Portis v. McKinney

Filing 23

MEMORANDUM OPINION and ORDER: For the reasons stated here within, we grant McKinney's motion to reassign and consolidate. (2842 Case Dkt. No. 14 .) The 4269 Case, No. 21-cv-4269, which is currently pending before Judge Feinerman, should be reas signed to the undersigned's calendar pursuant to Local Rule 40.4, and we request that the Executive Committee approve the reassignment. The Clerk is directed to forward a copy of this Opinion and Order to the Executive Committee and Judge Feiner man. See N.D. Ill. L.R. 40.4(d). If the 4269 Case is reassigned to our docket, Portis has 21 days thereafter to file an amended complaint in the 2842 Case that contains the pertinent allegations and claims from both the 2842 and 4269 Cases. Given our resolution of McKinney's motion to reassign and consolidate, we deny Portis's motion for relief under Rules 42 and 81 (2842 Case Dkt. No. 20 ) as moot. It is so ordered. Signed by the Honorable Marvin E. Aspen on 9/9/2021. Mailed notice (ags)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHARLES PORTIS,
Plaintiff,
v.
JOHN FRANCIS MCKINNEY,
Defendant.

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No. 21-cv-2842
Judge Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Before us is Defendant John Francis McKinney’s motion to reassign a case pending
before another judge in this District, No. 21-cv-4269 (the “4269 Case”), to the undersigned and
to consolidate the 4269 Case with the above-captioned case (the “2842 Case”). (2842 Case Dkt.
No. 14, Def.’s Mot. to Reassign & Consolidate (“Mot.”).) 1 Plaintiff Charles Portis does not
oppose the motion. 2 For the following reasons, we grant McKinney’s motion.
BACKGROUND 3
On May 26, 2021, Portis initiated the 2842 Case by filing a Complaint against McKinney
in this District. (2842 Case Dkt. No. 1 (“2842 Compl.”).) According to the 2842 Complaint,

1

Citations to Case No. 21-cv-2842 are to the “2842 Case,” and citations to Case No. 21-cv-4269
are to the “4269 Case.”
2

Instead of responding to McKinney’s motion by the Court-ordered August 27, 2021 deadline
(see 2842 Case Dkt. No. 16), Portis filed a “Motion for Relief Pursuant [to] Federal Rules of
Civil Procedure 81 and 42” nearly a week after this deadline had passed (see 2842 Case Dkt. No.
20). In his motion, Portis states that he has no objection to consolidating the 2842 and 4269
Cases, and he asks for leave to replead and file a single complaint in the consolidated action.
(Id.) Portis’s non-opposition to consolidation and his request to replead should have been
contained in a timely filed response to McKinney’s motion.
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In this background, we set forth Portis’s allegations without vouching for their veracity.

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Portis is a non-white Jewish man with adopted non-white Asian children, and McKinney is a
white businessman. (Id. ¶¶ 1, 2.) Portis and McKinney had an agreement to develop a real
estate project known as the 917 Project. (Id. ¶ 4.) When it came time to distribute the proceeds
from the 917 Project, however, McKinney withheld $20,000 that belonged to Portis. (Id. ¶¶ 68,
75–77, 90, 91.) McKinney, who “has exhibited overt and direct racism toward [Portis] for years
in the form of anti-Semitic and anti-Asian statements,” withheld Portis’s share of the proceeds
because Portis is not white, has non-white Asian children, and complained about McKinney’s
racist conduct. (Id. ¶¶ 7, 43–45, 68–70, 81.) Portis asserts two claims in the 2842 Case: racial
discrimination under 42 U.S.C. § 1981 (Count I) and conversion (Count II). (Id. ¶¶ 46–92.)
Before filing the 2842 Case, Portis filed a complaint for equitable accounting against
McKinney in the Circuit Court of Cook County, Illinois. (4269 Case Dkt. No. 1-1 at 2–6.) The
circuit court dismissed the complaint with leave to amend (id. at 57), and Portis thereafter filed
an amended complaint in which he alleged a single claim under 42 U.S.C. § 1981 (id. at 61–71
(“4269 Compl.”)). On August 11, 2021 (after Portis had filed the 2842 Case), McKinney
removed Portis’s state court case to this District (see 4269 Case Dkt. No. 1), where it became the
4269 Case and was eventually assigned to Judge Feinerman.
Portis’s § 1981 claim in the 4269 Case arises out of another real estate development
project on which the parties worked together, known as RiverPark. (4269 Compl. ¶¶ 1, 69–83.)
McKinney allegedly refused to give Portis his entire share of revenue from the RiverPark project
because of Portis’s race, his children’s race, and his complaints about McKinney’s racist
conduct. (Id. ¶¶ 1, 64–66, 82, 83, 85, 86.) The 4269 Complaint contains many of the same
allegations regarding McKinney’s discriminatory animus as the 2842 Complaint. (Compare,
e.g., id. ¶¶ 4–21, 25–41, 60, 67, 68, with 2842 Compl., ¶¶ 7–24, 28–44, 64, 71, 73.)

