Arrington v. City of Chicago, Illinois et al
Filing
282
MOTION by Plaintiff Juanita Arrington for judgment as a matter of law as to affirmative dense of joint enterprise and Correcting 280 (Attachments: # 1 Exhibit A)(Montgomery, James)
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Plaintiff,
v.
CITY OF CHICAGO, an Illinois
municipal corporation, et al,
Defendants.
ISIAH STEVENSON, et al
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Plaintiffs,
v.
CITY OF CHICAGO, an Illinois
municipal corporation, et al,
Defendants.
No. 17-cv-5345
Judge Thomas M. Durkin
Magistrate Judge Susan E. Cox
No. 17-cv-4839
Judge Thomas M. Durkin
Magistrate Judge Susan E. Cox
PLAINTIFFS’ MOTION FOR JUDGEMENT AS A MATTER
OF LAW AS TO THE AFFIRMATIVE DEFENSE OF JOINT ENTERPRISE
Plaintiffs, Isiah Stevenson, Michael Cokes, and Juanita Arrington, move this court,
pursuant to Fed. R. Civ. Pro. 50(a)(1)-(2), to find that Defendants’ assertion of Joint Enterprise,
which lacks legal precedent and evidentiary support, must be dismissed as a matter of law.
Plaintiff Arrington herewith withdraws Doc 280. Plaintiffs state the following in support:
Defendants Dean Ewing, and the City of Chicago, have raised the affirmative defense of
Joint Enterprise in this case. This affirmative defense must be stricken as the law does not
JUANITA ARRINGTON, as Independent
Administrator of the Estate
of RONALD ARRINGTON, deceased,
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
support it – neither do the facts, even when seen in the light most favorable to Defendants.
Rather than having pleaded a legitimate affirmative defense, Defendants aim to improperly put
the Plaintiffs on trial for conspiracy using highly prejudicial evidence that does not support the
existence of a conspiracy and which, as a matter of law, could never support the purported
affirmative defense of “Joint Enterprise.”
While “some courts refer to this topic under
consideration [as] a ‘joint enterprise’, some as ‘joint venture’, and others as ‘joint adventure’,
‘imputed negligence’, ‘business enterprise’, [or] ‘common business enterprise’” none of the case
law supports Defendants’ assertion of its application here. Babington v. Bogdanovic, 7 Ill. App.
3d 593 (Ill. App. Ct. 1972).
Defendants are entirely unable to satisfy the elements required by a Joint Enterprise
affirmative defense. To attempt to avoid this reality Defendants have made furtive efforts that
essentially amount to a “smoke screen.” They have filed Motions in Limine seeking to bar
Plaintiffs from contesting discovery violations, which Defendants seemingly anticipate
committing at trial (see Defendant’s MIL #5 which would create the conditions permitting a
“trial by ambush”). They have refused to identify witnesses who will testify to key elements of
their defense (Dkt No. 354 at *14 ¶ 2 stating “an eyewitness will testify that the Pontiac stalked
the Arby’s worker, that Malone exited the Pontiac and attacked the victim, and the Pontiac then
drove to pick up the waiting Malone” (even now, at the eleventh hour, Defendants still refuse to
provide this purported witnesses name, and no such eyewitness has ever been identified
previously – even by description)). They have sought to bar inclusion of the Police Reports
generated during the course of the events, presumably to limit the jury’s exposure to anticipated
contradictions in the testimony presented by various witnesses. Dkt. No. 344 at *8 (Motion in
Limine No. 17).
They have even gone so far as to raise new affirmative defenses in their
Response to Plaintiffs’ Motions In Limine (Dkt. No. 354 where Defendants claim for the first
time that they have raised “contributory…willful and wanton”). The depth of the chasms in their
purported affirmative defense of “Joint Enterprise” is likely not lost on the Defendants. This is
exemplified by their attempt to omit elements of any such defense from the jury instructions.
