Brooks v. City Of Chicago et al

Filing 29

MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 1/4/2012. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN W. BROOKS,
Plaintiff,
v.
CITY OF CHICAGO, ET AL.
Defendants.

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CASE NO. 11-cv-2880
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Defendants City of Chicago, former Mayor Richard M. Daley, and former Daley Chief of
Staff Raymond Orozco have moved to dismiss [21] former Fire Commissioner John W. Brooks’
complaint. For the reasons set forth below, the Court grants in part Defendants’ motion to
dismiss [21] and dismisses Plaintiff’s § 1983 claims for alleged constitutional violations (Counts
I and II). Because the Court has dismissed the two claims over which it has original jurisdiction,
Plaintiff’s remaining state law claims (Counts III-V) will be dismissed without prejudice.
Plaintiff may pursue those claims in state court if he so chooses.
I.

Background
In July 2008, former Mayor Richard M. Daley appointed John Brooks to the position of

Fire Commissioner and the City Council approved the appointment. As Fire Commissioner,
Brooks was responsible for the Chicago Fire Department. Brooks alleges that his appointment
was a permanent one, as opposed to a temporary appointment, and that he had a
“constitutionally-protected right in continued public employment.” Compl. at ¶ 11. Plaintiff’s
complaint further alleges that his job as Commissioner was “an exempt position.” Id.

In March 2010, Defendant Raymond Orozco, at the time Daley’s Chief of Staff, advised
Brooks that a female Fire Department employee had raised an allegation of sexual harassment
against him. As a result of the allegations, Brooks was advised that he was being placed on paid
administrative leave pending an investigation. On May 1, 2010, Brooks met with Orozco again,
and Orozco allegedly told Brooks that “Mayor Daley wants you out.”

According to the

complaint, Orozco then advised Brooks that if he did not submit a letter of resignation, he would
be terminated immediately or demoted to Battalion Chief. Brooks provided an undated letter of
resignation to Orozco. Brooks maintains that he did not want to resign and that the letter was
coerced. Brooks resignation became effective May 28, 2010.
On May 11, 2010, Brooks attended an interview with an independent investigator
regarding the allegations of sexual harassment. On August 6, 2010, the City made public the
findings of the independent investigator. The investigator concluded that the allegations were
false and that there was no evidence that Brooks engaged in sexual harassment.
On April 29, 2011, Brooks filed a five-count complaint against the City of Chicago,
Daley, and Orozco, alleging that he was “involuntarily extracted” from his position as Fire
Commissioner. Brooks alleges violations of his due process rights pursuant to 42 U.S.C. § 1983
against Daley and Orozco in their individual capacities (Count I) and the City (Count II) and
three state law claims for wrongful termination (Count III), “tortious interference with an
advantageous business relationship” (Count IV), and intentional infliction of emotional distress
against Daley and Orozco (Count V). Defendants have moved to dismiss all five counts.
II.

Legal Standard for Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d

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1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first
must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that
the pleader is entitled to relief” (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given “fair
notice of what the * * * claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief
above the “speculative level,” assuming that all of the allegations in the complaint are true.
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly,
127 S.Ct. at 1965, 1973 n.14). “[O]nce a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in the complaint.” Twombly, 127
S.Ct. at 1969. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and
all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677
(7th Cir. 2005).
III.

Analysis
A.

Federal Constitutional Claims

In Counts I and II, Plaintiff asserts § 1983 claims for violations of his due process rights.1
Plaintiff maintains that he had a constitutionally-protected property and/or liberty interest in his
continued employment in the position of Fire Commissioner. He further maintains that he was

1

In order to state a claim under § 1983, Plaintiff must allege that the Defendants were acting under color
of state law when they deprived him of a constitutional right. See Estate of Sims ex rel Sims v. County of
Bureau, 506 F.3d 509, 514 (7th Cir. 2007) (citing Christensen v. County of Boone, Illinois, 483 F.3d 454,
457 (7th Cir. 2007)). “Section 1983 is not itself a source of any substantive rights, but instead provides
the means by which rights conferred elsewhere may be enforced.” Bublitz v. Cottey, 327 F.3d 485, 488
(7th Cir. 2003) (citing Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997)). To allege a § 1983
violation, Plaintiff must do more then make a general allegation that his constitutional rights were
violated; he must allege a deprivation of a specific constitutional right. See Trautvetter v. Quick, 916
F.2d 1140, 1148 (7th Cir. 1990) (citing Wilson v. Civil Town of Clayton, 839 F.2d 375, 379 (7th Cir.
1988)).

