Foster et al v. Local Union 8A-28A Metal Refinishers, Painters, Sign & Display Equiptment & Automotive Painters et al

Filing 92

MEMORANDUM Opinion and Order : Signed by the Honorable Rebecca R. Pallmeyer on 9/18/2017. Mailed notice. (etv, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAURA K. FOSTER and
WILLIAM J. FOSTER,

)
)
)
Plaintiff,
)
)
v.
)
)
LOCAL UNION 8A-28A METAL
)
REFINISHERS, PAINTERS, SIGN &
)
DISPLAY, EQUIPMENT & AUTOMOTIVE
)
PAINTERS, AND ALLIED TRADES, OF THE )
INTERNATIONAL UNION OF PAINTERS
)
AND ALLIED TRADES; PAINTERS
)
DISTRICT COUNCIL #14 OF THE
)
INTERNATIONAL UNION OF PAINTERS
)
AND ALLIED TRADES (of Chicago,
)
and Cook, Lake, Grundy, and Will
)
counties); THE INTERNATIONAL UNION
)
OF PAINTERS AND ALLIED TRADES;
)
STUART-DEAN CO. INC., a New York
)
corporation; UNKNOWN ENTITIES,
)
similarly situated to Stuart-Dean Co., Inc.; )
HECTOR LOPEZ, individually;
)
ALVIN McNEAL, individually;
)
ROBERT GIERUT, individually;
)
JOSEPH RINEHART, individually; and
)
JOHN DOES 1-100, individually,
)
)
Defendants.
)

No. 16 C 4174
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiffs Laura and Bill Foster, who were both at one time employed as painters with the
Chicago Transit Authority, bring this civil action under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), the Illinois state whistleblower statute, and common law. Plaintiffs
allege that their union and several companies and individuals engaged in a years-long scheme
to bury complaints by union members in exchange for bribes, and to skim funds out of union
accounts.

The Defendants—the union, a company that hired union labor, and several

individuals including the union’s one-time President—moved to dismiss the RICO claim
because, among other reasons, the statute of limitations has expired. This opinion addresses

only the RICO claim, which is Plaintiffs’ only federal claim and the sole question briefed by the
parties.
The statute of limitations for civil RICO actions is four years. Plaintiffs claim that they
were injured by the RICO enterprise (“the Enterprise”) on several occasions, including when the
Enterprise engineered their respective firings in July 2008 and January 2012. This action was
not filed until April 2016. As explained here, the court concludes that Plaintiffs’ RICO claim is
barred by the statute of limitations. The court’s reasoning follows.
BACKGROUND
On a motion to dismiss, the court takes the facts alleged by the Plaintiffs as true.
Berger v. Nat’l Coll. Athletic Ass’n, 843 F.3d 285, 289 (7th Cir. 2016). The facts below come
from Plaintiffs’ Amended Complaint. (Am. Compl. [19].)
I.

The Alleged Enterprise
Plaintiffs Laura and Bill Foster were both hired as painters by the Chicago Transit

Authority (“CTA”) in the 1980s. (Am. Compl. ¶¶ 48–49.) The CTA’s equipment painters and
refinishers are represented in collective bargaining by Local Union 8A-28A Metal Refinishers,
Painters, Sign & Display, Equipment & Automotive Painters, and Allied Trades (“Local 8A”),
which is affiliated with the International Union of Painters and Allied Trades (“IUPAT”). (Am.
Compl. ¶¶ 37.) IUPAT has District Councils comprised of local unions, and Local 8A is one of
fourteen unions making up Painters’ District Council #14. (Am. Compl. ¶ 39.) Both of the
Fosters were very active in Local 8A, working as union stewards and holding positions on union
committees and executive boards. (Am. Compl. ¶¶ 48, 51.)
Local 8A represents painters at other employers, as well. The Fosters claim that many
other employers 1 “habitually violat[ed] [Local 8A’s] collective bargaining agreements.”

(Am.

