Hancock v. Sotheby'S
| Decision Date | 20 December 2018 |
| Docket Number | No. 18 C 4580,No. 17 C 7446,17 C 7446,18 C 4580 |
| Parties | JAMAL LAVAN HANCOCK and LAVAN GALLERIES LLC, Plaintiffs, v. SOTHEBY'S f/k/a SOTHEBY'S HOLDINGS INC., BENJAMIN DOLLER (Individually), SOTHEBY'S INC., and ALLAN GOTLIEB (Individually), Defendants. JAMAL L. HANCOCK and LAVAN GALLERIES LLC, Plaintiffs, v. CITY OF CHICAGO (a Municipal Corporation), CITY OF CHICAGO POLICE DEPARTMENT, DETECTIVE TIMOTHY E. CERVEN (STAR #S 5792,16759,20971), OFFICER JOHN WILLIAMS (STAR # 14475) OFFICER TRE HARDIMAN, OFFICER HARRY HOSEFOWICZ, SUPERVISING OFFICER TIMOTHY J. FLISK (STAR # 1855), SUPERVISING OFFICER KATHIE PARK (STAR # 2189), GARY METZNER (An Individual), Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION AND ORDER
These cases are the third and fourth lawsuits in a series of litigation between Plaintiff Jamal Lavan Hancock and Defendant Sotheby's, formerly known as Sotheby's Holdings Inc. Their relationship began when Hancock reached out to Sotheby's in 2012 to inquire about selling some of his fine arts collection through the broker. On two occasions in 2012 and 2014, Hancock provided hundreds of pictures to the company's employees in the hopes that they would help broker sales for him. By February 2016, Hancock still had not received a response regarding his submissions and believed that this was in part due to racial discrimination. Hancock wrote to Defendants Benjamin Doller and Allan Gotlieb regarding his concerns. Sotheby's Holdings Inc. then sought an emergency TRO and permanent injunction in Cook County Circuit Court, alleging that Hancock had been harassing the company and its employees. The circuit court denied the TRO and Sotheby's Holdings Inc. ultimately dropped the suit.
Hancock then brought suit in federal court—these present cases are his second and third cases on these facts in front of this Court. Along with his company Lavan Galleries LLC ("Lavan Galleries"), Hancock brings claims in the second case ("Hancock II") against Defendants Sotheby's, Doller, Sotheby's Inc., and Gotlieb for malicious prosecution, civil conspiracy (as to Doller and Gotlieb), intentional infliction of emotional distress ("IIED"), abuse of process, conversion, and conspiracy under 42 U.S.C. § 1985(3). He also brings claims against Sotheby's and Sotheby's Inc. (collectively, "Sotheby's") for conversion, intentional misrepresentation, and fraud. In the third case ("Hancock III"), in addition to a variety of claims against Defendants City of Chicago, Chicago Police Department, and various individual police officers that the Court does not address in this Opinion,1 Hancock brings substantially similarclaims for malicious prosecution, IIED, conspiracy under § 1985(3), and conversion against Defendant Gary Metzner.2 The Sotheby's Defendants, with the exception of Gotlieb, move to dismiss the claims against them. Because the Court finds that Plaintiffs have not pleaded facts to support all of the elements of any of their claims, it grants the Sotheby's Defendants' motion to dismiss, with the exception that the Court finds the § 1985(3) conspiracy claim in Hancock II distinct from the one in Hancock III, and reserves ruling on the claim in Hancock III until the the parties have fully briefed that issue.
Hancock founded Lavan Galleries, an art gallery in Chicago, and serves as its executive director. Sotheby's is a fine arts broker with an office in Chicago, and Hancock approached it 2012 in the hopes of having it value or list his fine art collections. He made an appointment to bring in photographs of his collection and meet with Metzner, a manager. That day, he first met with Sotheby's employee Jennifer Dybsky. He provided about 400 photographs of his collection to her, and she told him that she would submit the photographs to Sotheby's fine art specialists to review. Hancock is African American and Dybsky is Caucasian, and during their meeting, Hancock believed she may have treated him disrespectfully because of his race. Specifically, she asked him if he knew if he had any contemporary art in his collection (as opposed to simply asking whether he had any contemporary art in his collection). After waiting for a while to see Metzner, who is also Caucasian, Hancock stated to Dybsky, "Perhaps I should come back with atrophy wife and a diamond ring." Hancock II, Doc. 29 ¶ 26. Metzner then came out of his office and informed Hancock that they would send his photos to Sotheby's New York office for authentication and get back to Hancock. He gave his business card to Hancock, and Hancock left.
