal protection, and had
not brought a due process claim. (See Doc. 49 (“Doe 1 and Chicago Heights misunderstand Moore’s Complaint,
which alleges a violation of the Equal Protection Clause.”).)
Contrary to Cooper’s suggestion, Agent Bradley’s summary judgment and Daubert briefs do not reflect
that the parties had a full opportunity to litigate the due process issue in the midst of the equal protection
discovery. Indeed, Cooper’s motion mentions only that the parties “explored the issue.” Agent Bradley, the
defendant against whom Cooper is trying to add the claim, does not mention a due process claim or any special
relationship in his summary judgment brief. (See Doc. 193.) Agent Bradley’s Daubert motion states that one of
the plaintiffs’ experts mentioned a “special relationship,” but only to make it clear that the term does not apply
in a equal protection case. (See Doc. 173.) The expert tried to suggest that “special relationship” had only
sociological—not legal—meaning. (See Doc. 200.) The Court struck that opinion, again reiterating due process
was not at issue here, finding the expert “could confuse the jury by suggesting that this case concerns denial of
Iacovetti’s due process rights or that Defendants had an affirmative and general duty to protect her.” (Doc. 200.)
Perhaps if Agent Bradley was on notice that Cooper would be bringing a due process claim, he would have
retained an expert to opine on the special relationship issue.
As for undue delay, at the parties status hearing on June 20, 2011, counsel for Cooper stated that the
proposed amendment was based on Agent Bradley’s deposition. That deposition occurred 15 months ago, in
March 2010. (See Doc. 213-2.) Cooper offers no explanation why he waited 15 months to ask to amend his
complaint. See Glatt v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir. Ill. 1996)(“Especially when the motion
is filed long after the original complaint was filed . . . and is based solely on a document that the movant had
discovered more than a year earlier, the court is entitled to demand reasons for thinking that the denial of the
motion would work a serious injustice.”). If he had moved to amend the complaint promptly, the parties could
have included this claim as part of their discovery, and no prejudice would result.
CONCLUSION

9C3452 Moore vs. City of Chicago Heights et al

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STATEMENT
For the foregoing reasons, Cooper’s motion to amend the complaint (Doc. 202) is denied.
1.Phyllis Moore was previously the plaintiff in this case.

9C3452 Moore vs. City of Chicago Heights et al

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