Compl. ¶ 5.) One firm, Stuart Dean Company (“SDC”), failed to pay Local 8A members the
1

It is unclear whether the Fosters believe that the CTA also engaged in violations
of these collective bargaining agreements.
2

negotiated wages.

(Id.)

Presumably in their capacity as union stewards or committee

members, the Fosters complained to various unidentified officials within Local 8A, Painters’
District Council #14, and IUPAT that SDC (and other unidentified “similarly-situated” companies)
violated the collective bargaining agreement. (See Am. Compl. ¶ 10.) The complaint is not
entirely clear about what those violations were—if there were other breaches besides failure to
pay negotiated wages, they are not identified.
Sometime in 2005, the Fosters observed that their complaints were not yielding any
meaningful results, and began to suspect that “something was amiss” about Hector Lopez,
Local 8A’s union president. (Am. Compl. ¶ 10.) What was amiss, the Fosters claim to have
discovered over the next several years, was that Lopez and his collaborators within the union
and the CTA were engaged in an enterprise to take bribes in exchange for suppressing
complaints about collective-bargaining violations against employers like SDC. Lopez and others
also allegedly skimmed funds from the union. The complaint says little about how the Fosters
discovered this, and instead focuses on their efforts to fight back against Lopez and the
Enterprise.
Among those efforts was the Fosters’ attempt—at a time not stated in the complaint—to
replace Lopez as president of Local 8A. (Am. Compl. ¶ 14.) Both of the Fosters had been
nominated for president by the Local 8A membership, but Lopez “succeeded in quashing each
of their nominations” by “falsely stating they had been effected improperly.” (Am. Compl. ¶ 14.)
The complaint provides no further detail about these circumstances. The Fosters nevertheless
were successful in some degree: Laura was appointed Vice President and Bill was elected to be
a regional trustee and local board officer in June 2007. (Id.) Shortly after Laura’s election—
exactly when is not alleged—Lopez threatened Laura and Bill with physical violence, and told
other unidentified individuals that he would “eliminate” Laura. (Am. Compl. ¶ 61.)
At some point prior to July 2008, Laura was hired by the union as a full-time
representative, and went on leave of absence from the CTA in order to work in that role. (Am.
3

Compl. ¶ 16.) In July 2008, while serving as the union’s vice president and as a full-time union
representative, Laura overheard Lopez and the Local 8A area representative, Richard Croll,
speaking with unidentified SDC managers about terminating Laura from her position as a union
representative. (Am. Compl. ¶ 16.) SDC’s management allegedly promised Lopez a $50,000
bribe in order to “neutralize” the Fosters by, in part, firing Laura from her position. (Am. Compl.
¶¶ 16–17.) The same day that Laura overheard this conversation, the Fosters allege that Lopez
“threatened Laura’s life to her face;” the complaint does not reveal precisely what Lopez said or
whether it was related to his agreement with SDC. (Am. Compl. ¶ 63.)
Other unidentified members of the union filed charges internally with IUPAT on July 9,
2008. (Am. Compl. ¶ 66.) What it means to file a charge with the national union is not further
explained, nor does the complaint say exactly what the charges were. The Fosters also do not
explain how other members of the union learned of the threat, but Plaintiffs allege that Lopez’s
threat against Laura “push[ed] them [the other unidentified union members] over the edge” into
filing. (Id.) IUPAT did not remove Lopez, however; instead “[t]he Enterprise made it known that
IUPAT had refused to remove Lopez from his position as president of LOCAL 8A, specifically to
prevent Laura (then LOCAL 8A vice president) from ascending to that office in accordance with
applicable rules of succession.”

(Am. Compl. ¶ 69.)

The complaint provides no more

information about the actors involved in this incident, or how the Enterprise made this
information “known” to the Fosters or more generally. On July 17, 2008, Lopez fired Laura from
her position as a union representative.

(Am. Compl. ¶ 82.)

