Williams v. City of Chicago et al
Filing
63
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 6/12/2012:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VINCENT WILLIAMS,
Plaintiff,
v.
Case No. 11 C 6228
CITY OF CHICAGO, RICHARD M.
DALEY, CHICAGO PUBLIC SCHOOLS,
TIMOTHY MARTIN, and PAUL H.
SCHWENDENER, INC.,
Hon. Harry D. Leinenweber
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is the Chicago Board of Education’s Motion to
Dismiss Plaintiff’s Second Amended Complaint.
For the reasons
stated herein, the Motion is granted and the Complaint is dismissed
with prejudice.
I.
BACKGROUND
Plaintiff brings seven counts, each arising from the same
series of events. In 2000, Plaintiff’s company, Citizens Electric,
became the electrical subcontractor for Paul H. Schwendener, Inc.
(“PSI”)
(then
in
a
joint
venture
with
Gonzales
Construction
Company) in the construction of the William K. Sullivan Elementary
School.
Citizens Electric’s subcontract was allegedly worth more
than $1.3 million.
At some point, the contractual relationship
broke down, and Citizen’s Electric did not complete the project or
get paid the full contract amount.
Plaintiff now alleges that the
Chicago Public Schools (“CPS”) conspired with PSI to remove him and
Citizens Electric from the project and to ensure that they were
never paid for their time and effort.
Specifically, Plaintiff alleges that he is an African-American
man and operated a certified Minority Business Enterprise (an
“MBE”). Plaintiff argues that when he refused to allow his company
to be operated as a “front” for using non-minority contractors,
some
Defendants
(though
it
is
not
clear
who)
harassed
and
intimidated him and his employees in an attempt to force them off
the project and replace him with a Hispanic contractor.
The
harassment allegedly included verbal attacks, calling the police to
remove Plaintiff and his employees from the project site, and
allowing Plaintiff’s electrical work and tools to be destroyed
overnight at the guarded worksite.
At some point, Defendant Timothy Martin (then Chief Operating
Officer of the Chicago Board of Education) intervened in the
dispute and allegedly promised Plaintiff that he would be paid for
the work that Citizens Electric had done to that point, as well as
receiving 10% of the contract price as an incentive to leave the
project.
Plaintiff claims that he never received the promised
amount.
The Defendants allegedly held secret meetings and plotted how
to avoid paying Plaintiff, even though all non-minority contractors
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on the project were paid.
financially
compromise
Plaintiff alleges that this was done to
Citizens
Electric.
Finally, Plaintiff
claims that he was subjected to an MBE certification process that
non-minority contractors were not subject to, and that CPS’ MBE
contracting program is unconstitutional in that it is not “narrowly
tailored” enough to perform its function well.
Many of the relevant dates are omitted from the narrative
portion of Plaintiff’s Complaint.
However, the various documents
that he attached as exhibits to his Complaint demonstrate, among
other things, that the contract was entered into in October 2000
and that the relationship had already broken down irreparably by
April 19, 2001.
Judicially noticeable state court records show
that Citizens Electric filed suit on June 1, 2001.
Count I of Plaintiff’s Second Amended Complaint alleges a
conspiracy to violate his civil rights.
Count II alleges unjust
enrichment on the part of the CPS and PSI.
racial discrimination.
Count III alleges
Count IV alleges that CPS was grossly
negligent in creating and administering a policy to level the
construction playing field for minority contractors.
Count V
alleges both intentional and negligent infliction of emotional
distress; though it does not identify particular defendants, it
appears primarily aimed at PSI.
Count VI alleges that CPS and
Timothy Martin breached alleged oral and written modifications to
Citizen Electric’s subcontract.
Count VII alleges that Defendants
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conspired to provoke Plaintiff into breaching the subcontract by
harassing him and refusing to pay him so that he could not finish
the project.
Defendant Chicago Board of Education has moved to dismiss the
suit under the doctrine of res judicata, noting that in 2001
Majestic Properties, d/b/a Citizens Electric, sued the Board and
PSI.
The
suit
alleged
a
breach
of
contract
and
sought
an
accounting, but Citizens Electric’s Complaint was dismissed for
want of prosecution.
II.
