H's Bar, LLC v Berg, et al

Filing 87

ORDER: Defendants' motions to dismiss (Docs. 74 , 83 ) are GRANTED. Plaintiff's First Amended Complaint is DISMISSED without prejudice. Signed by Judge Staci M. Yandle on 4/27/2021. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
H’S BAR, LLC,

)
)
Plaintiff,
)
)
vs.
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CYNTHIA BERG, MARCUS D.
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FRUCHTER, BRENDAN KELLY, SAINT )
CLAIR COUNTY SHERIFF’S
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DEPARTMENT, and SAINT CLAIR
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COUNTY HEALTH DEPARTMENT,
)
)
Defendants.
)

Case No. 20-cv-1134-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
In response to the ongoing COVID-19 pandemic, Illinois Governor JB Pritzker has issued
a series of executive orders aimed at curbing the spread of the virus and protecting the health of
Illinois residents. In October 2020, Governor Pritzker issued Executive Order 63 (“EO63”), which
included a prohibition against indoor service at restaurants and bars, including those in St. Clair
County where H’s Bar is located.
Plaintiff H’s Bar, LLC filed the instant action against Defendants Cynthia Berg (Chairman
of the Illinois Liquor Control Commission), Marcus Fruchter (Administrator of the Illinois Gaming
Board), Brendan Kelly (Director of Illinois State Police) (collectively, “the State Defendants’), the
St. Clair County Sheriff’s Department, the St. Clair County Health Department, James Hendricks
(St. Clair Deputy Sheriff), Barbara Hohlt (Executive Director of the St. Clair County Health
Department), Mark Kern (St. Clair County Board Commissioner and Liquor Commissioner)
(collectively, “the St. Clair Defendants”).

Plaintiff’s First Amended Complaint asserts the

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following claims: Defendants’ enforcement actions violate the right of people to peaceably
assemble under the First and Fourteenth amendments (Count I); the Governor lacked authority to
issue EO63 and lacks authority to issue future COVID-19 related executive orders (Count II); a
violation of due process rights pursuant to the Fourteenth Amendment under 42 U.S.C. §1983
against Defendant Kern (Counts III and IV); a violation of due process rights pursuant to the
Fourteenth Amendment under 42 U.S.C. §1983 against Defendant Hohlt (Counts V and VII); a
violation of due process rights pursuant to the Fourteenth Amendment under 42 U.S.C. §1983
against Defendant St. Clair County Health Department (Counts VI, VII and VIII); and an
unreasonable search and seizure pursuant to the Fourth Amendment under 42 U.S.C. §1983 against
Defendant Hendricks (Count IX).
The case is now before the Court for consideration of the State Defendants’ Motion to
Dismiss (Doc. 74) and the St. Clair County Defendants’ Motion to Dismiss (Doc. 83). Plaintiff
has not filed responses to the motions, and the time for doing so has passed.
Collectively, Defendants argue that Plaintiffs’ Amended Complaint should be dismissed
for lack of subject matter jurisdiction as it fails to allege sufficient facts to establish standing by
demonstrating an injury caused by the defendants. The State Defendants also argue that Plaintiff’s
Amended Complaint fails to state a claim because (1) the Governor’s Executive Orders pass
constitutional scrutiny in a public health crisis and are valid time, place, and manner restrictions;
(2) Plaintiff fails to allege sufficient personal involvement by the State Defendants and rest upon
a right that does not extend to the Plaintiff’s social associations; (3) Plaintiff fails to sufficiently
allege discrimination against a secular entity in favor of a religious one; (4) Plaintiff’s state law
claims are barred by the Eleventh Amendment; and (5) the Illinois Emergency Management

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Agency Act does not limit the State Defendants’ authority to enforce the Governor’s executive
orders.
The St. Clair Defendants contend that Plaintiff cannot maintain an action against the St.
Clair County Sheriff’s Department or the St. Clair County Health Department because those
entities do not have the legal capacity to be sued. They further argue that Defendants Hohlt and
Kerns are entitled to absolute judicial immunity and/or qualified immunity, and that Plaintiff fails
to state a prima facie claim for any of its § 1983 claims.
The Court may, in its discretion, construe a party’s failure to file a timely response as an
admission of the merits of the motion. See Local Rule 7.1(c) (requiring a response to a motion to
dismiss be filed 30 days after service of the motion and stating a failure to timely respond may be
deemed an admission of the merits of the motion); see also Tobel v. City of Hammond, 94 F.3d
360, 362 (7th Cir.1996) (“[T]he district court clearly has authority to enforce strictly its Local
Rules, even if a default results.”). Here, having fully considered Defendants’ arguments, the Court
deems Plaintiff’s failure to respond as an admission of the merits of the motions. Accordingly,
Defendants’ motions to dismiss (Docs. 74, 83) are GRANTED; Plaintiff’s First Amended
Complaint is DISMISSED without prejudice.

IT IS SO ORDERED.
DATED: April 27, 2021

STACI M. YANDLE
United States District Judge

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