Laura was replaced by Alvin

McNeal. (See Am. Compl. ¶ 34.)
In response to all of this, Laura and Bill filed charges against the union with the National
Labor Relations Board (“NLRB”). Again, precisely what those charges were is not described in
the complaint, though at least one charge was that Laura had been wrongfully terminated. (Am.
Compl. ¶¶ 24–26.) The Fosters claim that an attorney representing the union, Roger Madon,
stated to the NLRB that the union—and he—was in fact representing the Fosters; in essence,
4

Madon allegedly misled the NLRB examiners into believing that the Fosters’ charges were
against the Chicago Transit Authority, rather than against the union itself. (Am. Compl. ¶ 26.)
The NLRB accordingly dismissed the charges and directed Plaintiffs to file their charges with the
Illinois Labor Relations Board (“ILRB”), which has jurisdiction over the CTA as a municipal
agency. (Id.) On January 18, 2009, McNeal—Laura’s replacement as union representative—
sent an e-mail to unidentified members of the Enterprise, noting with some satisfaction that the
deadline for the Fosters to re-file a complaint with the NLRB had passed on January 16. (Am.
Compl. ¶ 25.) The Fosters take this as evidence that the Enterprise deliberately misled the
NLRB to mire the Fosters in procedural obstacles, with hopes that their claims would expire on
statutes of limitations grounds. (Am. Compl. ¶ 26.)
Charges were again filed, this time at the ILRB—presumably by Laura and Bill, though
the complaint obscures this with the passive voice—against Local 8A, Lopez and others. (Am.
Compl. ¶ 76.) The charges were not resolved at the ILRB for six years, a delay that the Fosters
construe as evidence that the Enterprise’s influence extended to the ILRB, as well.

(Am.

Compl. ¶ 27.) The complaint details several reasons for this suspicion. (Am. Compl. ¶¶ 78–80).
Robert Gierut “oversaw work on the plaintiffs’ claims at the ILRB,” and ultimately revealed
himself to be a loyal member of the Enterprise by his retaliation against Laura, in his role as the
vice president of labor relations at the CTA, when she returned to work there (this incident is
discussed below). (See Am. Compl. ¶ 78.) Gierut’s supervisory role at the ILRB is not further
explained, but the Fosters suspect that he contributed to the case’s languishing without
resolution at the ILRB. (Id.) The Enterprise also successfully replicated its gambit at the ILRB
in which another union attorney, John Toomey, claimed to represent the Fosters. (Am. Compl.
¶ 79.) By doing so, he was granted access to documents that were “supposed to remain
protected from disclosure to the respondents in the ILRB actions” (Am. Compl. ¶ 80)—what
these documents were is not explained—and otherwise created confusion that slowed the
proceedings. (Am. Compl. ¶ 81.) The charges before the ILRB were eventually resolved; the
5

Fosters do not explain how or when, but the court presumes that the resolution was not
favorable to them.
The next several years involve a series of twists and turns: IUPAT allegedly turned on
Lopez, Lopez in response attempted to “disaffiliate” Local 8A from IUPAT, and IUPAT placed
Local 8A in trusteeship; IUPAT filed suit against Lopez and Local 8A with Laura as lead plaintiff
in a New York federal court case, resulting in a permanent injunction removing Lopez from the
presidency and permitting Laura to run for union office; IUPAT then decided it did not want
Laura and Bill involved in union leadership and dissolved Local 8A into twelve separate locals,
diminishing any power Laura and Bill might wield. (Am. Compl. ¶¶ 84–92.)
In September 2010, Laura and Bill reported Lopez’s wrongdoing to the United States
Department of Labor (“DOL”). (Am. Compl. ¶ 28.) Specifically, they reported that Lopez was
engaged in skimming funds from the union’s operating accounts, as well as the health and
welfare accounts meant for union members, and with taking a bribe from SDC to fire Laura.
(Id.) As a result of the Fosters’ report, Lopez was eventually indicted for this conduct and
pleaded guilty to mail fraud, wire fraud, and filing false tax returns in April 2013. (Am. Compl. ¶
29.) Lopez was sentenced to four years in prison and ordered to pay restitution; to whom the
restitution would be made is not mentioned in the complaint. (Id.) Though Lopez remains
incarcerated, the Fosters claim that the Enterprise continues to “target and retaliate against the
plaintiffs through the present day in order to make them an example and discourage other,
honest union members for standing up to corruption like the plaintiffs did.” (Am. Compl. ¶ 30.)
II.