LEGAL STANDARD
On a Motion to Dismiss under Rule 12(b)(6), the Court accepts
as true all well-pleaded facts in the complaint and draws all
inferences in Plaintiff’s favor.
Cole v. Milwaukee Area Tech.
Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011).
A complaint must
contain a “short and plain statement of the claim showing that the
pleader
is
entitled
to
relief.”
FED . R. CIV . P.
8(a)(2).
Plaintiffs need not allege “detailed factual allegations,” but must
offer more than conclusions or “a formulaic recitation of the
elements of the cause of action[.]”
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007).
Res judicata “promote[s] judicial economy by requiring parties
to litigate, in one case, all rights arising out of the same set of
operative facts and also to prevent the unjust burden that would
result if a party could be forced to relitigate what is essentially
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the same case.”
N.E.2d
883,
River Park, Inc. v. City of Highland Park, 703
896
(Ill.
1998).
A
defendant
may
move
under
Rule 12(b)(6) to dismiss a complaint on res judicata grounds, if
all of the relevant facts are ascertainable from the complaint or
judicially noticeable records from the prior suit.
Ennenga v.
Starns, 677 F.3d 766, 2012 WL 1292768, at *13 n.6 (7th Cir. 2012).
Illinois courts rendered the original judgment, and so Illinois law
applies to determine whether res judicata bars this suit.
Arlin-
Golf, LLC v. Village of Arlington Heights, 631 F.3d 818, 821 (7th
Cir. 2011).
In Illinois, res judicata bars a later suit if:
“(1) there
was a final judgment on the merits rendered by a court of competent
jurisdiction, (2) there is an identity of cause of action, and (3)
there is an identity of parties or their privies.”
Id. (citing
Nowak v. St. Rita High Sch., 757 N.E.2d 471, 477 (Ill. 2001)).
The
two suits need not be based on the same legal theory; it is enough
if they arise out of the same set of operative facts.
Oliver, 547 F.3d 874, 876-877 (7th Cir. 2008).
Muhammad v.
If res judicata
applies, it bars re-litigation of the original claims, as well as
claims that could have been raised in the first suit.
Chicago
Title Land Trust Co. v. Potash Corp. of Saskatchewan Sales Ltd.,
664 F.3d 1075, 1079-81(7th Cir. 2011).
applied
where
it
would
be
“Res judicata will not be
fundamentally
Nowak, 757 N.E.2d at 477.
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unfair
to
do
so.”
III.
DISCUSSION
Defendant argues that Plaintiff’s suit is barred by the
dismissal of the 2001 breach of contract suit.
Plaintiff does not
appear to dispute that the parties are the same as, or in privity
with, the parties to the 2001 suit.
Rightly so.
Court records
indicate that the Board of Education was a Defendant in the 2001
suit, and that the suit was brought by Majestic Properties, d/b/a
Citizens Electric.
Plaintiff brings the current suit as founder
and sole assignee of Citizens Electric.
Accordingly, the Court
discusses the final judgment and identity of cause of action
factors below.
A.
Final Judgment
Plaintiff argues that Citizens Electric was dismissed from the
2001 suit for failure to prosecute, and that there was accordingly
no final judgment on the claims.
Defendant argues that the
dismissal was a sanction for failing to appear pursuant to a court
order.
The
order
itself,
however,
did
note
that
Majestic
Property/Citizens Electric failed to appear, but dismissed Majestic
Properties “as a plaintiff in this case for want of prosecution[.]”
Majestic Properties v. Chicago Bd. of Ed., et al., 01-L-6524 (Cook
Cty. Cir. Ct. June 18, 2003).
In Illinois, a dismissal for want of prosecution is not a
final judgment until Plaintiff’s time to re-file has run — that is,
until the later of one year from the dismissal date or the
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expiration of the statute of limitations.
See Hudson v. City of
Chicago, 889 N.E.2d 210, 214 and n.1, 224 (Ill. 2008).
The longest
statute of limitations from the 2001 suit — for breach of a written
contract — is 10 years.
735 Ill. Comp. Stat. 5/13-206.
Given that
the cause of action accrued by the time that Plaintiff sued
(June 1, 2001), and that he has alleged no subsequent promises to
pay, the limitations period ran out by June 1, 2011 – three months
before Plaintiff sued here.