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deprived of due process of law prior to the deprivation of his property and/or liberty interest. As
set forth below, even read charitably, Plaintiff’s complaint directly conflicts with the City
Municipal Code and Seventh Circuit precedent and fails to sufficiently allege a due process
claim or an occupational liberty claim.
1.

Due Process

Plaintiff alleges that Defendants deprived him of his right to be employed.

The

Fourteenth Amendment imposes constraints on government actions which deprive an individual
of “liberty” or “property” interests within the meaning of the Due Process Clause. See Mathews
v. Eldridge, 424 U.S. 319, 332 (1976). To assert a violation of the Due Process Clause, Plaintiff
must be able to show that he had a “property interest” and that he was deprived of this interest
without due process of law. See Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir. 2003)
(citing Bishop v. Wood, 426 U.S. 341, 343 (1976)). Specifically, Plaintiff’s due process claims
turn upon whether he had a property right in his position as Fire Commissioner.
To demonstrate that he was deprived of a protected interest, Plaintiff “must first establish
that he had a property interest * * * of the sort that the Constitution protects.” Border v. City of
Crystal Lake, 75 F.3d 270, 273 (7th Cir. 1996). Property interests are not created by the United
States Constitution; “[r]ather they are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as state law-rules or
understandings that secure certain benefits and that support claims of entitlement to those
benefits.” Moore v. Muncie Police and Fire Merit Com’n, 312 F.3d 322, 326 (7th Cir. 2002)
(citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). For example, in the context of fired
public employee bringing a procedural due process claim against his employers, the Seventh
Circuit recently stated that “[a] property interest in continued employment ‘can be created in one

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of two ways, (1) by an independent source such as state law securing certain benefits; or (2) by a
clearly implied promise of continued employment.’” Palka v. Shelton, 623 F.3d 447, 452 (7th
Cir. 2010) (citing Phelan, 347 F.3d at 681). To support a due process claim in the context of
public employment, the Seventh Circuit held that the plaintiff must have an “entitlement to
continued employment,” such as a collective-bargaining agreement. Palka, 623 F.3d at 452
(citing Lee v. County of Cook, 862 F.2d 139, 141 (7th Cir. 1988); Krieg v. Seybold, 481 F.3d
512, 519-20 (7th Cir. 2007)). Plaintiff bears the burden of proving that he had a property interest
in his employment as Fire Commissioner. See Krieg v. Seybold, 481 F.3d 512, 520 (7th Cir.
2007) (holding plaintiff bears the burden of showing that he had a property interest in his job
arising out of a state statute, state or municipal regulations, or a contract with a public entity).
While the Court accepts all well-pleaded facts in the complaint as true, the Court does not
have to accept as true conclusory statements of law or unsupported conclusions of fact. See
Snodderly v. R. U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 896 (7th Cir. 2001).
Simply claiming a property right in one’s job without facts to support the naked conclusion is not
enough to sufficiently plead a property interest. See Lee v. County of Cook, 862 F.2d 139, 14142 (7th Cir. 1988) (holding that to assert a property interest a plaintiff must allege enough facts
to show that she “has a legitimate claim of entitlement not to lose a valuable governmental
benefit except for cause”). Here, Plaintiff has alleged nothing beyond the conclusory assertion
that his position as Fire Commissioner was somehow “permanent” and that he had a
“constitutionally protected right in continued public employment.” See Compl. at ¶ 11. Notably,
he has not cited or identified any state statute, state or municipal regulation, or any contract that
allegedly created this “permanent” employment. Such pleading, without any factual
enhancement identifying the alleged source of the permanent employment, has been found

