Gates v. Towery
| Citation | 456 F.Supp.2d 953 |
| Decision Date | 16 October 2006 |
| Docket Number | No. 04 C 2155.,04 C 2155. |
| Parties | Elton GATES and Luster Nelson, Plaintiffs, v. Officer B. TOWERY, Star No. 8233, Officer P. Galiardo, Star No. 19174, Officer Echols, Star No. 12329, Officer Collier, Star No. 18240, Philip Cline, Superintendent of Police for the City of Chicago, and the City of Chicago, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Thomas M. Peters, Law Offices of Thomas Peters, Kevin R. Peters, Law Offices of Kevin Peters, Mary F. Desloover, Law Offices of Mary Desloover, Chicago, IL, for Plaintiffs.
Jonathan Clark Green, Chicago Corporation Counsel, Robert W. Barber, Mara Stacy Georges, City Of Chicago, Department of Law, Brian L. Crowe, Allan T. Slagel, John J. Hagerty, Kim Renee Walberg, Suzanne L. Sias, Shefsky & Froelich Ltd, Chicago, IL, for Defendants.
Plaintiffs, Elton Gates and Luster Nelson (collectively "Plaintiffs"), have brought a class action law suit against the City of Chicago ("the City") and Superintendent of Police, Philip Cline (together, "the City Defendants"), as well as police officers Brian Towery, Paul Galiardo, James Echols, and Dwayne Collier (together, "the Officer Defendants") (the City Defendants and the Officer Defendants collectively, "Defendants"). Plaintiffs allege that Defendants violated the Fourteenth Amendment Due Process Clause and Illinois law by seizing money found in the vicinity of a person placed under arrest, issuing an inventory receipt for the money stating that the arrestee will be notified when the money is available for release, and then never providing notice that the money is available. Plaintiffs further allege that Defendants ignored their repeated demands for the return of their property. Presently before this Court are two sets of motions: Defendants' motion to dismiss Plaintiffs' Fifth Amended Class Action Complaint ("the Fifth Amended Complaint") (R. 204-1) and Plaintiffs' and the City Defendants' cross-motions to modify the class definition (R. 194; R. 200).
This case has a long history in this Court, which has already authored three opinions, one of which has been appealed and affirmed by the United States Court of Appeals for the Seventh Circuit. See Gates v. Towery, 331 F.Supp.2d 666 (N.D.Ill.2004) ("Gates I "); Gates v. Towery, No. 04 C 2155, 2004. WL 2583905 (N.D.Ill. Nov.10, 2004) ("Gates II "), aff'd, 430 F.3d 429 (7th Cir.2005) ("Gates III"); Gates v. Towery, 435 F.Supp.2d 794 (N.D.Ill.2006) ("Gates IV"). The facts and previous proceedings are summarized below to the extent that they are relevant to the present motions.
Plaintiffs' initial complaint was filed on March 23, 2004. In that complaint Gates alleged on behalf of himself and all others similarly situated that the City Defendants and officers Towery and Galiardo had violated his due process rights. (R. 1.) The complaint was later amended on May 4, 2004, to add Nelson as a plaintiff and officers Echols and Collier as defendants. (R. 9, Am.Compl.) Since it was initially filed, the complaint has been amended five times.
In the latest iteration of the complaint, Gates alleges he was arrested January 14, 2003, in Chicago, Illinois, at which time $113.00 was taken from him by officers Towery and Galiardo. (R. 192, Fifth Am. Compl., Count I, ¶ 8.) Nelson alleges that he was arrested on February 4, 2004, in Chicago, Illinois, for a narcotics violation, at which time $59.00 was taken from him by officers Collier and Echols. (Id., Count II, ¶ 8.) Both Gates and Nelson claim that they were issued an inventory receipt for the money that was taken from them. (Id., Count I, ¶¶ 11-12 & Count II, ¶¶ 11-12.) According to Plaintiffs, each of the inventory receipts advised that they would subsequently be notified when their property was available for return. (Id., Count I, ¶ 13 & Count II, ¶ 13.) Plaintiffs allege, however, that Defendants were aware that neither the arresting officers nor the City would ever actually send them notice that the seized property would be returned. (Id., Count I, ¶ 14 & Count II, ¶ 14.) Plaintiffs allege that this practice of issuing "misleading" inventory receipts and then never giving notice that the property was available for return was Defendants' "custom and policy." (Id., Count I, ¶¶ 9, 25 & Count II, ¶¶ 9, 25.)
On May 5, 2004, Plaintiffs moved for class certification. In Gates II, this Court held that Plaintiffs met the requirements for class certification as set forth in Federal Rule of Civil Procedure 23(a).1 2004 WL 2583905, at *5-*8. Further, the Court held that Plaintiffs met the requirements for class certification under either Rule 23(b)(2) or 23(b)(3). Id. at *8-*9. Accordingly, the following class was certified:
All those persons who, after June 26, 2001, had property taken from them upon their arrests by Chicago police officers provided: a) the criminal charges against them have been resolved in the trial court; b) no forfeiture action was commenced against the seized property; c) the time for filing a forfeiture action has expired; d) the property was not inventoried as evidence in any criminal investigation; e) the arrestee was issued an inventory receipt when arrested indicating that the arrestee would be notified when the property was available for pick-up; and f) the money has not been returned to the arrestee.
