Kevin's Towing, Inc. v. Thomas

• Decision Date: 27 August 2002
• Docket Number: No. 02 C 3947.,02 C 3947.
• Citation: 217 F.Supp.2d 903
• Parties: KEVIN'S TOWING, INC., Plaintiff, v. Bette THOMAS and City of North Chicago, a municipal corporation and body politic, Defendants.
• Court: U.S. District Court — Northern District of Illinois

217 F.Supp.2d 903

KEVIN'S TOWING, INC., Plaintiff, v. Bette THOMAS and City of North Chicago, a municipal corporation and body politic, Defendants.

No. 02 C 3947.

United States District Court, N.D. Illinois, Eastern Division.

August 27, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas C. Crooks, Chicago, Illinois, for plaintiff/counter-defendants.

Michelle J. Hirsch, William W. Kurnik, Knight, Hoppe, Kurnik & Knight, LLC, DesPlaines, Illinois, for defendant/counter-claimant.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court is defendants' motion to dismiss plaintiff's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). For the following reasons, the court grants defendants' motion to dismiss. The court dismisses Count III with prejudice and Counts I and II without prejudice.

I. BACKGROUND

The following facts are taken from plaintiff's second amended complaint, and are assumed to be true for the purposes of defendants' motion to dismiss. From June 1998 through August 22, 2001, plaintiff Kevin's Towing, Inc. ("plaintiff") towed illegally parked cars from a parking lot at 22nd Avenue and Main Street in North Chicago, pursuant to a written agreement with the lot's owner, Edward Hines Lumber Company ("Hines").

On June 30, 2001, shortly before midnight, plaintiff received a telephone call from defendant, Bette Thomas ("Thomas"), mayor of the City of North Chicago ("the City"). During this conversation and at Thomas's request, plaintiff agreed to release a pastor's car from a Waukegan storage lot. When plaintiff's employee arrived at the storage lot at about 12:15 a.m. to release the car, approximately twenty-five to thirty people, including Thomas, were present at the lot. At this time, Thomas requested the release of all the vehicles that had been towed, accused plaintiff of racketeering, and attempted to incite the crowd. Plaintiff released the vehicles to the crowd members who were demanding their cars and waived the storage charges on those vehicles. Then, at some point between June 30, 2001 and August 15, 2001, Thomas used threats and intimidation to induce Hines to terminate its contract with plaintiff.

On July 2, 2001, Thomas spoke with plaintiff's president, Kevin DePerte ("DePerte") and told DePerte that he would lose his towing contract with Hines, that she would attack his business in the local newsletter, and that she was meeting with the mayor of Waukegan and "was not done with [plaintiff] yet." (Second Am.Compl. at 13.)

On August 8, 2001, at the request of Hines's attorney, DePerte signed a contract amendment that prohibited plaintiff from towing cars during special events at Great Lakes unless specifically requested to do so. The contract amendments were intended to appease concerns the City expressed about plaintiff. Despite these amendments, on August 15, 2001, Hines informed plaintiff that it was terminating their contract, effective August 22, 2001. Hines terminated the contract because Thomas said it would be in its best interest to hire All-Star Towing—a company owned by Thomas's nephew—to do his towing in North Chicago. Hines believed Thomas would retaliate if it continued its contractual relationship with plaintiff.

On September 14, 2001, plaintiff filed a two-count complaint against Thomas and the City (collectively "defendants"), in the Circuit Court of the Nineteenth Judicial Circuit, Lake County. On May 24, 2002, plaintiff filed a second amended complaint which added a federal count. Count I of the second amended complaint is a claim for tortious interference with contract under Illinois law. Count II is a claim for abuse of governmental power under Illinois law. Count III is a claim for federal due process pursuant to 42 U.S.C. § 1983 ("§ 1983"). On June 17, 2002, defendants removed the action to federal court because plaintiff's § 1983 claim arises under federal law. This court has jurisdiction over the § 1983 claim pursuant to 28 U.S.C. § 1331 and has supplemental jurisdiction over the remaining state law claims in Counts I and II pursuant to 28 U.S.C. § 1367(a). Before the court is defendants' motion to dismiss plaintiff's second amended complaint under Rule 12(b)(6).