Injuries to Plaintiffs
The Enterprise’s alleged retaliation against the Fosters has taken several forms. A few

months after Lopez fired Laura as union representative, she returned to her full-time job at the
CTA on September 9, 2008. (Am. Compl. ¶ 93.) Her return, the Fosters allege, was sabotaged
by the Enterprise: Robert Gierut, in his role as the CTA’s vice president of labor relations,
demoted Laura to a journeyman position at Lopez and McNeal’s behest. (Am. Compl. ¶ 94.)
6

The complaint is not entirely clear as to what position Laura held before she was demoted; she
was, at one time, a foreman painter (allegedly the first female trades foreman with the CTA), but
she had held several other positions as well. (See Am. Compl. ¶ 49.) But Laura was unable to
work as a journeyman painter when she returned to the CTA because of medical restrictions
(the court infers that journeyman work is more physically taxing), and after attempting to perform
journeyman work for some time, Laura was forced to accept “disability pension” status on an
unknown date. (Am. Compl. ¶ 100.) (SDC, in its brief, states that this occurred in 2011; that
date does not appear on the face of the complaint. (Stuart Dean. Co’s Mem. in Supp. of Mot. to
Dismiss [65], at 4.) The court is uncertain of Laura’s current employment status with the CTA.
In addition to engineering Laura’s demotion, the Fosters claim that Lopez “and other
Enterprise members” (unnamed in the complaint) pilfered funds from Laura’s pension and
401(k) contributions. (Am. Compl. ¶ 102.) The Fosters say very little about this aspect of the
Enterprise; how much was taken, when the scheme began, or when Laura discovered the theft
are questions unanswered by the complaint. Also unclear is whether this was the same pattern
of activity as Lopez’s raiding the union accounts and health and welfare fund. (Am. Compl. ¶
60.) This underfunding has never been remedied. (Am. Compl. ¶¶ 102.)
The Enterprise retaliated against Bill as well. At some point (the complaint does not say
when), a union representative called a meeting of CTA painters and told them that Laura and
Bill were responsible for the painters’ not receiving a raise. (Am. Compl. ¶ 106.) When Bill
prepared a grievance about this, a union steward with Painters’ District #14, Douglas McBee,
threatened to make false statements to the CTA (presumably, to get Bill fired or disciplined) if he
did not back down. (Am. Compl. ¶ 107.) Bill refused, and McBee succeeded in convincing the
CTA to fire Bill on January 26, 2012.

(Am. Compl. ¶ 109.)

Bill successfully “fought the

termination”—how, exactly, is not explained—and managed to get reinstated on October 31,
2013. (Id.) Things were relatively quiet for two years, until November 2015, when Joseph
Rinehart, a Painters’ District # 14 representative, failed to file a grievance for Bill after the CTA
7

engaged in some kind of retaliatory discipline against Bill (what the discipline was, what
prompted it, or who at the CTA did this is not stated). (Am. Compl. ¶ 110.) The union lulled Bill
into believing that it would file a grievance for him—who at the union made these
representations is not identified, though presumably it was Rinehart—but never did, allowing the
relevant deadline to pass. (Id.)
A few months later, in January 2016, CTA suspended Bill for three days. (Am. Compl.
¶ 111.) The suspension, the Fosters claim, was the result of more false statements made to
CTA management about Bill by “individuals loyal to the Enterprise,” but again, who, what, or
why is not laid out in the complaint. (Id.) Rinehart refused to file a grievance for Bill unless he
signed on with one the local unions that Local 8A had been split into, but Bill refused to do so.
(Am. Compl. ¶ 112.)

