IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARIA LUIS and LUCY GOMEZ, )

)

Plaintiffs, ) No. 1:12-cv-2922

)

v. )

)

SMITH PARTNERS & ASSOCIATES, LTD., )

SMITH REO PROPERTIES, COYA SMITH, )

and ANDY HORN, )

)

Defendants. )

DEFENDANTS SMITH PARTNERS & ASSOCIATES, LTD., SMITH

REO PROPERTIES, COYA SMITH & ANDY HORN’S MEMORANDUM

OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS

PLAINTIFFS’COMPLAINT PURSUANT TO FRCP 12(b)(6)

bñÜáÄáí=^

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 1 of 32 PageID #:75
ii

TABLE OF CONTENTS

INTRODUCTION... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... ... ... ... ... ... ... ... ... ... .1

FACTUAL BACKGROUND... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... ... ... ... ... ... ... ... ... ... 1

LEGAL STANDARD... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... ... ... ... ... ... ... ... ... ... 3

ARGUMENT... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... ... ... ... ... ... ... .4

I. Grounds for dismissal of Count I (Fair Housing Act)... ... ... ...... ... ... ... ... ... ... ..4

II. Grounds for dismissal of Count II (Civil RICO)... ... ... .... ... ... ... ... ... ... ... ... ... 6

III. Grounds for dismissal of Count III (trespass to chattels)... ... ... ..... ... ... ... ... ... ..9

IV. Grounds for dismissal of Count IV (battery)... ... ... ... ... ... ... ... ... ... ... ... ... ... .11

V. Grounds for dismissal of Count V (iied)................................................................12

VI. Grounds for dismissal of Count VI (Chicago RLTO)... ... ... ... ... ... ... ... ... ... ...15

VII. Grounds for dismissal of Count VII (injunctive relief)... ... ... ... ... ... ... ... ... ... .16

VIII. Defendant Smith REO Properties is not a legal entity that can be sued... ... ... ... 17

IX. Defendant Coya Smith does not face personal liability... ... ... ... ... ... ... ... ... ... .17

X. Counts I, IV, V, and VI are barred by the statute of limitations... ... ... ... ..... ... ..18

CONCLUSION... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..19

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 2 of 32 PageID #:76
iii

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... 3-4

Bakes v. St. Alexius Med. Ctr., 955 N.E.2d 78, 85 (1st Dist. 2011)... ... ... ... ... ... ... ..... ... ... ...11

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)... ... ... ... ... ... ... ... ... ..... 3-4, 6, 9, 18

Brandt v. Schal Assoc., Inc., 121 F.R.D. 368, 387-88 (N.D. Ill. 1988)... ... ... .... ... ... ... ... ... ... 8

Chesler v. Conroy, 2008 U.S. Dist. LEXIS 80074 at *7-9 (N.D. Ill. Oct. 8, 2008)... ... ... ... ... ..5

Com-Pac Int’l, Inc. v. The Packmate Co., 2007 U.S. Dist. LEXIS 62531 (S.D. Ill. Aug. 24,

2007)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ... ...... 17

Davis v. Wells Fargo Bank, 2008 U.S. Dist. LEXIS 31636 at *20, fn. 8 (N.D. Ill. Apr. 17, 2008)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... .7

Dietz v. Ill. Bell Tel. Co., 154 Ill. App. 3d 554, 559 (1st Dist. 1987)... ... ... ... ..... ... ... ... ... ... 10

Edwards v. Lake Terrace Condo. Assoc., 2011 U.S. Dist. LEXIS 43304 at *11-13 (N.D. Ill.

Apr. 21, 2011)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..5

Farnor v. IRMCO Corp., 73 Ill. App. 3d 851, 855-57 (1st Dist. 1979)... ... ... ..... ... ... .... ..13-14

Farrar v. Eldibany, 137 Fed. Appx. 910, 912 (7th Cir. 2005)... ... ... ... ... ... ... ... ...... ... ... ... ... 5

Gardner v. Ill. Pref. Real Estate, LLC, 2006 U.S. Dist. LEXIS 87578 at *23-26 (N.D. Ill. Dec.

4, 2006)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ...... ... ... 12

Glowacki v. Moldtronics, Inc., 264 Ill. App. 3d 19, 23 (2nd Dist. 1994)... ... ... ... ... ... ... ...... .11

Hardaway v. CIT Group, 2011 U.S. Dist. LEXIS 84140 at *9-10, 20-21 (N.D. Ill. Aug. 1, 2011)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 5,13

Interfaith Housing Ctr. of the Northern Suburbs v. Bernsen, 2011 U.S. Dist. LEXIS 75554 at

*10-11 (N.D. Ill. Jul. 13, 2011)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ...18

Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990)... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 6-8

Jewelers Mut. Ins. Co. v. Firstar Bank Illinois, 341 Ill. App. 3d 14, 20 (1st Dist. 2003)... ... ... 10

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 3 of 32 PageID #:77
iv

Krejci v. Capriotti, 16 Ill. App. 3d 245, 247 (1st Dist. 1973)... ... ... ... ... ... ... ... .... ... ... ... 10-11

Landis v. Marc Realty, LLC, 235 Ill. 2d 1, 13-15 (2009)... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .19

Lewis v. Weis, 2012 U.S. Dist. LEXIS 2063 at *7 (N.D. Ill. Jan. 5, 2012)... ... ...... ... ... ... ... ...10

Lewis v. Schmidt, 2011 U.S. Dist. LEXIS 1051 at *24 (N.D. Ill. Jan. 4, 2011)... ... ... ... ... .... 5-6

Padilla v. United States, 659 F. Supp. 2d 1290, 1294 (Ct. Int’l Trade 2009)... ... ... ... ... ....... ..16

Public Finance Corp. v. Davis, 66 Ill. 2d 85, 90 (1976)... ... ... ... ... ... ... ... ... ... ... ... ... ... ......13

Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 389 (7th Cir. 1984)... ......... .17