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ANALYSIS
I.

Reassignment
McKinney first argues that we should reassign the 4269 Case to our docket. (Mot. at 2–

5.) Local Rule 40.4 governs the reassignment of related cases in this District. We oversee the
lowest-numbered case, so McKinney’s reassignment request is properly before us. See N.D. Ill.
L.R. 40.4(c).
Under Local Rule 40.4, two cases may be “related” if
(1) the cases involve the same property;
(2) the cases involve some of the same issues of fact or law;
(3) the cases grow out of the same transaction or occurrence; or
(4) in class action suits, one or more of the classes involved in the cases is or are
the same.
N.D. Ill. L.R. 40.4(a). But relatedness alone does not justify reassignment. Urb. 8 Fox Lake
Corp. v. Nationwide Affordable Hous. Fund 4, LLC, No. 18-cv-6109, 2019 WL 2515984, at *3
(N.D. Ill. June 18, 2019). Even if a higher-numbered case is related to a lower-numbered case,
the former can be reassigned to the judge overseeing the latter only if each of the following
criteria are met:
(1) both cases are pending in this Court;
(2) the handling of both cases by the same judge is likely to result in a substantial
saving of judicial time and effort;
(3) the earlier case has not progressed to the point where designating a later filed
case as related would be likely to delay the proceedings in the earlier case
substantially; and
(4) the cases are susceptible of disposition in a single proceeding.
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N.D. Ill. L.R. 40.4(b). Whether “to reassign a case as related falls within [our] sound discretion.”
Urb. 8 Fox Lake Corp., 2019 WL 2515984, at *3.
The 2842 and the 4269 Cases are related. Both cases involve the same plaintiff (Portis)
and defendant (McKinney); both are based on McKinney’s alleged discriminatory animus
toward Portis, his children, and other non-white individuals; and both involve allegations that
McKinney withheld money that belonged to Portis because of this animus. Both cases also will
involve determining whether McKinney’s failure to pay Portis proceeds from real estate projects
violated 42 U.S.C. § 1981. Because the 2842 and the 4269 Cases “involve some of the same
issues of fact or law,” N.D. Ill. L.R. 40.4(a)(2), they satisfy Local Rule 40.4(a).
We further conclude that all the Local Rule 40.4(b) criteria are satisfied. First, both cases
are pending in this District. N.D. Ill. L.R. 40.4(b)(1). Second, having us resolve both cases will
likely save substantial judicial time and effort. N.D. Ill. L.R. 40.4(b)(2). The relationship
between Portis and McKinney, whether McKinney made certain statements or took certain
actions, and whether these statements and actions reflect discriminatory animus will likely be
addressed in both cases. It would be inefficient for two judges to get up to speed on these issues.
See Urb. 8 Fox Lake Corp., 2019 WL 2515984, at *3 (reassignment would save “significant
judicial resources” because the court had already invested time and effort to learn about the
parties’ relationship and the partnership agreements at issue and, absent reassignment, another
court would “be required to invest similar time and effort”). Moreover, because of the identity of
the parties and the similarities between the claims in both cases, disputes that arise in one case
will likely be the same or similar to disputes that arise in the other case, especially considering
that both parties are represented by the same counsel in both cases. Reassignment ensures
consistent rulings on these disputes. It likewise ensures consistent rulings on questions of fact