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insufficient to state a claim. Krieg, 481 F.3d at 520 (“Accordingly, without some specific
promise of employment, the CBA did not provide Krieg with a property interest.”); Collins v.
Board of Educ. of North Chicago Community Unit School Dist. 187, 2011 WL 2143115, *8
(N.D. Ill. May 31, 2011) (dismissing property right claim on Rule 12(b)(6) motion, finding that
“[b]ecause a property interest is required to state a cause of action for a Due Process violation
and Plaintiff has failed to allege facts from which a property interest can be conferred, Plaintiff
has failed to state a due process claim.”); Allison v. Bd. of Educ. of the Plainfield Cmty.
Consolidated Sch. Dist. No. 202, 2011 WL 2292306, *3 (N.D. Ill. June 7, 2011) (dismissing
property right due process claim on Rule 12(b)(6) motion where plaintiff failed to identify a
contract provision that demonstrated a property right in continued employment); Baylor v. Gary
Public Library, 2011 WL 1526950, *4 (N.D. Ind. April 20, 2011) (dismissing property right due
process claim on Rule 12(b)(6) motion where plaintiff failed to allege any statutory, contractual
or other basis showing that he was anything other than an at-will employee).
More problematic for Plaintiff (beyond the dearth of factual allegations supporting his
claim) is that the Municipal Code of Chicago makes clear that Plaintiff’s position as Fire
Commissioner is classified as “exempt”—a fact also noted by Plaintiff in his complaint—and
that Plaintiff was an at-will employee. See §§ 2-74- 030 and 2-74-060 of the Municipal Code of
Chicago (“Municipal Code”). Under the Municipal Code, City positions are classified into two
categories: “career service” positions and positions exempt from career service. See § 2-74-030.
Only those employees in “career service” positions are afforded procedural protections for their
employment. See § 2-74-060 of the Municipal Code; Phelan, 347 F.3d at 682 (affirming district
court’s 12(b)(6) dismissal of non-career service employee’s property interest due process claim).
Here, Plaintiff’s position as “Fire Commissioner” is expressly classified under the Municipal

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Code as exempt from “career service.” See § 2-74-30(4) and (13) and Appx. A (identifying “Fire
Commissioner” as a noncareer service position).2 Thus, not only has Plaintiff failed to allege
specific facts to show that he was anything other than an at-will employee, his allegations that he
was a “permanent” employee directly conflict with the City’s Municipal Code and Seventh
Circuit precedent. See Phelan, 347 F.3d at 682 (“Specifically, the Municipal Code distinguishes
‘career service’ employees and all other ‘career service exempt’ employees * * * * [and] [o]nly
those employees in career service are afforded procedural protections for their employment.”);
Omosegbon v. Wells, 335 F.3d 668, 674 (7th Cir. 2003); Santana v. Cook County Bd. of Review,
2011 WL 1549240, *3 (N.D. Ill. April 25, 2011) (dismissing property right due process claim
where plaintiff’s employment was at-will); Kerr v. South Cook Intermediate Serv. Ctr. 4
Governing Bd., 2010 WL 5482935, *4 (N.D. Ill. Dec. 30, 2010) (same).3
Because a property interest is required to state a cause of action for a Due Process
violation and Plaintiff has failed to allege facts from which a property interest can be conferred,
Plaintiff has failed to state a due process claim. See, e.g., Lee, 862 F.2d at 141-42 (affirming
dismissal of state employee’s third amended complaint where plaintiff did not allege facts
showing a property interest in her job); Smith v. Bd. of Educ. of Urbana School Dist., 708 F.2d
2

The City’s Personnel Rules also state in part: “Rule XVIIIA –Disciplinary Actions for Non-Career
Service Employee: Non-Career Service employees are employed ‘at will’. They may be disciplined or
discharged at any time for any reason or no reason and have no expectation of continued employment
* * *.” See, e.g., Dennis v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003) (taking judicial notice of
information on official government website).

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Further, to the extent that Plaintiff is attempting to allege that his purported “permanent” appointment
was the result of some implied promise of continued employment, the Seventh Circuit has rejected any
such argument. Specifically, in Phelan, the Seventh Circuit noted that it had previously “stated that
because the Chicago’s City Code explicitly defines different categories of employees as ‘career service’
or ‘career service exempt’ other City employees cannot make promises, implied or otherwise, of
continued employment that are contrary to the Code.” 347 F.3d at 682 (citing Shlay v. Montgomery, 802
F.2d 918, 921 (7th Cir. 1986)). Plaintiff’s contention in his response brief that there was a “mutually
explicit understanding” between himself and the City ignores the provisions of the Municipal Code
(which Plaintiff fails to address) as well as Seventh Circuit precedent explicitly rejecting his position. See
id.