Schiller v. Mitchell, 357 Ill. App. 3d 435, 447 (2nd Dist. 2005)... ... ... ... ... ... ... .... ... ... ...12-14

Segreti v. Lome, 747 F. Supp. 484, 486-87 (N.D. Ill. 1990)... ... ... ... ... ... ... ... ... ... ... ..... ... .8-9

Selvy v. Beigel, 283 Ill. App. 3d 532, 537 (1st Dist. 1996)... ... ... ... ... ... ... ... ... ... ... ... ... ... ..15

Sheikh v. Lichtman, 2012 U.S. Dist. LEXIS 55415 at *13 (N.D. Ill. Apr. 19, 2012)... ... ... ... ... 6

Smith v. City of Jackson, 544 U.S. 228, 241 (2005)... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ..4-5

Steel v. Hahn Prop. Mgmt. Corp., 1994 U.S. App. LEXIS 4369 (7th Cir. Mar. 8, 1994)... ... ...17

Routen v. Citi, 706 F. Supp. 2d 854, 862 (N.D. Ill. 2009)... ... ... ... ... ... ... ... ... ... ... ... ... ... ...14

Torres v. All Town Bus Servs., Inc., 2011 Ill. App. Unpub. LEXIS 257 (1st Dist. 2011)... ... ...19

Twardy v. Northwest Airlines, Inc., 2001 U.S. Dist. LEXIS 2112 at *4-6, 8-9 (N.D. Ill. Feb. 28,

2001)...... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... ... 11-12

United States v. Wood, 925 F.2d 1580, 1582 (7th Cir 1991)... ... ... ... ... ... ... ... ... ... ... ... ...... 16

Whitley v. Taylor Bean & Whitacker Mortg. Corp., 607 F. Supp. 2d 885, 903 (N.D. Ill. 2009)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ....14

Zahl v. Krupa, 399 Ill. App. 3d 993, 1020 (2nd Dist. 2010)... ... ... ... ... ... ... ... ... ... ..... ... 17-18

Statutes

18 U.S.C. § 1702... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ......7-8

18 U.S.C. § 1951... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... ... ... 7-8

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 4 of 32 PageID #:78
v

18 U.S.C. § 1961... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... 7-8

18 U.S.C. § 1962... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... .6

42 U.S.C. § 3604... ... ... ... ... ... ..... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..... ... ... ... ... ... .... 4-6

42 U.S.C. § 3613... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... .18

42 U.S.C. § 3617... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... ... ...... ... ...... ... 4-6

720 ILCS 5/12-6... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... 7-8

720 ILCS 5/18-1... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .7-8

735 ILCS 5/13-202... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...... ... ... ... 18

Chicago Residential Landlord Tenant Ordinance §5-12-030... ... ... ... ... ... ... ... ...... ... ... ..15-16

Chicago Residential Landlord Tenant Ordinance §5-12-160... ... ... ... ... ... ... ... .... ... ..15-16, 18

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 5 of 32 PageID #:79
1

Defendants, Smith Partners & Associates, Ltd., Smith REO Properties, Coya Smith, and

Andy Horn (collectively “Defendants”), by and through their attorneys, KARBAL COHEN

ECONOMOU SILK & DUNNE LLC, hereby submit their Memorandum of Law in support of their

Motion to Dismiss the Complaint of Maria Luis and Lucy Gomez (the “Complaint”) (Docket No.

1), and pursuant thereto, respectfully state as follows:

INTRODUCTION

This action arises out of alleged incidents at a property located at 5818 N. Spaulding,

Chicago, Illinois (the “Property”). (Compl. ¶5, Docket No. 1). Plaintiffs are alleged residents of

the Property, and filed suit based on their assumption that Defendants own and manage the

Property. Id. at ¶¶5-8. The public records establish, however, that Defendants do not own the

Property. (Public records from the Cook County Recorder of Deeds for the property are attached

hereto as Exhibits A-C.) Plaintiffs assert the following causes of action in their Complaint:

Count I- Fair Housing Act (asserted by both Plaintiffs against all Defendants)

Count II- Civil RICO (asserted by both Plaintiffs against all Defendants)

Count III- Trespass to Chattel (asserted by both Plaintiffs against all Defendants)

Count IV- Battery (asserted by Plaintiff Gomez against all Defendants)

Count V- Intentional Infliction of Emotional Distress (asserted by both Plaintiffs against

all Defendants)

Count VI- Chicago Residential Landlord and Tenant Ordinance § 5-12-160 (asserted by

both Plaintiffs against all Defendants)

Count VII- Injunctive Relief (asserted by both Plaintiffs against all Defendants)

For the reasons set forth below, all seven causes of action must be dismissed with prejudice

under FRCP 12(b)(6), and this action must be disposed of as to all defendants in its entirety.

FACTUAL BACKGROUND

Plaintiffs allege that they are residents of the Property, and bring this claim against the

purported owners/managers for alleged incidents at the Property. (Compl. ¶5). Plaintiffs allege

that no forcible entry and detainer or eviction actions have been filed, nor have they received

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 6 of 32 PageID #:80
2

notice of such proceedings. Id. at ¶9. Plaintiffs allege that Defendant Smith Partners and

Associates, Ltd. operates under the assumed name Smith REO Properties (another Defendant),

that Defendant Smith Partners and Associates, Ltd. is owned and operated by its registered agent,

Defendant Coya Smith, and that Defendant Andy Horn is an agent of Defendant Smith Partners

and Associates, Ltd. Id. at ¶¶ 5-7. Plaintiffs allege that Defendants own and manage the

Property, although Plaintiffs also allege in contradictory fashion that the Property was acquired

by a financial institution in a foreclosure proceeding. Id. at ¶8. The Court should take judicial

notice of the fact that the Property was owned by HSBC Bank USA and Sotirios Luridas and

Angela Luridas, not by Defendants, during the relevant time frame. (Exhibits A-C).

