La Playita Cicero, Inc. et al v. The Town of Cicero et al
Filing
281
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/11/14Mailed notice(ca, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LA PLAYITA CICERO, INC., d/b/a
SERENATA RESTAURANT AND BAR,
and GERARDO MEZA,
Plaintiffs,
v.
THE TOWN OF CICERO, a municipal
corporation, LARRY DOMINICK, in his
official and individual capacity, PAUL
DEMBOWSKI, LARRY POLK, and
SERGE ROCHER, in their individual
capacities,
Defendants.
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Case No. 11 CV 1702
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiffs La Playita Cicero, Inc., d/b/a Serenata Restaurant and Bar (“Serenata”) and its
owner, Gerardo Meza (“Meza”), sued Defendants The Town of Cicero (“Cicero”), Larry
Dominick (“Dominick”), Paul Dembowski, Larry Polk, and Serge Rocher under 28 U.S.C. §
1983 and tort theories. Plaintiffs allege Defendants falsely accused Meza of battery and targeted
Serenata for liquor and other ordinance violations in an effort to force Meza to close Serenata all
because Meza is Hispanic and supported one of Dominick’s political rivals. Defendants contend
that they did not specifically target Serenata to enforce town ordinances, and instead, they
wanted to protect the public from Serenata’s long history of violations. Defendants moved for
summary judgment, arguing that the applicable statutes of limitations bar Plaintiffs’ claims. For
the reasons stated herein, the Court grants in part and denies in part Defendants’ motion.
Procedural History
The case before this Court (“La Playita I”) presents common issues of fact and law with
La Playita Cicero, Inc. v. Town of Cicero (“La Playita II”), 11-CV-5561, a case pending before
Judge Dow in this district. The relevant, rather tortured procedural history of the two cases is as
follows.
On January 5, 2007, Cicero filed an emergency motion for an injunction in the Illinois
Circuit Court of Cook County, Chancery Division, to shut down the second floor of Serenata,
alleging that Meza operated it without a valid building or occupancy permit. In the same suit,
Plaintiffs filed a counterclaim against Cicero on April 13, 2007, alleging § 1983 and state law
violations based on events that had occurred between July 2006 and April 2007. While the
counterclaim against Cicero was approaching trial in state court, Plaintiffs filed a separate
complaint on February 11, 2011, in the Circuit Court against Defendants, alleging additional §
1983 and tort causes of action stemming from Defendants’ conduct that had occurred between
July 2006 and October 2010. On March 11, 2011, Defendants removed that second complaint
(spanning the time period from July 2006 to October 2010) to the Northern District of Illinois,
which formed the instant lawsuit, La Playita I.
Five months later, on August 11, 2011, Plaintiffs voluntarily dismissed the counterclaim
in the first state court action, and an agreed order provided that their claims could be refiled in
the Northern District of Illinois. Plaintiffs refiled the counterclaim (spanning the time period
from July 2006 to April 2007) as a complaint in the Northern District of Illinois four days later,
and that case, La Playita II, was assigned to Judge Dow.
Given the factual and legal similarities of La Playita I and La Playita II, this Court and
Judge Dow conducted a joint hearing on February 13, 2013. At the hearing, Plaintiffs asked the
Courts to consolidate the two cases. In response, Defendants argued that consolidating the cases
would undermine their statute of limitations defense in La Playita I because the claims
comprising La Playita I were filed four years after those filed in La Playita II. After much
2
discussion, this Court and Judge Dow instructed the Defendants to file a motion for summary
judgment in La Playita I based on the statute of limitations. The Court noted it would be in a
better position to determine how to proceed with the two cases once it addressed the merits of the
statute of limitations argument in La Playita I. After the hearing, Defendants filed a motion for
summary judgment based on the statute of limitations for the claims asserted by Plaintiffs in La
Playita I. 1
Factual Background 2
Gerardo Meza owned Serenata Restaurant and Bar prior to its closure in December 2009.
(Defs.’ LR 56.1(a)(3) ¶¶ 1, 33.) Larry Dominick is Town President and Liquor Commissioner of
Cicero. (Pls.’ LR 56.1(b)(3)(C) ¶¶ 1, 5.) Dominick delegated the authority for issuing liquor
violations, fines, and suspension to the Deputy Liquor Commissioner, Paul Dembowski
(“Dembowski”). (Id. ¶ 6.) The following events between the parties took place over a four-year
period, from November 2006 to October 2010. During this time period, Defendants accused
Serenata of numerous ordinance violations. Plaintiffs claim they were unfairly targeted by
Defendants because Meza is Hispanic and showed support for Dominick’s political rival.
1
The Court only addresses Defendants’ statute of limitations argument, which contends that
Plaintiffs’ claims should be dismissed to the extent that the claims arise out of events that took place prior
to the applicable statute of limitations period. The Court does not address Defendants’ substantive
challenge to Plaintiffs’ claims to the extent the claims arise out of conduct that occurred within the
applicable statute of limitations period, thereby not triggering statute of limitations concerns.
2
Plaintiffs argue that because Defendants’ motion for summary judgment does not cite
Defendants’ statement of facts on several occasions, Defendants have failed to comply with Local Rule
(“LR”) 56.1. (Pls.’ Resp. Defs.’ Mot. Summ. J. 3 n.2.) LR 56.1 requires the statement of material facts to
consist of short numbered paragraphs with “specific references to the affidavits, parts of the record, and
other supporting materials[.]” Defendants’ statement of facts consists of short numbered paragraphs with
specific references to supporting materials and generally complies with LR 56.1. In determining the
undisputed material facts of the case, the Court relies on the admissible portions of Defendants’ and
Plaintiffs’ statement of facts, rather than Defendants’ motion for summary judgment. For these reasons,
the Court rejects Plaintiffs’ argument that Defendants’ motion for summary judgment and statement of
facts should be stricken for failure to comply with LR 56.1. The Court, however, strikes ¶ 4 of
Defendants’ statement of facts because Defendants fail to cite any supporting material for it.
3
Defendants, on the other hand, claim that they had probable cause to issue the citations and were
acting to protect Cicero’s residents from Plaintiffs’ repeated violations.
On November 10, 2006, an alleged disturbance occurred at Serenata in which a security
guard was struck in the face. (Defs.’ LR 56.1(a)(3) ¶ 13.) 3 Defendants issued Serenata a citation
for the incident. (Id.)
In December 2006, Dembowski served Plaintiffs with a notice of hearing for allegedly
serving alcohol to a minor. (Pls.’ LR 56.1(b)(3)(C) ¶ 8.) Plaintiffs deny that Dembowski had
probable cause to issue the citation. (Id.)
