Cui v. City of Elmhurst Police Department et al

Filing 150

MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 4/12/2017: Plaintiff's motion for reconsideration of dismissal of plaintiff's fourth amended complaint and for leave to file a Fifth Amended Complaint 147 is denied. Motion is stricken from the Court's call of 5/11/2017. Mailed notice(mad, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HANG CUI and RUIYING FEI,
Plaintiffs,
v.
ELMHURST POLICE DEPARTMENT, et al.

Defendants.

)
)
)
)
)
)
)
)
)
)

No. 14 C 8330
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us is Plaintiffs’ motion for reconsideration of our February 21, 2017
Order dismissing their federal claims and declining to exercise supplemental jurisdiction over the
remaining state law claims. (Mot. (Dkt. No. 147).) Also before us is Plaintiffs’ motion for leave
to file a Fifth Amended Complaint. (Id.) For the reasons stated below, we deny Plaintiffs’
motions.
BACKGROUND
We assume familiarity with the relevant facts as detailed in our Order granting
Defendants’ motions to dismiss in part and thus do not fully recount them here. Cui v. Elmhurst
Police Dep’t, No. 14 C 8330, 2017 WL 680318, at *1–2 (N.D. Ill. Feb. 21, 2017). Cui filed a
pro se complaint against the City of Elmhurst Police Department, Lynn Kubycheck, and Jon
Kubycheck in the Circuit Court of Cook County, Illinois on September 24, 2014.
(Dkt. No. 1 ¶ 2.) On October 23, 2014, the Elmhurst Police Department removed the action to
federal court pursuant to 28 U.S.C. §§ 1441, 1443. Cui filed his first amended pro se complaint
on December 31, 2014. (Dkt. No. 22.) We granted the Elmhurst Police Department’s motion to

dismiss all counts against it on May 5, 2015, but granted Cui leave to file an amended complaint
to pursue a state-law malicious prosecution claim against the City of Elmhurst. (Dkt. No. 27.)
Cui filed a second amended pro se complaint on June 12, 2015, naming the City of Elmhurst,
Officer Steven Mandat, Lynn Kubycheck, and Jon Kubycheck as defendants. (Dkt. No. 31.)
On September 17, 2015, we again dismissed all counts against the City of Elmhurst, all
counts against Officer Mandat except for Cui’s racial discrimination claim,1 and Cui’s state-law
defamation and conspiracy claims against the Kubychecks. (Dkt. No. 55.) Cui and Ruiying Fei,
now represented by counsel, filed a third amended complaint on May 16, 2016, which was not
served on the Defendants. (Dkt. No. 104.) On October 11, 2016, Plaintiffs filed their Fourth
Amended Complaint, naming as defendants the City of Elmhurst, Officer Art Ciszewski,
Commander Robert Nichols, and the Kubychecks. The Fourth Amended Complaint asserted
federal claims under 42 U.S.C §§ 1983 and 1985, along with Illinois state law claims for
malicious prosecution, trespass, invasion of privacy, negligent infliction of emotional distress,
intentional infliction of emotional distress, and indemnification. The Elmhurst Defendants
moved to dismiss all counts against them on November 8, 2016, and the Kubychecks moved to
dismiss all counts against them on November 11, 2016. (Dkt. Nos. 131, 136.) On
February 21, 2017, we dismissed all of Plaintiffs’ federal claims and, declining to exercise
supplemental jurisdiction over the remaining state law claims, remanded the case to the Circuit
Court of Cook County for further proceedings. (Order (Dkt. No. 146) at 17.) Plaintiffs filed
their motion to reconsider on March 21, 2017.