This action arises out of Defendants’alleged “campaign of threats and harassment

intending to force Plaintiffs to leave the property,”which series of events allegedly began in

winter 2010. (Compl. ¶10). Plaintiffs allege that Defendant Horn did the following, while acting

at the request of Defendant Smith, the alleged owner and operator of the Defendant corporation:

Entered the basement and removed the furnace in winter 2010 (Id. at ¶11);

Placed a padlock on the front door in November 2010 (Id. at ¶12);

Banged on the windows and doors, and removed Plaintiffs’mail in Spring 2011

(Id. at ¶13);

Entered the basement and removed most of its contents, removed the furnace,

turned off the water heater, and locked the basement in May 2011 (Id. at ¶14);

Broke the locks to the front doors in March 2012 (Id. at ¶15);

Entered the Property, threatened Plaintiffs, struck Plaintiff Gomez, and

disconnected the water and electricity in August 2011 (Id. at ¶17); and

Failed to pay the water bill (all Defendants) (Id. at ¶20).

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 7 of 32 PageID #:81
3

In Count I for the Fair Housing Act, Plaintiffs allege that Defendants have been threatening and

intimidating Hispanic tenants for years, and further allege that the alleged conduct in this suit

was part of a pattern of discrimination in the rental of dwellings on the basis of race or national

origin. Id. at ¶¶22-28. In Count II, Plaintiffs allege that Defendants used a racketeering

enterprise, and that the Defendants’alleged conduct constituted a pattern of racketeering activity. 

Id. at ¶¶29-43. Count III is labeled trespass to chattel, without any further specific allegations,

although the prayer for relief indicates Plaintiffs are attempting to state a cause of action for

trespass to Plaintiffs’“real and personal property.” Count IV is labeled battery, without any

further specific allegations. Count V for intentional infliction of emotional distress contends that

Defendants’ conduct was “objectively outrageous” and that Plaintiffs “suffered extreme

emotional distress as a result.” Id. at ¶¶44-45. Count VI alleges Defendants violated the

Chicago Residential Landlord and Tenant Ordinance (“RLTO”) § 5-12-160 through illegal

threats and intimidation, which ordinance prohibits a landlord or one acting at a landlord’s

direction from ousting or attempting to dispossess any tenant from a dwelling without authority

of law. Id. at ¶¶46-51. Count VII seeks injunctive relief based on the allegations that

Defendants’conduct is ongoing, that Plaintiffs have no adequate legal remedy, and that Plaintiffs

will suffer irreparable harm if an injunction is not issued. Id. at ¶¶52-53.

LEGAL STANDARD

To survive a motion to dismiss, a complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citation omitted). “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.” Id. A pleading that merely states “labels and conclusions or

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 8 of 32 PageID #:82
4

a formulaic recitation of the elements of a cause of action”is insufficient. Id. (citation omitted);

see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

ARGUMENT

I. Plaintiffs’claim under the Fair Housing Act (FHA) must be dismissed because

Plaintiffs only allege speculative reasons for believing any discrimination occurred.

Plaintiffs have failed to adequately plead an action under the FHA under either 42 U.S.C.

§ 3604(b) or 42 U.S.C. § 3617. The relevant statutes state:

§ 3604. Discrimination in the sale or rental of housing and other prohibited practices.

As made applicable by section 803 [42 USC § 3603] and except as exempted by sections 803(b)

and 807 [42 USC §§ 3603(b), 3607], it shall be unlawful—

...

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a

dwelling, or in the provision of services or facilities in connection therewith, because of race,

color, religion, sex, familial status, or national origin.

...

§ 3617. Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or

enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided

or encouraged any other person in the exercise or enjoyment of, any right granted or protected by

section 803, 804, 805, or 806 [42 USC § 3603, 3604, 3605, or 3606].

[Emphasis added.] To state a claim under the FHA, a plaintiff must “sho[w] that the defendant

had discriminatory intent when making its decision or by showing that the decision caused a

discriminatory effect.” Edwards v. Lake Terrace Condo. Assoc., 2011 U.S. Dist. LEXIS 43304

at *11 (N.D. Ill. Apr. 21, 2011). A complaint fails to allege “discriminatory intent”and must be

dismissed under FRCP 12(b)(6) if it pleads only conclusions, but no facts, that would suggest the

defendants were motivated by discriminatory intent. Id. at *12-13. Likewise, conclusory

allegations of “discriminatory effect”or “disparate impact”must be disregarded, particularly if

the allegations indicate that the defendant’s conduct affected all residents in the same manner. 

Id. at *13-14. In order to allege a “disparate impact”claim under the FHA, a plaintiff must

allege the “specific... practices that are allegedly responsible for any observed statistical

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 9 of 32 PageID #:83
5

disparities”that allegedly indicate discrimination; it is insufficient for a plaintiff to merely allege

a defendant’s “generalized policy”causes a discriminatory impact. See Smith v. City of Jackson,

544 U.S. 228, 241 (2005) (emphasis in original). Further, a claim under 42 U.S.C. § 3604(b)

cannot be maintained if the plaintiff does not allege conduct in connection with the “sale or

rental”of a dwelling. Lewis v. Schmidt, 2011 U.S. Dist. LEXIS 1051 at *24 (N.D. Ill. Jan. 4,

2011) (dismissing 42 U.S.C. § 3604(b) claim for failure to provide basic utilities because the

plaintiff did not allege conduct in connection with the “sale or rental”of a dwelling). 

