Case: 1:03-cv Document #: 277 Filed: 08/30/06 Page 1 of 6 PageID #:3445

Similar documents
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case: 1:15-cv Document #: 28 Filed: 11/02/15 Page 1 of 9 PageID #:216

Case 1:06-cv Document 112 Filed 06/28/2007 Page 1 of 7

Case: 1:16-cv Document #: 21 Filed: 03/27/17 Page 1 of 5 PageID #:84

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. Richmond Division. v. ) Civil Action No. 3:08-CV-799 MEMORANDUM OPINION

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM OPINION AND ORDER

Case: 1:11-cv Document #: 144 Filed: 09/29/14 Page 1 of 9 PageID #:1172

Case: 1:15-cv Document #: 31 Filed: 01/20/16 Page 1 of 7 PageID #:144

Case: 1:07-cv Document #: 62 Filed: 04/08/11 Page 1 of 10 PageID #:381

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION. v. Case No: 2:13-cv SPC-UA ORDER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA VERSUS NO ORDER AND REASONS ON MOTION

Case 5:12-cv FPS-JES Document 117 Filed 05/15/14 Page 1 of 12 PageID #: 1973

Case: 1:16-cv Document #: 12 Filed: 12/16/16 Page 1 of 5 PageID #:28

Case 1:08-cv Document 49 Filed 12/22/09 Page 1 of 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case: 1:13-cv Document #: 37 Filed: 03/24/14 Page 1 of 13 PageID #:170

Case 1:08-cv Document 50 Filed 04/20/2009 Page 1 of 7

Case 1:13-cv RHB Doc #14 Filed 04/17/14 Page 1 of 8 Page ID#88

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

The government issued a subpoena to Astellas Pharma, Inc., demanding the. production of documents, and later entered into an agreement with Astellas

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case 3:14-cv MLC-DEA Document 6 Filed 07/15/14 Page 1 of 9 PageID: 30

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

J S - 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA. CASE NO. CV JST (FMOx) GLOBAL DÉCOR, INC. and THOMAS H. WOLF.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case: 1:10-cv Document #: 79 Filed: 12/18/12 Page 1 of 6 PageID #:859

Case: 1:13-cv Document #: 9 Filed: 04/11/13 Page 1 of 7 PageID #:218

Case: 1:08-cv Document #: 222 Filed: 02/14/11 Page 1 of 10 PageID #:2948

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION. v. CIVIL ACTION FILE NO.: 4: 15-CV-0170-HLM ORDER

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ORDER AND JUDGMENT *

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case 8:16-cv CEH-AAS Document 254 Filed 06/06/18 Page 1 of 11 PageID 6051 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION MEMORANDUM AND ORDER

Case: 1:11-cv Document #: 25 Filed: 01/10/12 Page 1 of 8 PageID #:177

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN. v. Case No. 19-C-34 SCREENING ORDER

Watts v. Brunson, Robinson & Huffstutler, Attorneys, P.A. et al Doc. 55

Case: 1:10-cv Document #: 85 Filed: 11/01/10 Page 1 of 6 PageID #:1545

Case: 1:14-cv Document #: 22 Filed: 11/09/15 Page 1 of 8 PageID #:284

Case 1:17-cv Document 1 Filed 08/28/17 Page 1 of 88 PageID: 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Case: 1:17-cv Document #: 41 Filed: 04/24/18 Page 1 of 9 PageID #:426

UNITED STATES COURT OF APPEALS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DISTRICT

-BGC Channel Bio, LLC et al v. Illinois Family Farms et al Doc. 18

Case: 1:08-cv Document #: 227 Filed: 09/28/10 Page 1 of 6 PageID #:3719

Case 2:01-x JAC Document 57 Filed 11/26/2007 Page 1 of 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Case 3:17-cv JLH Document 20 Filed 03/23/18 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CASE NO: 11-CV-1899 W (NLS) Plaintiff, Defendant.

Case 8:15-cv JSM-EAJ Document 79 Filed 06/08/15 Page 1 of 6 PageID 807 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Case: 1:10-cv Document #: 22 Filed: 01/25/11 Page 1 of 11 PageID #:316

2:12-cv DPH-MAR Doc # 6 Filed 04/05/12 Pg 1 of 7 Pg ID 60 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Case: 1:16-cv Document #: 45 Filed: 08/03/17 Page 1 of 7 PageID #:189

Case 2:10-cv RLH -PAL Document 29 Filed 12/02/10 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION UNITED STATES OF AMERICA, v. Civil Action No. 3:16-cv-503-DJH-CHL

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. Alexandria Division

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case: 1:18-cv Document #: 18 Filed: 10/03/18 Page 1 of 5 PageID #:55

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA. Plaintiff, Defendants.

