Ellison v. General Iron Industries, Inc. et al
MEMORANDUM Opinion: This matter comes before the Court on Defendant General Iron Industries, Inc.'s ("General Iron") motion to dismiss Plaintiff Ryan Ellison's ("Ellison") Complaint (the "Complaint"), with pr ejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). For the reasons set forth below, the Court grants General Irons motion as to Count I, and denies the motion for Counts IIIX. In court ruling set for 10/13/2016 is stricken. Status hearing set for 10/27/2016 at 9:30 AM. Signed by the Honorable Charles P. Kocoras on 10/12/2016. Mailed notice(vcf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
GENERAL IRON INDUSTRIES, INC.
and JOHN W. FRANO,
16 C 7428
CHARLES P. KOCORAS, District Judge:
This matter comes before the Court on Defendant General Iron Industries,
Inc.’s (“General Iron”) motion to dismiss Plaintiff Ryan Ellison’s (“Ellison”)
Complaint (the “Complaint”), with prejudice, pursuant to Federal Rule of Civil
Procedure 12(b)(6) (“Rule 12(b)(6)”). For the reasons set forth below, the Court
grants General Iron’s motion as to Count I, and denies the motion for Counts II–IX.
For purposes of the instant motion, the following well-pleaded allegations
derived from the Complaint are accepted as true. Ed Miniat. Inc. v. Global Life Ins.
Grp., Inc., 805 F.2d 732, 733 (7th Cir. 1986); Dilallo v. Miller & Steeno, P.C., et al.,
No. 16 C 51, 2016 WL 4530319, at *1 (N.D. Ill. Aug. 30, 2016). This principle,
however, does not apply to legal conclusions; the Court will not consider conclusory
claims. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court draws all reasonable
inferences in Ellison’s favor and construes all allegations in the light most favorable
to him. Ed Miniat. Inc., 805 F.2d at 733; Dilallo, 2016 WL 4530319, at *1. On June
7, 2016, Ellison filed the Complaint in the Circuit Court of Cook County. Thereafter,
on July 21, 2016, General Iron, with co-Defendant John W. Frano’s (“Frano”)
consent, removed the action from the Cook County Circuit Court to the United States
District Court for the Northern District of Illinois, Eastern Division pursuant to 28
U.S.C. §§ 1331, 1441, and 1446.
According to the Complaint, Frano works as a police officer for the Chicago
Police Department (“CPD”). Ellison alleges that Frano also works as a security
officer for General Iron, and at all times relevant to the Complaint, General Iron
employed him as a security officer. At all relevant times, Ellison claims that Frano
was simultaneously “acting in the course and scope of his employment” with General
Iron and under color of state ordinance, regulation, or law.
On June 7, 2014, while Ellison and his friend were exploring Chicago on their
bikes, Ellison asserts that he paused to take a photograph with a structure near a scrap
yard belonging to General Iron at 1909 North Clifton Avenue. At that moment,
Ellison contends that Frano drove up to him in a pick-up truck, swearing and yelling
at him to leave. Ellison claims that Frano did not reveal to Ellison that he is a
Chicago police officer or a security officer for General Iron. Ellison alleges that, in
response to Frano’s screams, he notified Frano that he was standing on public
property. According to Ellison, Frano then “jumped out of the truck and approached
[him] aggressively, yelling, swearing, and poking [him] in the chest.” Ellison also
claims that Frano drew his CPD-issued gun and pointed it at him. Subsequently,
Ellison alleges that, for fear that Frano would shoot, he fled on his bike. As he fled,
according to Ellison, Frano continued to pursue him in his pick-up truck “at a high
speed, against traffic, through stop lights and signs, and onto the sidewalk,” leading
Ellison to panic that “Frano would hit him or run him over.”
Ellison claims that, on the basis of Frano’s false allegations to the CPD, police
officers arrested and charged Ellison with “trespassing, aggravated assault to a police
officer, and felony aggravated battery to a police officer.”
The state criminally
prosecuted Ellison, and Frano testified for the state at the preliminary hearing and at
the criminal trial. On October 21, 2015, Ellison was acquitted of all charges.