A count under the FHA that alleges “nothing but sheer speculation”that a defendant

engaged in discriminatory conduct must be dismissed under FRCP 12(b)(6). Hardaway v. CIT

Group, 2011 U.S. Dist. LEXIS 84140 at *9-10 (N.D. Ill. Aug. 1, 2011) (dismissing FHA claim

with prejudice under FRCP 12(b)(6)). In Hardaway, the FHA claim was dismissed because the

plaintiff did not allege any basis for his speculative belief that defendant’s refusal to modify his

mortgage was racially motivated, nor did the plaintiff allege he was treated differently than

others due to his race. For another example, in Chesler, the court granted a FRCP 12(b)(6)

motion to dismiss FHA claims because the allegations only indicated that personal animosity

created a hostile housing environment, not that there was any discrimination. Chesler v. Conroy,

2008 U.S. Dist. LEXIS 80074 at *7-9 (N.D. Ill. Oct. 8, 2008). The FHA does not apply to

ordinary landlord-tenant disputes, and any FHA claim alleging discrimination without any

factual basis therefor must be dismissed as frivolous. Farrar v. Eldibany, 137 Fed. Appx. 910,

912 (7th Cir. 2005) (affirming dismissal of § 3617 claim filed by black tenant against her white

landlord under FRCP 12(b)(6), as there was no basis for suggesting that the landlord’s failure to

provide heat and hot water for three or four days was discriminatory).

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 10 of 32 PageID #:84
6

Similarly, in our case, while Plaintiffs make various complaints about their housing

environment, Plaintiffs do not allege any basis for their speculative conclusion that Defendants’

conduct was racially motivated. Thus, this count does not meet the “plausibility”threshold of

Twombly. Plaintiffs do not allege that Defendants treated them differently than Defendants

treated residents of other races. Instead, Plaintiffs merely speculate that Defendants intended to

discriminate against Hispanics. (Compl. ¶¶ 22-23). Further, Plaintiffs fail to allege Defendants’

conduct had “discriminatory effect,”because even if Defendants actually did disconnect utilities,

add or remove locks, and cause other annoyances, such acts would have affected all residents in

the building equally, not just the Hispanic residents. Plaintiffs cannot inject racial issues into the

case when they are simply complaining of ordinary acts of alleged property mismanagement. 

Furthermore, Plaintiffs cannot maintain a claim under 42 U.S.C. § 3604(b) because they do not

allege that Defendants sold or rented them a dwelling. Lewis, 2011 U.S. Dist. LEXIS 1051 at

*24 (defendants were not liable under 42 U.S.C. § 3604(b) for disconnecting the water service

when there were no allegations that plaintiff was sold or rented a dwelling). Likewise, as

Plaintiffs’claim under 42 U.S.C. § 3617 is predicated upon Defendants’alleged violation of

their rights under 42 U.S.C. § 3604(b), their claim under 42 U.S.C. § 3617 fails.

II. Plaintiffs’RICO claim must be dismissed for failure to allege even a single predicate

act or the existence of any “enterprise.”

In order “[t]o state a valid RICO claim under 18 U.S.C. § 1962(c), a plaintiff must allege

‘(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.’” Sheikh v.

Lichtman, 2012 U.S. Dist. LEXIS 55415 at *13 (N.D. Ill. Apr. 19, 2012) (citation omitted). In

order “[t]o establish a pattern, a plaintiff must allege at least one of the acts listed in 18 U.S.C. §

1961(a).” Davis v. Wells Fargo Bank, 2008 U.S. Dist. LEXIS 31636 at *20 (N.D. Ill. Apr. 17,

2008), citing Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990). In Jennings, the court

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 11 of 32 PageID #:85
7

dismissed the RICO claim, because although the complaint alleged numerous violations of civil

rights, constitutional law, and federal and state statutes, such were not “predicate acts”under 18

U.S.C. § 1961, and even if the complaint did allege isolated acts of racketeering, such would not

constitute a “pattern.” 910 F.2d at 1438-39. If a plaintiff fails to allege any acts “which fit

within any of the subsections of 18 U.S.C. § 1961(1),”the complaint must be dismissed. Davis,

2008 U.S. Dist. LEXIS 31636 at *20, fn. 8.

Plaintiffs’RICO claim must be dismissed because Plaintiffs fail to allege any “predicate

acts”as set forth in 18 U.S.C. § 1961(1). Instead, Plaintiffs’RICO count is solely based on

allegations of 18 U.S.C. § 1951 (interference with commerce by threats or violence); 18 U.S.C. §

1702 (obstruction of correspondence); 720 ILCS 5/12-6 (intimidation), and 720 ILCS 5/18-1

(robbery). However, these assorted allegations do not constitute “predicate acts”under 18

U.S.C. § 1961(1). 

To begin with, 18 U.S.C. § 1951 requires either actual or alleged robbery or extortion,

neither of which is alleged in this case. Plaintiffs do not even attempt to allege extortion. While

Plaintiffs’Complaint uses the word “robbery,”Plaintiffs use the word “robbery”improperly. 

This statute defines “robbery”as follows:

(1) The term “robbery”means the unlawful taking or obtaining of personal property from the

person or in the presence of another, against his will, by means of actual or threatened force, or

violence, or fear of injury, immediate or future, to his person or property, or property in his

custody or possession, or the person or property of a relative or member of his family or of

anyone in his company at the time of the taking or obtaining. 18 U.S.C. § 1951(b)(1).

[Emphasis added.] Plaintiffs misunderstand the meaning of the word “robbery,”and overlook

that such act requires that Defendants take personal property “from the person or in the presence

of another.” In this case, there are no allegations that Defendants took any personal property

from Plaintiffs’person or in the presence of another- instead, the Complaint suggests that no one

was present when Defendants took any alleged items. Likewise, the Illinois statute uses a similar

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 12 of 32 PageID #:86
8

definition of “robbery”: “A person commits robbery when he or she takes property... from the

person or presence of another by the use of force or by threatening the imminent use of force.” 

720 ILCS 5/18-1 (emphasis added). Plaintiffs do not allege “robbery”under either 18 U.S.C. §

1951 or 720 ILCS 5/18-1, because the allegations do not suggest that Plaintiffs or any other

people were present when Defendants allegedly took any items. Plaintiffs misunderstand the

difference between “robbery”and “theft.” However, allegations of theft are not predicate acts

under RICO. Brandt v. Schal Assoc., Inc., 121 F.R.D. 368, 387-88 (N.D. Ill. 1988) (granting

Rule 11 motion for sanctions against a plaintiff’s counsel who attempted to characterize alleged

theft as “robbery”under RICO and 18 USC § 1951).