Later that month, Dembowski served Plaintiffs with another notice of hearing for
allegedly violating Serenata’s entertainment license by playing live music. (Id. ¶ 9.) Then, on
New Year’s Eve, Dembowski and Cicero Police Officers ordered all patrons out of Serenata on
the basis that the second floor of the restaurant did not have a valid permit. (Id. ¶ 10; Defs.’ LR
56.1(a)(3) ¶ 14.)
Four days later, on January 4, 2007, Dembowski served Plaintiffs with an order of
closure for seven days and a motion for immediate closure. (Pls.’ LR 56.1(b)(3)(C) ¶ 11.) 4 In
3
Plaintiffs object to Defendants’ LR 56.1(a)(3) ¶ 13, along with Defendants’ other LR 56.1(a)(3)
statements based on citations and complaints issued to Serenata, as constituting inadmissible hearsay.
(Pls.’ Resp. Defs.’ Mot. Summ. J. 3-4.) Hearsay is an out of court statement offered to prove the truth of
the matter asserted. Fed. R. Evid. 801(c). Here, however, the citations and complaints are offered to
demonstrate that Defendants made certain allegations against the Plaintiffs. The citations and complaints
are not offered to prove that the underlying factual allegations forming the basis of the citations and
complaints actually occurred. While Plaintiffs deny that Defendants possessed valid grounds to issue the
citations, Plaintiffs do not dispute that Defendants issued the citations and complaints. Thus, Defendants’
LR 56.1(a)(3) statements based on citations and complaints issued to Serenata are not offered for the truth
of the matter asserted and are deemed admitted to demonstrate that Defendants made certain allegations
against the Plaintiffs. The Court rejects Plaintiffs’ argument that Defendants’ motion for summary
judgment and statement of facts should be stricken for failure to rely on admissible evidence.
4
Defendants move to strike certain Plaintiffs’ statement of facts (¶¶ 9-11, 14, 15, 21, 26, 30-35, 37,
39, and 42) on several grounds, including that the statements are duplicative, violate Federal Rule of
Evidence 1002, are supported by Meza’s self-serving affidavit, and contain improper legal conclusions.
(Defs.’ Reply Supp. Mot. Summ. J. 14.) The Court will consider Plaintiff’s statements that add additional
4
response, Plaintiffs’ counsel appeared before the Cicero Liquor Commission the next day, and
the hearing officer ruled that Serenata could reopen. (Id. ¶ 12.) Later that day, however, Cicero
obtained an ex parte Temporary Restraining Order (“TRO”) prohibiting Serenata from operating
the restaurant after alleging that the second floor of Serenata also violated various building
codes. (Id. ¶ 13; Defs.’ LR 56.1(a)(3) ¶ 15.) Five days later, the Chancery Court dissolved the
TRO. (Pls.’ LR 56.1(b)(3)(C) ¶ 14.)
On January 12, 2007, just two days after the Chancery Court had dissolved the TRO,
Cicero issued Plaintiffs another citation alleging that Meza had failed to report an altercation at
Serenata to the Cicero Police Department. (Defs.’ LR 56.1(a)(3) ¶ 17.)
The next month, Dembowski suspended Plaintiffs’ liquor license for seven days pursuant
to 235 Illinois Compiled Statute § 5/7-5 for the November 10, 2006, and January 12, 2007,
incidents. (Pls.’ LR 56.1(b)(3)(C) ¶ 15.) Plaintiffs contend that there was no immediate threat to
the welfare of the community, which is a required element of the statute, and a hearing was
scheduled for February 8. (Id. ¶¶ 15-16.) In response, Serenata filed an emergency motion to
vacate the seven-day suspension, but the suspension was upheld because Meza could not appear
at the February 8 hearing. (Id. ¶¶ 17-18.)
In late February 2007, Meza learned of a new Cicero Liquor Control Ordinance which
required Serenata and other “A” liquor license holders to close at 11:00 p.m. (Id. ¶ 19.) When
information supported by admissible evidence. Federal Rule of Evidence 1002 is inapplicable because
Plaintiffs do not attempt to prove the contents of an original writing. Instead, Plaintiffs contend that
Defendants did not have adequate cause to issue the citations and complaints. Meza’s sworn affidavit,
even if self-serving, may be properly considered as evidence. See e.g., Hill v. Tangherlini, 724 F.3d 965
(7th Cir. 2013). While the Court does not treat Meza’s version of events contained in his affidavit as
undisputed material fact, the Court may rely on the affidavit to demonstrate that Plaintiffs contest
Defendants’ version of the underlying factual allegations that form the basis of the citations and
complaints. Finally, the Court agrees that Plaintiffs’ statement of facts contain numerous inadmissible
legal conclusions. To the extent it does, the Court disregards them.
5
Serenata closed on February 27, 2007, shortly before 11:00 p.m., Cicero Police Officers were
waiting outside Serenata to see if Serenata would stay open past 11:00 p.m. (Id. ¶ 20.)
Serenata continued to come under scrutiny. On March 1, 2007, Cicero Police Officers
investigated an automobile accident and arrested the driver for driving under the influence of
alcohol. (Defs.’ LR 56.1(a)(3) ¶ 19.) The driver was under twenty-one years of age, and the
Officer alleged that the driver had been served alcohol at Serenata prior to the crash. (Id.)
The following month, Dembowski suspended Serenata’s liquor license for another seven
days and served Plaintiffs with an additional motion for immediate closure due to the March 1,
2007, incident. (Id. ¶ 20; Pls.’ LR 56.1(b)(3)(C) ¶ 21.) A hearing officer sustained the order
suspending Serenata’s liquor license for seven days. (Pls.’ LR 56.1(b)(3)(C) ¶ 22.) In response,
Plaintiffs filed an emergency TRO, and the Chancery Court issued a TRO enjoining Cicero from
closing Serenata. (Id. ¶ 23.)
On April 13, 2007, Plaintiffs filed a counterclaim in response to Cicero’s January 5,
2007, motion for a TRO, claiming that the liquor citations Serenata received between July 2006
and April 2007 were issued by Defendants in retaliation for Meza speaking out publicly against
Dominick and because Meza is Hispanic. (Defs.’ LR 56.1(a)(3) ¶¶ 21-22; Ex. L to id. ¶ 22.)
Even after Plaintiffs filed their counterclaim, Defendants continued to issue Serenata
citations. In July 2007, Cicero charged Serenata with unpaid tickets and posting a sign without a
permit; both charges were later dismissed. (Pls.’ LR 56.1(b)(3)(C) ¶¶ 23-24.) On September 10,
2007, Cicero sustained three liquor citations that had been issued on September 26, 2006,
December 31, 2006, and January 12, 2007, against Serenata and issued an order revoking its
liquor license. (Id. ¶ 26.) Serenata’s liquor license was confiscated the next day, and on
September 12, 2007, the Cicero police ordered Serenata closed. (Id. ¶ 27.)
