Priddle v. Malanis et al

Filing 157

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 2/4/2015. Mailed notice (mmy, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SOMA GETTY PRIDDLE,
Plaintiff,
v.
DEAN MALANIS, and
GREAT LAKES SERVICE II, INC.,
Defendants.

SOMA GETTY PRIDDLE,
Plaintiff,
v.
DARWIN ASSET MANAGEMENT;
THOMAS DRIVE PARTNERSHIP; and
owner of record of 705-715 THOMAS
DRIVE, BENSENVILLE, ILLINOIS,
Defendants.

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Case No. 12-cv-5831
Judge John W. Darrah

Case No. 12-cv-5833
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiff, Soma Getty Priddle (“Priddle”), filed two Amended Complaints on
July 17, 2014. The first, against Defendant Darwin Asset Management (“Darwin”), Thomas
Drive Partnership, and the owner of record of 705-715 Thomas Drive, Bensenville, Illinois,
alleges one count of premises liability, one count of conspiracy to violate Illinois tow law, and
one count of violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815
ILL. COMP. STAT § 505/1 et seq. The second, against Dean Malanis (“Malanis”) and
Great Lakes Service II, Inc. (“Great Lakes”), alleges one count each of “Violation of Illinois
Tow Law” and replevin. Malanis and Great Lakes challenged Plaintiff’s Amended Complaints,
pursuant to Federal Rule of Civil Procedure 12(b)(1), which Darwin has joined. The matter has

been fully briefed. For the following reasons, Plaintiff’s Amended Complaints are dismissed for
lack of jurisdiction.
BACKGROUND
The following is taken from the Complaints, which are assumed to be true for the
purposes of a motion to dismiss. Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th
Cir. 2010).
Plaintiff lives on a farm in Norwalk, Wisconsin, but works as an airline pilot at O’Hare
Airport. (12-cv-5831 Dkt. 128, ¶¶ 1, 10.) Plaintiff was driving to work at O’Hare Airport at
approximately 5:30 a.m. on July 24, 2010. (Id. at ¶ 11.) That morning there were heavy rains
and areas of localized flash flooding. (Id. at ¶ 12.) Due to a police barricade on Thomas Drive,
Plaintiff was directed into Darwin’s parking lot in order to turn around. (Id. at ¶ 19.) While
stopped in the parking lot, a surge of water swept Plaintiff’s vehicle into a drainage canal.
(Id. at ¶ 21.) The items in Plaintiff’s vehicle, a Dodge Ram truck, included: farm equipment,
emergency equipment, personal supplies, pet supplies, law school materials, and materials
containing Security Sensitive Information. (Id. at ¶¶ 24, 26-27). Plaintiff managed to escape the
vehicle but could still see her belongings in the vehicle after it was carried some distance. (Id. at
¶¶ 28, 29.) Plaintiff attempted to retrieve her belongings that day, but she was informed the
water was still too dangerous and told to return after at least twenty-four hours. (Id. at ¶ 32.)
Plaintiff came back to retrieve her vehicle the next day, but she could not find it and
reported the truck as missing. (Id. at ¶¶ 35, 37.) The Bensenville Police Department located
Plaintiff’s vehicle in the possession of Malanis. (Id. at ¶ 37.) Malanis refused to return
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Plaintiff’s truck that day. (Id. at ¶¶ 38-39.) On July 26, 2014, Plaintiff went to Malanis’s lot and
saw that most of the contents within the vehicle were missing. (Id. at ¶ 45.) Malanis denied any
knowledge of how the items in the truck went missing. (Id. at ¶¶ 47-49.) Malanis then asked
Plaintiff for $2,400.00 to release her vehicle but, after Plaintiff had paid, refused to release the
vehicle until the next day. (Id. at ¶¶ 50, 53-54, 56.) Malanis finally released Plaintiff’s vehicle
on July 27, 2014, after demanding an additional $150.00 in cash. (Id. at ¶ 60.)
When asked by Bensenville Police who authorized the tow of Priddle’s vehicle, Malanis
initially stated that he could not remember. (Id. at ¶ 61.) After further investigation, Malanis
told police that he was authorized by a person named “George” at an address near the final
location of Plaintiff’s vehicle. (Id. at ¶ 62.) But the address did not correspond to a building,
and no one was named “George” at the nearby building. (Id.)
LEGAL STANDARD
Federal district courts have original jurisdiction of civil cases where the amount in
controversy exceeds $75,000.00 and is between citizens of two different states. 28 U.S.C.
§ 1332(a)(1). The party asserting federal jurisdiction has the burden of proving jurisdiction is
proper. Travelers Prop. Cas. v. Good, 689 F.3d 714, 722 (7th Cir. 2012) (citing McNutt v.
Gen. Motors Acceptance Corp., 289 U.S. 178, 189 (1936)). Citizenship and the amount in
controversy must be shown by a preponderance of the evidence. Lewis v. Weiss, 631 F.Supp.2d
1063, 1065 (N.D. Ill. 2009) (citing Meridian Ins. Sec. Co. v. Sadowski, 441 F.3d 536, 543 (7th
Cir. 2006)).