The Seventh Circuit granted Defendants' petition for interlocutory appeal of the class certification decision on December 28, 2004. (R. 42.) In the appeal, Defendants principally argued that certification was improper because the case was mooted when the City sent the named plaintiffs checks for the amounts seized in the summer of 2004. Gates III, 430 F.3d at 430. The Seventh Circuit rejected Defendants' mootness arguments, concluding the tender was insufficient to meet Plaintiffs' demand for damages. Furthermore, based on the City's assertions that it had changed its operating procedures effective December 14, 2004, the Seventh Circuit opined:
It may be that the changes in Chicago's operating procedures would make prospective relief inappropriate — indeed Gates and Nelson lack standing to seek it, because they do not contend that they are likely to be arrested again . . . . To the extent that they want an injunction requiring the City to compensate them for past losses, they are on a snipe hunt. There's no such animal, beyond the equitable remedy of restitution — and the City stands ready to hand over the amounts it seized in order to avoid unjust enrichment. If the constitutional sufficiency of the City's current policies is in dispute, some person adversely affected by them.(as Gates and Nelson are not) will have to take up the cause.
After the Seventh Circuit issued its decision, Plaintiffs filed a fourth amended complaint in which they added new counts requesting compensatory and punitive damages for conversion and replevin under Illinois law and for the return of the class members' property under the Illinois Uniform Disposition of Unclaimed Property Act ("UDUPA"), 765 Ill. Comp. Stat. 1025/1 (2006), et seq. (R. 82, Fourth Am. Compl.) This Court granted Plaintiffs' motion to certify a supplemental class to accommodate the new state law claims on March 30, 2006. (R. 143, Minute Entry.) Defendants thereafter filed a motion to dismiss the fourth amended complaint. In Gates IV, we granted the motion to dismiss with respect to the UDUPA claims, but denied the motion with respect to the state law claims for conversion and replevin. 435 F.Supp.2d at 805. Following this Court's decision in Gates IV, Plaintiffs filed two motions, a motion for leave to file the Fifth Amended Complaint (R. 192-1) and the motion to modify the class definition that is presently before the Court (R. 194). The Fifth Amended Complaint added new state law claims for unjust enrichment, constructive trust, declaratory judgment, and breach of fiduciary duty. (R. 192, Fifth Am. Compl.) Plaintiffs' motion for leave to file the Fifth Amended Complaint was granted on June 27, 2006. (R. 196, Minute Entry.)
There are currently three motions pending before this court: Defendants' motion to dismiss the Fifth Amended Complaint; Plaintiffs' motion to modify the class definition; and the City Defendants' cross motion to modify the class definition. In their motion to dismiss, Defendants request that the Court dismiss for failure to state a claim the claims for unjust enrichment, constructive trust, declaratory judgment, and breach of fiduciary duty, and dismiss all of Nelson's claims because they are barred by res judicata. In Plaintiffs' motion to modify the class definition, Plaintiffs request that the Court revise the class definition so that persons arrested after December 13, 2004, fall within the class. In their cross-motion, the City Defendants request substantive changes to the class definition as well as changes in the time limits for entering the class.
We turn first to Defendants' motion to dismiss various claims contained in the Fifth Amended Complaint.
This Court will only dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) if it appears "beyond doubt that the plaintiff cannot prove any set of facts" in support of his claim which would entitle him to relief. Tobin for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 521 (7th Cir.2001) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In considering a Rule 12(b)(6) motion, this Court draws all reasonable inferences in favor of the plaintiff and accepts as true all well-pleaded factual allegations contained in the complaint. Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir.2000).
Defendants seek dismissal of four of the...
To continue reading
Request your trial
-
Phipps v. Sheriff of Cook County
...definition was inadequate. If that were true, it would be necessary only to alter the class definition; see, e.g., Gates v. Towery, 456 F.Supp.2d 953, 966 (N.D.Ill.2006) ("After certifying a class, the Court retains broad power to modify the definition of the class if it believes that the c......
-
Scott v. Westlake Servs., LLC
...a request to certify a restitution class because the Court found that those claims were moot. Gates v. Towery, 456 F.Supp.2d 953, 961 (N.D.Ill.2006) (hereinafter “ Gates II ”) (Castillo, J.), aff'd sub nom. Gates v. City of Chi., 623 F.3d 389 (7th Cir.2010). In Gates II, this Court held As ......
-
Gates v. Towery
...794 (N.D.Ill.2006) ("Gates IV") (partially granting and partially denying Defendants' motion to dismiss); Gates v. Towery, 456 F.Supp.2d 953 (N.D.Ill.2006) ("Gates V") (redefining the `class and partially granting Defendants' motion to dismiss). The extensive procedural history of this case......
-
Currie v. Wisconsin Cent., Ltd.
...money damages “are entitled to personal notice and opportunity to opt out.” (Internal quotation marks omitted.) Gates v. Towery, 456 F.Supp.2d 953, 963 (N.D.Ill.2006). Plaintiff received notice at his current address and was provided with an opportunity to opt out of the class. The notice r......
-
Transnational class actions and interjurisdictional preclusion.
...392 (9th Cir. 1992) (stating that due process requires an opportunity to opt out if monetary claims are involved) ; Gates v. Towery, 456 F. Supp. 2d 953, 963 (N.D. Ill. 2006) ("Absent class members seeking non-incidental money damages may only be barred by res judicata if they have been aff......