Furthermore, 18 U.S.C. § 1702, regarding obstruction of correspondence, is not one of

the federal statutes enumerated in 18 U.S.C. § 1961(1) as a “predicate act.” Finally, the alleged

violations of 720 ILCS 5/12-6 for “intimidation”are not “predicate acts”under RICO because

such allegations do not “involv[e] murder, kidnapping, gambling, arson, robbery, bribery,

extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical,”

much less does such conduct fall within any other subsection of 18 U.S.C. § 1961(1). Thus,

while Plaintiffs go to great length to allege various violations by Defendants, none of the alleged

acts constitute racketeering under RICO.

Turning to the other elements of a RICO claim, Plaintiffs have also failed to allege the

element of an “enterprise.” “An ‘enterprise is an ongoing ‘structure’of persons associated

through time, joined in purpose, and organized in a manner amenable to hierarchial or

consensual decision-making.’” Segreti v. Lome, 747 F. Supp. 484, 486 (N.D. Ill. 1990), citing

Jennings, 910 F.2d at 1440. Conclusory allegations that an enterprise existed are insufficient, as

“[t]he existence of an enterprise [must be] established by ‘evidence of an ongoing organization,

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 13 of 32 PageID #:87
9

formal or informal, and by evidence that the various associates function as a continuing unit.’” 

Segreti, 747 F. Supp. at 486. Likewise, a complaint that simply identifies the conduct of the

purported “enterprise”is inadequate. Id. Instead, in order to survive a FRCP 12(b)(6) motion to

dismiss, the plaintiff is required to plead “details about the structure of the enterprise.” Id. at

486-87. In Segreti, the court dismissed the RICO claim under FRCP 12(b)(6) due to inadequate

allegations of any “enterprise,”as the plaintiffs failed to plead any details of the “scope and

nature of the enterprise,”as there were no facts as to “when the enterprise started, how long the

enterprise continued or how the defendants fit into the enterprise.” Id. at 487.

In this case, Plaintiffs only plead the legal conclusion that an “enterprise” existed. 

(Compl. at ¶¶31-32). Falling short of the standard in Segreti, Plaintiffs fail to plead any details

of the structure of the “purported enterprise,”as there are no details as to when such enterprise

existed or the roles played by the different defendants. Further, the allegations tend to contradict

the possibility that any enterprise could have existed, as the acts at issue were allegedly

performed by Defendant Horn at Defendant Smith’s direction, while Smith’s status as owner and

operator of defendant Smith Partners and Smith REO does not suggest that any separate entity

was orchestrating such conduct. (Compl. ¶¶ 18-19). Plaintiffs’allegations are deficient and fail

to meet Twombly’s “plausibility”threshold that Defendants had created any enterprise.

III. Count III fails to state a claim for either trespass to chattels or trespass to land.

While this count is labeled “trespass to chattels,” it is unclear if Plaintiffs are also

attempting to allege a count for trespass to land, based on their reference to “real property.” 

Plaintiffs thereby violate pleadings rules by intermingling causes of action, and this count must

be dismissed because it is improperly pled. Regardless, Plaintiffs fail to plead a cause of action

for either trespass to chattels or trespass to land.

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 14 of 32 PageID #:88
10

Trespass to chattels, also known as trespass to personal property, “is an antiquated cause

of action.” Lewis v. Weis, 2012 U.S. Dist. LEXIS 2063 at *7 (N.D. Ill. Jan. 5, 2012). In order to

state a claim for trespass to chattels, a plaintiff must allege that the defendant either

“intentionally (a) disposs[ed] another of the chattel, or (b) us[ed] or intermeddl[ed] with a chattel

in the possession of another.” Id. (citation omitted). Further, the plaintiff must allege “causation

and damages.” Id. (citation omitted).

Here, Plaintiffs fail to allege any of the elements needed to state a claim for trespass to

chattels. Plaintiffs do not allege that Defendants intentionally interfered with any of their items

of personal property. While Plaintiffs allege that Defendants removed the furnace, items in the

basement, and letters addressed to Plaintiffs, and further allege that Defendants’actions caused

the pipes to freeze, it must be kept in mind that the furnace and pipes are fixtures attached to the

real property, as opposed to personal property. See Jewelers Mut. Ins. Co. v. Firstar Bank

Illinois, 341 Ill. App. 3d 14, 20 (1st Dist. 2003) (a furnace is a fixture). However, Plaintiffs do

not allege that they owned the furnace, pipes, or items in the basement. Plaintiffs cannot allege

they owned the furnace or pipes, considering such were attached to real property that was owned

by an unnamed financial institution. (Compl. ¶8). Nor do Plaintiffs allege that they owned the

contents in the basement. With respect to the letters, Plaintiffs do not allege they had possession

of the letters. Thus, the count for trespass to chattels fails to state a claim.

Likewise, Plaintiffs fail to plead the elements of trespass to land. “Trespass is an

intentional invasion of the exclusive possession and physical condition of land.” Dietz v. Ill.

Bell. Tel. Co., 154 Ill. App. 3d 554, 559 (1st Dist. 1987). “... [T]he gist of an action in trespass is

the injury to... possession[,] which requires that the plaintiff have actual possession at the time

the wrongful act is committed.” Krejci v. Capriotti, 16 Ill. App. 3d 245, 247 (1st Dist. 1973). 

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 15 of 32 PageID #:89
11

“The only exception to this requirement of actual possession is where plaintiffs are the owners

and the property is unoccupied.” Id. In this case, Plaintiffs do not allege that they had exclusive

possession of the Property, nor do they allege that they had the right to exclusive possession. 