Their attempt to omit the required elements shows how they intend to sneak the defense into the
trial sub silencio, without satisfying their burden to prove any elements (as shown below, no such
defense is available to Defendants and, therefore, no such elements could ever be proven – which
is exactly the point.) (See Dkt No. 352 at *149 where Defendants seek to ask the jury whether
Joint Enterprise exists without providing any elements).
Defendants seek to avoid presentation of any elements for the purported affirmative
defense of “Joint Enterprise” because the version of it asserted by the Defendants simply does
not exist. In short, Defendants are attempting to make a chimera from several different doctrines,
with parts improperly ripped from criminal law’s Accomplice Liability (or Accountability
Liability in Illinois), corporate law’s Joint Enterprise and international criminal law’s Joint
Criminal Enterprise. (See The Prosecutor v. Milutinovic et al., Case No. IT-99-37-AR72, 21
May 2003). None of these doctrines are applicable in the captioned case. In its Memorandum
Opinion and Order (“MOO”) this Court was careful not to adopt Defendants’ characterization of
Joint Enterprise as Joint Criminal Enterprise. As Plaintiffs pointed out to the Court in briefing,
there is no such claim or cause of action as Joint “Criminal” Enterprise under Illinois law.
Rather, the claim or cause of action of Joint Enterprise must be borne out of a business
relationship meeting the criteria required by Illinois common law. As the Court alluded to in its
MOO, to prove a prima facie case of Joint Enterprise, the defendants must prove the elements
detailed in the IPI Civil Jury Instructions, 72.04, to wit:
A joint enterprise exists if these four elements are present:
(1) An agreement, express or implied, between ____ and ____; and
(2) A common purpose to be carried out by ____ and ____; and
(3) A common business interest in that purpose between ____ and ____;
and
(4) An understanding between them that each had a right to share in the
control of the operation of the car.
In other words the “indispensable elements” in Illinois are “an association of two or more
persons to carry out a single enterprise with a legitimate purpose, a community of interest in such
purpose, expectation of profits and the sharing thereof and the right of each person to direct and
govern the conduct of each other person.” Pinkowski v. Coglay, 347 F.2d 411, 413 (7th Cir.
1965).
The doctrine of Joint Enterprise in the State of Illinois is limited exclusively to business
enterprises. See Campanella v. Zajic, 62 Ill. App. 3d 886 (Ill. App. Ct. 1978), Summers v.
Summers, 40 Ill. 2d 338 (Ill. 1968). In Campanella, the court began its analysis on Joint
Enterprise by noting “the general rule is that negligence of a driver of an automobile may not be
imputed to his passenger. Recognized exceptions to the rule are seen where the relationship of
respondeat superior between the driver and passenger is present or… [they] are engaged in a
joint enterprise.” Id. at 887. From here the court expressed that in order to establish the existence
of a joint enterprise of a nature “which would cause negligence of the driver to be chargeable to
his passenger… the evidence [must] show that the automobile…was being used as part of a
common business enterprise and the occupants were mutually engaged in the trip as a part of
such enterprise.” Id. In defining a “business” enterprise, the Campanella court was persuaded by
the holding asserted within Fisher v. Johnson 238 Ill. App. 25 (Ill. App. Ct. 1925), which
outlined the requirement that a business enterprise could not be found when it involved “no
common financial interest, no partnership, no relation of master and servant, or principal and
agent, and no right of either to direct or control the other in the management of [their] car.”
Campanella, at 888. To provide further clarity as to what constituted a “business enterprise” the
Campanella court cited Clemens v. O’Brien, 85 N.J. Super. 404 (App. Div. 1964), expressing that
such an enterprise is “by definition an association for commercial or profit-making purposes, not
social purposes.” Campanella at 888.
