Falk v. Kane Cnty. Sheriff Patrick B. Perez

• Decision Date: 12 September 2013
• Docket Number: Case No. 12 CV 1384.
• Citation: 973 F.Supp.2d 850
• Court: U.S. District Court — Northern District of Illinois
• Parties: Sonia FALK, Plaintiff, v. Kane County Sheriff Patrick B. PEREZ, Kane County Sheriff's Deputy Brian Lewis, & Wells Fargo Bank, Defendants.

973 F.Supp.2d 850

Sonia FALK, Plaintiff,

v.Kane County Sheriff Patrick B. PEREZ, Kane County Sheriff's Deputy Brian Lewis, & Wells Fargo Bank, Defendants.

Case No. 12 CV 1384.

United States District Court,

N.D. Illinois,

Eastern Division.

Sept. 12, 2013.

Christopher Rudolf Smith, James M. Baranyk, Smith, Johnson & Antholt, LLC, Chicago, IL, for Plaintiff.

Deborah Ann Lang, Erin M. Gaeke, Joseph F. Lulves, Geneva, IL, Sheldon Toby Zenner, Monica J. Mosby, Katten Muchin Rosenman LLP, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, Chief Judge.

Plaintiff Sonia Falk brings this action under 42 U.S.C. § 1983 (“Section 1983”) against Defendants Kane County Sheriff Patrick B. Perez (“Defendant Perez”), Kane County Sheriff's Deputy Brian Lewis (“Defendant Lewis”), and Wells Fargo Bank (“Wells Fargo”) alleging violations of the Fourth and Fourteenth Amendments of the Constitution. (R. 46, Third Am. Compl. ¶¶ 4–6, 25, 30.) Presently before the Court is a motion to dismiss brought by Defendants Perez and Lewis (“Moving Defendants”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 48, Defs.' Mot. Dismiss.) For the reasons stated below, the motion is granted in part and denied in part.

RELEVANT FACTS

In 2008, PNC Bank ¹ began foreclosure proceedings on a residential home located at 1059 Stephen Court, Aurora, Illinois, 60502 (“Residence”) and owned by Tommy Hillard. (R. 46, Third Am. Compl. ¶ 17.) On August 22, 2011, as a result of the foreclosure proceedings against Hillard, the Circuit Court of Kane County entered an “Order Approving Report of Sale and Distribution, Confirming Sale, and Order for Possession” (“August 22 Order”) ² of the Residence. (R. 46, Third Am. Compl. ¶ 16; R. 55–1, August 22 Order at 3.) The August 22 Order provides, in relevant part:

That the successful bidder, or its assigns, is entitled to and shall have possession of the mortgaged real estate as of a date 30 days after entry of this Order, without further Order of Court, as provided in Section 15–1701 of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15–1701);

That in the event possession is so withheld, the Sheriff of Kane County is directed to evict and dispossess Tommy L. Hillard from the mortgaged real estate commonly known as 1059 Stephen Court, Aurora, 60502 without further Order of Court, and;

That there is no just cause for delay in the enforcement of or appeal from this order.

(R. 55–1, August 22 Order at 3.) At the time the August 22 Order was entered, Plaintiff, who was not a named party in the foreclosure action, was a tenant in the Residence. (R. 46, Third Am. Compl. ¶¶ 3, 18.) She was there under a signed lease and was current on her rent. ( Id. ¶ 18.) Plaintiff alleges that Defendants did not file a supplemental petition against her in accordance with the Illinois Mortgage Foreclosure Act, 735 Ill. Comp. Stat. 5/15–1701(4) (“Illinois Foreclosure Act”). ( Id. ¶ 21.)

Plaintiff alleges that on September 29, 2011, at roughly 12:30 p.m., Defendant Lewis, accompanied by three unknown individuals, came to her door and told her the group was there to remove her from the premises. ( Id. ¶¶ 7–8.) Defendant Lewis stated that he was acting on behalf of the bank that held the mortgage to the Residence. ( Id. ¶ 9.) Defendant Lewis did not show Plaintiff an eviction notice, a judgment from an unlawful detainer proceeding, or a warrant. ( Id. ¶ 10.) Plaintiff avers that Defendant Lewis proceeded uninvited into her dwelling, went through her belongings, locked her out of the Residence, and took possession and control of her personal property along with the Residence. ( Id. ¶¶ 11–13.) Defendant Lewis did not take any steps to secure or safeguard Plaintiff's personal property, and as a result, she lost her family heirlooms, furniture, clothing, identification, and checkbooks. ( Id. ¶¶ 14–15, 23.)

Plaintiff claims that Defendant Lewis's allegedly unlawful actions arose out of widespread policies and practices at the Kane County Sheriff's Department (“Department”). ( Id. ¶ 27.) Namely, she alleges that the Department, headed by Defendant Perez: (a) failed to adequately supervise, discipline and control its officers; (b) allowed such misconduct to continue as a matter of practice; (c) failed to secure and protect the rights of tenants in eviction and foreclosure actions; and (d) was deliberately indifferent to unlawful searches and seizures of tenants' property during evictions. ( Id. ¶¶ 27(a)-(d).) Plaintiff does not allege additional facts regarding the Department's policies or practices.