II. DISCUSSION

A. Standard for Deciding a Rule 12(b)(6) Motion to Dismiss

In ruling on a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff. Hickey v. O'Bannon, 287 F.3d 656, 657 (7th Cir. 2002). The purpose of a motion to dismiss is not to decide the merits of the challenged claims but to test their sufficiency under the law. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). In deciding a motion to dismiss, the court reads a complaint liberally, dismissing the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that entitles him to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Defendants argue that Count III should be dismissed because (1) plaintiff has failed to establish the existence of a property right protectable by the United States Constitution, and (2) plaintiff has state remedies available which foreclose a federal due process claim. Defendants and plaintiff agree that if this court dismisses Count III, then it should relinquish jurisdiction over Counts I and II.

B. Count III: Federal Due Process Claim¹

A plaintiff is not deprived of property without due process of law if a predeprivation hearing is impracticable and the state provides an adequate postdeprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). A predeprivation hearing is impracticable when the deprivation of property results from "random or unauthorized" conduct of a state or local official, rather than as a result of an existing state policy or rule. The rationale is that "`when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply `impracticable' since the state cannot know when such deprivations will occur.'" Gable v. City of Chicago, 296 F.3d 531, 539 (7th Cir.2002) (quoting Hudson, 468 U.S. at 533, 104 S.Ct. 3194). The Seventh Circuit has explained:

Section 1983 must be preserved to remedy only those deprivations which actually occur without adequate due process of law, such as those which result from a state's conscious decision to ignore the protections guaranteed by the Constitution. It should not be employed to remedy deprivations which occur at the hands of a state employee who is acting in direct contravention of the state's established policies and procedures which have been designed to guarantee the very protections which the employee now has chosen to ignore. Such a limitation upon § 1983 maintains the delicate balance between the state and federal judicial systems, leaving the former to remedy individual torts and the latter to address property deprivations which occur without adequate due process protection.

Easter House v. Felder, 910 F.2d 1387, 1404-05 (7th Cir.1990) (emphasis in original). In cases involving "random or unauthorized" conduct a plaintiff must either (1) avail itself of available state law remedies, or (2) demonstrate that those state law remedies are inadequate. Hudson, 468 U.S. at 539, 104 S.Ct. 3194. If an adequate remedy exists, there has been no deprivation of due process. Id. See Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (stating that to sufficiently allege a violation of procedural due process under § 1983, a plaintiff must challenge the fundamental fairness of state procedures in the complaint).

First, the court must determine if the alleged deprivation of property here resulted from "random or unauthorized" conduct of a state or local official. Second, if the court determines that the conduct was "random and unauthorized," then it must examine the adequacy of postdeprivation remedies.

1. "Random and unauthorized" conduct

To determine whether postdeprivation remedies alone satisfy due process, the court first must determine whether the state actor's conduct is "random and unauthorized," as opposed to "predictable and authorized." Easter House, 910 F.2d at 1400. Whether a defendant's conduct is "random and unauthorized" is a question of law appropriate for resolution in a motion to dismiss. Hamlin, 95 F.3d at 584 n 2 (citing cases). The court must apply a two-part test to determine whether the state actor's conduct is considered "random and unauthorized" or "predictable and authorized": first, the court must determine whether the official exercises a certain degree of discretion in his or her position; and second, the court must determine the extent to which the state official's discretion is "uncircumscribed." Id.

Accepting the allegations in the complaint as true, the court finds that the defendants' alleged actions are "random and unauthorized." First, defendants' conduct was "random," not "predictable," under the first part of this test because, although Thomas, as mayor, exercises a certain degree of discretion in her position, this discretionary authority certainly does not extend to interference with private contracts to which the City is not a party. Her conduct, though possibly causing a deprivation of property, is not "predictable" from the point of view of the state, and could not have been prevented through the implementation of additional predeprivation procedural safeguards. See Easter House, 910 F.2d at 1400-01 (determining whether conduct is "predictable" from the point of view of the state). Second, Thomas's alleged actions were "unauthorized" rather than "authorized" because, "although the alleged deprivation did arguably occur at the hands of a `high ranking official,' it is clear that it was not the result of that official's `abuse of ......