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When a party moves to dismiss based on lack of subject-matter jurisdiction pursuant to
Rule 12(b)(1), the district court must accept all well-pleaded facts within the complaint as true
but may also consider evidence outside of the pleadings to ensure jurisdiction is proper. Evers v.
Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008) (citing St. John’s United Church of Christ v.
City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007)). When the amount in controversy is
challenged, a plaintiff is required to support her jurisdictional assertion with competent proof.
McMillan v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (quotations and
citations omitted). Such proof requires more than “point[ing] to the theoretical availability of
certain categories of proof.” Id. (citations omitted).
“A document filed pro se is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotations and citations omitted). 1
ANALYSIS
The cases at issue have been the subject of several revisions to both Complaints based on
jurisdictional issues. The Honorable John A. Nordberg dismissed the original complaints for
lack of jurisdiction because Plaintiff “fail[ed] to provide a plausible factual explanation for [her]
damages.” (12-cv-5831 Dkt. No. 59 at 6.) The complaints were dismissed without prejudice,
and Plaintiff was allowed to file Amended Complaints along with “supporting memorandum
explaining why she believes she has met her jurisdictional burden.” (Id. at 7.) Plaintiff timely

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As has been noted before, while Plaintiff is proceeding pro se, she holds a J.D. from
John Marshall Law School and has been admitted to the Bar in Wisconsin.
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filed Amended Complaints, but those too were dismissed for failing to provide competent proof
necessary to assert proper jurisdiction. (12-cv-5831 Dkt. No. 126 at 5.) This Court held it
unlikely that competent proof exists to justify the hourly rate that Plaintiff uses as the basis for
damages based on “rebuilding” her life. (Id. at 7.) Plaintiff then filed two more Amended
Complaints and a document titled “Plaintiff’s Proof of Damages: Explanation & Notes.”
As an initial matter, Defendants claim that the spreadsheet previously filed by Plaintiff as a
breakdown of her damages was stricken and cannot be relied on. This is incorrect; courts may
consider evidence outside of the pleadings to ensure jurisdiction is proper. Evers, 536 F.3d at
656-57.
In her previous jurisdictional memorandum, Plaintiff claimed from Malanis $41,518.59
in “compensatory damages” and $75,283.38 in “compensation for her costs to rebuild her life.”
(12-cv-5831 Dkt. No. 65 at 3.) Additionally, she claimed from Malanis $83,037.18 in “punitive
damages on a 1:1 ratio.” (Id.) From Darwin, Priddle claims “damages, excluding the cost of
rebuilding her life . . . in the amount of $61,239.11” and a “total cost, including the rebuild . . .
[of] $72,851.31.” (Id.)
As previously held, with respect to Malanis and Great Lakes, Priddle’s allegations of
violations of “Illinois Tow Law” and replevin do not admit the availability of punitive damages.
Illinois law disfavors punitive damages; and a plaintiff must establish “gross fraud, breach of
trust, or other extraordinary or exceptional circumstances clearly showing malice or willfulness.”
Id. (quoting Roboserve, Inc. v. Kato Kagaku Co., 78 F.3d 266, 275 (7th Cir.1996)). However,
the section of the Illinois Commercial Safety Towing Act that makes non-compliance with the
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statute an unlawful practice within the meaning of the Consumer Fraud and Deceptive Business
Practices Act (ICFA), 815 ILL. COMP. STAT. 505/1, et seq., has recently been held as pre-empted
by federal law. Prof'l Towing & Recovery Operators of Illinois v. Box, 965 F. Supp. 2d 981,
1005-06 (N.D. Ill. 2013) (“the reference to ICFA appears to be pure consumer protection . . .
[and as] a consumer-protection measure related to a property-transportation service of a motor
carrier that is not genuinely responsive to safety concerns, it is preempted by federal law.”) This