Ellison alleges that he did not violate city, state, or federal law, and that Frano
had no reason to believe that Ellison was in violation thereof. In support of this
assertion, Ellison argues that “Frano did not have an arrest warrant, probable cause,
reasonable suspicion, consent, or any other lawful basis to stop, detain, or seize” him.
Ellison also claims that “Frano provided a false and incomplete version” of the
incident to CPD officers who investigated the event to: (i) “justify and hide the use of
force, assault and battery against” Ellison; (ii) “cover-up his illegal, tortious, injurious
and unprofessional conduct;” and (iii) “fabricate probable cause to arrest” him.
Finally, Ellison contends that Frano’s actions, including the commencement of a
criminal investigation against him, directly and proximately caused Ellison to suffer
damages. Ellison alleges that his damages include his loss of physical liberty, where
he was incarcerated in maximum security in Cook County Jail for approximately
seven months while he awaited trial, “loss of time, loss of normal life, loss of his
beloved pet, and severe emotional distress, and pecuniary damages including
attorneys’ fees, monies posted for bond, lost wages, and property loss/damage.”
The Complaint contains nine Counts. Counts I–VIII specify that they pertain to
Frano, and contain the same four prayers for relief, asking this Court to: (i) enter
judgment in favor of Ellison; and award Ellison (ii) compensatory and punitive
damages; (iii) attorneys’ fees and costs; and (iv) additional relief the Court finds just
and equitable. In Count IX, Ellison asserts that Frano’s purported acts “described in
the above paragraphs and claims were committed in the scope of employment,” and
“[p]ursuant to respondeat superior, Defendant General Iron is liable for its agents’
actions.” It appears, therefore, that Ellison alleges that General Iron is liable for each
of Counts I–VIII under a theory of respondeat superior.1 On July 28, 2016, General
Iron moved to dismiss the Complaint pursuant to Rule 12(b)(6).
A Rule 12(b)(6) motion to dismiss “‘tests the sufficiency of the complaint, not
the merits of the case.’” McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th
Consequently, General Iron is not entitled to “a more definite statement as to which of
Defendant Frano’s acts were allegedly performed ‘in the scope of employment’ with General
Iron,” as the answer to this question lies in Count IX: all of them, purportedly. See Dkt. 9, p. 6
n.4; Dkt. 9-1 ¶¶ 76–77.
Cir. 2012) (quoting McReynolds v. Merrill Lynch & Co., No. 08 C 6105, 2011 WL
1196859, at *2 (N.D. Ill. Mar. 29, 2011), aff’d 694 F.3d 873 (2012)). The allegations
in a complaint must set forth “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff must “give the
defendant ‘fair notice of what the . . . claim is and the grounds upon which it rests.’”
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007)). A plaintiff need not offer
“detailed factual allegations,” but he or she must provide enough factual support “to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The
pleadings must permit a “court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 663. “Determining whether a
complaint states a plausible claim for relief” is “a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
First, to the extent that Ellison alleges that General Iron is liable for Count I, an
unreasonable seizure claim pursuant to 42 U.S.C. § 1983 under a respondeat superior
theory, Count I is dismissed against General Iron. As an initial matter, the doctrine of
respondeat superior is a state law concept, not applicable to Count I. See, e.g.,
Vitaich v. City of Chi., No. 94 C 692, 1995 WL 493468, at *5 n.7 (N.D. Ill. Aug. 16,
1995). For that reason alone, Count I is dismissed against General Iron. Further, as
General Iron argues in a footnote, the Seventh Circuit has held that “just as a
municipal corporation is not vicariously liable upon a theory of respondeat superior
for the constitutional torts of its employees, a private corporation is not vicariously
liable under § 1983 for its employees’ deprivations of others’ civil rights.” Iskander
v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (citing Monell v. Dep’t of
Social Services, 436 U.S. 658, 694 (1978)) (emphasis added).
In Iskander, the
Seventh Circuit extended the United States Supreme Court’s holding in Monell, which
rejected municipal liability under a respondeat superior theory, to private entities.
See id. More recently, it has questioned its wisdom in doing so, noting that the “Court
has not directly said whether Monell applies to private corporations, and there are
powerful reasons to say no.” Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 794 (7th Cir.