6
Less than a month later, the Illinois Liquor Commission ordered that Serenata was
entitled to an automatic stay of the revocation of its liquor license. (Id. ¶ 29.) On January 7,
2008, the Illinois Liquor Commission reversed Cicero’s revocation of Serenata’s liquor license
and instead instituted a ten-day suspension. (Id. ¶ 30; Defs.’ LR 56.1(a)(3) ¶ 23.) The Illinois
Liquor Commission eventually upheld the January 12, 2007, citation (Defs.’ LR 56.1(a)(3) ¶ 23),
but found that the Cicero Liquor Commission had failed to provide sufficient proof to support its
findings as to the other two citations. (Pls.’ LR 56.1(b)(3)(C) ¶ 30.)
Defendants persisted in their investigation of Serenata.
On January 31, 2008,
Dembowski conducted an undercover sting operation at Serenata, and an individual under the
age of twenty-one was able to order alcohol. (Id. ¶ 31.) As a result of the sting operation,
Dembowski served Plaintiffs with yet another order suspending Serenata’s liquor license for
seven days. (Id. ¶ 32.) On April 21, 2008, a hearing officer suspended Serenata’s liquor license
for thirty days and issued a $2000.00 fine. (Id. ¶ 33; Defs.’ LR 56.1(a)(3) ¶ 24.)
Shortly after the thirty-day suspension had been lifted, Dembowski conducted another
undercover sting operation at Serenata and again accused Serenata of serving alcohol to a minor.
(Pls.’ LR 56.1(b)(3)(C) ¶ 34.) This sting operation resulted in another thirty-day suspension of
Serenata’s liquor license and another $2000.00 fine. (Id. ¶ 37; Defs.’ LR 56.1(a)(3) ¶ 27.) The
following month, the Illinois Liquor Commission upheld the April 21, 2008, suspension of
Serenata’s liquor license but cautioned the Cicero Commissioner to prove future cases within a
seven-day closure period to protect against the appearance of discriminatory use of its summary
closure authority. (Pls.’ LR 56.1(b)(3)(C) ¶ 35.)
In late July 2008, Plaintiffs’ counsel complained before the Cicero Liquor Commission
that other liquor establishments in Cicero were not receiving as severe penalties as Serenata for
7
similar violations. (Defs.’ LR 56.1(a)(3) ¶ 29.) About three months later, on October 28, 2008,
the Cicero Liquor Commission conducted an investigation of Serenata and issued a citation
alleging that no manager was on duty. (Id. ¶ 30.) This incident resulted in yet another seven-day
suspension of Serenata’s liquor license and a $500.00 fine. (Id.; Pls.’ LR 56.1(b)(3)(C) ¶ 39.)
When Meza attempted to renew Serenata’s liquor license in December 2008, he was
unable to do so because Cicero had entered default judgment on various Administrative
Ordinance citations, although Meza alleges Cicero previously agreed that it would dismiss the
citations. (Pls.’ LR 56.1(b)(3)(C) ¶ 40.)
Defendants continued to investigate Serenata for ordinance violations in 2009. In April
2009, Cicero Police again searched Serenata based on a report that a group of underage girls
were drinking at Serenata, but the police did not find a group of girls or any underage drinking.
(Id. ¶ 44.)
On July 24, 2009, Cicero Police came to Serenata and told Meza that Cicero was closing
Serenata because Serenata did not have a valid business license.
(Id. ¶ 45.)
Police
Superintendent Lori Lelis told customers they had to leave, and the customers were not given
time to finish their food or pay their bills. (Id.) Afterwards, Meza signed a settlement agreement
in which he agreed to close Serenata for several days, pay a fine, and waive any claims related to
the citation for operating without a business license. (Defs.’ LR 56.1(a)(3) ¶ 32.)
Five days after Cicero Police closed Serenata, Dominick issued Serenata yet another
$500.00 fine and a five-day suspension of its liquor license for not having a valid business
license. (Pls.’ LR 56.1(b)(3)(C) ¶ 47.)
On October 3, 2009, Dembowski, Officer Larry Polk (“Polk”), and Serge Rocher
(“Rocher”) conducted another sting operation and accused Serenata of serving alcohol to two
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underage women. (Id. ¶ 48.) When Meza asked for the identification of the women, Dembowski
and Polk refused. (Id. ¶ 49.) There was an ensuing altercation between Meza, Dembowski, and
Rocher, and Polk arrested Meza alleging that Meza battered Dembowski and Rocher. (Id. ¶¶ 5051.) Dembowski issued Serenata a citation as a result of the incident, and later that month, on
October 13, 2009, Cicero issued a notice of hearing seeking the revocation of Serenata’s liquor
license. (Id. ¶¶ 55-56.)
The following month, Meza’s bank foreclosed on the property at Serenata, and on
December 27, 2009, Meza was forced to close Serenata. (Id. ¶¶ 57-58.) Meza was eventually
found guilty of one count of battery and not guilty of the other count on September 14, 2010, and
on October 28, 2010, Meza’s motion for a new trial for his battery citation was granted. (Id. ¶
59.)
Discussion
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate for
cases in which “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of
establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Once the moving party has sufficiently demonstrated the absence of a genuine
issue of material fact, the nonmoving party must then set forth specific facts showing there are
disputed material facts that must be decided at trial. Id. at 321-22.
Plaintiffs assert three § 1983 causes of action—equal protection, First Amendment, and
due process—against Defendants. The statute of limitations in § 1983 cases is governed by the
state law limitations period in personal injury actions. Ray v. Maher, 662 F.3d 770, 772 (7th Cir.
2011). In Illinois, the statute of limitations for personal injury actions is two years under 735
9
Illinois Compiled Statute § 5/13-202. Id. at 773; Ashafa v. City of Chi., 146 F.3d 459, 461 (7th
Cir. 1998).
The statute of limitations for a § 1983 claim “begins to run when a reasonable plaintiff
knew or should have known of facts that would support a charge of discrimination.”
Kuemmerlein v. Bd. of Educ. of Madison Metro. Sch. Dist., 894 F.2d 257, 261 (7th Cir. 1990).
“[T]he proper focus is on the time of the discriminatory act, not the point at which the
consequences of the act became painful.” Kelly v. City of Chi., 4 F.3d 509, 512 (7th Cir. 1993)
(citing Chardon v. Fernandez, 454 U.S. 6, 8 (1981)).