The Second Restatement of Torts § 491 (e) outlines the following in instances in which
an automobile trip may be considered to have occurred as part of a Joint Enterprise:
The question whether the plaintiff is engaged in a joint enterprise with a
negligent third person is usually important when two or more persons are taking
a ride or trip in an automobile or other vehicle and an accident happens through
the negligence of both the defendant and the driver of the vehicle. When the
plaintiff is a guest, as defined in § 490, Comment a, the effect of the driver's
negligence upon the plaintiff's right to recover is determined by the rule stated in
that Section. Therefore, if there is no prearrangement for a substantial sharing of
the expenses of the trip, as to which see Comment i, the trip is not a joint
enterprise merely because it is made at the request of the plaintiff, because he
and his host have a common destination, because the destination or any change
in it is to be determined by mutual agreement, because it is arranged that the
guest is to drive alternatively with his host, or even because they are going to the
common destination to accomplish a purpose in which they have a common but
not a business interest. No one of these facts, nor indeed all of them together, is
sufficient to justify a jury or other trier of fact in finding that the trip was a joint
enterprise.
The doctrine of Joint Enterprise raised in this case must therefore be understood to require
Defendants to prove the existence of a business enterprise. It is not sufficient to claim that there
was a “common destination to accomplish a purpose”, which Defendants allege Plaintiffs “have
in common” when such an interest is “not a business interest.” Id.
Defendants’ argument seeks to replace the first element, which requires an agreement to
carry on a joint business enterprise with criminal conspiracy, but this is entirely unsupported by
the tort doctrine. Unable to establish that a business enterprise exists, Defendants intend to argue
that the occupants of the Pontiac had conspired to commit a robbery on July 1, 2016. The
Defendants claim the plea agreement accepted by Plaintiffs Stevenson and Cokes, for
Misdemeanor Theft for receiving stolen property after the fact, constitutes evidence of an
agreement to conduct a robbery. (See Dkt. No. 354 at *7, 14 “One of the central issues… is
whether Plaintiffs engaged in a joint enterprise to commit a robbery with Malone…” and
Defendants claim “the original intent of the trip was to facilitate a robbery and was a mutual
endeavor”) (emphasis added). There are no cases to support the idea that an agreement to carry
on a joint business enterprise can be demonstrated by the type of conspiracy that Defendants
allege was the basis of an agreement between the occupants of the Pontiac. For a joint enterprise
to be found, there is an indispensable requirement of a demonstration of a legitimate purpose, as
opposed to a criminal one. Pinkowski, 347 F.2d 411, 413 (7th Cir. 1965). Defendants seek to, on
one hand, claim Plaintiffs actions were in furtherance of an illegitimate criminal scheme while,
on the other hand, claim that the scheme was in furtherance of the “legitimate” “business
enterprise” of robbery. This court should not be convinced by such doublespeak. Nor should it be
convinced by the illusion cast by the Defendants’ doctrinal slight of hand – in attempting to
insert elements of Joint Enterprise from the criminal context, into the doctrine of Imputed
Negligence that exists in the civil context.
Assuming arguendo that Illinois law were even to permit use of criminal conspiracy in
lieu of the business enterprise requirement, the Defendants’ argument here still does not follow
logically. Under Illinois law, criminal conspiracy requires proof of (1) an agreement with another
that an offense be committed; (2) intent that the offense be committed; and (3) an act in
furtherance of the agreement. See People v. Hopp, 209 Ill. 2d 1, 805 N.E.2d 1190 (2004). A
conviction for receipt of property after the fact simply does not establish that there was an
agreement as to the commission of robbery, is not evidence of intent to commit robbery or any
act in furtherance of robbery. Plaintiffs pleaded guilty to “knowingly obtain[ing] unauthorized
control over property… with intent to permanently deprive Janice Farrell of the use and benefit
of said United State’s [sic] Currency under ILCS 720, Section 5/16-1(a)(1)(b)(1).” (See Dkt. No.