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY. This matter comes before the Court upon Plaintiff Donna Lloyd s ( Plaintiff ) second request

Case 2:05-cv TJW Document 211 Filed 12/21/2005 Page 1 of 11

Case 2:17-cv JNP-BCW Document 29 Filed 01/08/19 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Case 2:10-cv SDW -MCA Document 22 Filed 07/02/10 Page 1 of 11 PageID: 292

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Case: 1:16-cv Document #: 20 Filed: 06/13/17 Page 1 of 10 PageID #:112

Case: 1:15-cv Document #: 71 Filed: 09/06/16 Page 1 of 15 PageID #:298

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MEMORANDUM & ORDER. April 25, 2017

Case: 1:13-cv Document #: 24 Filed: 10/30/15 Page 1 of 6 PageID #:209

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. TOYO TIRE U.S.A. CORP., ) ) Plaintiffs, ) ) v. ) Case No: 14 C 206 )

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION. CASE NO. 3:07cv528-RS-MD ORDER

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

Case: 1:09-cv Document #: 245 Filed: 12/02/14 Page 1 of 10 PageID #:2016

Case: 1:10-cv Document #: 81 Filed: 09/23/10 Page 1 of 11 PageID #:513

Case: 1:16-cv Document #: 21 Filed: 12/12/16 Page 1 of 6 PageID #:61 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Case: 1:12-cv Document #: 171 Filed: 09/30/16 Page 1 of 7 PageID #:5200

Case 2:14-cv JRG Document 68 Filed 12/12/14 Page 1 of 12 PageID #: 2010

Case: 1:08-cv Document #: 97 Filed: 09/17/10 Page 1 of 8 PageID #:1045

Case 9:09-cv RC Document 100 Filed 08/10/12 Page 1 of 12 PageID #: 991 **NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

IN THE SUPERIOR COURT FOR THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS ) ) ) ) ) ) ) ) ) ) ) ) ) I. INTRODUCTION

Case: 1:12-cv Document #: 24 Filed: 06/07/13 Page 1 of 10 PageID #:107

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) ) ) ) ) ) ) ) ) ) MEMORANDUM OPINION AND ORDER.

Case 1:05-cv LEK-DRH Document 42 Filed 03/22/2007 Page 1 of 11

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA. * NO: 3:16-cv JWD-RLB * VERSUS * * JUDGE JOHN W. DEGRAVELLES CITY OF BATON ROUGE, *

Case: 1:17-cv Document #: 45 Filed: 01/23/18 Page 1 of 14 PageID #:1174

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case3:12-cv JCS Document47 Filed09/28/12 Page1 of 8

Case 3:16-cv L Document 9 Filed 10/27/16 Page 1 of 7 PageID 48 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Case: 1:15-cv Document #: 1 Filed: 02/03/15 Page 1 of 10 PageID #:1

Case: 4:15-cv RWS Doc. #: 27 Filed: 01/21/16 Page: 1 of 6 PageID #: 160

Case: 1:15-cv Document #: 34 Filed: 01/20/16 Page 1 of 6 PageID #:132

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION. v. Honorable Thomas L. Ludington

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Transcription:

Case: 1:03-cv-02463 Document #: 277 Filed: 08/30/06 Page 1 of 6 PageID #:3445 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION KEVIN VODAK, et al., individually and on behalf of others similarly situated v. CITY OF CHICAGO, et al., Plaintiffs, Defendants. CITY OF CHICAGO, v. Counter-Plaintiff, KEVIN VODAK, et al., individually and on behalf of others similarly situated, Counter-Defendants. Case No. 03 C 2463 Judge Virginia M. Kendall MEMORANDUM OPINION AND ORDER Eleven plaintiffs ( Plaintiffs brought this class action against the City of Chicago ( the City, the Chicago Police Department ( the CPD, and various Command Personnel and officers of the CPD (collectively, Defendants. On April 17, 2006, this Court certified a class consisting of all persons who were surrounded by Defendants on March 20, 2003 on Chicago Avenue, just east of Michigan Avenue and west of Mies Van Der Rohe Way ( the bounded area, between approximately 8:30 p.m. and 11:30 p.m. On May 16, 2006, Defendant City of Chicago filed a counterclaim against Plaintiffs and the class they represent ( the Counterclaim. The City s counterclaim relies on 8-28-020 of the Municipal Code of the City of Chicago ( the Ordinance : Any person who causes the city or its agents to incur costs in order to provide necessary services as a result of such person s violation of