In the Fosters’ view, for Bill to accede to this demand would be

“tantamount to conceding and could destroy any chance of righting the wrongs perpetrated by
the Enterprise,” and, they allege, Rinehart knew this. (Id.) The Fosters also claim that Bill was
damaged by the Enterprise in lost wages and pension contributions. (Am. Compl. ¶ 113.)
Laura and Bill filed their complaint pro se on April 8, 2016. (See generally Compl. [1].)
After amending their complaint, the Fosters now name as defendants Local 8A, IUPAT,
Painters’ District Council #14, Stuart Dean Company and other unknown entities that engaged
in the wage scheme, and several individuals—Lopez, Gierut, Rinehart, McNeal and one
hundred John Does. (Am. Compl. ¶¶ 33–43.) Count I of the amended complaint is a RICO
claim, followed by thirteen Illinois statutory and common-law claims.

(See generally Am.

Compl.) Defendants have moved to dismiss the RICO claim for a number of reasons, including
timeliness: they argue that RICO’s four-year statute of limitations has elapsed on the Fosters’
claim. 2 For the reasons below, the court grants that motion.

2

Only Stuart Dean Company’s motion discusses the statute of limitations issue at
length (Stuart Dean Co.’s Mem. in Supp. of Mot. to Dismiss Count One [65]), but the other
Defendants have joined in that position.
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DISCUSSION
I.

Legal Standard
On a motion to dismiss, the court accepts as true all factual allegations and draws all

permissible inferences in the plaintiffs’ favor. Sabrina Roppo v. Travelers Comm. Ins. Co., No.
15-3171, --- F.3d ---, 2017 WL 3695205, at *14 (7th Cir. Aug. 28, 2017). A plaintiff can “plead
herself out of court by alleging facts that show she has no legal claim.” Id. (quoting Shott v.
Katz, 829 F.3d 494, 497 (7th Cir. 2016). If, based on the allegations of the complaint, a claim is
“indisputably time-barred,” it may be dismissed on the pleadings. Rosado v. Gonzalez, 832
F.3d 714, 716 (7th Cir. 2016).
II.

RICO Statute of Limitations
The Racketeer Influenced and Corrupt Organizations Act provides civil remedies to

those injured by persons engaged in ongoing criminal organizations. See 18 U.S.C. § 1964. It
is a violation of RICO “for any person through a pattern of racketeering activity or through
collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or
control of any enterprise which is engaged in, or the activities of which affect, interstate or
foreign commerce.” 18 U.S.C. § 1962(b). RICO is thus aimed at the activities of an “enterprise”
that is engaged in a pattern of racketeering activity. Empress Casino Joliet Corp. v. Balmoral
Racing Club, Inc., 831 F.3d 815, 823 (7th Cir. 2016). An enterprise must be distinct from any
particular defendant: The defendants must have “conducted or participated in the conduct of
the enterprise's affairs, not just their own affairs.” Crichton v. Golden Rule Ins. Co., 576 F.3d
392, 398 (7th Cir. 2009) (quoting Reves v. Enst & Young, 507 U.S. 170, 185 (1993)) (internal
quotations omitted) (emphasis in original).

A common example of a RICO enterprise is a

protection racket, in which a group of criminals extracts monthly “insurance” payments from
businesses under threat of force. See Empress Casino Joliet, 831 F.3d at 828.
“Racketeering activity” includes many types of criminal activity as defined in the statute.
Relevant here, racketeering may include mail and wire fraud, extortion, and embezzlement of
9