2014), cert. denied, 135 S. Ct. 1024 (2015). Nonetheless, Seventh Circuit case law
continues to “extend[ ] Monell from municipalities to private corporations.” Id. at
796; Hahn v. Walsh, 762 F.3d 617, 639–40 (7th Cir. 2014), reh’g and suggestion for
reh’g en banc denied (Sept. 9, 2014), cert. denied, 135 S. Ct. 1419 (2015); Gaston v.
Ghosh, No. 11 C 6612, 2016 WL 2986960, at *2 (N.D. Ill. May 23, 2016) (“I must
follow Seventh Circuit precedent, which immunizes private corporations . . . from
§ 1983 respondeat superior liability like the claim asserted here,” dismissing Count
III of plaintiff’s complaint) (Zagel, J.) (emphasis added). Thus, General Iron is
insulated from liability for a § 1983 claim under a respondeat superior theory unless
Ellison alleges that “the constitutional violation was caused by an unconstitutional
policy or custom of the corporation itself.” Bruce v. Ghosh, No. 11-cv-3138, 2015
WL 1727318, at *14 (N.D. Ill. Apr. 13, 2015) (citation omitted). Ellison has not
alleged that General Iron engaged in unconstitutional policies that led to a violation of
his rights. Ellison, therefore, has failed to state a claim for relief against General Iron
with respect to Count I of the Complaint, and Count I is dismissed against General
Iron with prejudice.
General Iron presents two arguments in moving to dismiss the Complaint with
respect to the remainder of the Counts. First, General Iron asserts that Ellison has not
pled facts establishing a causal link between its and Frano’s claimed conduct and
Ellison’s purported damages. Ellison, in response, argues that it has sufficiently
alleged causation in the Complaint. The Court agrees with Ellison. “Under Illinois
law, proximate cause consists of . . . cause in fact and legal cause.” Palay v. United
States, 349 F.3d 418, 432 (7th Cir. 2003). “Cause in fact exists when the defendant’s
conduct ‘is a material element and a substantial factor in bringing about the injury.’”
Id. (quoting First Springfield Bank & Trust v. Galman, 720 N.E.2d 1068, 1072
(1999)). Legal cause questions “whether the injury is of a type that a reasonable
person would see as a likely result of his or her conduct.” Id. Proximate causation is
typically “a question for the finder of fact to decide; only rarely are the facts so clear
that the court can resolve the issue as a matter of law.” Id.
General Iron argues that it and Frano were not influential in Ellison’s arrest,
detention, and criminal prosecution, so Ellison cannot establish that Frano’s alleged
conduct was a proximate cause of Ellison’s claimed damages. General Iron, however,
fails to recognize that Ellison “need not prove anything” at this stage of litigation. See
Fuentes v. Sheahan, No. 03 C 4892, 2004 WL 1611607, at *4 n.3 (N.D. Ill. July 19,
2004) (emphasis added). The Court’s role at this juncture is not to test the merits of
the case. McReynolds, 694 F.3d at 878. Ellison claims that he did not violate any
laws, and that Frano did not have a legal basis to stop him near General Iron’s scrap
yard. Ellison also asserts that Frano, who is assumed to be the only witness aside
from Ellison’s friend, made false statements regarding the incident near General
Iron’s property to police officers. Ellison maintains that, as a result of Frano’s
statements, police officers arrested and charged him “with trespassing, aggravated
assault to a police officer, and felony aggravated battery to a police officer.”
According to Ellison, these statements led to his seven-month incarceration and
criminal prosecution. See Dkt. 9-1 at ¶¶ 26–29, 31–38. Frano’s alleged statements
could reasonably have “played a significant role in causing” Ellison’s arrest and
See Theriault v. Vill. of Schaumburg, No. 02 C 7058, 2002 WL
31803826, at *2 (N.D. Ill. Dec. 12, 2002) (citation omitted); Jones v. City of Chi., 856
F.2d 985, 994 (7th Cir. 1988) (“[A] prosecutor’s decision to charge, a grand jury’s
decision to indict, a prosecutor’s decision . . . to proceed to trial . . . will [not] shield a
police officer who deliberately supplied misleading information.”).