Further, while the Plaintiffs do not identify which visits by Defendants constituted trespass,

Plaintiffs only allege that Defendants entered the Property three times- twice to the basement

(Compl. ¶¶11, 14), and the other time to an unspecified area of the Property (Compl. ¶17). 

However, Plaintiffs do not allege they had the exclusive right to possession of whichever area

that Defendants allegedly entered. Furthermore, as Defendants were allegedly managing the

Property, it strains credulity for Plaintiffs to suggest that Defendants did not have the right to

enter the basement and/or that any resident had exclusive possession of the basement.

IV. Count IV for battery must be dismissed because Plaintiff Gomez does not allege that

Defendants intended to cause any harmful or offensive contact.

Battery is an “ancient”and “arcane”cause of action. Bakes v. St. Alexius Med. Ctr., 955

N.E.2d 78, 85 (1st Dist. 2011). “Under Illinois law, a person commits the tort of battery if (1) he

acts intending to cause a harmful or offensive contact or an imminent apprehension of such a

contact, and (2) harmful contact directly or indirectly results.” Gardner v. Ill. Pref. Real Estate,

LLC, 2006 U.S. Dist. LEXIS 87578 at *23-24 (N.D. Ill. Dec. 4, 2006). If there are no specific

allegations that defendants “specifically intended to injure plaintiff,” the claim must be

dismissed. Glowacki v. Moldtronics, Inc., 264 Ill. App. 3d 19, 23 (2nd Dist. 1994) (dismissing

count for battery). Contact that is merely “personal and intrusive”does not constitute battery if

the defendant did not intend to cause harmful or offensive contact. Gardner, 2006 U.S. Dist.

LEXIS 87578 at *25-26. Further, the plaintiff must plead there was a lack of consent to such

contact. Twardy v. Northwest Airlines, Inc., 2001 U.S. Dist. LEXIS 2112 at *6 (N.D. Ill. Feb.

28, 2001). For example, in Twardy, the Northern District of Illinois found that allegations that a

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 16 of 32 PageID #:90
12

defendant intentionally poured water on plaintiff, intentionally placed stickers on plaintiff,

intentionally and forcibly turned the plaintiff’s head, and abruptly grabbed the Plaintiff’s head

were insufficient to state a claim for battery. Id. at *4-6. Furthermore, a cause of action for

battery cannot be maintained under the theory of respondeat superior based on conduct

committed outside the scope of one’s employment. Id. at *8-9. 

Here, Plaintiff Gomez does not allege that Defendants intended to cause a harmful or

offensive contact, nor does Plaintiff Gomez allege that any harmful or offensive contact actually

occurred. The vague allegations that Defendants’conduct was “intentional, willful, and taken in

disregard for the rights of others”are merely conclusory. (Compl. ¶28, incorporated in Count

IV). Instead, this count is based on a single word- that Defendant Horn “struck”Plaintiff

Gomez. (Compl. ¶17). However, as the Complaint is devoid of further factual allegations, such

conduct does not rise to the level of being “harmful or offensive.” Even more, there are no

allegations that Defendants Smith Partners & Associates, Ltd., Smith REO Properties, or Coya

Smith intended for Defendant Horn to cause any harmful contact to Plaintiff Gomez, and the

claim cannot be maintained against said defendants under any theory of vicarious liability or

respondeat superior, since striking Plaintiff Gomez would necessarily be outside the scope of

Defendant Horn’s employment. See Twardy, 2001 U.S. Dist. LEXIS 2112 at *8-9.

V. Count V for intentional infliction of emotional distress fails to state a claim because

the conduct at issue does not rise to the level of “extreme and outrageous”needed to be

actionable.

In order to state a claim for intentional infliction of emotional distress (“iied”), a plaintiff

must plead facts establishing “(1) that the conduct was truly extreme and outrageous, (2) that the

actor intended that his conduct inflict severe distress or knew that there was a high probability

that his conduct would inflict such distress, and (3) that the conduct in fact caused severe

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 17 of 32 PageID #:91
13

emotional distress.” Schiller v. Mitchell, 357 Ill. App. 3d 435, 447 (2nd Dist. 2005). There are

“relatively few”cases in Illinois that have upheld this cause of action. Farnor v. IRMCO Corp.,

73 Ill. App. 3d 851, 855 (1st Dist. 1979). The Northern District of Illinois imposes an

“exceptionally high” standard in order for a claim for iied to survive a motion to dismiss. 

Hardaway v. CIT Group, 2011 U.S. Dist. LEXIS 84140 at *20-21.

With respect to the first element, in order to be actionable, the conduct must be

“atrocious, and utterly intolerable in a civilized community.” Schiller, 357 Ill. App. 3d at 447

(citations omitted). For example, the court in Schiller found that a neighbor’s constant

videotaping of the property, repeated reports to the police and homeowners’association (which

resulted in “numerous disruptive investigations”), and other acts of harassment did not constitute

extreme and outrageous conduct. Id. at 448-51. Relative to the second element, the actor must

know severe emotional distress will result, or there must be a “high degree of probability that

severe emotional distress will follow and the actor goes ahead in conscious disregard of it.” 

Public Finance Corp. v. Davis, 66 Ill. 2d 85, 90 (1976) (citations omitted). It is “not... enough

that the defendant... acted with an intent which is tortious or even criminal, or that he... intended

to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’or a

degree of aggravation which would entitle the plaintiff to punitive damages for another tort.’” 

Id. (citation omitted). With respect to the third element, “the distress must be of such intensity

and duration that no reasonable person could be expected to endure it.” Farnor, 73 Ill. App. 3d

at 856. In Farnor, the court found that even though the plaintiff was frightened, worried,

nervous, exhausted, “very distraught,”“wept constantly,”and “suffered the aggravation of a

preexisting ulcer,”there was no claim for emotional distress, as the emotions “suffered by a

person of ordinary sensibilities under the circumstances”would not have been severe enough to

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 18 of 32 PageID #:92
14

be actionable. Id. at 856-57. See also Routen v. Citi, 706 F. Supp. 2d 854, 862 (N.D. Ill. 2009)

(dismissing iied claim which alleged “no facts describing mental, physical, or emotional

infirmity”); Whitley v. Taylor Bean & Whitacker Mortg. Corp., 607 F. Supp. 2d 885, 903 (N.D.