Case: 1:03-cv-02463 Document #: 277 Filed: 08/30/06 Page 2 of 6 PageID #:3446 any federal, state or local law... shall be liable to the city for those costs. This liability shall be collectible in the same manner as any other personal liability. Taking as true all facts alleged in the counterclaim and construing all reasonable inferences in favor of Counter-Plaintiff, 8-28-020, as applied, does not violate the First Amendment and Counter- Plaintiff has stated a claim for relief under Rule 12(b(6. Further, no novel issue of state law or exceptional circumstance convinces this Court to decline to exercise supplemental jurisdiction over the Counterclaim. Finally, under the Federal Rules and this Court s order the counterclaim is not untimely. Accordingly, Counter-Defendants Motion to Dismiss is denied. Counter-Plaintiff s Allegations Counter-Defendants participated in a march that began in Federal Plaza in downtown Chicago. (Defendant City of Chicago s Amended Counterclaim ( Countercl., 6-7. The march continued until Counter-Defendants eventually were surrounded by members of the CPD. (Countercl. 11. Many of the Counter-Defendants then were arrested. (Id. Counter-Defendants allegedly violated numerous state and local laws during their march through the City of Chicago. (Countercl. 14. Among other violations, Counter-Defendants failed to obtained a permit for their march; hindered, obstructed or delayed traffic on the streets of Chicago; and crossed roadways at points other than those within marked crosswalks. (Id. As a result of Counter-Defendants conduct, the City of Chicago incurred extensive costs to provide necessary services, including the extra police forces that were called in to monitor and control the march and traffic that was disrupted by the march, and costs related to transporting, processing and housing Counter-Defendants who were arrested. (Countercl. 12. DISCUSSION When considering a motion under Rule 12(b(6, a court must take as true all facts alleged 2

Case: 1:03-cv-02463 Document #: 277 Filed: 08/30/06 Page 3 of 6 PageID #:3447 in the counterclaim and construe all reasonable inferences in favor of the counter-plaintiff. Cozzi Iron and Metal, Inc. v. U.S. Office Equipment, Inc., 250 F.3d 570, 574 (7th Cir. 2001. A Rule 12(b(6 motion will not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957. First Amendment Challenges Section 8-28-020 creates liability for persons that violate a federal, state or local law. Even if ostensibly engaging in First Amendment activity, [i]ndividuals who actually engage in illegal acts and individuals who conspire to violate the law can be held liable for their actions. U.S. v. Wilson, 154 F.3d 658, 666 (7th Cir. 1998. Thus, nothing on the Ordinance s face nor in the allegations in the City s counterclaim demonstrate that the Ordinance punishes First Amendment protected activity. To the extent that Counter-Defendants properly were exercising their First Amendment rights by engaging in peaceful protests and had no intent to violate the law, such facts contradict the allegations and cannot be considered under Rule 12(b(6. See Cozzi Iron and Metal, 250 F.3d at 574; Fried Trading Co. v. Austern, 1987 WL 4773, *1 (N.D. Ill. 1987 ( [T]he court must accept as true the well-pleaded facts of the counterclaim. Counter-Defendants argue further that the imposition of the requirement that marchers seek a permit for a spontaneous event is an impermissible restraint on free speech, the spontaneous event being the commencement of the War in Iraq. The City s permitting ordinance contains a specific subsection addressing situations where the normal deadlines cannot be met. Section 10-8-330(c provides that [t]he executive director shall... consider an application for a parade which is filed less than 15 business days before the proposed event, where the purpose of the event is a spontaneous response to a current event, or where other good and compelling causes are shown. 3