emphasizes that Ellison does not explain how “Frano’s alleged reporting of events
was ‘false,’” and points to Ellison’s omissions regarding to whom Frano supposedly
reported. Ellison’s claims may not prove that Frano’s actions were the cause in fact
and legal cause of his injuries. He has, however, provided enough factual support to
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus,
General Iron’s motion to dismiss the Complaint for failing to allege causation is
General Iron’s second argument in support of its motion to dismiss is that
Frano’s alleged conduct falls outside the scope of his employment with General Iron;
Ellison contends it occurred within the scope of his employment. Ellison pleads
enough facts to plausibly allege that Frano’s conduct occurred within the scope of his
employment with General Iron.
In determining whether an employee’s actions
occurred within the scope of his employment, so that an employer may be held liable
for its employee’s acts under the doctrine of respondeat superior, the Court considers
three factors. See Twardy v. Nw. Airlines, Inc., No. 00 C 6493, 2001 WL 199567, at
*3 (N.D. Ill. Feb. 28, 2001). These include whether the acts: (i) “are of a type the
employee is employed to perform;” (ii) “occur substantially within the authorized
time and space limits;” and (iii) “are done, at least in part, by an intent to serve the
General Iron is correct in asserting that the factors articulated in “Twardy must
govern here.” Yet in analogizing the case, General Iron is missing an important
distinction between the facts discussed in Twardy regarding the first factor and the
facts alleged in the instant matter. See Dkt. 9, p. 7. The Court in Twardy found that
“[c]learly, smacking, dumping water on [plaintiff], and kissing him, are not within the
scope of [the flight attendant’s] employment with” the airline company. Twardy,
2001 WL 199567, at *3. Indeed, it is clear that airlines do not hire flight attendants to
smack and kiss passengers. In contrast, protecting General Iron’s premises and the
adjacent area, maintaining order, and evicting trespassers can reasonably be alleged to
be acts of a kind that a security officer is employed to perform.
reporting violations or otherwise informing police officers of intruders if one becomes
unruly or refuses to vacate, can also be plausibly alleged to fall within Frano’s job
Ellison makes several assertions in support of the Twardy factors. Ellison
claims that he stopped riding his bike to pose for a photo with the globe figure near
General Iron’s scrap yard. Then, Ellison states that Frano approached him in an
attempt to get him to leave. Ellison further alleges that when he refused to leave,
Frano pulled out and pointed his gun at Ellison. In fear for his safety, Ellison claims,
he fled. Ellison asserts that, while fleeing, Frano continued to pursue him in his pickup truck. He also contends that Frano later reported a false version of events to police
officers, which led to Ellison’s arrest and subsequent charges and prosecution. Dkt. 91, ¶¶ 8–13, 19, 21–28, 37. These claims are enough to plausibly allege that Frano’s
actions “are of a type” Frano “is employed to perform,” maintaining vigil over
General Iron’s premises, “within the authorized time and space limits,” the areas
surrounding General Iron’s property, and done at least in part, to serve General Iron.
See Twardy, 2001 WL 199567, at *3.
General Iron’s attempts to distinguish other cases, many of which are not
binding on the Court, and the majority of which were at the summary judgment stage,
not the motion to dismiss stage of litigation, are also not convincing. Ellison has
alleged enough facts to provide General Iron with “fair notice of what the . . . claim
is” and its grounds. E.E.O.C., 496 F.3d at 776 (quoting Twombly, 550 U.S. at 545).
Therefore, General Iron’s motion to dismiss Counts II–IX of the Complaint, on the
basis that Ellison has not pled enough facts to allege that Frano’s actions occurred
within the scope of his employment with General Iron to state a cognizable
respondeat superior claim, is denied.
Finally, we have interpreted Ellison’s Complaint as bringing all of the Counts,
both federal and state, against General Iron.
The Court notes the conceptual
inconsistency in Ellison’s Complaint in asserting that Counts I–VIII are against Frano
individually, and then attempting to reincorporate all of them against General Iron in
For the aforesaid reasons, the Court grants General Iron’s motion to dismiss
Count I of the Complaint, and denies the motion as to Counts II–IX. It is so ordered.
Charles P. Kocoras
United States District Judge
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