Kugler v. Board of Education of the City of Chicago
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 7/26/17. Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
BOARD OF EDUCATION OF THE
CITY OF CHICAGO,
16 C 8305
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiff John Kugler (“Kugler”) filed this suit against Defendant Board of
Education of the City of Chicago (“the Board”) under 42 U.S.C. § 1983, alleging that
certain Board actions have violated his rights under the First Amendment. In turn,
the Board has filed a counterclaim for a declaratory judgment affirming that its
actions toward Kugler are reasonable and comport with the First Amendment, as
well as Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.,
and the Illinois Human Rights Act (IHRA), 775 Ill. Comp. Stat. 5/1-101 et seq.
Kugler has moved to dismiss the counterclaim under Federal Rule of Civil
Procedure (“Rule”) 12(b)(6), or in the alternative, to strike the counterclaim under
Rule 12(f). For the reasons that follow, Kugler’s motion  is granted in part and
denied in part.
Factual Background 1
This lawsuit arises from a letter dated May 6, 2016, by which the Board
restricted Kugler’s access to Board personnel and property. Countercl. ¶¶ 31–32,
ECF No. 21. The letter informed Kugler that restrictions were being imposed due
to his “disruptive, violent, and threatening actions,” and recounted specific incidents
of such behavior. See id. ¶¶ 16–32; see also id., Ex. 2, 5/6/16 Letter from Board to
Kugler (“5/6/16 Letter”). The Board cited Kugler’s verbally abusive and physically
threatening behavior during various school meetings and grievance hearings while
acting as a Chicago Teacher’s Union (“CTU”) representative. Id. ¶¶ 16–24; see also
5/6/16 Letter. The letter also discussed an email Kugler had sent that the Board
deemed a potential security threat. Countercl. ¶¶ 27–28.
As a result of his conduct, and as explained in the letter, the Board has
prohibited Kugler from entering Board property, except to attend public meetings or
school activities involving his children, and then only when notice is provided to
Id. ¶ 5.
In addition, the letter imposed certain restrictions on
Kugler’s communications with Board employees. See id.; 5/6/16 Letter. On May 17,
2016, the Board issued a separate letter clarifying the latter restriction as it
pertains to communications with CTU members versus Board management.
Countercl. ¶ 33; see also id., Ex. 3, 5/17/16 Letter from Board to Kugler.
The factual background is based on facts alleged in the Board’s counterclaim, which
are presumed true on review of Kugler’s motion to dismiss. See Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008).
Subsequently, on August 24, 2016, Kugler filed this suit, alleging that the
restrictions violate his rights under the First Amendment. Id. ¶ 34; see also Compl.,
ECF No. 1. In its counterclaim, the Board seeks a declaratory judgment that:
The First Amendment does not prohibit the Board from
imposing reasonable restrictions on Kugler to prevent him from
engaging in verbal or physical abuse, including the use of
profanities and vulgarities, directed at school principals, Board
hearing officers, and other Board employees;
The First Amendment does not prohibit the Board from
imposing reasonable restrictions on Kugler to prevent him from
harming school principals, Board hearing officers, or other
Board employees or threatening or suggesting harm to school
principals, Board hearing officers, or other Board employees or
Board property; and
The Board may impose reasonable restrictions on Kugler to
foster a workplace that is not hostile and does not violate Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, or the
Illinois Human Rights Act, 775 ILCS 5/1-101.
Countercl. ¶ 46.
A motion to dismiss under Rule 12(b)(6) challenges whether a complaint
states a claim on which relief may be granted. Richards v. Mitcheff, 696 F.3d 635,
637 (7th Cir. 2012). Under the federal notice pleading standards, a complaint must
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). The complaint “need only provide a short and plain statement
of the claim showing that the pleader is entitled to relief, sufficient to provide the
defendant with fair notice of the claim and its basis.” Tamayo, 526 F.3d at 1081
(internal quotation marks and citation omitted); see also Fed. R. Civ. P. 8(a)(2).
These pleading standards are equally applicable to counterclaims. See Cozzi Iron &
Metal, Inc. v. U.S. Office Equip., Inc., 250 F.3d 570, 574 (7th Cir. 2001) (applying
the same standard in reviewing a motion to dismiss a counterclaim as with a
motion to dismiss a complaint).