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and law common to both cases, such as whether a jury could find that McKinney made the
allegedly discriminatory statements and took the allegedly discriminatory actions and whether
McKinney’s withholding of money from Portis violates § 1981. See id. (reassignment would
“ensure consistent rulings on common questions about the interpretation and application” of a
contract provision that was important to both cases).
Third, reassigning the 4269 Case is not likely to substantially delay the proceedings in the
2842 Case. N.D. Ill. L.R. 40.4(b)(3). In both cases, the pleadings are not yet closed, and the
parties have not yet filed their joint discovery status report and proposed scheduling order. (See
2842 Case Dkt. Nos. 18, 19; 4269 Case Dkt. Nos. 10, 12.) Thus, reassignment at this stage of
the litigation will not hamper the progress of the 2842 Case.
Finally, and for the same reasons discussed with respect to subsection (b)(2), both cases
are susceptible to disposition in a single proceeding. N.D. Ill. L.R. 40.4(b)(4). In both cases, the
parties are the same and are represented by the same counsel; the primary witnesses—Portis and
McKinney—are the same; many of the facts underlying Portis’s charge of racial discrimination
are the same or substantially similar; and 42 U.S.C. § 1981 will be at issue. See Urb. 8 Fox Lake
Corp., 2019 WL 2515984, at *4 (finding subsection (b)(4) satisfied where “the witnesses,
counsel, and many of the facts” in the two cases at issue were “the same or substantially
similar”). Despite any differences between the two real estate projects at issue or the particulars
of McKinney’s actions with respect to these projects, we do not see any reason why Portis’s
§ 1981 and conversion claims in the 2842 Case and his § 1981 claim in the 4269 Case cannot be
fully resolved in one proceeding, whether by dispositive motion, trial, or settlement.
Accordingly, the 2842 and 4269 Cases are related and reassignment of the 4269 Case to
our docket is warranted under Local Rule 40.4.

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II.

Consolidation
McKinney also argues that we should consolidate the two cases and order Portis to file an

amended complaint that reflects this consolidation. (Mot. at 5–6.) A district court may
consolidate two actions that “involve a common question of law or fact.” Fed. R. Civ. P.
42(a)(2). “In exercising that discretion, a court should consider whether the proposed
consolidation would promote convenience and judicial economy, and whether it would cause
prejudice to any party.” Sylverne v. Data Search N.Y., Inc., No. 08 C 0031, 2008 WL 4686163,
at *1 (N.D. Ill. May 28, 2008) (internal citations omitted).
Consolidating the 2842 and 4269 Cases will “promote convenience and judicial
economy.” See id.; see also Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 839 (7th Cir.
1999) (“By far the best means of avoiding wasteful overlap when related suits are pending in the
same court is to consolidate all before a single judge.”). For the reasons already discussed, we
anticipate that it will be much more efficient to resolve Portis’s two § 1981 claims and his
conversion claim in one litigation rather than two litigations. Additionally, Portis will not be
prejudiced by consolidation; indeed, he has no objection to consolidation. (2842 Case Dkt. No.
20 at 1.) Thus, we find consolidation under Rule 42 appropriate.
CONCLUSION
For the foregoing reasons, we grant McKinney’s motion to reassign and consolidate.
(2842 Case Dkt. No. 14.) The 4269 Case, No. 21-cv-4269, which is currently pending before
Judge Feinerman, should be reassigned to the undersigned’s calendar pursuant to Local Rule
40.4, and we request that the Executive Committee approve the reassignment. The Clerk is
directed to forward a copy of this Opinion and Order to the Executive Committee and Judge
Feinerman. See N.D. Ill. L.R. 40.4(d). If the 4269 Case is reassigned to our docket, Portis has
21 days thereafter to file an amended complaint in the 2842 Case that contains the pertinent
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allegations and claims from both the 2842 and 4269 Cases. Given our resolution of McKinney’s
motion to reassign and consolidate, we deny Portis’s motion for relief under Rules 42 and 81
(2842 Case Dkt. No. 20) as moot. It is so ordered.

______________________________
Honorable Marvin E. Aspen
United States District Judge
Dated: September 9, 2021

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