makes punitive damages unavailable to Plaintiff.
One of Plaintiff’s claimed basis of damages is potential risks from Malanis’s possession
of Sensitive Security Information, as defined by federal regulations. See 49 C.F.R. § 1520.5
(2009). Federal regulations provide: “When a covered person becomes aware that SSI has been
released to unauthorized persons, the covered person must promptly inform TSA or the
applicable DOT or DHS component or agency.” 49 C.F.R. § 1520.9 (2004). Plaintiff has clearly
already met her obligations under the regulation by informing the Bensenville Police, the Illinois
State Police, the O’Hare Aviation Police, the airline, and the Department of Homeland Security.
Plaintiff also claims other, costly duties and obligations but never actually states what they are.
Damages from a “catastrophic event” due to the alleged theft of the information are far too
speculative for jurisdictional purposes. Similarly, the “Security Situation Evaluation” provided
by Plaintiff lists potential costs and damages of $15,000 to $100,000, an $85,000 range. These
amounts are wholly speculative, as Plaintiff does not allege that her identity has been stolen or
that the Sensitive Security Information was disclosed to anyone, in any way. As several courts
have held, plaintiffs do not allege an injury when they allege that identity theft may occur in the
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future. See Lewert v. P.F. Chang's China Bistro, Inc., No. 14-CV-4787, 2014 WL 7005097, at
*3 (N.D. Ill. Dec. 10, 2014).
Plaintiff’s request for $200.00 an hour for time spent “rebuilding” her life is likely far too
speculative. In her damages spreadsheet, Plaintiff calculates the time spent rebuilding her life
and replacing lost items as $33,756.14 and marks all of that as attributable to Malanis. Later, she
attributes $33,764.79 to Malanis and $11,612.20 to Darwin as the cost for rebuilding her life, for
a total of $45,376.99. Plaintiff still has not fixed or explained this discrepancy. Additionally,
while Plaintiff argues in her reply brief that the amount is appropriate because she missed work
in order to replace items and perform other tasks related to losing her personal property, she does
not make those allegations in the Complaints. Plaintiff misunderstands the Court’s previous
ruling: It is doubtful that competent proof exists that she would be paid $200.00 an hour to
recreate outlines. If Plaintiff missed scheduled work due to Defendants’ alleged actions,
competent proof may exist for that figure. But, again, Plaintiff does not allege that in her
Complaints.
Without punitive damages or compensation for rebuilding her life, Plaintiff does not
reach the monetary threshold necessary for federal jurisdiction. It should be noted that
Defendants claim Plaintiff should not be allowed to recover for items which were replaced or
compensated for by her insurance. Plaintiff correctly argues that the Illinois collateral source
rule applies. “Under the collateral source rule, the amount of damages a plaintiff is entitled to in
a civil action will not be decreased by the amount of benefits the plaintiff received from a source

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wholly independent and collateral to the wrongdoer.” Hillmann v. City of Chicago, No. 04-CV6671, 2014 WL 4449824, at *6 (N.D. Ill. Sept. 4, 2014) (quoting City of Chi. v.
Human Rights Comm'n, 637 N.E.2d 589, 592 (Ill.App.Ct. 1994)). Therefore, any damages from
lost items would not be discounted by any insurance proceeds. Nonetheless, these damages are
not enough to confer federal jurisdiction.
CONCLUSION
For the reasons set out above, both of Plaintiff’s Amended Complaints [127, 128] are
dismissed without prejudice. Priddle may file a third amended complaint in each of these cases,
including allegations of specific damages with supporting documentation, within twenty-one
days of the date of this Order. If third amended complaints are filed, they will be referred to the
magistrate judge for a jurisdictional hearing.

Date:

February 4, 2015

______________________________
JOHN W. DARRAH
United States District Court Judge

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