In reviewing a motion to dismiss a counterclaim under Rule 12(b)(6), a court
must accept as true all well-pleaded allegations in the counterclaim and must draw
all possible inferences in the counter-plaintiff’s favor. See Tamayo, 526 F.3d at
1081. In addition, while reviewing a Rule 12(b)(6) motion, a court may consider not
only the allegations in the counterclaim itself, but also any documents attached to
the counterclaim. See Geinosky v. City of Chi., 675 F.3d 743, 745 n.1 (7th Cir.
Under Rule 12(f), “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.
Civ. P. 12(f). Motions to strike are generally disfavored because they “potentially
serve only to delay.” Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294
(7th Cir. 1989). But when “motions to strike remove unnecessary clutter from the
case, they serve to expedite, not delay.”
A district court “has considerable
discretion in striking any redundant, immaterial, impertinent or scandalous
matter.” Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141
(7th Cir. 2009).
Kugler raises three principal arguments in support of his motion, contending
that the counterclaim: (1) fails to satisfy the Article III case-or-controversy
requirement; (2) is redundant of the complaint; and (3) should be dismissed under
the Court’s discretion to do so in declaratory judgment actions. The Court will first
address each of these arguments as to the counterclaim’s allegations arising under
the First Amendment. The Court will then turn to the counterclaim’s allegations
arising under Title VII and the IHRA.
Article III Case-or-Controversy Requirement
First, Kugler argues that the Court lacks jurisdiction over the counterclaim
because it concerns future hypothetical events, and therefore does not concern a live
case or controversy.
He maintains that the declaration sought by the Board is
“advisory in nature[ ] and cannot serve as a general declaration of the defendant’s
rights as to persons other than the plaintiff.” Pl.’s Mot. Dismiss at 1, ECF No. 38.
The Declaratory Judgment Act (“DJA”) “is not an independent source of
federal subject matter jurisdiction.” lGNB Battery Techs., Inc. v. Gould, Inc., 65
F.3d 615, 619 (7th Cir. 1995). But, assuming an independent source of jurisdiction,
id., the DJA provides that a court “may declare the rights and other legal relations
of any interested party,” 28 U.S.C. § 2201(a). Under the DJA, district courts have
“‘unique and substantial discretion in deciding whether to declare the rights of
litigants.’” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007) (quoting
Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)). The DJA restricts courts,
however, from “exercis[ing] this discretionary power in the absence of an ‘actual
controversy’ between the parties.” Deveraux v. City of Chi., 14 F.3d 328, 330 (7th
“The DJA’s ‘actual controversy’ requirement is equivalent to Article III’s caseor-controversy requirement.” Duehning v. Aurora E. Unified Sch., 102 F. Supp. 3d
968, 980 (N.D. Ill. 2015) (citing MedImmune, 549 U.S. at 126–27). Yet, assessing
whether a ripe controversy exists in this context is complicated because, to some
extent, all declaratory judgment actions seek preemptive relief. Wis. Cent., Ltd. v.
Shannon, 539 F.3d 751, 759 (7th Cir. 2008). Thus, “‘it would be difficult, if it would
be possible, to fashion a precise test’” to distinguish between an abstract question
and an actual controversy as contemplated by the DJA. Deveraux, 14 F.3d at 330
(7th Cir. 1994) (quoting Maryland Cas. Co., 312 U.S. at 273).
Fortunately, the Supreme Court has provided some guidance in this area,
reiterating that “[b]asically, the question in each case is whether the facts alleged,
under all the circumstances, show that there is a controversy, between parties
having adverse legal interests, of sufficient immediacy and reality to warrant
issuance of a declaratory judgment.”
Wis. Cent., 539 F.3d at 759 (quoting
MedImmune, 549 U.S. at 127).
Here, unlike many declaratory judgment actions brought in advance of an
impending suit, the Board brings its declaratory judgment action as a counterclaim.
The immediacy and reality of the controversy between Kugler and the Board is
evidenced by the fact that litigation is already pending between the parties. There
is certainly a live dispute between parties having adverse interests: Kugler seeks
relief from the restrictions placed upon him by the Board, while the Board seeks to
declare that those restrictions are reasonable. Kugler admits as much in his reply.
See Pl.’s Reply at 2, ECF No. 52.