Plaintiff argues that the limitations period did not run, and
that the dismissal for want of prosecution is therefore non-final.
First, he argues that the limitations period was tolled while he
was incarcerated (from roughly mid-2004 until at least mid-2007).
That is no longer the law in Illinois, however.
See 735 Ill. Comp.
Stat. 5/13-211; Schweihs v. Burdick, 96 F.3d 917, 919 (7th Cir.
1996).
Second, Plaintiff argues that CPS’s attorney committed fraud
on the court in 2005, thereby voiding any judgment in that case, in
that the attorney told the Circuit Court judge that the parties had
agreed to settle the suit, when Plaintiff had never agreed to
settle.
First, contrary to Plaintiff’s assertions, there is no
claim of fraud on the court in his Complaint.
Second, his argument
rests on a clear misunderstanding of the record. Citizens Electric
was not a party to the case by the time the case was referred to
mediation and ultimately settled (between PSI and CPS).
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Citizens
Electric was dismissed (for the second time) as a plaintiff for
failure to prosecute on June 18, 2003, and a default judgment was
entered against it on a counterclaim in August 2003.
Accordingly,
Citizens Electric need not have agreed to mediate or settle in 2004
and 2005.
There being no fraud on the court and nothing else to
toll the limitations period, the dismissal of the 2001 case became
a final judgment in June 2011, three months before the instant case
was filed.
B.
Identity of Actions
For res judicata to apply, the second suit need only arise out
of the same operative facts as the first, regardless of whether
they are pled under different theories of liability or require the
same evidence.
See Muhammad, 547 F.3d at 876 (a contract suit
barred a later federal civil rights suit); River Park, Inc. v. City
of Highland Park, 703 N.E.2d 883, 894 (Ill. 1998) (a § 1983 claim
barred
later
implied
contract
and
abuse
of
government
power
claims). CPS argues that both the current and 2001 suits arise out
of
the
2001
breakdown
in
the
relationship
between
Citizens
Electric, PSI, and CPS.
Plaintiff counters that this case is distinct in that it
addresses racial discrimination by CPS.
That argument, however,
concedes that the claims arising out of the business relationship
between Citizens Electric, PSI, and CPS arise out of the same
transaction as the 2001 suit.
Accordingly, Count II (unjust
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enrichment), Count VI (breach of oral and written modifications to
the contract) and Count VII (conspiracy to provoke a breach of
contract), as alleged against CPS, are barred by res judicata.
These claims having been abandoned in state court, there is nothing
unjust
in
Plaintiff’s
precluding
re-litigation
claims
time-barred,
are
here.
and
are
violations merely because he has not been paid.
Stat.
5/13–205;
735
Ill.
Comp.
Stat.
Alternatively,
not
continuing
See 735 Ill. Comp.
5/13-206;
Feltmeier
v.
Feltmeier, 798 N.E.2d 75, 85 (Ill. 2003) (ongoing harm from an
original violation is not continuing tort).
The remaining claims
are addressed below.
C.
Remainder of Claims
1.
Count I
As to Count I, which Plaintiff describes in his response as a
§ 1983 conspiracy claim, Plaintiff claims that CPS and PSI’s
actions in 2001 were a conspiracy to deprive him of his civil
rights,
and
that
he
was
unconstitutionally
coerced
into
participating in an unconstitutional MBE certification program. As
to
the
first
claim,
it
largely
just
adds
allegations
of
discriminatory motive to the conduct and injury from the 2001 suit;
it is barred by res judicata.
See Muhammad, 547 F.3d at 876.
Plaintiff’s challenge to his enrollment in the MBE program is
likewise an important part of the 2001 dispute, but in any event is
also barred by the two-year statute of limitations for Illinois
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§ 1983 claims.
Gomez v. Randle, --- F.3d ---, 2012 WL 1660975, *3
(7th Cir. 2012). (Where a complaint demonstrates that its claims
are time-barred, it is subject to dismissal for failure to state a
claim.
Logan v. Wilkins, 644 F.3d 577, 582-583 (7th Cir. 2011).)