344-2). The relevant portion of the statute under which the two were convicted only requires that
they “knowingly” obtained “unauthorized control over property” and further identifies it under
subsection (b)(1) as “theft of property not of the person and not exceeding $500 in value.” This is
analogous to a misdemeanor conviction for having been an accessory after the fact. As an aside,
the fact that the conviction was for property less than $500 further separates the conviction from
Malone’s robbery of Farrell, in which just under $1300 was claimed to have been taken. The
Defendants want this court to adopt an unrefined understanding of the plea agreement, insisting
that the misdemeanor is akin to a conviction for the initial indictment for robbery under 720
ILCS 5/18-1(a) and (c) for “knowingly” taking “property” “by the use of force.” There is no
evidence to suggest the Plaintiffs partook in the planning of a robbery, that they had intent to
commit robbery, or even that they performed acts in furtherance of Malone’s robbery. The very
conviction which Defendants assert to evidence an agreement to commit robbery in fact
exonerates the Plaintiffs on the issue of Joint Enterprise.
This court should also maintain skepticism of the evidentiary circumstances surrounding
the underlying indictment. The only reason robbery was charged in the first place was due to a
fraud upon the court committed by a witness Defendants now intend to call. Detective Stan
Tencza testified falsely to the grand jury that Isiah Stevenson stated in his interrogation that there
was a plan to share the proceeds. A problem arose for Tencza, however, when Stevenson
obtained the actual footage of the interrogation – which confirmed that he never made any such
statement. Upon this realization, a motion to dismiss the indictment of Stevenson was filed. See
Exhibit A. The Defendants now presumably seek to have Detective Tencza repeat these same
statements to the petit jury in order to, once again, falsely imply the existence of an agreement
between Malone and the passengers in the gold Pontiac – and thus they seek to receive the
benefit of Tencza’s earlier fraud. Defendants now also seek to examine at trial Will County
Assistant State’s Attorney Christopher Koch. Having seen Stevenson’s interrogation footage,
Koch knew or should have known that Detective Tencza’s statements to the grand jury were
false. It is possible that Defendants will try to call Koch in order to provide (hearsay) testimony
about Tencza’s false statements to the grand jury. The highly questionable nature of such
testimony or evidence would only serve to create scandalous prejudice against the plaintiffs,
while never actually evidencing the required elements of Joint Enterprise in Imputed Negligence.
Courts, recognizing the emphasis that the Illinois Supreme Court has stressed upon the
“business” element of Joint Enterprise in Imputed Negligence theory, have expressed “the
‘common business purpose’ factor is dominant and must first exist before the joint enterprise
doctrine can be viewed as germane.” Babington at 600 (Ill. App. Ct. 1972). The Illinois Supreme
Court expressed in Smith v. Bishop, 32 Ill. 2d 380, 384 (Ill. 1964) that the doctrine required an
automobile to be “used as part of a common business enterprise, and the occupants are mutually
interested in the trip itself as a part of such enterprise” to impute responsibility upon passengers.
This element is so foundational that “even in those cases which stress the factor of right of
control, the requirement of the business aspect is still a prerequisite.” Babington at 599 (Ill. App.
Ct. 1972). In assessing whether a Joint Enterprise exists there must be evidence of “ an express
or implied agreement to carry on a joint enterprise . . . a manifestation of that intent by the parties
. . . joint proprietary interest, as demonstrated by the contribution of property, finances, effort,
skill or knowledge by each party . . . some degree of joint control over the enterprise, and . . . a
provision for the parties to share in both the profits and losses of the enterprise.” Yokel v. Hite,
348 Ill. App. 3d 703, 709 (Ill. App. Ct. 2004). “A joint enterprise can only exist in a business
relationship [citation omitted]” and even the “relationship between two employees is not to be so
labeled.” Beeson v. Smith, 1990 U.S. Dist. LEXIS 14601, *3, 1990 WL 171794. There simply is
no evidence that plaintiffs Stevenson, Cokes, or Arrington were ever part of a business
enterprise, and no basis to characterize the trip on July 1, 2016, as one.
Without establishing the existence of a business enterprise, or an agreement in
furtherance of one, it is impossible for the Defendants to present a “common purpose” as
between the occupants of the vehicle. In Illinois “to define a joint enterprise there must be
evidence of a common business purpose in which the occupants are mutually interested in the
trip itself as part of such purpose, and where each is responsible for the manner in which the car
is operated.” Enlow v. Illinois Central R.R. Co., 103 Ill. App. 2d 269, 276 (Ill. App. Ct. 1969).