Ill. 2009) (plaintiffs’fear of losing their home was not the sort of emotional distress necessary to

state an iied claim).

Plaintiffs’complaints include adding or removing of locks, disruption in utility services,

and Defendants’entrances to the Property in connection with its management. (Compl. at ¶¶10-

17, 20). While alleged errors or carelessness in property management may cause annoyance and

inconvenience to residents, such errors do not constitute the sort of “atrocious and utterly

intolerable behavior”needed to maintain an iied claim. See Schiller, 357 Ill. App. 3d at 447. 

Further, with respect to the second element, the minimal allegations of intent (incorporated in

Count V from ¶28) are conclusory. Also, the vague allegations as to the role played by each

Defendant are insufficient to indicate which Defendant intended to cause any harm, as Plaintiffs

allege that Defendant Horn was acting at Defendant Coya’s direction, and that Defendants Horn

and Coya were agents of the Defendant entities. (Compl. at ¶18-19). Such allegations do not

indicate that all Defendants had the same intent. The third element, that Plaintiffs allegedly

suffered “extreme emotional distress,”is also conclusorily pled, as there are no allegations that

specify any physical or emotional symptoms suffered by Plaintiffs. Further, from an objective

viewpoint, an ordinary person would not suffer severe emotional distress from a disruption in

utility service, change in locks, or entrance by property managers to perform work. Thus,

Plaintiffs fail to adequately plead any of the three elements necessary to state a claim for iied,

and this count must be dismissed.

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 19 of 32 PageID #:93
15

VI. Count VI for violation of the Chicago Residential Landlord and Tenant Ordinance

(“RLTO”) must be dismissed because no landlord-tenant relationship existed between

Plaintiffs and Defendants.

In Count VI, Plaintiffs allege that Defendants violated § 5-12-160 of the Chicago

Residential Landlord and Tenant Ordinance (the “RLTO”). This count fails because Plaintiffs do

not plead facts indicating that they had a landlord-tenant relationship with Defendants, and

furthermore, the public records and Plaintiffs’own allegations indicate that no landlord-tenant

relationship existed. “As the name suggests, the [RLTO] only applies to landlords and their

tenants.” Selvy v. Beigel, 283 Ill. App. 3d 532, 537 (1st Dist. 1996). If no landlord-tenant

relationship exists between the parties, a cause of action under the RLTO generally cannot be

maintained. Id.

The sole section of the RLTO that Plaintiffs contend that Defendants violated is § 5-12-

160, which applies only to a “landlord or any person acting at his direction.” The RLTO defines

a “landlord”as the “owner, agent, lessor or sublessor, or the successor in interest of any of them,

of a dwelling unit or the building of which it is part.” RLTO § 5-12-030(b). The RLTO defines

a “tenant”as “a person entitled by written or oral agreement, subtenancy approved by the

landlord or by sufferance, to occupy a dwelling unit to the exclusion of others.” Id. at § 5-12-

030(i).

Here, Plaintiffs fail to plead that they were “tenants,”and fail to plead any facts in

support of their conclusion that Defendants fall within the Ordinance’s definition of “landlord.” 

Instead, Plaintiffs solely plead that they were “residents”of the Property. (Compl. ¶5). Since

Plaintiffs do not plead that they were parties to any lease agreement, nor do they even plead that

they were lawfully residing at the Property, Plaintiffs do not fall within the RLTO’s definition of

“tenant,”and they do not have standing to bring a claim under the RLTO. 

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 20 of 32 PageID #:94
16

Furthermore, Plaintiffs’ legal conclusion that Defendants fall within the RLTO’s

definition of “landlord”must be disregarded. (Compl. ¶49). The public records indicate that

Plaintiffs’allegations that Defendants owned the Property are false. (Compare Exhibits A-C

with Compl. ¶8).1

 Moreover, Plaintiffs’own allegations are directly contradictory, because

Plaintiffs allege both that Defendants owned the Property, and that the Property was owned by a

financial institution that had acquired such through the foreclosure process. (Compl. ¶8). 

Furthermore, Plaintiffs do not allege that any of the Defendants were acting at the direction of

the property owner. Instead, Plaintiffs allege the subject conduct was performed by Defendant

Horn, who was allegedly acting at Defendant Smith’s direction. (Compl. ¶19). The allegations

that Defendants “managed the [P]roperty”are insufficient to create liability under RLTO § 5-12-

160, which only applies to a “landlord or any person acting at [the landlord’s] direction.” 

Further, Plaintiffs’request for monetary relief of $200-500 per violation must be stricken, as

such only applies to complaints received by the Chicago Police Department, not prayers for

relief in a civil suit. RLTO § 5-12-160.

VII. Count VII for “injunctive relief” does not state a valid cause of action, and this

Court has already determined that Plaintiffs are not entitled to injunctive relief.

Count VII must be dismissed because “injunctive relief”is only a form of relief, and does

not constitute a valid cause of action in itself. See Padilla v. United States, 659 F. Supp. 2d

1290, 1294 (Ct. Int’l Trade 2009). Furthermore, Plaintiffs should be denied leave to amend the

Complaint to again seek an injunction, as this Court already denied Plaintiffs’Petition For a

Temporary Restraining Order and Preliminary Injunction, which motion Plaintiffs noticed

shortly after filing this Complaint. (Minute Order of May 2, 2012, Docket No. 8). Plaintiffs

have not filed any motion for reconsideration, nor have they asserted any new grounds that

 1 The court may take judicial notice of matters of public record. United States v. Wood, 925 F.2d 1580, 1582 (7th

Cir. 1991).