In arguing that the 2001 suit does not bar his discrimination
claims, Plaintiff points to Judge James Moran’s invalidation of the
City of Chicago’s MBE program in 2003, and to the CPS Board’s
findings of fact in support of the 2006 revision to its MBE
program.
Plaintiff argues that these “more recent occurrences of
racial discrimination” could not have been addressed in 2001, but
does not actually claim that he suffered any alleged discrimination
after 2001.
(Nor does Plaintiff claim that he was unaware of his
alleged harm from the MBE program until within two years of filing
suit.
Cf. Parks v. Kownacki, 737 N.E.2d 287, 294 (Ill. 2000)
(limitations
reasonably
period
should
begins
have
to
known
run
of
when
his
a
plaintiff
injury
and
that
knew
or
it
was
wrongfully caused).) Accordingly, these allegations arise from the
same set of facts the previous suit, and are also time-barred.
2. Count III
Count
III,
generically
entitled
likewise appears to be based on § 1983.
alleges that (unspecified) defendants:
“Racial
Discrimination,”
In that Count, Plaintiff
unfairly breached the
subcontract by replacing Citizens Electric with a less qualified
Hispanic contractor, circumvented normal procedures to avoid paying
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Plaintiff, imposed a greater retainage rate upon Plaintiff than on
non-minority contractors, pressured Plaintiff to allow his company
to be used as a “front,” harassed and intimidated Plaintiff and his
employees, and held secret meetings where Plaintiff’s work and race
were discussed.
For the reasons discussed above, however, this
claim is barred both by res judicata (in that it arises from the
same dispute as the 2001 suit, albeit with new allegations of
discriminatory motive and harassment), and by the statute of
limitations for a § 1983 claim.
The findings of Judge Moran in
2003 and the Board of Education in 2006, where they are not alleged
to have impacted Plaintiff or triggered his discovery of a harm to
him, did not toll the limitations period until within two years of
Plaintiff filing this suit.
3.
Count IV
In Count IV, entitled “negligence,” Plaintiff alleges that CPS
was responsible “for assuring fairness and competition for all
contractors, including African Americans,” but administered its MBE
program so negligently that it violated an alleged fiduciary duty
to Plaintiff.
Plaintiff alleges that if CPS had adopted its
current payment policy earlier (which requires general contractors
like PSI to pay minority sub-contractors within 15 days of being
paid by the City), the alleged conspiracy against Plaintiff would
have been much harder to carry out.
Accordingly, this claim, too,
arises out of the same nucleus of operative facts as the 2001 suit
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and is barred by res judicata. Alternatively, this claim is barred
by the statute of limitations – five years for claims for breach of
fiduciary duty (assuming arguendo that there was such a duty here).
Halperin v. Halperin, No. 10 CV 4104, 2012 WL 832786, at *4 (N.D.
Ill. Mar. 8, 2012).
4.
Count V
Count V, which alleges intentional and negligent infliction of
emotional distress, again centers on the alleged conspiracy and
harassment during the 2000-2001 conflict, and therefore could have
been brought as part of the original suit.
See, Czarniecki v. City
of Chicago, 633 F.3d 545, 549 (7th Cir. 2011) (adding a state-law
claim for emotional distress does not prevent the application of
res judicata).
statute
of
Alternatively, the claim clearly is barred by the
limitations.
See
Gilmore
v.
Bayer
Corp.,
Civil
No. 09–986, 2012 WL 1076298, at *2 (S.D. Ill. 2012).
IV.
CONCLUSION
For the reasons stated herein, the Court grants the Board of
Education’s Motion to Dismiss Plaintiff’s Second Amended Complaint
as to it (and, by association, its former Chief Operating Officer
Timothy Martin, sued here in his official capacity). Plaintiff has
already dismissed the City and former Mayor Daley.
above
applies
equally
to
PSI,
a
party
to
the
The reasoning
2001
suit.
Accordingly, the Court sua sponte dismisses the claim as to PSI,
also on res judicata grounds.
Given the basis for the dismissal
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and
the
number
of
times
Plaintiff
has
already
amended
his
pleadings, the Court dismisses the suit with prejudice.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE:6/12/2012
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