Each of the plaintiff-occupants of the vehicle had a different purpose for their presence. Isiah
Stevenson was seeking transportation from Matteson to Chicago. Michael Cokes was just going
along for a social ride to occupy his time. Even if the Defendants attempt to insist that a
“business enterprise” should for the first time be construed to include “criminal enterprise”
contrary to the manifest weight of all of the existing case law, there still is no evidence to suggest
that these individuals were members of any type of organization, and Defendants’ themselves
concede they do not attempt to try to make any arguments they were in a gang. Dkt. No. 354 at
*1. This would only place the Defendants in a position to then explain how their alleged criminal
purpose of the trip could even remotely be construed as a “legitimate purpose” as required by the
Seventh Circuit. Pinkowski, 347 F.2d 411, 413 (7th Cir 1965). Therefore, the Defendants’
invocation of Joint Enterprise must fail as to the element of “Common Purpose.”
In analyzing the third required element, the existence of a “common business interest”,
the word “business” must be stressed. From a plain language perspective, courts could have
inserted or “common criminal interest”, yet no court in Illinois has. This element depends upon
the demonstration of a legitimate business interest, one that is legal and comports with the
relevant law of agency and corporations. See Yokel, 348 Ill. App. 3d 703, 708-709 (Ill. App. Ct.
2004). The type of interest envisioned by this element is an interest of a legitimate business
enterprise. The only interest claimed to exist by the Defendants’ allegations would be in the
proceeds of the robbery, and even this is entirely unsupported by the evidence which does not
favor the finding of a conspiracy. Without a legitimate business purpose, or a mutually shared
interest between the passengers and driver “in the trip itself as a part of such enterprise,” it is
impossible to find the third element of Joint Enterprise. Smith, 32 Ill.2d 380, 385 (Ill. 1965).
Finally, as to the last of the four elements required for a Joint Enterprise finding, there
must exist a mutual understanding as to the right to control the vehicle. In the MOO, this court
keenly observed that “cases finding a joint enterprise often cite facts that one of the participants
had a right to direct or control the other in the management of the car, which does not appear to
be true here.” Dkt. No. 336 at *28-29. This court also noted that “the factfinder could reasonably
conclude that here, Malone had exclusive control of the car and the Plaintiffs were unwittingly
and unwillingly along for the ride.” Id. In Illinois “authorities lay down the rule that the driver’s
negligence should not be imputed to the passenger unless the driver and passenger are engaged
in a joint or common business enterprise and the passenger has some control or some right to
control the operation of the automobile.” Bridgewater v. Wagoner, 28 Ill. App. 2d 201, 207 (Ill.
App. Ct. 1960). Even in instances where an owner of an automobile is a passenger in the vehicle
at the time of a collision this element “that before negligence can be imputed there must exist
between the parties ‘some relation of master or superior and servant or subordinate.’” Babington,
7 Ill. App. 3d 593, 598 (Ill. App. Ct. 1972). The Pontiac in which the plaintiffs were passengers
on July 1, 2016, was a bailment in the possession of Jimmy Malone, placed in his control by his
girlfriend. An analogous instance is examined in Babington, 7 Ill. App. 3d 593 (Ill. App. Ct.
