Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Robert M. Dow, Jr. Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 1436 DATE 12/18/2012

CASE

TITLE

Ruth Fleming vs. Fireside West, LLC

DOCKET ENTRY TEXT

For the reasons stated below, Defendant’s motion to dismiss Counts I, III, and IV [15] is granted. Defendant’s

motion to file a supplemental brief in support of its motion to dismiss [24] is denied as moot and the notice of

motion date of 12/20/2012 is stricken; no appearances are necessary on that date. Plaintiff’s Rule 4 motion for

costs [5 and see 19] is denied. This case is set for further status on 1/15/2013 at 9:00 a.m. The parties are

directed to submit a joint initial status report by 1/11/2013.

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

I. Background

The following allegations are drawn from Plaintiff Ruth Fleming’s complaint. At this stage in the

proceedings, the Court assumes all well-pled allegations to be true and draws all reasonable inferences in

Plaintiff’s favor. See Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007).

In late October 2011, Plaintiff visited the Chicago area from Virginia and stayed at the Lisle/Naperville

Hilton owned by Defendant Fireside West, LLC. On the night of October 27, 2011, Plaintiff went to the

hotel’s restaurant and bar and was served food and alcoholic beverages by Defendant’s employee, Jayson D.

Dabrowski. Plaintiff alleges that Dabrowski put the drug GHB in one of her drinks. Plaintiff consumed at 1

least part of the GHB-laced beverage. 

[FN1] “Gamma-Hydroxybutyric acid (GHB) is another name for the generic drug sodium

oxybate. * * * GHB and its analogues are * * * misused for their ability to increase libido,

suggestibility, passivity, and to cause amnesia (no memory of events while under the influence

of the substance) — traits that make users vulnerable to sexual assault and other criminal acts. 

GHB abuse became popular among teens and young adults at dance clubs and ‘raves’ in the

1990s and gained notoriety as a date rape drug. * * * Use of GHB produces * * * depressant

effects including euphoria, drowsiness, decreased anxiety, confusion and memory impairment.

* * * GHB takes effect in 15 to 30 minutes, and the effects last 3 to 6 hours.” See DEA Drug

Fact Sheet, GHB, http://www.justice.gov/dea/druginfo/drug_data_sheets/GHB.pdf (last

visited December 14, 2012).

Plaintiff soon (“at that date and time”) began to feel the effects of the drug. She went to her hotel room alone

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and passed out. “Shortly after the plaintiff left the bar area, [Dabrowski] went to the hotel front desk and

requested a room key for access to the plaintiff’s room. Without any question or verification, other

employees of the defendant * * * at the hotel front desk gave [Plaintiff’s room key to Dabrowski].” Compl. ¶

9. Dabrowski used the key to enter Plaintiff’s room without permission and while Plaintiff was “in a drug

induced sleep” he “engaged in unwanted * * * sexual contact” with Plaintiff. Compl. ¶ 10. 

Plaintiff alleges that it was unusual for a bartender to ask for a guest-room key, unusual for employees at the

front desk to give the bartender a key, and that it was particularly improper for the front-desk employees to

give a key to Dabrowski because he was “the subject of many complaints for sexual harassment, unwanted

touching of the guests and obnoxious behavior during work hours in full view of the defendant’s customers

and security cameras.” Compl. ¶ 6. 

Plaintiff is a citizen of Virginia, Defendant is an Illinois corporation doing business in Illinois, and Plaintiff is

seeking damages in excess of $75,000. Plaintiff filed her case in federal court, and this Court therefore has

jurisdiction pursuant to 28 U.S.C. § 1332(a). See Trostel & Sons Co. v. Notz, 679 F.3d 627, 629 (7th Cir.

2012). In her complaint, Plaintiff alleges four claims against Defendant, all under Illinois law: Count I:

Respondeat superior for misconduct by hotel employees; Count II: Negligent security; Count III: Negligent

hiring, retention, and supervision; Count IV: Violation of the Illinois’ Gender Violence Act, 740 ILCS 82/10. 

Defendant has moved to dismiss Counts I, III, and IV [15] and answered Count II [17]. Plaintiff’s response

concedes Defendant’s arguments on Counts I and III and agrees that those counts may be dismissed [See 20 at

1]. Plaintiff opposes Defendant’s motion to dismiss Count IV, her Gender Violence Act claim. 