But Kugler goes on to interpret the Board’s counterclaim as purportedly
seeking “guidance as to what restrictions are ‘reasonable’ or in what circumstances”
beyond the acknowledged controversy at issue.
Id. at 4.
interpret the Board’s counterclaim in this manner.
The Court does not
On the contrary, the
counterclaim seeks a ruling that the restrictions currently in force against Kugler
are permissible under the First Amendment. Neither the restrictions imposed on
Kugler nor the circumstances that prompted them are hypothetical.
Court finds that the counterclaim alleges facts sufficient to establish an actual
controversy within the meaning of the DJA and within this Court’s Article III
jurisdiction. Kugler’s motion to dismiss the counterclaim on this basis is therefore
Redundancy in Counterclaim
Alternatively, Kugler moves to strike the counterclaim for redundancy
pursuant to Rule 12(f). He argues that the counterclaim is the mirror image of the
complaint and adjudication of Kugler’s claims would provide the Board with the
relief it seeks.
Pl.’s Mot. Dismiss at 2.
Kugler is correct to point out that
counterclaims that “merely restate an issue already before [the] Court” may be
dismissed. United States v. Zanfei, 353 F. Supp. 2d 962, 965 (N.D. Ill. 2005). And,
the Court acknowledges that the proposed declarations in sections (i) and (ii) are
seemingly the inverse of Kugler’s First Amendment claims.
But Courts are
reluctant to strike counterclaims as redundant unless there exists certainty that
adjudication of the plaintiff’s claims would obviate the need for declaratory relief.
See, e.g., BPI Energy Holdings, Inc. v. IEC (Montgomery), LLC, No. 07-CV-186DRH, 2010 WL 145792, at *2–3 (S.D. Ill. Jan. 12, 2010); see also 6 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1406 (3d ed. 2017)
(“[T]he safer course for the court to follow is to deny a request to dismiss a
counterclaim for declaratory relief unless there is no doubt that it will be rendered
moot by the adjudication of the main action.”). At such an early stage, it is difficult
to assess whether the factual and legal issues raised by each party will truly be
repetitious. See Balmoral Racing Club, Inc. v. Churchill Downs, Inc., No. 11 C
1028, 2011 WL 6009610, at *2 (N.D. Ill. Nov. 29, 2011) (“[The court] will have a
much better handle on the issue closer to trial.”). Especially here, where there are
myriad legal theories under which the parties could present First Amendment
claims and defenses, it would be premature to conclude that adjudication of Kugler’s
claims would fully address the Board’s counterclaim. Even if these portions of the
counterclaim are ultimately redundant, leaving the counterclaims pending will not
result in any prejudice to Kugler and would be the more prudent course. See, e.g.,
The Court notes that “prejudice need not be shown in support of a motion to strike.”
Lincoln Nat’l. Corp. v. Steadfast Ins. Co., No. 1:06-CV-00058, 2006 WL 1660591, at *2 (N.D.
Ind. June 9, 2006); see Pl.’s Reply at 3. Still, courts routinely consider “whether the
plaintiff would suffer prejudice as a result of an allegedly duplicative counterclaim.” Cont’l
Cas. Co. v. Duckson, No. 11-CV-00459, 2011 WL 2293873, at *2 (N.D. Ill. June 9, 2011); see
also Balmoral, 2011 WL 6009610, at *2; VW Credit, Inc. v. Friedman & Wexler, LLC, No. 09
C 2832, 2010 WL 2330364, at *2 (N.D. Ill. June 7, 2010).
Discretion to Dismiss Declaratory Judgment Actions
Finally, Kugler appeals to the Court’s discretion to dismiss declaratory
judgment actions. District courts have discretion whether to hear a declaratory
judgment action even if it satisfies the actual controversy requirement. NUCOR
Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 577 (7th Cir.
1994). “But if the declaratory judgment will clarify and settle the disputed legal
relationships and afford relief from the uncertainty and controversy that created
the issues, it is usually resolved rather than dismissed.” Id. at 578. The Seventh
Circuit has provided five questions for district courts to consider when conducting
(1) whether the judgment would settle the controversy;
(2) whether the declaratory judgment action would serve a useful
purpose in clarifying the legal relations at issue;
(3) whether the declaratory remedy is being used merely for the
purpose of “procedural fencing” or “to provide an arena for a race for
(4) whether the use of a declaratory action would increase friction
between our federal and state courts and improperly encroach on state
(5) whether there is an alternative remedy that is better or more
Id. at 579 (citing Nationwide Mut. Fire Ins. Co. v. Willenbrink, 924 F.2d 104, 105
(6th Cir. 1991)).