Case: 1:03-cv-02463 Document #: 277 Filed: 08/30/06 Page 4 of 6 PageID #:3448 As an initial matter, a government constitutionally may impose a reasonable permit requirement on those wishing to hold a march, parade or rally. See Forsythe County v. The Nationalist Movement, 505 U.S. 123, 130 (1992, citing Cox v. New Hampshire, 312 U.S. 569, 574-76 (1941. Second, on its face, the permitting ordinance does not give the executive director unfettered discretion to issue or deny a permit. The permitting ordinance sets forth in substantial detail the requirements for a permit and 10-8-330(h provides that the executive director shall issue a permit if certain conditions are met. Last, whether Counter-Defendants had time to apply for a permit or whether the City effectively waived the permit requirement by its conduct that is, ratified Counter-Defendants behavior, are questions of fact. Failure to State a Claim Federal notice pleading requires a short and plain statement of a claim. Fed. R. Civ. P. 8(a; see Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994 ( One pleads a claim for relief by briefly describing the events. The statement need not allege all of the facts involved in the claim and can plead conclusions. See Sanjuan, 40 F.3d at 251 (stating that [m]atching facts against legal elements comes later. Any conclusions pleaded, however, must provide the defendant with at least minimal notice of the claim, Kyle v. Morton High School, 144 F.3d 448, 455 (7th Cir. 1998, includ[ing] the operative facts upon which plaintiff bases his claim. Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992. Counter-Plaintiff alleges that each member of the certified class participated in the march, which state and local laws the class members allegedly violated during the march and examples of the services necessary to respond to the alleged violations. These allegations put Counter- Defendants on notice of the factual basis for the Counterclaim and, taking as true all facts alleged in the Counterclaim and construing all reasonable inferences in favor of Counter-Plaintiff, it cannot 4

Case: 1:03-cv-02463 Document #: 277 Filed: 08/30/06 Page 5 of 6 PageID #:3449 be said that the Counter-Plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Accordingly, the allegations state a claim under Rule 12(b(6. Additionally, absent further evidence or argument, the Ordinance does not require that an individual be convicted of a violation before a claim made be brought against him under the Ordinance. While a conviction would go a long way in helping the City meet its burden of proving a violation, the plain language of the Ordinance only requires that the person violated the statute. Assuming this reading gives the City two bites at the apple, Counter-Defendants have offered no law or reason explaining why this is impermissible. Indeed, the principal that an individual can be liable both criminally and civilly for the same conduct is a well-established one. See United States v. Dixon, 509 U.S. 688, 704 (1993. As such, the lack of an allegation that class members were convicted of violating the law is not a ground for dismissing the Counterclaim. Supplemental Jurisdiction This Court has discretion to decline jurisdiction over a claim if either the claim raises a novel or complex issue of State law or in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. 1367(c(1; (4. Counter-Defendants argue that the Counterclaim forces this Court to apply 8-28-020 in the context of a street demonstration a novel and complex issue of state law. Admittedly, there is little Illinois case law on 8-28-020, only two published cases. However, the elements of the Ordinance are straightforward a violation, an injury and causation. In fact, the novel issues of law that are likely to arise will involve the interplay between the Ordinance and the First Amendment, issues that this Court will be as able as a state court to determine. A counterclaim in a class action is the equivalent of a defendant class action. See Channell v. Citicorp Nat l Srvcs., Inc., 89 F.3d 379, 387 (7th Cir. 1996. Defendant class actions for damages 5

Case: 1:03-cv-02463 Document #: 277 Filed: 08/30/06 Page 6 of 6 PageID #:3450 are exceptional. Id. Whether such a claim should proceed under Rule 23 will be a difficult question to answer. However, given that Counter-Defendants admit that the Counterclaim is compulsory, this Court should be the one to answer it. Therefore, this Court will not decline to exercise supplemental jurisdiction over the Counterclaim. Timeliness Federal Rule of Civil Procedure 13(a does not require, as Counter-Defendants contend, that a compulsory counterclaim be filed at the time a defendant file its answer or it is waived. Rule 13(a instead requires that the compulsory counterclaim be brought in the original lawsuit or it is barred. See Burlington Northern R.Co. v. Strong, 907 F.2d 707, 710 (7th Cir. 1990. Judge Coar previously granted the City leave to file an amended Counterclaim... within 30 days of this Court s ruling on the Plaintiffs motion for class certification. Since the City filed within those 30 days, this Court will consider its amended counterclaim timely. Conclusion and Order Wherefore, Counter-Defendants Motion to Dismiss is denied. The parties should continue to appear before Magistrate Judge Nolan regarding all discovery matters and the setting or extension of any discovery schedule. So ordered. Date: August 30, 2006 Virginia M. Kendall, United States District Judge Northern District of Illinois 6