PROCEDURAL HISTORY

Though Plaintiff has filed a complaint and three amended complaints, (R. 1, 7, 20, 46), the crux of her claim has remained relatively unchanged. The first and subsequent amendments to the complaint resulted from appointment of counsel and from difficulties in identifying Defendant Lewis as the officer who evicted her and Wells Fargo as the assignee of the mortgage for the foreclosed Residence.

On February 27, 2012, Plaintiff initiated this action by filing a pro se complaint. (R. 1, Compl.) At that time, she also sought the appointment of counsel. (R. 5, Pl.'s Mot. Counsel.) The Court granted Plaintiff's motion for appointment of counsel and dismissed her initial complaint without prejudice on March 22, 2012, so that Plaintiff could file a proper amended complaint. (R. 6, Min. Entry.) On June 19, 2012, Plaintiff filed her first amended complaint naming as defendants the Department, Kane County, and an Unknown Kane County sheriff, (R. 7, First Am. Compl.), who had identified himself only as “Brian,” ( Id. ¶ 8). After unsuccessful attempts to settle and the filing of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim by the Department and Kane County, (R. 11, Min. Entry; R. 13, Defs.' First Mot. Dismiss), the Court granted Plaintiff leave to amend her first amended complaint on August 21, 2012, (R. 19, Min. Entry).

On September 26, 2012, Plaintiff filed a second amended complaint, naming as defendants Perez and Lewis (who was previously identified as the Unknown Kane County sheriff), PNC Bank, and National City Bank. (R. 20, Second Am. Compl. ¶¶ 4–6.) On December 3, 2012, Moving Defendants moved to dismiss Plaintiff's second amended complaint pursuant to Rule 12(b)(6) for failure to state a claim. (R. 31, Defs.' Second Mot. Dismiss.) PNC Bank answered the second amended complaint on December 27, 2012, and stated that it had merged with National Bank. (R. 38, PNC Bank's Answer H 6.) More importantly, PNC Bank identified Rushmore Loan Management Services, LLC as the loan servicer during August and September 2011, for the mortgage at issue in the underlying foreclosure action and Wells Fargo (not in its individual capacity, but solely as Trustee for the RMAC Trust, Series 2010–7T) as the assignee of the Residence during August and September 2011. (R. 38, PNC Bank's Answer at 13.)

On January 18, 2013, Plaintiff sought leave to amend her complaint yet again, noting the difficulty in identifying “those private parties who caused [Plaintiff's] improper eviction.” (R. 42, Pl.'s Mot. Amend at 1.) The Court granted the motion to amend on January 23, 2013, (R. 44, Min. Entry), and Plaintiff filed her third amended complaint on January 25, 2013, (R. 46, Third Am. Compl.). The third amended complaint replaced PNC Bank and National City Bank with Wells Fargo and retained Moving Defendants. ( Id. ¶¶ 4–6.) A summons was issued to Wells Fargo on January 28, 2013, and returned executed on February 7, 2013. (R. 47, Executed Summons.) Wells Fargo subsequently failed to timely appear, answer, or otherwise plead to Plaintiff's third amended complaint, and on March 7, 2013, the Court entered a default judgment against Wells Fargo. (R. 51, Min. Entry.) The Court also retained jurisdiction to enter a final, specific judgment against Wells Fargo.³ ( Id.)

Plaintiff brings suit pursuant to 42 U.S.C. § 1983. (R. 46, Third Am. Compl.) In Count I, Plaintiff alleges that Defendant Lewis conducted an unlawful search and seizure of her dwelling and personal property during the eviction in violation of her Fourth Amendment rights. ( Id. ¶ 25.) In Count II, Plaintiff avers that Defendant Lewis took possession of her property without providing due process, in violation of her Fourteenth Amendment rights. ( Id. ¶ 30.) She sues Defendant Lewis in his individual capacity. ( Id. ¶ 4.) Plaintiff also alleges that Defendant Lewis's misconduct was the result of Defendant Perez's “deliberate indifference to policies and widespread practices” in the Department. ( Id. ¶¶ 27, 32.) Plaintiff also asserts several state-law claims: conversion (Count III); unlawful eviction in violation of the Illinois Forcible Entry and Detainer Act (“Illinois Entry Act”), 735 Ill. Comp. Stat. 5/9–101 et seq. (Count IV); a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 Ill. Comp. Stat. 505/1 et seq. (Count V); indemnification against the Department and Kane County pursuant to Article IX, Section 9–102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (“Illinois Tort Immunity Act”), 745 Ill. Comp. Stat. 10/9–102 (Count VI); and respondeat superior against the Department and Kane County (Count VII). ( Id. ¶¶ 35–56.)

On February 20, 2013, Moving Defendants moved to dismiss Plaintiff's third amended complaint for failure to state a claim pursuant to Rule 12(b)(6). (R. 48, Defs.' Mot. Dismiss.) With respect to her federal claims, Moving Defendants raise three principal arguments. (R. 49, Defs.' Mem. at 2–8.) They first argue that Plaintiff has failed to state a well-pleaded claim under Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because she relies on “conclusory allegations” of a policy or practice which are insufficient under Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, ...