ADT Security Services, Inc. et al v. Lisle-Woodridge Fire Protection District, The et al
Filing
459
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 2/7/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ADT SECURITY SERVICES, INC.,
et al.,
Plaintiffs,
v.
LISLE-WOODRIDGE FIRE
PROTECTION DISTRICT, et al.,
Defendants.
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No.
10 C 4382
MEMORANDUM 0PINION AND ORDER
More than 2-1/2 years after this action was instituted and
almost exactly a year after it has survived (albeit with some
limitations) at the appellate level (672 F.3d 492 (7th Cir. 2012,
cited for convenience as simply “ADT, 672 F.3d at –”),
codefendant Chicago Metropolitan Fire Prevention Company
(“Chicago Metro”) has come forward with a motion to dismiss
Counts II, III and V of the Supplemental Complaint here--a motion
whose substance, if sound, should have been presented earlier in
the case.
Little wonder, then, that the plaintiff Alarm
Companies'1 responsive memorandum begins its “Introduction”
section with this sentence:
While in the abstract a party may test the sufficiency
of the pleadings at any time during a case, this does
not mean that Chicago Metro is entitled to submit such
motion almost two and one-half years after the case was
filed to first test the pleadings as if this case were
a tabula rasa.
1
For convenience that collective term is employed here to
designate all of the plaintiffs.
What Chicago Metro's counsel have obviously forgotten (or
more likely have never learned) is the truth expounded so lucidly
a full two decades ago in then Judge (now Chief Judge) Frank
Easterbrook's opinion for our Court of Appeals in N.A.A.C.P. v.
Am. Family Mut. Ins. Co., 678 F.2d 287, 292 (7th Cir. 1992):
that the federal pleading system deals in claims, not in the
state law concept of “causes of action.”
In the state law system
the congeries of facts that entitle a plaintiff to relief (thus
on their own stating a “claim” in the federal sense) must be
linked to a particular theory of recovery (with the combination
thus constituting a “cause of action” in the state court sense).
Because among too many federal practitioners that latter
approach shows no signs of disappearing, this Court--which has
tried without success to eradicate those weeds that tend to choke
out the garden of proper federal pleading--will try once again by
quoting liberally from Judge Easterbrook's teaching at the page
cited earlier (most citations omitted):
Identifying legal theories may assist defendants and
the court in seeing how the plaintiff hopes to prevail,
but this organization does not track the idea of “claim
for relief” in the federal rules. Putting each legal
theory in a separate count is a throwback to code
pleading, perhaps all the way back to the forms of
action; in both, legal theory and facts together
created a “cause of action.” The Rules of Civil
Procedure divorced factual from legal aspects of the
claim and replaced “cause of action” with “claim for
relief” to signify the difference. Bartholet v.
Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992). A
complaint should limn the grievance and demand relief.
It need not identify the law on which the claim rests,
2
and different legal theories therefore do not multiply
the number of claims for relief.
One set of facts producing one injury creates one claim
for relief, no matter how many laws the deeds violate.
Indeed, Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th
Cir. 1992), decided on the very same day as N.A.A.C.P. but by a
different panel, made the point even more poignantly:
In Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078
(7th Cir. 1992), this court emphasized that a complaint
need not point to the appropriate statute or law in
order to raise a claim for relief under Rule 8 of the
Federal Rules of Civil Procedure. And, we held that a
complaint sufficiently raises a claim even if it points
to no legal theory or even if it points to the wrong
legal theory as a basis for that claim, as long as
“relief is possible under any set of facts that could
be established consistent with the allegations.”
It must be said, however, that all the fault is not to be
placed solely at the doorstep of Chicago Metro's counsel and the
numerous other defense counsel in other federal cases who are
similarly guilty of importing state court practice and principles
into their federal practice.
After all, plaintiffs' lawyers (no
doubt equally steeped in Illinois state court practice) set the
stage here by splitting a single claim into separate counts, even
though the only place that the Federal Rules of Civil Procedure
(“Rules”) use the word “count” is in the last sentence of
Rule 10(b)(emphasis added):
If doing so would promote clarity, each claim founded
on a separate transaction or occurrence--and each
defense other than a denial--must be stated in a
separate count or defense.
3
Now then to Chicago Metro's motion.
It is easiest to begin
with its unfounded attack on Counts III and V, counts that
advance charges labeled there as “monopolization, attempt to
monopolize and conspiracy to monopolize” (Count III) and
“attempted monopolization” (Count V).
On that score it is difficult indeed to understand what
amounts to Chicago Metro's third effort, short of trial, to get
out from under its ultimate burden to prevail on those antitrust
issues.
Less than six months ago (on August 28, 2012) this Court
issued its memorandum opinion and order that scotched Chicago
Metro's effort to obtain a summary judgment ruling in that
respect, employing language that could well have been written for
(or might be said to apply a fortiori to) the current motion:
In brief, Chicago Metro seeks to slice and dice its
integral and symbiotic involvement in the initial
action by the Lisle-Woodridge Fire Protection District
(“District”) that declared the existing service
contracts to which the Alarm Companies were parties to
be “null and void,” leaving Chicago Metro as the only
game in town. Essentially Chicago Metro attempts to
downplay its inextricable involvement in that effort as
though it were a sort of innocent beneficiary of that
plan. But this Court initially responded to Chicago
Metro’s like Rule 56 motion a year ago by a brief
ruling that a rational factfinder could reasonably view
the situation through a totally different lens, and
that remains true today.
Attached to this opinion are pages 2 and 3 of the Alarm
Companies’ responsive memorandum of law. What is said
there by way of summary, amplified in detail in the
pages that follow, torpedoes Chicago Metro’s selfportrayal as a sort of Jack Horner that put its thumb
into the District-conceived plan and--voila!--pulled
out the plum of an exclusive arrangement for itself.
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In sum, it is not just the District that must face up to
charges of the type embodied in Counts III and V--it is the task
of Chicago Metro as well.
Simply put, that is so because the
tandem interaction between the District and Chicago Metro renders
both of them potentially liable on several variants of
monopolization and attempted monopolization concepts.2
As for Count II, the Alarm Companies' response points out
not only that Chicago Metro is seeking to thresh old straw but
also that it ignores our Court of Appeals' confirmation that the
District had no authority to enter into the Alarm Companies'
business (ADT, 672 F.3d at 503) and thereby to vest its cohort
Chicago Metro with monopoly status in that regard.
It is plain
that cutting the Alarm Companies off at the pass by trashing its
efforts to invoke the Fourteenth Amendment against state actor
District and possible state actor Chicago Metro is inappropriate
at the threshold pleading stage.
That aspect of Chicago Metro's
motion is denied as well.
Conclusion
Chicago Metro's counsel simply refuse to face up to the need
to resolve this major dispute through trial, not (as attempted
before) through summary judgment paper efforts nor (as now)
2
Just as the August 28 opinion attached portions of the
Alarm Companies' memorandum in support of that conclusion, their
current Response at 10-12 provides chapter and verse for current
purposes.
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through papers attacking the pleadings.
Its motion is denied in
its entirety, and it is ordered to answer the entire Supplemental
Complaint on or before February 28, 2013.
_________________________________
Milton I. Shadur
United States District Judge
Date:
February 7, 2013
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