1

The parties settled this claim, and we dismissed Mandat with prejudice on June 20, 2016.
(Dkt. No. 109.)
2

LEGAL STANDARD
“A district court may reconsider a prior decision when there has been a significant change
in the law or facts since the parties presented the issue to the court, when the court
misunderstands a party’s arguments, or when the court overreaches by deciding an issue not
properly before it.” United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008). However, we will
not consider arguments or evidence the moving party should have made or produced in the first
instance. In re Prince, 85 F.3d 314, 324 (7th Cir. 1996). Motions to reconsider are disfavored,
as “a redo of a matter than has already received the court’s attention is seldom a productive use
of taxpayer resources.” Burton v. McCormick, No. 11 C 026, 2011 WL 1792849, at *1
(N.D. Ill. May 11, 2011) (citation omitted).
Plaintiffs’ motion for leave to file a Fifth Amended Complaint is governed by Rule 15,
which permits a party to amend a pleading more than 21 days after service “only with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. (15)(a)(2). We have
discretion to grant amendments “when justice so requires.” Id. However, we also have “broad
discretion to deny leave to amend where there is undue delay, bad faith, dilatory motive, repeated
failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be
futile.” Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (quoting
Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)) (internal quotation marks omitted).
ANALYSIS
I.

Conspiracy to Violate Civil Rights (Count III)  
Plaintiffs first ask us to reconsider our decision dismissing their claim that Lynn
Kubycheck conspired with Defendant Officers to violate Cui’s constitutional rights in violation
of 42 U.S.C. § 1985. (Mot. at 1.) We dismissed that claim because Plaintiffs’ Fourth Amended

3

Complaint lacked even a conclusory allegation that there was an agreement between Lynn
Kubycheck and Defendant Officers. (Order at 6.) See Keri v. Bd. of Tr. of Purdue Univ.,
458 F.3d 620, 642 (7th Cir. 2006) (citations omitted), overturned on other grounds by
Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013) (listing the elements for a § 1985
claim). Plaintiffs state that such allegations “are what [they] intended to include in their Fourth
Amended Complaint, were in previous versions of the complaint, but were inadvertently omitted
from the Fourth Amended Complaint.” (Mot. at 1.) We refuse to consider arguments or
evidence Plaintiffs should have made or produced in the first instance. See In re Prince,
85 F.3d at 324. Further, that Plaintiffs alleged facts in an earlier complaint that might have
sustained their conspiracy claim is of no consequence, because “once an amended pleading is
filed, the original complaint drops out of the picture.” Beal v. Beller, 847 F.3d 897, 901
(7th Cir. 2017). “[T]he original pleading, once superseded, cannot be utilized to cure defects in
the amended pleading, unless the relevant portion is specifically incorporated in the new
pleading.” Wellness Cmty.-Nat’l v. Wellness House, 70 F.3d 46, 49 (7th Cir. 1995) (alteration in
original) (citation omitted). We therefore deny Plaintiffs’ motion to reconsider our dismissal of
Count III of their Fourth Amended Complaint.
II.

False Arrest (Count II)  
Second, Plaintiffs ask that we reconsider our decision granting Defendants’ motion to
dismiss their false arrest claim against the Elmhurst Defendants. (Mot. at 1–2.) We dismissed
Plaintiffs’ false arrest claim because we found the police officers had probable cause to arrest
Cui for Attempted Deceptive Practices pursuant to 720 ILCS 5/17–1. (Order at 11–14.)
See Neita v. City of Chi., 830 F.3d 494, 497 (7th Cir. 2016) (“To prevail on a false-arrest claim
under § 1983, a plaintiff must show that there was no probable cause for his arrest.” (citing

