Jones v. Dixon, 12 C 10027
| Decision Date | 04 March 2014 |
| Docket Number | 12 C 10027 |
| Parties | KENNETH E. JONES, Plaintiff, v. MILTON N. DIXON, JR.; CHARLOTTE C. DE LA TORRE; KEVIN M. STAPLETON; GERALD SHEPPARD; LAWRENCE R. LOWREY, JR.; MARIO M. MENDOZA; HECTOR VILLANUEVA; CORTNEY D. JACKSON; DEROD HENDERSON; PASQUELL D. ROBINSON; and CITY OF CHICAGO, a municipal corporation, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth E. Jones commenced this action against various police officers and the City of Chicago ("City") alleging use of excessive force and failure to intervene in violation of 42 U.S.C. § 1983. The City moves to dismiss Jones' claim for recovery as third-party beneficiary of contract (Count V of the Complaint) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Specifically, the City asserts that Jones lacks standing as a third-party beneficiary to the contract at issue, that the Court has no subject matter jurisdiction over this claim, and that the claim is not ripe for adjudication. For the reasons stated below, the City's Motion to Dismiss is granted.
The following facts are taken from Jones' Second Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). On August 23, 2011, Jones was being chased on foot by two men in Chicago, Illinois. (Docket No. 24, Second Amended Complaint ¶ 17). One of the two men, an individual named Hermaine Ralsston, flagged down two Chicago police officers, Milton Dixon and Charlotte De La Torre, that he had been shoved by Jones and that Jones had stolen a chain he had been wearing. (Compl. ¶ 18). Officers Dixon and De La Torre pursued Jones on foot and caught up to him in the backyard of a residence, at which point he immediately and voluntarily dropped to his knees and raised his open hands above his head (Id. at ¶19-21). Without speaking, Dixon drew his Taser and fired at Jones, hitting him with the electrical charge. (Id. at ¶ 22). At no time prior to deploying the Taser did any of the police officer defendants speak to or warn Jones. (Id. at ¶ 24).
At all relevant times, the City was a party to two collective bargaining agreements: (1) an Agreement Between the City of Chicago Department of Police and the Fraternal Order of Police Chicago Lodge No.7 ("Agreement 1") and (2) an Agreement Between the City of Chicago and the Policemen's Benevolent & Protective Association of Illinois, Unit 156-Sergeants ("Agreement 2") (collectively "the Agreements"). . Section 22.1 of Agreement 1 provides:
Agreement 1 Section 22.1. Section 22.1 of Agreement 2 provides a similar protection to Sergeants:
The Employer shall be responsible for, hold Sergeants harmless from and pay for damages or monies which may be adjudged, assessed, or otherwise levied against any Sergeant covered by this Agreement, subject to the conditions set forth in Section 22.4.
Agreement 2 Section 22.1. The Agreements provide this indemnification with the requirement that the officer or Sergeant is acting within the scope of employment. (Compl. ¶¶ 53 & 56).
Jones claims that he is a third-party beneficiary to the Agreements in Count V of his Second Amended Complaint such that he can enforce the indemnity provisions of the Agreements between the City and the police officer defendants in the event of a judgment in his favor. The City now moves this Court to dismiss Count V pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1); United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.2003). "If subject matter jurisdiction is ... not evident on the face of the complaint, the motion to dismiss ... would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true. United Phosphorus, 322 F.3d at 946; Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993) citing Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). The party asserting jurisdiction must establish it by "competent proof." United Phosphorus, 322 F.3d at 946; NFIC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir.1995) citing McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780 (1936). This means that jurisdiction must beestablished by a preponderance of the evidence or "proof to a reasonable probability." NFIC, 45 F.3d at 237, citing Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir.1993).
When considering a motion to dismiss under Rule 12(b)(6), this court will accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A plaintiff need not allege all facts involved in the claim. See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994). However, in order to survive a motion to dismiss for failure to state a claim, the claim must be supported by facts that, if taken as true, at least plausibly suggest that the plaintiff is entitled to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, (2009).
As a preliminary matter, the Agreements do not provide for mandatory arbitration. Section 22.5 of the Agreements states that grievances may be initiated through an expedited arbitration procedure (emphasis added). Under Illinois law, in interpreting contract terms, a court must first look to the plain language of the contract itself. Wilson v. Career Educ. Corp., 729 F.3d 665, 671 (7th Cir. 2013). In common usage, the word "may" is permissive and not mandatory. Estate of Ahmed, 322 Ill. App.3d 741, 746, 750 N.E.2d 278, 255 Ill. Dec. 697 (1st Dist. 2001).
When a motion to dismiss questions subject matter jurisdiction, that determination must be addressed first. See Cook v. Winfrey, 141 F.3d 322, 324 (7th Cir. 1998). Once a courtdetermines that it has jurisdiction over claims, it may then proceed to test the sufficiency of the claim's pleadings pursuant to Rule 12(b)(6). Angsten v. Blameuser, 2005 WL 3095513, *2 (N.D. Ill. Nov. 16, 2005). The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. This Court exercises original jurisdiction over Counts One, Two, and Three of Jones' Complaint because they arise under federal civil rights law. 28 U.S.C. § 1331, 42 U.S.C. § 1983. However, Count Five of Jones' Complaint arises under Illinois law. Therefore, the issue of whether the Court has jurisdiction over this claim hinges upon whether supplemental jurisdiction is proper.
Count Five falls within the supplemental jurisdiction of the Court. In a civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. 28 U.S.C. § 1367(a). In order for state claims to be within the court's supplemental jurisdiction, "[t]he state and federal claims must derive from a common nucleus of operative fact." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130 (1966) (). A loose factual connection between the claims is generally sufficient. Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995).
The federal and state claims in this case arise out of a common nucleus of operative facts. The state claim brought by Jones pertains to the same set of circumstances at issue in the federal claim. The crux of the state law claim is that the City is liable to Jones for the conduct of the City police officer defendants which gave rise to the federal excessive force and failure to intervene claims. See Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008) (supplemental jurisdictionexists when First Amendment retaliation claim regarding discipline for reporting assault by a fellow employee is related to underlying assault and battery state law claims; see also Wilson v. City of Chicago, 120 F.3d 681, 684 (7th Cir. 1997) (). The state claim of recovery as third-party beneficiary to the Agreements necessarily stems from the same events and facts underlying the federal claims. Without the underlying federal claims against the police officer defendants, Jones would have no potential judgment to recover from the City. The acts allegedly committed by the police officer defendants that comprise the federal claims also create the prospective liability the City now faces under the Agreements, and the determinations regarding whether a violation occurred and liability for that violation should occur in the same sitting. See Wilson, 120 F.3d at 684. Because the state and federal claims arise out of the same factual predicate, this Court would have jurisdiction provided that Jones stated a claim for which relief can be granted.
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