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 21 of 32 PageID #:95
17

would entitle them to injunctive relief. Plaintiffs’request for an injunction has already been

denied, as this Court has already determined that the alleged facts do not support grounds for

injunctive relief. Moreover, “[t]he granting of a preliminary injunction is an exercise of a very

far-reaching power, never to be indulged in except in a case clearly demanding it.” Roland

Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 389 (7th Cir. 1984) (citation omitted). 

This Court has already determined that the alleged facts do not warrant such extraordinary relief. 

VIII. Defendant Smith REO Properties must be dismissed because it is not a legally

cognizable entity that can be sued.

Pursuant to FRCP 17(b), a defendant may not be sued under its trade name, and any such

defendant improperly named must be dismissed. Com-Pac Int’l, Inc. v. The Packmate Co., 2007

U.S. Dist. LEXIS 62531 (S.D. Ill. Aug. 24, 2007); Steel v. Hahn Prop. Mgmt. Corp., 1994 U.S.

App. LEXIS 4369 (7th Cir. Mar. 8, 1994). Here, Plaintiffs openly admit that Defendant “Smith

REO Properties”is only an assumed business name, as opposed to a legally cognizable entity. 

(Compl. ¶6). Further, Illinois Secretary of State records do not have a record of any corporation

or limited liability company with the name “Smith REO Properties.” See Exhibit D. 

Accordingly, Smith REO Properties has been named improperly as a defendant and must be

dismissed.

IX. Defendant Coya Smith must be dismissed because she does not face personal

liability for the Defendant corporation’s alleged conduct.

Defendant Smith must be dismissed because she is not personally liable for any torts by

the defendant corporation or its alleged agent, Horn. Plaintiffs seek to hold Defendant Smith

liable on the basis that she was the “owner and operator”of the Defendant corporation, and

based on the conclusory allegations that Defendant Horn ‘act[ed] at the request and the behest”

of Defendant Smith. However, “corporate status generally shields corporate officers and

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 22 of 32 PageID #:96
18

shareholders from liability from corporate debts and obligations,” unless an officer or

shareholder is personally involved in the alleged wrongdoing.” See Zahl v. Krupa, 399 Ill. App.

3d 993, 1020 (2nd Dist. 2010). “... [C]orporate owners... may only be held vicariously liable for

the actions of their agents in the presence of special circumstances.” Interfaith Housing Ctr. of

the Northern Suburbs v. Bernsen, 2011 U.S. Dist. LEXIS 75554 at *10-11 (N.D. Ill. Jul. 13,

2011) (dismissing corporate owner from the Complaint under FRCP 12(b)(6) because the

plaintiff alleged no basis for holding her liable for the corporation’s agents’actions). Plaintiffs

have not alleged that Defendant Smith was personally involved in any wrongful conduct, other

than the conclusory allegations that she requested Defendant Horn to perform certain acts. 

(Compl. ¶19). Such allegations that Defendant Smith was personally involved in this matter fail

to meet the “plausibility”threshold of Twombly, and thus Defendant Smith must be dismissed

from all counts. 

X. Counts I, IV, V, and VI must be dismissed pursuant to the statute of limitations.

Certain of Plaintiffs’claims (Counts I, IV, V, and VI) are subject to a two-year statute of

limitations. Count I (FHA) has a two-year statute of limitations, set forth in 42 U.S.C. §

3613(a)(1)(A). Count IV (battery) and Count V (intentional infliction of emotional distress) are

subject to the two-year statute of limitations in 735 ILCS 5/13-202. Count VI (RLTO) is also

barred by the two-year statute of limitations in 735 ILCS 5/13-202, as RLTO § 5-12-160 is

considered a statutory penalty, since it imposes a specific formula for damages. See Landis v.

Marc Realty, LLC, 235 Ill. 2d 1, 13-15 (2009) (finding claim under RLTA § 5-12-080 was a

“statutory penalty”subject to the two-year statute of limitations in § 13-202). Thus, Counts I,

IV, V, and VI are barred by the respective statutes of limitations because Plaintiffs allege various

acts occurred in winter 2010, which was more than two years before the Complaint was filed on

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 23 of 32 PageID #:97
19

April 19, 2012. No “continuing tort”theory applies here, as Plaintiffs allege discrete and distinct

wrongful acts, rather than continuous wrongful conduct. See Torres v. All Town Bus Servs., Inc.,

2011 Ill. App. Unpub. LEXIS 257 (1st Dist. 2011) (when all of the alleged acts except for one

occurred more than two years before the complaint was filed, the entire claim for iied was barred

by the statute of limitations, as the “continuing tort”theory did not apply).

CONCLUSION

WHEREFORE, Defendants Smith Partners & Associates, Ltd., Smith REO Properties,

Coya Smith, and Andy Horn respectfully request this Court to enter an order dismissing

Plaintiffs’Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) with

prejudice, and for further relief as the Court deems just and proper.

July 3, 2012 Respectfully submitted,

SMITH PARTNERS & ASSOCIATES, LTD.,

SMITH REO PROPERTIES, COYA SMITH, AND

ANDY HORN

By: /s/ Newton C. Marshall

One of their Attorneys

Newton C. Marshall (ARDC No. 6209427)

Michelle M. Blum (ARDC No. 6295921)

KARBAL COHEN ECONOMOU SILK & DUNNE LLC

150 S. Wacker Drive, Suite 1700

Chicago, IL 60606

(312) 431-3700

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 24 of 32 PageID #:98
bñÜáÄáí=^
bñÜáÄáí=` bñÜáÄáí=_

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 26 of 32 PageID #:100
Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 27 of 32 PageID #:101
Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 28 of 32 PageID #:102
bñÜáÄáí=a bñÜáÄáí=`

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 29 of 32 PageID #:103
Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 30 of 32 PageID #:104
Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 31 of 32 PageID #:105
bñÜáÄáí=b bñÜáÄáí=a

Case: 1:12-cv-02922 Document #: 18 Filed: 07/09/12 Page 32 of 32 PageID #:106