union funds. See 18 U.S.C. § 1961(1). Because only a pattern of activity violates RICO, a
plausible claim must allege at least two “predicate acts” of racketeering. See Empress Casino
Joliet, 831 F.3d at 827.
The statute of limitations on a RICO civil claim is four years. Jay E. Hayden Found. v.
First Neighbor Bank, N.A., 610 F.3d 382, 383 (7th Cir. 2010). The limitations period begins
running when the plaintiff is injured by a predicate act, even if the enterprise continues
committing criminal acts after that date. Id. at 386–87. Due to RICO’s pattern requirement, a
RICO claim cannot accrue at the time of the first predicate act, but any acts after the second or
subsequent acts that injure the plaintiff start the statute of limitations. Limestone Dev. Corp. v.
Village of Lemont, 520 F.3d 797, 801–02 (7th Cir. 2008).
Plaintiffs allege that the RICO enterprise began as early as 2005—nearly ten years
before the suit was filed—when they noticed that Lopez and the union were sweeping their
complaints against SDC and other companies under the rug. (Am. Compl. ¶ 10.) Beginning at
that time, the Fosters allege, the Enterprise caused them to lose wages and benefits; these
losses continued throughout the ordeal and to this day. (Am. Compl. ¶ 102.) The complaint
lacks specifics about which companies, other than SDC, were underpaying union members and
when, but for purposes of this ruling, the court will characterize that entire activity of the
Enterprise as a single predicate act. Both of the Fosters have alleged a second predicate act
resulting in injury: they were fired. 3 Laura was fired on July 17, 2008, and demoted when she
returned to work in September 2008. (Am. Compl. ¶¶ 82, 93.) Bill was fired on January 26,
2012. (Am. Compl. ¶ 109.) If these firings were acts of the Enterprise—as the Fosters claim
they were—they occurred more than four years before the complaint was filed on April 8, 2016.
The statute of limitations accordingly bars the claim.
3

Some of the Defendants argue that the Fosters’ firings are not RICO-qualifying
predicate acts; the court need not reach this question and instead accepts the Fosters’
allegation that the firings were predicate acts for the purposes of ruling on the statute of
limitations argument. (Pls.’ Resp. in Opp. to Mot. to Dismiss [72], at 13–15.)
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The Fosters’ response to this concern is unhelpful. They assert that the Enterprise was
engaged in “continuous violations” of RICO, and accordingly, the statute of limitations does not
bar the claim as long as any act falls within the limitations period. (See Pl.’s Resp. in Opp. to
Mots. to Dismiss [72], at 16.) But in the sole case Plaintiffs cite for this proposition, Limestone
Development Corp., the Seventh Circuit rejected the very interpretation of the “continuing
violation” doctrine that the Fosters advocate.
In Limestone Development Corp., the plaintiff developer, Limestone, alleged that the
defendants—the Village of Lemont, several other public bodies including the Park District, and a
local chemical company—engaged in racketeering to prevent the plaintiff from developing a
tract of land it owned within the Village. 520 F.3d at 799. Limestone claimed that predicate acts
for a pattern of racketeering occurred in 1993, when the Village and other defendants attempted
to force Limestone to sell the property, and again in 2000, when the defendants launched a
frivolous eminent domain proceeding against Limestone. Id. at 800. Later, in 2003, the Village
published an article in the Village News that led readers to believe the Village owned the
property, which Limestone claimed undermined its efforts to sell the property. Id. Limestone
filed the RICO action in 2005. Id.
The Village moved to dismiss the action as untimely.

Id.

In response, Limestone

attempted to invoke the “continuing violation” doctrine; Limestone contended that the RICO
enterprise continued until at least 2003 when the article was published, well within the
limitations period, and was thus actionable regardless of when Limestone’s injury first accrued.
Id. at 800–01. The Seventh Circuit rejected Limestone’s proposed application of the continuing
violation doctrine in RICO cases, observing that such a rule “does not make good sense, and is
not the law.” Id. at 801. The statute of limitations begins to run when the injury accrues, the
court observed, and subsequent injuries do not toll the statute. Id. The court explained that the
purpose of the “continuing violation” doctrine is not to toll the statute of limitations when
additional injuries occur, but to permit a plaintiff to recover when a defendant’s acts do not
11