For acts outside of the statute of
limitations, the continuing violation doctrine may allow “a plaintiff to get relief for a time-barred
act by linking it with an act that is within the limitations period. For purposes of the limitations
period, courts treat such a combination as one continuous act that ends within the limitations
period.” Garrison v. Burke, 165 F.3d 565, 569 (7th Cir. 1999) (internal citation omitted).
Plaintiffs also bring three tort causes of action—malicious prosecution, abuse of process,
and intentional infliction of emotional distress—against Defendants. The Illinois Tort Immunity
Act provides a one-year statute of limitations for actions “commenced against a local entity or
any of its employees[.]” 745 Ill. Comp. Stat. 10/8-101(a) (West 2010); see also Hobbs v.
Cappelluti, 899 F. Supp. 2d 738, 761-62 (N.D. Ill. 2012). Because the Defendants are comprised
of a local entity, the Town of Cicero, and its employees, Plaintiffs’ tort causes of actions are
governed by a one-year statute of limitations.
Defendants contend that Plaintiffs’ § 1983 and tort causes of action are barred completely
by the two and one-year statute of limitations. On the other hand, Plaintiffs contend that, to the
extent that their claims are based upon events that occurred outside of the statute of limitations,
such events still may properly be considered under the continuing violation doctrine. Plaintiffs
10
filed suit on February 11, 2011, in Cook County Circuit Court, and Defendants removed the case
to the Northern District of Illinois. Thus, the operative date with respect to Plaintiffs’ §1983
claims is February 11, 2009, and the operative date with respect to Plaintiffs’ state law tort
claims is February 11, 2010. With these dates in mind, the Court reviews each of Plaintiffs’
claims in turn.
I.
§ 1983 – Equal Protection Claim
In their equal protection claim, Plaintiffs allege that Defendants discriminated in the
enforcement of ordinance violations against Plaintiffs. In their brief, Plaintiffs clarify that their
equal protection claim is based on three theories: (1) an orchestrated campaign of harassment
against Plaintiffs; (2) selective enforcement based on the exercise of Plaintiffs’ First Amendment
rights; and (3) race discrimination. (Pls.’ Resp. Defs.’ Mot. Summ. J. 9.) For the reasons
discussed below, to the extent that Plaintiffs’ equal protection claims arise out of events that took
place prior to February 11, 2009, the Court holds that such claims are barred by the statute of
limitations.
A. Claim Based Upon an Orchestrated Campaign of Harassment
Plaintiffs assert a “class of one” equal protection violation and allege that Defendants
have engaged in a campaign of harassment by targeting Serenata and repeatedly issuing citations
for ordinance violations after Meza had stopped supporting Dominick politically in July 2006.
Plaintiffs complain of “an orchestrated campaign of official harassment directed against [them]
out of sheer malice.” Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995). Because Plaintiffs
knew or should have known of their “class of one” equal protection claim prior to February 11,
2009, this claim is barred by the two-year statute of limitations.
11
From July 2006 through April 2007, Defendants issued Serenata citations for numerous
alleged violations, including serving alcohol to minors on multiple occasions, violating the terms
of its entertainment license, refurbishing the second floor without a business license, and failing
to report an altercation. (Pls.’ LR 56.1(b)(3)(C) ¶¶ 8, 9, 11; Defs.’ LR 56.1(a)(3) ¶¶ 15, 17, 19.)
Defendants also ordered all patrons out of Serenata on New Year’s Eve, enacted an ordinance
that required Serenata to close at 11:00 p.m., and waited outside Serenata to see if it would
violate the new ordinance. (Pls.’ LR 56.1(b)(3)(C) ¶¶ 10, 19. 20.) Furthermore, Defendants
ordered Serenata closed for seven days and obtained an ex parte TRO prohibiting Serenata from
operating the second floor of the restaurant (id. ¶¶ 11, 13), both of which were later dissolved by
an administrative hearing officer and the Illinois Circuit Court, respectively. (Id. ¶¶ 12, 14.)
Based on these events, Plaintiffs filed a counterclaim against Defendants on April 13,
2007, alleging in part that “[s]ince in or about July 2006 and continuing to the present, Cicero
has engaged in a campaign of harassment and frivolous filings against Serenata in violation of
Serenata’s due process and equal protection rights[.]” (Verified Counterclaim ¶ 5, Ex. 3 to Pls.’
LR 56.1(b)(3)(C) (emphasis added).) Count I of Plaintiffs’ counterclaim is labeled “§ 1983 Equal Protection Violations” and states “[t]he actions of Defendant against Plaintiff violated its
rights guaranteed under the Fourteenth Amendment to the United States Constitution and 42
U.S.C. § 1983.” (Id. ¶ 17.) Not only did Plaintiffs know that they had a “class of one” equal
protection claim due to Defendants’ alleged campaign of harassment prior to February 11, 2009,
Plaintiffs actually asserted their “class of one” equal protection claim in their April 2007
counterclaim.
Based upon their own counterclaim, it is apparent that Plaintiffs knew that the preFebruary 11, 2009, events gave rise to a “class of one” equal protection claim. But, even if
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Plaintiffs had not filed the counterclaim, the Court finds that a reasonable person should have
known of the claim prior to February 11, 2009. Indeed, in addition to the events described
above, Defendants continued to target Serenata from April 2007 through February 2009 by
issuing numerous additional citations for ordinance violations and orders for closure.
For
example, in July 2007, Cicero charged Serenata with failing to pay tickets and for posting a sign
without a permit; those charges were later dismissed. (Pls.’ LR 56.1(b)(3)(C) ¶¶ 23-24.) In
September 2007, Cicero issued an order revoking Serenata’s liquor license and Cicero Police
ordered Serenata closed; the revocation order was later reversed. (Id. ¶¶ 26-27, 30.) Dembowski
conducted multiple undercover sting operations at Serenata between January 2008 and May
2008, which resulted in additional suspensions of Serenata’s liquor license. (Id. ¶¶ 31-32, 34,
37.) Plaintiffs’ counsel even complained before the Cicero Liquor Commission in July 2008 that
other liquor establishments in Cicero were not receiving as severe of a penalty as Serenata for
similar violations. (Defs.’ LR 56.1(a)(3) ¶ 29.) Despite this, in October 2008, the Cicero Liquor
Commission issued Serenata a citation for having no manager on duty, and this incident resulted
in a seven-day suspension of Serenata’s liquor license and a $500.00 fine. (Id. ¶ 30; Pls.’ LR
56.1(b)(3)(C) ¶ 39.) And, in December 2008, Meza was unable to renew Serenata’s liquor
license because Cicero had entered default judgment on various Administrative Ordinance
citations, even though Meza believed that Cicero previously agreed that these citations would be
dismissed. (Pls.’ LR 56.1(b)(3)(C) ¶ 40.)