Here, under the first factor, the declaratory judgment would settle the
controversy. Entering a declaratory judgment order that the First Amendment does
not prohibit the Board from imposing its restrictions on Kugler would likely
accompany a finding that the restrictions imposed by the Board did not violate
Kugler’s First Amendment rights.
The second factor is satisfied because the declaratory judgment would clarify
the legal relations between the parties. The Court’s ruling on the reasonableness of
the restrictions against Kugler would provide clarity as to Kugler’s role as both a
CTU representative and parent of students attending a Chicago public school.
With regard to the third factor, the Court need not be concerned with
procedural fencing or a race to the courthouse because the declaratory action was
filed as a counterclaim.
Likewise, the fourth factor is irrelevant to the instant case because there is
no danger of encroaching on state jurisdiction.
Finally, in considering the fifth factor, judgment on the complaint would not
necessarily provide an adequate alternative remedy to the declaratory relief sought
by the Board in its counterclaim. As discussed above, the declaratory judgment
action may raise issues beyond the scope of Kugler’s complaint.
For these reasons, the Court will not exercise its discretion to dismiss the
declaratory judgment action.
Allegations Arising Under Title VII and the IHRA
In addition to its allegations arising under the First Amendment, the Board
seeks a declaration in its counterclaim that its actions are reasonable to ensure that
the Board does violate Title VII and the IHRA. See Countercl. ¶ 46 (seeking a
declaratory judgment that “[t]he Board may impose reasonable restrictions on
Kugler to foster a workplace that is not hostile and does not violate Title VII . . . or
Kugler argues that this portion of the counterclaim should be
dismissed insofar as it asserts that compliance with Title VII or the IHRA is a valid
defense to violating the First Amendment. Pl.’s Reply at 4.
It is unclear what precise relief the Board is seeking from the Court by way of
this claim or how the Court is to adjudicate it. To the extent that the Board is
requesting that the Court find that the restrictions imposed on Kugler were
necessary to avoid liability under Title VII or the IHRA, such a claim is unripe and
devolves into a hypothetical exercise. After all, there is no allegation that anyone
has threatened to bring a Title VII or IHRA claim against the Board as a result of
Kugler’s actions, nor is there any basis for the Court to find that such a claim would
be successful. Indeed, in order to adjudicate this claim, the Court would have to
assess the likelihood that such a Title VII or IHRA claim would succeed (let alone
whether such a claim would even be filed), which in turn would raise a host of other
speculative issues unamenable to adjudication here.
For example, did Kugler
intentionally target his actions to members of a protected class?
(There is no
allegation that this was so.) If the Board does not curtail Kugler’s actions, can a
potential claimant plausibly assert that the Board’s inaction was intended to harm
members of a protected class? Are the nature and extent of Kugler’s (who is not an
employee or agent of the Board) actions sufficient to create a hostile environment
actionable under Title VII or the IHRA? And so on.
As a result, the Board’s claim invoking Title VII and the IHRA does not
reflect sufficiently real and immediate circumstances that permit the entry of a
declaratory judgment. See Wis. Cent., 539 F.3d at 759 (quoting MedImmune, 549
U.S. at 127). There simply is no live controversy under Title VII or the IHRA; the
dispute between the Board and Kugler centers exclusively on the First Amendment.
This is not to say that the Board cannot argue in defense of the restrictions that it
has an interest in maintaining a discrimination-free work setting for its employees
(whatever the merits of such an argument may be). But the claim at issue does not
do this. For these reasons, the allegations in the Board’s counterclaim pertaining to
Title VII and the IHRA are dismissed without prejudice. If the Board can present a
real and immediate controversy arising under these statutes, it may amend its
For the reasons articulated herein, Kugler’s motion to dismiss, or in the
alternative, strike  is granted in part and denied in part. The allegations in the
counterclaim pertaining to Title VII and the IHRA are dismissed without prejudice.
Insofar as the Board wishes to amend these allegations, it is granted leave to do so
by August 10, 2017. The motion is denied in all other respects.
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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