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258, 264-65 (7th Cir. 1983) (affirming dismissal for failure to state a claim where plaintiff’s
complaint did not allege facts from which a property interest in employment could be inferred).
Plaintiff’s substantive due process claim, to the extent that he is attempting to allege one,
also fails. This sort of claim is limited to violations of fundamental rights (see Belcher v. Norton,
497 F.3d 742, 753 (7th Cir. 2007)), and employment-related rights are not fundamental; an
alleged wrongful termination of public employment is not actionable as a violation of substantive
due process unless the employee also alleges the defendants violated some other constitutional
right or that state remedies were inadequate. See Palka v. Shelton, 623 F.3d 447, 453 (7th Cir.
2010); Montgomery v. Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005). Plaintiff has not pleaded an
additional constitutional violation or claimed that state-law remedies were inadequate. He
therefore has failed to state an actionable substantive due-process claim.
Plaintiff’s substantive due process claim also fails because Defendants’ conduct falls far
short of shocking the conscience. “The Due Process Clause protects citizens from abuses of
power by executive officials * * * but official misconduct will rise to the level of a constitutional
violation only if it shocks the conscience.” Palka, 623 F.3d at 453-54 (emphasis added). In
Palka, the plaintiff maintained that tracing the phone call he made to the CPD officer’s
childrens’ school and then travelling outside of their jurisdiction to visit him at home one
evening qualified as conscience-shocking misconduct by the officers. The Seventh Circuit
disagreed.

“The threshold for this kind of due-process claim is high; many forms of

governmental misconduct are excluded.” Id. at 454 (citing Tun, 389 F.3d at 903 (“It is one thing
to say that officials acted badly, even tortiously, but – and this is the essential point – it is quite
another to say that their acts rise to the level of a constitutional violation.”); Kernats v.
O’Sullivan, 35 F.3d 1171, 1175 (7th Cir. 1994) (“Of course, every official abuse of power, even

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if unreasonable, unjustified, or outrageous, does not rise to the level of a federal constitutional
deprivation.”)). Here, there are no allegations that come close to conscience-shocking.
2.

Occupational Liberty Claim

In Palka v. Shelton, the Seventh Circuit also considered whether the plaintiff had
adequately alleged a violation of his interest in his occupational liberty under the Fourteenth
Amendment. 623 F.3d 447, 454 (7th Cir. 2010). While Plaintiff has not expressly alleged an
occupational liberty claim, his allegations could be read as attempting to allege such a claim.
The concept of liberty protected by the Due Process Clause includes one’s occupational
liberty, or “the liberty to follow a trade, profession, or other calling.” Wroblewski v. City of
Washburn, 965 F.2d 452, 455 (7th Cir. 1992).

The government violates an employee’s

occupational liberty interest when, in the course of discharge, failure to rehire, or other adverse
employment action, the employer stigmatizes the employee by making public comments that
impugn “the individual's good name, reputation, honor, or integrity” or impose a “stigma or other
disability on the individual which forecloses other opportunities.” Bd. of Regents v. Roth, 408
U.S. 564, 573 (1972). The Fourteenth Amendment protects only the individual’s liberty to
pursue a particular occupation, however, and not the individual’s right to any one job. See
Townsend v. Vallas, 256 F.3d 661, 670 (7th Cir. 2001).
Under the occupational liberty doctrine, a plaintiff must plead that (1) the defendant made
stigmatizing comments about him; (2) those comments were publicly disclosed; and (3) the
plaintiff suffered a tangible loss of other employment opportunities as a result of the public
disclosure. Palka, 623 F.3d at 454 (citing Townsend v. Vallas, 256 F.3d 661, 669-70 (7th Cir.
2001)). In cases alleging deprivation of occupational liberty, “the employee’s good name,
reputation, honor or integrity must be called into question in such a manner that makes it

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virtually impossible for the employee to find new employment in his chosen field.” Townsend,
256 F.3d at 670. “The public-disclosure element requires that the defendant actually disseminate
the stigmatizing comments in a way that would reach potential future employers or the
community at large.” Palka, 623 F.3d at 454 (citing Ratliff v. City of Milwaukee, 795 F.2d 612,
627 (7th Cir. 1986)) (holding there was no public disclosure and therefore no constitutional
violation where communications regarding reasons for a discharge of an employee were
disseminated internally); see also Townsend, 256 F.3d at 669-70; Harris v. City of Auburn, 27
F.3d 1284, 1286 (7th Cir. 1994) (deprivation of occupational liberty that was “virtually devoid of
any information regarding the public disclosure” of the statements was insufficient to state a
claim); Clark v. Maurer, 824 F.2d 565, 567 (7th Cir. 1987) (no injury until the damaging
information is made public); Lashbrook v. Oerkfitz, 65 F.3d 1339, 1349 (7th Cir. 1995) (“[T]he
government must have actually participated in disseminating the information to the public”).
To the extent that Plaintiff intended to allege an occupational liberty interest claim, his
claim fails.