accumulate into an injury until after the statute of limitations has elapsed on the earlier acts. Id.
For instance, in the employment context, “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,” regardless of whether each act falls within the
statute of limitations. Id.
The critical question, then, is when the Enterprise inflicted an injury on the Fosters: once
the injury occurs, the statute of limitations begins to run, and “[a] ‘plaintiff cannot use an
independent, new predicate act as a bootstrap to recover for injuries caused by other earlier
predicate acts that took place outside the limitations period.’” Id. at 802 (quoting Klehr v. A.O.
Smith Corp., 521 U.S. 179, 190 (1997)). Plaintiffs are correct that a RICO conspiracy requires
at least two predicate acts and an injury “cannot accrue at the time of the first predicate act.” Id.
But, as Limestone makes clear, once two predicate acts occur and cause the plaintiff’s injury,
the statute of limitations begins to run and is not tolled by later wrongdoing. Plaintiffs’ complaint
identifies a number of predicate acts and injuries to the Fosters, but at a minimum, Laura and
Bill’s firings followed the primary scheme conducted by the Enterprise: Lopez’s scuttling the
Fosters’ complaints in 2005 about SDC’s violation of the collective bargaining agreement by
failing to pay union scale. Considering that conspiracy a single predicate act—and setting aside
the myriad other Enterprise acts alleged by the Fosters—Laura’s firing in 2008 was at the least
a second predicate act, and Bill’s firing a third. Because the Fosters filed suit on April 8, 2016,
more than seven years after Laura’s firing in 2008 and more than four years after Bill’s firing on
January 26, 2012, Plaintiffs’ RICO claim is untimely. Count I of the complaint is accordingly
dismissed.
III.

Supplemental jurisdiction
The Fosters’ complaint contains thirteen other claims, all arising under Illinois state and

common law. (See Am. Compl. ¶¶ 126–208.) Because the RICO claim is the Fosters’ only
federal claim, the court must decide whether to exercise supplemental jurisdiction over the
12

remaining state-law claims in the complaint.

A district court “may decline to exercise

supplemental jurisdiction” over state-law claims when “the district court has dismissed all claims
over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c). When the court has dismissed
all federal claims before trial, “the presumption is that the court will relinquish federal jurisdiction
over any supplemental state-law claims.” RWJ Mgmt. Co. v. BP Prods. N. Am., Inc., 672 F.3d
476, 479 (7th Cir. 2012) (quoting Al’s Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720, 727
(7th Cir. 2010)). There are a few exceptions to this presumption:
(1) the statute of limitations has run on the pendent claim, precluding the filing of
a separate suit in state court; (2) substantial judicial resources have already been
committed, so that sending the case to another court will cause a substantial
duplication of effort; or (3) when it is absolutely clear how the pendent claims can
be decided.
See id. (quoting Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514–15 (7th Cir.
2009)).

Plaintiffs have not addressed the timeliness of their state law claims, or whether

dismissal of this case will bar them. The remaining exceptions are not available: briefing at this
stage was limited to the Fosters’ sole federal claim (the RICO claim), so that there would be no
significant duplication of effort in the event the court were to relinquish jurisdiction over the
state-law claims. (See Minute Order (Jan. 26, 2017) [44].) Plaintiffs’ remaining claims may well
be actionable under Illinois state and common law; the merit of those claims is not so obvious
that retention of jurisdiction is warranted.

The court declines to exercise supplemental

jurisdiction, and the amended complaint is dismissed.
CONCLUSION
Stuart Dean Company’s motion to dismiss [64] argues that the statute of limitations has
run on Plaintiff’s RICO claim. The court agrees. The RICO claim, Count I of Plaintiffs’ amended
complaint, is dismissed. As that claim was the only basis for the court’s jurisdiction over this
complaint, the court is inclined to dismiss it without prejudice to litigation in state court. Plaintiffs
will have 21 days leave in which to file an amended complaint, if they can state a timely federal
claim or establish that the court’s relinquishment of jurisdiction over this case will result in
13

dismissal of otherwise-timely state law claims. Stuart Dean Company’s motion [64] is granted.
The motions to dismiss filed by the Painters’ District Council #14 [53], Rinehart [56], Gierut [60],
and Local 8A [63] are stricken as moot.
ENTER:

Dated: September 18, 2017

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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