II. Legal Standard

The purpose of a Rule 12(b)(6) motion to dismiss is not to decide the merits of the case; a Rule 12(b)(6)

motion tests the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In

reviewing a motion to dismiss under Rule 12(b)(6), the Court takes as true all factual allegations in Plaintiff’s

complaint and draws all reasonable inferences in his favor. Killingsworth, 507 F.3d at 618. To survive a

Rule 12(b)(6) motion to dismiss, the claim first must comply with Rule 8(a) by providing “a short and plain

statement of the claim showing that the pleader is entitled to relief” (Fed. R. Civ. P. 8(a)(2)), such that the

defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the

factual allegations in the claim must be sufficient to raise the possibility of relief above the “speculative

level,” assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs.,

Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels

and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, “[s]pecific facts are not

necessary; the statement need only give the defendant fair notice of what the * * * claim is and the grounds

upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis

in original). The Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chi.,

631 F.3d 823, 832 (7th Cir. 2011); cf. Scott v. City of Chi., 195 F.3d 950, 952 (7th Cir. 1999) (“Whether a

complaint provides notice, however, is determined by looking at the complaint as a whole.”). 

III. Analysis 

Because Plaintiff concedes that Counts I and III may be dismissed, the only question before the Court in

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deciding Defendant’s motion to dismiss [15] is whether Plaintiff has stated a claim under the Gender

Violence Act, 740 ILCS 82/10 (“IGVA”). The IGVA provides a civil cause of action for victims of genderrelated violence:

Any person who has been subjected to gender-related violence as defined in Section 5 may

bring a civil action for damages, injunctive relief, or other appropriate relief against a person

or persons perpetrating that gender-related violence. For purposes of this Section,

‘perpetrating’ means either personally committing the gender-related violence or personally

encouraging or assisting the act or acts of gender-related violence. 740 ILCS 82/10.

Section 5 of the Act defines “gender-related violence” to include: “[o]ne or more acts of violence or physical

aggression satisfying the elements of battery under the laws of Illinois that are committed, at least in part, on

the basis of a person's sex” and “[a] physical intrusion or physical invasion of a sexual nature under coercive

conditions satisfying the elements of battery under the laws of Illinois.” 740 ILCS 82/5.

Defendant argues that Plaintiff’s IGVA claim should be dismissed for the simple reason that the law applies

only to natural persons, which Defendant (obviously) is not. Defendant thinks it is significant that no Illinois

court has held that an organization or corporate entity could be liable under the act. Plaintiff acknowledges

that Illinois’ state courts have not yet reached this issue, but notes that at least one federal district court has

allowed an IGVA claim against a business to go forward. See Cruz v. Primary Staffing, Inc., 2011 WL

1042629, at *1–2 (N.D. Ill. Mar. 22, 2011). The Court is aware of a second federal case reaching the same

conclusion. See Smith v. Rosebud Farmstand, 2012 WL 5562769, at *6-7 (N.D. Ill. Nov. 15, 2012). But

Cruz and Rosebud are not particularly helpful here. A federal court sitting in diversity attempting to

determine the substantive content of state law is required to decide the issue as it believes the highest court

would if the case were before it. See Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 637 (7th Cir. 2002). 

The Illinois Supreme Court would not be bound (of course) by decisions from federal courts in this district on

the substantive content of state law. See, e.g., B.E.L.T v. Wachovia Corp., 403 F.3d 474, 477 (7th Cir. 2005). 

Opinions from federal courts could be persuasive, but neither Cruz nor Rosebud reached a considered

conclusion about whether corporate entities can be liable under the IGVA. 

Even without the benefit of a relevant state court decision on the IGVA, the Court must make an informed

prediction as to how the Illinois Supreme Court would construe the IGVA. When construing a statute, the

Illinois Supreme Court attempts to ascertain the legislature’s intent, “presuming the legislature did not intend

to create absurd, inconvenient or unjust results.” People v. Christopherson, 899 N.E.2d. 257, 260 (Ill. 2008). 

“The best indication of legislative intent is the statutory language, given its plain and ordinary meaning.” Id..

“When the statutory language is clear and unambiguous, it must be given effect without resort to other tools

of interpretation.” Id.