Plaintiff has not alleged public disclosure of any stigmatizing comments by

Defendants.4 Allegations against an individual are not made public for purposes of satisfying the
public disclosure requirement for a violation of a liberty interest if the allegations are only
communicated internally. See, e.g. Ratliff, 795 F.2d at 627 (no public disclosure, and therefore
no deprivation of a liberty interest, where defendants did not publicize the reasons for discharge
beyond the proper chain of command within the police department); Johnson v. Martin, 943 F.2d
15, 16-17 (7th Cir. 1991) (no public disclosure when potentially stigmatizing information in a
discharged employee’s personnel file that had not been disseminated beyond the proper chain of
command in the police department and had not been made public).
4

Because Plaintiff’s

The only information that Plaintiff alleges was publicly disclosed was the independent investigator’s
conclusion exonerating him. See Compl. at ¶ 25.

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complaint does not allege that Defendants disclosed this matter to the public, he has failed to
plead that Defendants publically disclosed the purported stigmatizing information. As public
disclosure is required to show a deprivation of an occupational liberty interest, and Plaintiff has
failed to allege such disclosure, Plaintiff has failed to state a claim for a deprivation of his
occupational liberty.
In response to Defendants’ arguments regarding his failure to allege public disclosure of
stigmatizing information, Plaintiff attempts to amend his complaint by way of assertions made in
his response brief. However, it is “well established that a plaintiff cannot amend his complaint
by statements made in briefs filed in opposition to a motion to dismiss.” Odom v. Sheriff and
Staff, 2007 WL 1238723, at *2 (C.D. Ill. Apr. 26, 2007) (citing Perkins v. Silverstein, 939 F.2d
463, 471 n.6 (7th Cir. 1991)); Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996).
Furthermore, even accepting these allegations, Plaintiff’s complaint specifically refutes at least
one element of an occupational liberty claim: that Plaintiff suffered a tangible loss of other
employment opportunities as a result of the public disclosure. Plaintiff admits that before he
resigned he was given the option of remaining employed in the Fire Department in the position
of Battalion Chief, but he declined. Since Plaintiff could have elected to remain employed as a
fireman, he plainly was not deprived of his “calling or occupation.” At most, he was removed
from a specific job, which does not give rise to an occupational liberty claim. See Wroblewski v.
City of Washburn, 965 F.2d 452, 455 (7th Cir. 1992) (“It is the liberty to pursue a calling or
occupation, and not the right to a specific job, that is secured by the Fourteenth Amendment”)
(emphasis in original); see also Westphal v. City of Chicago, 8 F. Supp. 2d 809, 813 (N.D. Ill.
1998) (noting that courts “consistently distinguish ‘between occupational liberty and the right to
a specific job’”) (citing Wroblewski, 965 F.2d at 455). Even if Plaintiff were allowed to amend

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his complaint to allege the first two elements—that Defendants made stigmatizing comments
about him and that those comments were publicly disclosed—the allegations in his current
complaint explicitly demonstrate that he cannot state an occupational liberty claim. See also
Covell v. Menkis, 595 F.3d 673, 678 (7th Cir. 2010).5
In sum, Plaintiff has not alleged that he has been deprived of the right to pursue a
particular calling or occupation; rather, he merely alleges that he had a liberty interest in his
particular job as Fire Commissioner. The Complaint makes no allegation that Plaintiff has been
deprived of any other opportunity, whether inside or outside of the Fire Department, nor even
that Plaintiff has sought any other employment opportunities. Indeed, the complaint identifies
one position within his occupation that he was offered but declined to accept. For all of these
reasons, Plaintiff has failed to state a claim for violation of his right to occupational liberty. See,
e.g., Palka, 623 F.3d at 454-55 (affirming 12(b)(6) dismissal of liberty interest claim where
plaintiff did not allege that any stigmatizing information was publicly disclosed); Westphal, 8 F.
Supp. 2d at 813 (dismissing liberty interest due process claim pursuant to Rule 12(b)(6) where
plaintiffs did “not claim they are foreclosed from their occupation of being police officers or that
the defendant’s policies have foreclosed employment opportunities outside of the Chicago Police