All told, Defendants targeted Plaintiffs dozens of times with sting operations, various
citations for ordinance violations, liquor licenses suspensions, and orders to close between July
2006 and February 2009.
The liquor license suspensions and orders to close were often
overturned, and Plaintiffs continued to claim the Defendants had no legitimate reason to target
13
Serenata. Given the numerous incidents between Defendants and Serenata, a reasonable person
in Plaintiffs’ position would have been on notice that she had a “class of one” equal protection
claim for “an orchestrated campaign of official harassment directed against [them] out of sheer
malice” prior to February 11, 2009. Esmail, 53 F.3d at 179. Thus, Plaintiffs’ class of one equal
protection claim, based on Defendants’ actions prior to February 11, 2009, is barred by the twoyear statute of limitations. See Garrison, 165 F.3d at 569.
B. Claim for Selective Enforcement Based on Exercise of First Amendment
In alleging an equal protection violation, Plaintiffs also assert a selective enforcement, or
selective prosecution, claim against Defendants. A selective prosecution claim is actionable
“where the decision to prosecute is made [] in retaliation for the exercise of a constitutional right,
such as the right to free speech[.]” Esmail, 53 F.3d at 179. “It is appropriate to judge selective
prosecution claims according to ordinary equal protection standards.” Wayte v. U.S., 470 U.S.
598, 608 (1985). For reasons similar to Plaintiffs’ “class of one” equal protection claim, the
Court concludes that Plaintiffs knew or should have known of their selective prosecution equal
protection claim prior to February 11, 2009.
In their April 2007 counterclaim, Plaintiffs asserted equal protection claims, alleging that,
“Town President Larry Dominick and the Town of Cicero have engaged in a campaign of
retaliation against business, employees, and residents for speaking out publicly about the
political corruption by this administration.” (Verified Counterclaim ¶¶ 5, 8, Ex. 3 to Pls.’ LR
56.1(b)(3)(C).) Plaintiffs also alleged in their counterclaim that “Plaintiff suffered compensable
injury and harm as a result of the denial of rights guaranteed to it pursuant to the First
Amendment to the United States Constitution.” (Id. ¶ 24.) The counterclaim indicates that
Plaintiffs were aware of their selective prosecution claim based on the First Amendment at the
14
time of Defendants’ acts. Furthermore, the dozens of actions undertaken by Defendants after
Meza stopped supporting Dominick in July 2006 would put a reasonable person on notice of the
retaliation claim.
Thus, Plaintiffs’ selective enforcement equal protection claim, based on
Defendants’ actions prior to February 11, 2009, is barred by the two-year statute of limitations.
See Garrison, 165 F.3d at 569.
C. Claim for Race Discrimination
As a final component to their equal protection claim, Plaintiffs allege that Defendants
discriminated against Meza and issued citations to Serenata because of Meza’s race. To show a
violation of equal protection based on race, “plaintiffs must prove that the defendants’ actions
had a discriminatory effect and were motivated by a discriminatory purpose.” Chavez v. Ill.
State Police, 251 F.3d 612, 635-36 (7th Cir. 2001). For reasons similar to Plaintiffs’ “class of
one” and selective prosecution equal protection claims, the Court concludes that Plaintiffs knew
or should have known of their race-based equal protection claim due to the actions that took
place prior to February 11, 2009.
Again, in their April 2007 counterclaim, Plaintiffs asserted equal protection violations
and alleged, “Town President Larry Dominick and the Town of Cicero have engaged in a pattern
and practice of discriminating against Hispanics and minority employees and residents of the
Town.” (Verified Counterclaim ¶¶ 5, 6, Ex. 3 to Pls.’ LR 56.1(b)(3)(C).) Plaintiffs also alleged
that “Town President Larry Dominick and other high-ranking Town of Cicero officials have
referred to Hispanics in Precinct Captain Meetings and elsewhere as ‘Wetbacks’ and other
racially derogatory and offensive terms.”
(Id. ¶ 7.)
The counterclaim demonstrates that
Plaintiffs were aware of Defendants’ alleged practice of racial discrimination and their
corresponding equal protection claim prior to February 2009. The dozens of actions undertaken
15
by Defendants against Plaintiffs combined with Plaintiffs’ belief that Defendants had
discriminated against Hispanics would also put a reasonable person on notice of the race-based
equal protection claim. Thus, Plaintiffs’ racial discrimination equal protection claim, based on
Defendants’ actions prior to February 11, 2009, is barred by the two-year statute of limitations.
See Garrison, 165 F.3d at 569.
D. Plaintiffs’ Arguments
In response, Plaintiffs contend that: (1) their claims are not barred by the statute of
limitations because the continuing violation doctrine applies to the extent that their claims are
based on pre-February 2009 conduct; (2) they are not required to amend their complaint after
every actionable incident; and (3) Defendants are barred from contesting the applicability of the
continuing violation doctrine by the mend the hold and waiver doctrines. (Pls.’ Resp. Defs.’
Mot. Summ. J. 4-9.) These arguments are unavailing.
First, Plaintiffs contend that the pre-February 2009 events still can be considered under
the continuing violation doctrine.
The Seventh Circuit noted that the continuing violation
doctrine is “misnamed” because rather than allow a plaintiff to sue for an ongoing violation, the
doctrine instead allows a “suit to be delayed until a series of wrongful acts blossoms into an
injury on which suit can be brought. . . . It is thus a doctrine not about a continuing, but about a
cumulative, violation.” Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520 F.3d 797, 801 (7th Cir.
2008) (internal citation omitted).
Continuing violations are typically found in workplace
harassment cases in which “[t]he first instance of a coworker’s offensive words or actions may
be too trivial to count as actionable harassment, but if they continue they may eventually reach
that level and then the entire series is actionable.” Id.
16
Plaintiffs do not demonstrate a continuing or cumulative violation. Defendants’ alleged
conduct did not suddenly blossom into an actionable equal protection claim after February 11,
2009. Instead, Plaintiffs were aware of their claim when they filed a counterclaim against
Defendants on April 13, 2007, alleging equal protection violations based on numerous incidents
from July 2006 through April 2007. Plaintiffs cannot now contend that all of Defendants’
actions prior to February 11, 2009, were too trivial to form the basis of an equal protection claim.