Applying these principles, Judge Kennelly recently considered whether corporate entities may be liable under

the IGVA. See Fayfar v. CF Management-IL, LLC, Case No. 12 C 3013 (N.D. Ill. Nov. 4, 2012). In

concluding that they may not be, and that only natural persons may be liable under the IGVA, Judge Kennelly

made several persuasive points. First, there is no liability under the IVGA unless “the person or persons * * *

perpetuating * * * gender-related violence * * * personally commit[ed]” or “personally encourage[ed] or

assist[ed]” the gender-related violence. See 740 ILCS 82/10 (emphasis added). The Court agrees with Judge

Kennelly that “[o]ne does not typically understand corporations or other legal entities to ‘personally’ perform

actions; rather, they act through their agents.” Fayfar, Case No. 12 C 3013, at 4. Second, in construing

statues, the Illinois Supreme Court takes the “plain and ordinary meaning” of the term “person” to be “an

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individual human being.” Christopherson, 899 N.E.2d at 260. Third, when the Illinois legislature defined the

statutory term “person” in the Illinois Consumer Fraud Act (“ICFA”), it specifically included not only “any

natural person” but also “his legal representative, partnership, corporation (domestic or foreign), company,

trust, business entity or association” and so forth. 815 ILCS 505/1(c). At minimum, this illustrates that in

other instances when the Illinois legislature has included business entities within the scope of the term

“person,” it has done so expressly. 

The argument that corporate entities could be liable under the IGVA depends on Illinois Statute of Statutes,

which provides that “‘[p]erson’ or ‘persons’ as well as all words referring to or importing persons, may

extend and be applied to bodies politic and corporate as well as individuals.” 5 ILCS 70/1.05; see Flood v.

Washington Sq. Restaurant, 2012 WL 5996345, at * 5 (N.D. Ill. 2012). To say, however, that the statutory

meaning of “person” may extend to corporate entities, does not mean that it must or even that it usually does. 

In this case, the language of the statute strongly implies that the IGVA applies only to natural persons. The

Statute on Statues reminds the Court that this is not a necessary conclusion but one that must based on the

meaning of “person” in the IGVA. 

For the reasons discussed above, the Court finds no reason to deviate from the plain meaning of the IGVA

and concludes that it does not impose liability on organizations or corporate entities. Because Defendant is a

corporate entity, Plaintiff has failed to state a claim under the IGVA and Count IV is dismissed. 

IV. Plaintiff’s Motion for Costs for Failure to Return Waiver of Service

Plaintiff filed her complaint on February 29, 2012. Plaintiff served Tony Ritrivato — an attorney retained by

The Travelers Companies, Inc. who once appeared on behalf of Fireside at a mediation proceeding — with a

copy of the complaint by U.S. Mail. On March 7, 2012, Ritrivato telephoned Plaintiff’s counsel and

informed him that he was not authorized to accept service for Fireside. On March 12, 2012, Ritrivato sent a

letter to Plaintiff’s counsel with the same information. Plaintiff served Defendant’s registered agent on

March 9, 2012. Plaintiff originally moved for costs and attorney’s fees associated incurred in obtaining

personal service on Defendant [5]. Plaintiff has dropped her request for attorney’s fees and now seeks costs

only [see 19].

Fed R. Civ. P. 4(h)(1) states that a corporation must be served either 

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual [under state law]; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or

general agent, or any other agent authorized by appointment or by law to receive service of

process [* * *]

Defendant’s response to Plaintiff’s motion for costs [18] explains that Ritrivato was not authorized to accept

service for Fireside and that his only connection to Fireside is a single appearance at a mediation proceeding

on its behalf. Plaintiff does not argue that Ritrivato was authorized to accept service for Fireside under state

law. See Rule 4(e). And Plaintiff does not argue in any detail that Ritrivato qualifies as “an officer, a

managing or general agent” or was authorized “by appointment or by law” to accept service. See Rule (4)(h). 

If Ritrivato could not accept service, he could not waive service. Therefore, based on the parties’

representations to the Court, it does not appear that Defendant violated Rule 4(d). Plaintiff’s motion for costs

[5] is denied. 

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V. Conclusion

For the reasons stated above, Defendant’s motion to dismiss Counts I, III, and IV [15] is granted. 

Defendant’s motion to file a supplemental brief in support of its motion to dismiss [24] is denied as moot. 

Plaintiff’s Rule 4 motion for costs [5 and see 19] is denied.

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