1972), in which the court observed a Virginia case feature a husband who had borrowed his
wife’s care, rendering him a bailee, and “even though she was riding in the car with him, ‘until
she resumed control of the property, the operation of the car was as completely within his control
as if he had been the fee-simple owner.’” (Citing Virginia Ry. Power Co. v. Gorsuch, 120 VA.
possessory interest in it, and any attempt to deny control of the vehicle to the bailee, Jimmy
Malone, would itself be verging upon a criminal act of conversion. For this reason, Stevenson’s
statement regarding Jimmy Malone being a “getaway driver” is entirely irrelevant to an analysis
of Joint Enterprise in these circumstances. Even if Stevenson were aware of Malone’s potentially
criminal background, this would not have given him authority to commandeer a vehicle in
Malone’s bailment, in which Stevenson had no property interest. Even if one were to assume,
arguendo, that Stevenson was the lawful owner of the vehicle, he was still in and out of sleep at
times during the events. “Does a sleeping owner of an automobile still possess a viable right of
control over the driver?... to hold that Babington, while asleep, still possessed control of the
automobile appears to us to tax credulity to the breaking point.” Babington, 7 Ill. App. 3d 593,
600 (Ill. App. Ct. 1972).
Likewise, this court in its MOO expressed that “the facts do not compel a finding that
Plaintiffs negligently failed to control Malone’s driving . . . it is not obvious on the record that
Plaintiffs knew Malone was going to flee from police in reckless fashion.” Dkt. No. 336 at *29.
As far as the Plaintiffs knew, Malone had been captured by the Illinois State Police and the
vehicle had come to a stop. Then Malone abruptly decided to take off at a high rate of speed, and
Plaintiffs could not possibly do anything to prevent it. This court observed the evidence that
“Plaintiffs attempted to get out of the car later in the pursuit” and agreed this “supports their view
of the facts.” Id. Additionally, the court has even expressed that, once Malone did take off, the
occupants of the vehicle were powerless to interfere with him as the driver of a moving vehicle,
and that to do so would invite “serious danger.” Id. at *13 (Citing Seeger v. Canale, 607 N.E.2d
655, 91 S.E. 632, 633.) Here none of the Plaintiffs owned the vehicle, none of them had a
687, 690 (Ill. App. Ct. 1993). Because the car was a bailment in the possession of Malone, and
there was no master-servant or other agency relationship between the passengers and the driver,
the passenger-plaintiffs had no right to control the vehicle. Therefore, absolutely no support
exists for the fourth element of Joint Enterprise.
In conclusion, the Defendants’ purported affirmative defense of “Joint Enterprise” must
be dismissed. There is no evidence to support a finding of a business enterprise, of an agreement
to further such an enterprise, of a common purpose in furtherance of such an enterprise, or of a
right to control the vehicle. The inclusion of this purported defense at trial would be in error
because, as shown above, it is entirely unsupported – legally and factually. The evidence that
Defendants seek to introduce in support would serve only to confuse and prejudice the jury
against the plaintiffs on dubious grounds – especially when Defendants do not even try to satisfy
the elements of Joint Enterprise and, instead, try to omit them from the jury instructions (see
above). Plaintiffs ask this court to hold (as the court in Babington held) that “there was no
business enterprise, for it never existed; there was no control for it had passed from…
exercisable possession… the doctrine of joint enterprise has been, in many instances, too loosely
applied[,] we refuse to extend it here” (7 Ill. App. 593, 600 (Ill. App. Ct. 1972); and Plaintiffs ask
this court to dismiss the Defendants’ affirmative defense of Joint Enterprise because, as shown
above, it is entirely unsupported by the facts, evidence and law.
WHEREFORE, the Plaintiffs pray that this court will dismiss the Defendants’ affirmative
defense of Joint Enterprise.
Respectfully submitted,
/s/James Montgomery, Jr.
/s/ Robert J. Terracina
Attorney for Plaintiffs Isiah Stevenson
and Michael Cokes
/s/ Paul Luka
Attorney for Plaintiffs Isiah Stevenson
and Michael Cokes
Paul Luka
paul@mendozalaw.net
Robert J. Terracina
robert@mendozalaw.net
Mendoza Law, P.C.
120 S. State St., Ste. 400
Chicago, IL 60603
(312) 508-6010 (voice AND fax)
Attorney for Plaintiff Juanita Arrington
James D. Montgomery, Jr.
Montgomery Law Firm LLC
33 W. Monroe St., Ste. 1375
Chicago, IL 60603
(312) 880-1001
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