While Meza may have closed Serenata within the two-year statute of limitations period,
Plaintiffs still cannot establish a continuing violation. See Chardon, 454 U.S. at 8 (noting that in
determining when the statute of limitations begins to run in a § 1983 action, “the proper focus is
on the time of the discriminatory act, not the point at which the consequences of the act became
painful”). Furthermore, the continuing violation doctrine applies “only if a reasonable person in
the position of the plaintiff would not have known, at the time the untimely acts occurred, that
she had a claim[.]” Garrison, 165 F.3d at 569. As explained in great detail above, Plaintiffs
knew or should have known that they had an equal protection claim based upon the events that
took place prior to February 11, 2009, and thus the continuing violation doctrine does not apply.
Plaintiffs cite several cases in an attempt to argue that the continuing violation does
indeed apply.
These cases are distinguishable.
In Wolf v. City of Chicago Heights, the
defendants allegedly conspired to demolish a piece of property in order to discriminate against
minorities, and the district court denied defendants’ motion to dismiss plaintiff’s discrimination
claim on statute of limitations grounds. 828 F. Supp. 520 (N.D. Ill. 1993). The court held that
the plaintiff could not have reasonably known about the defendants’ alleged discrimination
because “[d]efendants never stated publicly that they were trying to exclude African-Americans
and Mexicans” and the plan was allegedly “devised and executed secretly.” Id. at 523-24.
17
Unlike the plaintiff in Wolf who did not know about defendants’ covert conspiracy, Plaintiffs
knew or should have known of Defendants’ equal protection violations as evidenced by
Plaintiffs’ counterclaim and the constant targeting of Serenata by Defendants. In Heard v.
Sheahan, the Seventh Circuit allowed a plaintiff’s cruel and unusual punishment claim for denial
of medical care to proceed under the continuing violation doctrine and noted it “would have been
impractical to allocate the plaintiff’s pain day by day[.]” 253 F.3d 316, 320 (7th Cir. 2001).
Heard is distinguishable because Plaintiffs were aware of their equal protection claim prior to
February 9, 2011, and a court could have calculated Plaintiffs’ damages based on fines, fees, and
lost profits. See also Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006) (declining to apply the
continuing violation doctrine because plaintiff was aware of the violation of his rights at the time
of the injury and distinguishing plaintiff’s injury from Heard which “involved the failure to
provide needed medical treatment to a state prisoner”).
Plaintiffs also cite several cases, including Esmail v. Macrane, 53 F.3d 176 (7th Cir.
1995), and Union Pac. R.R. Co. v. Vill. of S. Barrington, No. 96 C 1698, 1998 WL 102517 (N.D.
Ill. Feb. 23, 1998), in arguing “the entire course of Defendants’ conduct is necessary to prove the
‘orchestrated campaign’” of harassment. (Pls.’ Resp. Defs.’ Mot. Summ. J. 10, 12.) “[A]n
orchestrated campaign of official harassment directed against [plaintiffs] out of sheer malice”
may form the basis of an equal protection claim. Esmail, 53 F.3d at 179. The cases cited 5 by
Plaintiffs, however, address the admissibility of evidence, not whether Plaintiffs’ equal
protection claim is barred by the statute of limitations.
While acts outside the statute of
limitations period may be admissible as evidence under certain circumstances, determining when
a § 1983 claim accrues is a separate issue, and the statute of limitations “begins to run when a
5
See Pls.’ Resp. Defs.’ Mot. Summ. J. 12 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101 (2002); Geinosky v. City of Chi., 675 F.3d 743 (7th Cir. 2012); Scherer v. Balkema, 840 F.2d 437 (7th
Cir. 1988); and Woodruff v. Wilson, 484 F. Supp. 2d 876 (S.D. Ind. 2007)).
18
reasonable plaintiff knew or should have known of facts that would support a charge of
discrimination.” Kuemmerlein, 894 F.2d at 261. Plaintiffs conflate these two concepts, and
Plaintiffs fail to demonstrate a continuing violation.
Plaintiffs also cite McKenzie v. Illinois Department of Transportation, 92 F.3d 473, 48283 (7th Cir. 1996), for the proposition that “Plaintiffs are not required to amend their complaint
every time a new incident occurs after the filing of the original complaint.” (Pls.’ Resp. Defs.’
Mot. Summ. J. 7.) But McKenzie involved a claim of discrimination and retaliatory action in the
employment context. There, the plaintiff had filed a charge of discrimination before the Equal
Employment Opportunity Commission (“EEOC”) without alleging retaliation. McKenzie, 92
F.3d at 481. The court noted a “Title VII plaintiff need not allege in an EEOC charge each and
every fact that combines to form the basis of each claim in her complaint” and allowed the claim
for retaliation that “arose after the charge of discrimination had been filed” to proceed. Id. at
481-82 (internal quotation omitted). In that situation, the court found that “only a single filing
was necessary to comply with the intent of Title VII[.]” Id. at 482 (internal quotation omitted).
Such facts are readily distinguishable from the circumstances here.
Finally, Plaintiffs claim that Defendants are barred by the mend the hold and waiver
doctrines from arguing that Plaintiffs’ claims do not constitute a continuing wrong. These
arguments do not warrant much discussion. The mend the hold doctrine forbids a defendant in a
breach of contract suit from changing defenses and is inapplicable to Plaintiffs’ § 1983 and tort
causes of action. See Ryerson Inc. v. Fed. Ins. Co., 676 F.3d 610, 614 (7th Cir. 2012) (internal
citations omitted).
As to waiver, Plaintiffs argue that “Defendants cannot now make the
argument that the allegations are time-barred when they have previously agreed to have the same
19
allegations from the original counterclaim re-filed in federal court and consolidated with this
case.” (Pls.’ Resp. Defs.’ Mot. Summ. J. 8-9.) This argument is overstated.
When Plaintiffs voluntarily dismissed their April 2007 counterclaim on August 11, 2011,
Defendants never agreed to waive a statute of limitations defense in La Playita I. (Order, Ex. 9
to id.) Furthermore, Defendants only agreed to waive res judicata and claim splitting defenses
as to the new action. (Id. ¶ 4.) The new action formed La Playita II, the case currently before
Judge Dow, not La Playita I. Thus, Plaintiffs’ waiver arguments do not apply to La Playita I.
II.
§ 1983 – First Amendment Claim
Turning to Plaintiffs’ §1983 claim predicated upon the First Amendment, Plaintiffs allege
that Defendants targeted Serenata for citations of ordinance violations in retaliation for Meza’s
support for and association with Dominick’s political rival.
In order to establish a First
Amendment retaliation claim, Plaintiffs must show that their constitutionally protected speech
was a substantial or motivating factor in Defendants’ retaliatory action. Spiegla v. Hull, 371
F.3d 928, 935 (7th Cir. 2004).