5

The Seventh Circuit’s discussion in Bigby v. City of Chicago is particularly helpful in distinguishing
between actionable claims and the type of claim that Plaintiff here has brought:
* * * to be a policemen is to follow a particular calling, and to be excluded from that
calling is an infringement of liberty of occupation. But a particular rank in the police
force is not an occupation, just as the army is not a series of separate occupations, ranging
from buck private to general of the armies, and just as the private practice of law is not
composed of two occupations—partner and associate * * * * [W]hile preventing someone
from advancing in his occupation can be a cruel deprivation, it would stretch the idea of
liberty of occupation awfully far * * * to treat a bar to promotion as a deprivation of that
liberty.
766 F.2d 1053, 1057 (7th Cir. 1985). Thus, while the demotion allegedly offered by the City may have
been unwanted—or even intolerable—to Plaintiff, he was not being excluded from his occupation as a
fireman.

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Department.”); Santana, 2011 WL 1549240 at *3 (granting 12(b)(6) motion to dismiss liberty
interest claim where plaintiff did not plausibly allege a serious impairment of his future
employment opportunities); Baylor, 2011 WL 1526950 at *5 (granting motion to dismiss liberty
interest claim where plaintiff asserted only vague, conclusory allegations about public disclosure
of alleged stigmatizing statements and did not allege lost employment opportunities).
B.

State Law Claims

In addition to his § 1983 claims, Plaintiff also sued Defendants under Illinois state law for
wrongful termination (Count III), tortious interference with an advantageous business
relationship (Count IV), and intentional infliction of emotional distress (Count V). Because the
Court has dismissed all claims over which it has original jurisdiction, it must now address
whether to retain jurisdiction over those state law claims. See 28 U.S.C. § 1367(c)(3). The
Seventh Circuit consistently has stated that “it is the well-established law of this circuit that the
usual practice is to dismiss without prejudice state supplemental claims whenever all federal
claims have been dismissed prior to trial.” Groce v. Eli Lilly, 193 F.3d 496, 501 (7th Cir. 1999);
Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995); Brazinski v. Amoco Petroleum
Additivies Co., 6 F.3d 1176, 1182 (7th Cir. 1993). Finding no justification for departing from
that “usual practice” in this case,6 the Court dismisses without prejudice Plaintiff’s state law
claims.7

6

In Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251-53 (7th Cir. 1994), the Seventh Circuit noted that
there occasionally are “unusual cases in which the balance of factors to be considered under the pendent
jurisdiction doctrine – judicial economy, convenience, fairness, and comity – will point to a federal
decision of the state-law claims on the merits.” The first example that the Court discussed occurs “when
the statute of limitations has run on the pendent claim, precluding the filing of a separate suit in state
court.” Id. at 1251. That concern is not present here, however, because Illinois law gives Plaintiff one
year from the dismissal on jurisdictional grounds of state law claims in federal court in which to refile
those claims in state court. See 735 ILCS 5/13-217; Davis v. Cook County, 534 F.3d 650, 654 (7th Cir.
2008). Dismissal without prejudice also is appropriate here because substantial judicial resources have

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IV.

Conclusion
For these reasons, Defendants’ motion for dismiss [21] is granted as to Plaintiff’s federal

claims (Counts I and II) and the remaining state law claims (Counts III, IV, and V) are dismissed
without prejudice.

Dated: January 4, 2012

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

not been committed to the state law counts of Plaintiff’s complaint. Wright, 29 F.3d at 1251. Finally, this
is not a circumstance in which “it is absolutely clear how the pendent claims can be decided.” Id.
7

As Plaintiff notes, district courts generally allow leave to amend after granting a motion to dismiss for
the first time unless an amendment would be futile. See, e.g., Foster v. DeLuca, 545 F.3d 582, 584 (7th
Cir. 2008); Barry Aviation v. Land O’Lakes, 377 F.3d 682, 687 (7th Cir. 2004). In view of the foregoing
discussion, the Court finds it very likely that any amended complaint would be futile in view of the
allegations of the complaint (even as expanded in Plaintiff’s response brief) and the controlling legal
principles. Nevertheless, in an abundance of caution, the Court will allow Plaintiff until February 1,
2012, to file a motion for leave to file an amended complaint if he believes that he can do so in good faith.
If no such motion is filed – or if leave to amend is denied on futility grounds – the Court will (1) enter a
further order dismissing the federal claims with prejudice and the state claims without prejudice, (2) enter
judgment on the federal claims, and (3) terminate this case in federal court.

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