4

Thayer v. Chiczewski, 705 F.3d 237, 246 (7th Cir. 2012)). Plaintiffs primarily attempt to reargue
the merits of their false arrest claim by introducing new facts and arguments. (Mot. at 2–8.) We
decline to reconsider our decision based on such arguments. See Gonzalez v. Pioneer Indus.
Sys., LLC, 15 C 11583, 2017 WL 1283465, at *2 (N.D. Ill. April 6, 2017).
Plaintiffs argue, however, that we also overlooked certain “central, dispositive disputed
facts” that show the police did not have probable cause to arrest Cui. Plaintiffs argue that we
ignored that Officer Mandat, in his interrogatory answers, admitted “that he knew that check was
part of a court settlement,” which makes the officers’ belief that Cui wrote the check with intent
to defraud unreasonable. (Mot. at 8.) Plaintiffs further argue we overlooked their allegation that
Officer Mandat altered a statement Cui gave to the police informing them that there was a
settlement agreement between Cui and Lynn police, which also renders unreasonable their belief
that Cui wrote the check with intent to defraud. (Mot. at 9.)
In determining whether the police officers had probable cause to arrest Cui, we explicitly
considered that “Officer Mandat learned that the check was part of a settlement agreement, but
was informed that Cui owed the money pursuant to the agreement because ‘possession of [the
home] was wrongly withheld by Hang Cui and Rulying Fei.’” (Order at 13 (quoting
Dkt. No. 143–2 ¶ 9).) In any event, we did not rely on that statement to determine whether the
officers reasonably believed Cui had written the check with intent to defraud. Rather, we
observed that Officer Mandat received (1) a copy of the check dated June 26, 2012 that Cui
issued to the Kubychecks, (2) receipts from Bank of America showing Lynn Kubycheck’s
repeated attempts to cash the check in July 2012, (3) notices from the bank that the check would
not be honored because the account did not have sufficient funds in the account, (4) a copy of a
letter Lynn sent to Cui on December 6, 2012 informing him the check had been returned and

5

demanding payment, (5) the certified letter receipt signed by Cui, and (6) notice from the bank
that Lynn attempted to cash the check again after sending the certified letter to Cui. (Id.
(citing Dkt. No. 143–2 ¶¶ 5, 9).)
The Illinois Deceptive Practices statute provides that:
“The trier of fact may infer that the defendant knows that the check or
other order will not be paid by the depository and that the defendant has acted
with intent to defraud when the defendant fails to have sufficient funds or credit
with the depository when the check or other order is issued or delivered, or when
such check or other order is presented for payment and dishonored on each of 2
occasions at least 7 days apart.”
720 ILCS 5/17–1(B)(1). We therefore found the police officers, given the facts before them,
could reasonably infer that Cui had written the bad check knowingly and with intent to defraud
in violation of 720 ILCS 5/17–1(B). (Order at 14.) Because Plaintiffs have not shown there has
been some significant change in the law, or that we misunderstood their arguments regarding
probable cause, we decline to reconsider our decision.
III.

Proposed Fifth Amended Complaint 
Plaintiffs also request leave to file a Fifth Amended Complaint, “allowing back in all

claims dependent on a lack of arguable probable cause, . . . and [allowing] re-pleading with
additional particularity” their § 1985 conspiracy claim. (Mot. at 12.) Plaintiffs’ proposed
amendment for “claims dependent on a lack of arguable probable cause” is based only on their
motion to reconsider our decision finding the officers had probable cause to arrest Cui. (Id.)
Because we decline to alter our decision finding the officers had probable cause, Plaintiffs’
proposed amendment would be futile. Vargas v. Racine Unified Sch. Dist.,
272 F.3d 964, 374–75 (7th Cir. 2001). Furthermore, though Plaintiffs claim that previous
versions of their complaint pleaded their § 1985 conspiracy with sufficient factual particularity
that was “inadvertently omitted from the Fourth Amended Complaint,” we have twice dismissed

6

Plaintiffs’ § 1985 conspiracy claim for failure to state a claim. (Dkt. Nos. 27, 55.) Given the
futility of Plaintiffs’ proposed amendment to their “claims dependent on a lack of probable
cause” and their “repeated failure to cure [the] deficiencies” in their § 1985 claim, we deny their
motion for leave to file a Fifth Amended Complaint.
CONCLUSION
For the foregoing reasons, we deny Plaintiffs’ motion to reconsider and motion for leave
to file a Fifth Amended Complaint. It is so ordered.

____________________________________
Marvin E. Aspen
United States District Judge
Dated: April 12, 2017
Chicago, Illinois

7