For reasons similar to Plaintiffs’ equal protection claims,
Plaintiffs knew or should have known of their First Amendment retaliation claim prior to
February 11, 2009.
Referring again to their April 2007 counterclaim, Plaintiffs asserted a First Amendment
retaliation claim and alleged, “Town President Larry Dominick and the Town of Cicero have
engaged in a campaign of retaliation against business, employees, and residents for speaking out
publicly about the political corruption by this administration.” (Verified Counterclaim ¶ 8, Ex. 3
to Pls.’ LR 56.1(b)(3)(C).)
Plaintiffs also alleged that “[b]y Defendant’s actions, Plaintiff
suffered compensable injury and harm as a result of the denial of rights guaranteed to it pursuant
to the First Amendment to the United States Constitution.” (Id. ¶ 24.) These allegations along
20
with the numerous other actions that were taken by Defendants after Meza had stopped
supporting Dominick in July 2006 would have put a reasonable person on notice that Defendants
were retaliating against Plaintiffs for the exercise of Meza’s right to free speech.
Thus,
Plaintiffs’ First Amendment claim, based on Defendants’ actions prior to February 11, 2009, is
barred by the two-year statute of limitations. Garrison, 165 F.3d at 569.
III.
§ 1983 – Due Process Claim
Plaintiffs also assert a §1983 claim alleging violations of their due process rights.
Specifically, Plaintiffs contend that Defendants: (1) seized Plaintiffs’ liquor license without due
process; (2) prohibited Plaintiffs from presenting witnesses at an April 12, 2007, hearing in an
effort to close Serenata; and (3) improperly presented hearsay evidence at an August 29, 2007,
hearing in an effort to close Serenata. In short, Plaintiffs argue that Defendants deprived them of
procedural due process protections when seizing their liquor license and issuing the various
orders of closure. See Matthews v. Eldridge, 424 U.S. 319, 332 (1976) (“Procedural due process
imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or
‘property’ interests”).
In making such a claim, Plaintiffs must demonstrate “a cognizable
property interest, a deprivation of that interest, and a denial of due process.” Palka v. Shelton,
623 F.3d 447, 452 (7th Cir. 2010).
The three events that form the basis of Plaintiffs’ procedural due process claim all
occurred prior to February 11, 2009: (1) Plaintiffs’ liquor license was revoked September 10,
2007; (2) the first hearing at issue took place on April 12, 2007; and (3) the second hearing at
issue occurred on August 29, 2007. Because Plaintiffs do not point to any events that occurred
after February 11, 2009, that gave rise to their due process claim, Plaintiffs’ due process claim is
barred by the two-year statute of limitations.
21
Seeking to circumvent a ruling on the merits, Plaintiffs attempt to voluntarily dismiss
their due process claim in a footnote in their opposition to Defendants’ motion for summary
judgment stating, “Plaintiffs due process claim is subsumed in Plaintiffs’ Equal Protection and
First Amendment claims.
For this reason, Plaintiffs voluntarily dismiss Count III (Due
Process).” (Pls.’ Resp. Defs.’ Mot. Summ. J. 1 n.1.) The Court rejects Plaintiffs attempt to
voluntarily dismiss Count III. 6
IV.
Malicious Prosecution Claim
Plaintiffs also bring a state law malicious prosecution claim against Defendants, alleging
that Defendants falsely accused Meza of battery. A malicious prosecution claim requires the
plaintiff to show that: (1) “the defendant brought the underlying suit maliciously and without
probable cause”; (2) the action was terminated in plaintiff’s favor; and (3) special injury. Cult
Awareness Network v. Church of Scientology Int’l, 685 N.E.2d 1347, 1350 (Ill. 1997). Meza was
found not guilty of one count of battery on September 14, 2010 (Pls.’ LR 56.1(b)(3)(C) ¶ 59.),
and Plaintiffs filed suit less than a year later, on February 11, 2011. Plaintiffs’ malicious
prosecution claim is therefore timely and not barred by the one-year statute of limitations.
Assuming, however, that the Court would grant their motion for summary judgment as to the
federal claims, Defendants ask the Court to decline to exercise supplemental jurisdiction over
6
Because Defendants have already filed a motion for summary judgment, absent consent, Plaintiffs
may dismiss this claim “only by court order, on terms that the court considers proper.” Fed. R. Civ. P.
41(a)(2). The dismissal of a plaintiff’s action “under Rule 41(a)(2) is within the sound discretion of the
district court[.]” Kovalic v. DEC Int’l, Inc., 855 F.2d 471, 473 (7th Cir. 1988). Plaintiffs’ request, which
spans a mere twenty-four words in the form of a footnote, is hardly enlightening. Given the fact that the
complaint was filed over two years ago, summary judgment has been filed by the Defendants, and
Plaintiffs’ insufficient explanation, the Court denies Plaintiffs’ request to voluntarily dismiss their due
process claim. See Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969) (explaining factors
justifying denial of plaintiff’s request to dismiss without prejudice including “defendant's effort and
expense of preparation for trial, excessive delay and lack of diligence on the part of the plaintiff in
prosecuting the action, insufficient explanation for the need to take a dismissal, and the fact that a motion
for summary judgment has been filed by the defendant”).
22
Plaintiffs’ state law claims. Because Plaintiffs’ federal equal protection and First Amendment
claims will survive to the extent they arise out of events that took place on or after February 11,
2009, the Court shall maintain supplemental jurisdiction over Plaintiffs’ malicious prosecution
claim.
V.
Abuse of Process Claim
Additionally, Plaintiffs assert an abuse-of-process claim, alleging that Defendants
improperly used provisions of the Liquor Control Act to shut down Serenata. An abuse of
process claim requires a plaintiff to allege: “(1) the existence of an ulterior purpose or motive;
and (2) some act in the use of the legal process not proper in the regular prosecution of the
proceedings.” Ewert v. Wieboldt Stores, Inc., 347 N.E.2d 242, 243 (Ill. App. Ct. 1976).
As a basis for their abuse of process claim, Plaintiffs allege that Defendants improperly
issued citations and prosecuted actions before various governmental bodies in an effort to force
Plaintiffs to close Serenata. The statute of limitations in an abuse of process action “commences
to run from the date that the last act giving rise to the cause of action has accrued.” Withall v.
Capital Fed. Sav. of Am., 508 N.E.2d 363, 367. Here, Defendants’ issuance of a citation or
commencement of prosecution is the last act giving rise to Plaintiffs’ abuse of process claim.
See id. at 365, 368 (holding plaintiff’s abuse of process cause of action accrued, at the latest,
when defendant filed its amended complaint, not when defendants non-suited plaintiff from the
lawsuit).