By mid-August 2014, Hancock still had not heard back from Sotheby's about the photos he submitted. He contacted the Chicago office again and obtained an appointment for August 25, 2014 with Stacey Murrell. Murrell told him to photograph his entire collection and send the photos to her. Hancock then submitted about 1,500 photos to Murrell. In September 2014, Hancock called Metzner to find out the status of the 400 photos submitted in 2012 and 1,500 submitted in 2014. Metzner told him that Sotheby's was still working to determine the value of the photos.
2015 passed, and Hancock heard nothing from Sotheby's about his art collections. During the period from 2012 through 2015, Sotheby's did not publish any of the photographs that Hancock submitted—nor did it return the photos. It also never requested that Hancock stop contacting the company or its employees during that period, and it did not contact the Chicago Police to report that Hancock harassed its employees or trespassed against it.
Hancock generally alleges that he researched and observed that: (1) Sotheby's did not employ any African Americans in the position of art specialist or higher, (2) Sotheby's security personnel scrutinize African Americans more than Caucasians, (3) Sotheby's showcases Caucasian clients' collections more than African American clients' collections, and (4) Sotheby's is more likely to turn down business with African Americans who have criminal records than business with Caucasians who have criminal records. Hancock wrote an email containing his research and observations to Doller, the Executive Vice President and Chairmanof Sotheby's, on February 19, 2016. He sought "explanation as to the disparity in the treatment of African Americans and Caucasians." Hancock II, Doc. 29 ¶ 35. On February 20, 2016, Hancock sent a similar email to Gotlieb, the Chairman of Sotheby's Canada.
Doller and Gotlieb informed the Chicago Sotheby's office that Hancock was harassing them through email. Metzner retained off-duty police officers and, on March 2, 2016, filed a police incident report against Hancock. On March 9, 2016, Sotheby's sought an emergency TRO and permanent injunction against Hancock in Cook County Circuit Court. In pursuing the emergency TRO and permanent injunction, Sotheby's filed the case under the entity Sotheby's Holdings, even though the entity no longer existed. In Sotheby's complaint, it alleged that Hancock became "confrontational" in his interaction with Dybsky and that security noticed Hancock walk by Sotheby's Chicago office three times in one day in February 2016 (shortly after Hancock sent the emails to Doller and Gotlieb). The complaint further alleged that Hancock approached the Sotheby's Chicago office twice on March 2, 2016 and pounded on the glass, prompting security to ask Hancock to leave the premises. According to Hancock, none of these allegations are true. The circuit court denied Sotheby's motion for an emergency TRO, and Sotheby's dismissed its complaint against Hancock on June 6, 2016.
A year later, on June 17, 2017, Hancock filed a complaint in this Court against Sotheby's, some of its employees (including Metzner and Dybsky), and two off-duty police officers whom Sotheby's employed as security. See Hancock v. Sotheby's Holdings, Inc., No. 17 C 4556 (N.D. Ill.) ("Hancock I"). Hancock alleged similar claims to those in Hancock II. The Court dismissed the case for lack of subject matter jurisdiction. During the pendency of Hancock I, Sotheby's returned 375 of Hancock's photographs to him, although Sotheby's maintains that it returned 409. Sotheby's has not yet returned the remaining photographs.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
Rule 9(b) requires a party alleging fraud to "state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). This "ordinarily requires describing the 'who, what, when, where, and how' of the fraud, although the exact level of particularity that is required will necessarily differ based on the facts of the case." AnchorBank, 649 F.3d at 615 (citation omitted). Rule 9(b) applies to "all averments of fraud, not claims of fraud." Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502, 507 (7th Cir. 2007). "A claim that 'sounds in fraud'—in other words, one that is premised upon a course of fraudulent conduct—can implicate Rule 9(b)'s heightened pleading requirements." Id.
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