Defendants contend that the issuance of citations and prosecutions cannot support an
abuse of process claim as a matter of law. (Defs.’ Mot. Summ. J. 12.) Even assuming that the
citations and prosecutions could support an abuse of process claim, Plaintiffs do not allege any
issuance of citations or prosecutions by the Defendants after February 11, 2010.
23
In their
statement of facts, Plaintiffs assert that Defendants last issued Serenata a citation on October 3,
2009, and Defendants last issued a notice of hearing seeking the revocation of Serenata’s liquor
license on October 13, 2009. (Pls.’ LR 56.1(b)(3)(C) ¶¶ 55-56.)
Because Plaintiffs do not point
to any events that occurred on February 11, 2010, or later that form the basis of their abuse of
process claim, Plaintiffs’ abuse of process claim is barred by the one-year statute of limitations.
In response, Plaintiffs cite Allen v. City of Chicago for the proposition that the statute of
limitations for an abuse of process claim does not begin to run until the underlying legal
proceedings are terminated. No. 08-cv-6127, 2009 WL 4506317 (N.D. Ill. Nov. 30, 2009). The
plaintiff in Allen filed suit for abuse of process two years after his arrest and about seventeen
months after the criminal proceedings were terminated in his favor. Id. at * 7. Thus, in Allen,
the plaintiff’s abuse of process claim was barred by the one-year statute of limitations by any
measure, and the court did not hold that the statute of limitations begins to run when the criminal
proceedings are terminated. Assuming Plaintiffs can even establish an abuse of process claim
based on Defendants’ citations or prosecutions, the statute of limitations for Plaintiff’s claim
began to run when Defendants issued a citation or commenced prosecution against Plaintiffs, and
Plaintiffs’ abuse of process claim is therefore barred by the one-year statute of limitations. See
Withall, 508 N.E.2d at 365, 368.
VI.
Intentional Infliction of Emotional Distress Claim
Finally, Plaintiffs allege that Defendants’ targeting of Serenata for citations based upon
alleged ordinance violations and criminal battery charges constitutes an actionable claim for
intentional infliction of emotional distress (“IIED”).
An IIED claim requires plaintiff to
demonstrate that: (1) the defendant’s conduct was extreme and outrageous; (2) the plaintiff
suffered severe emotional distress; and (3) the defendant knew that severe emotional distress was
24
certain or substantially certain to result from its conduct. Miller v. Equitable Life Assurance
Soc’y of U.S., 537 N.E.2d 887, 888 (Ill. App. Ct. 1989).
In Illinois, “a cause of action ‘accrues’ when facts exist that authorize the bringing of a
cause of action.” Khan v. Deutsche Bank AG, 978 N.E.2d 1020, 1028 (Ill. 2012). Plaintiffs
allege they suffered severe emotional distress as a result of Defendants’ extreme and outrageous
conduct, which consisted of improperly targeting Plaintiffs for: (1) various citations and
administrative proceedings; and (2) criminal battery charges. The last time Defendants targeted
Serenata for citations or an administrative proceeding, however, was October 13, 2009, when
Defendants issued a notice of hearing seeking revocation of Serenata’s liquor license. (Pls.’ LR
56.1(b)(3)(C) ¶ 56.) Thus, Plaintiffs’ IIED claim based on Defendants’ targeting Serenata for
citations and administrative proceedings, at the latest, accrued on October 13, 2009, and it is
barred by the one-year statute of limitations.
To support their IIED claim, Plaintiffs also allege that Meza was falsely accused of
criminal battery and was found not guilty on September 14, 2010. Because Plaintiffs’ complaint
was filed less than a year after Meza was found not guilty of battery, Plaintiffs’ IIED claim based
on Defendants’ alleged malicious prosecution of Meza is not barred by the one-year statute of
limitations. See e.g., Carroccia v. Anderson, 249 F. Supp. 2d 1016, 1028 (N.D. Ill. 2003) (noting
“IIED claims based on facts alleged in parallel claims for malicious prosecution accrue only
when state criminal proceedings are terminated”).
Plaintiff’s IIED claim based on Defendants’ alleged targeting of Serenata for citations
and administrative proceedings, however, is barred by the one-year statute of limitations.
Plaintiffs argue that Defendants’ last act occurred on May 14, 2012, when Defendants dismissed
the remaining charges against Plaintiffs and that their entire IIED claim is not barred by the
25
statute of limitations. (Pls.’ Resp. Defs.’ Mot. Summ. J. 14.) While a continuing violation
theory may be cognizable in an IIED context, a continuing violation is measured “by continuing
unlawful acts and conduct, not by continual ill effects from an initial violation.” Pavlik v.
Kornhaber, 761 N.E.2d 175, 187 (Ill. App. Ct. 2001) (internal citation omitted). 7 As explained
above, Defendants’ last alleged unlawful act of targeting Serenata occurred on October 13, 2009.
In dismissing the remaining charges against Plaintiffs, Defendants did not act unlawfully, act in a
way that formed the basis of Plaintiff’s IIED claim, nor somehow put Plaintiffs on notice that
they had an IIED claim.
Defendants’ allegedly tortious conduct that formed the basis of
Plaintiff’s IIED claim, began in 2006 and ceased on October 13, 2009, when Defendants targeted
Serenata for the last time.
Conclusion
For the reasons stated herein, the Court grants in part and denies in part Defendants’
motion for summary judgment [259]. Plaintiffs’ due process (Count III) and abuse of process
(Count V) claims are completely barred by the statute of limitations. Plaintiffs’ equal protection
(Count I) and First Amendment (Count II) claims based on Defendants’ actions prior to February
11, 2009, are also barred by the statute of limitations. Plaintiffs’ IIED (Count VI) claim based on
Defendants’ targeting of Serenata for ordinance violations and other penalties is also barred by
the statute of limitations. Plaintiffs’ equal protection and First Amendment claims, based on
Defendants’ actions on or after February 11, 2009, along with Plaintiffs’ malicious prosecution
claim (Count IV) may proceed.
Plaintiff’s IIED claim based on Defendants’ malicious
prosecution may also proceed.
7
Pavlik involved allegations of sexual harassment, id, a context in which courts have found better
suited for continuing violations. See e.g. Limestone, 520 F.3d at 801 (noting continuing violations are
typically found in workplace harassment cases in which “[t]he first instance of a coworker’s offensive
words or actions may be too trivial to count as actionable harassment, but if they continue they may
eventually reach that level and then the entire series is actionable”).
26
SO ORDERED
ENTER: 3/11/14
______________________________________
JOHN Z. LEE
United States District Judge
27
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