02-9134.061-JCD April 11, 2006

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AIRBORNE BEEPERS & VIDEO, )

INC., an Illinois corporation, ) 

)

Plaintiff, )

)

v. ) No. 02 C 9134

) 

SOUTHWESTERN BELL MOBILE SYSTEMS, )

LLC, d/b/a CINGULAR WIRELESS and )

PARK MANAGEMENT & INVESTMENT, LTD.,)

)

Defendants. )

MEMORANDUM OPINION

Before the court is defendant Cingular Wireless’s motion to

dismiss the Third Amended Complaint. For the following reasons,

the motion is granted in part and denied in part.

BACKGROUND

Plaintiff Airborne Beepers & Video, Inc. (“Airborne”)

originally brought this suit against defendant Southwestern Bell

Mobile Systems, LLC, doing business as Cingular Wireless

(“Cingular”). In the latest amendment to the complaint, plaintiff

added another defendant: Park Management & Investment, Ltd.

(“Park”). Gustavo R. Calderon, who was formerly a plaintiff, is

the president and majority shareholder of Airborne. We have

recounted many of the facts at issue in this case in prior

memorandum opinions and will not repeat them here. 
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The instant motion to dismiss concerns the Third Amended

Complaint. We previously dismissed all of the claims alleged in

the original complaint, some with prejudice and some without, and

gave plaintiffs leave to file an amended complaint. Plaintiffs did

so; another motion to dismiss resulted; and we again dismissed some

of the claims with prejudice and some without and gave plaintiffs

leave to file a second amended complaint. 

Another motion to dismiss followed the filing of the second

amended complaint. In ruling on that motion, we noted that

plaintiffs had not followed our instructions regarding curing the

deficiencies in their complaints and stated: “We would be more than

justified in dismissing the entire Second Amended Complaint, but we

will attempt to salvage what we can notwithstanding plaintiffs’

failure to comply with our prior order.” (Memorandum Opinion of

June 23, 2005 at 3-4.) Once again, we dismissed some of the claims

with prejudice and some without, and gave plaintiffs leave to file

a third amended complaint. We warned that if the third amended

complaint did not comply with the pleading requirements set forth

in our opinion, it would be dismissed summarily with prejudice. 

Shortly after we issued our memorandum opinion regarding the

second amended complaint, plaintiffs’ attorney filed a motion for

leave to withdraw as counsel for plaintiffs, which was granted. At

that time, Calderon indicated that he was attempting to hire

another attorney, so we extended by over a month the time we had
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previously given plaintiffs to file a third amended complaint. We

told Calderon that the Third Amended Complaint would have to comply

with our instructions and warned that “[i]f you strike out, that

will be the end of it.” (Tr. of July 13, 2005 Motion Hearing at

5.) 

A third amended complaint was then filed, which removed

Calderon as a plaintiff, leaving only Airborne, and added Park as

a defendant as well as additional claims. The problem with the

complaint was that Calderon filed it “pro se”--not on behalf of

himself but on behalf of Airborne, a corporation. Cingular moved

to strike the complaint, asserting correctly that a corporation

cannot proceed “pro se.” 

By the time of the next hearing, which was on September 7,

2005, Calderon had hired a new attorney to represent Airborne,

Michael Vitale. At the hearing, we asked Mr. Vitale (aside from

the issue of the complaint having been filed pro se) whether in his

view, the allegations of the Third Amended Complaint stated a

claim. Mr. Vitale stated that he believed that they did, and he

requested leave to re-file the first and last pages of the Third

Amended Complaint with his signature so that Airborne would be

properly represented. We struck the Third Amended Complaint that

had been filed by Calderon and gave plaintiff leave to file a new

Third Amended Complaint, filed by counsel. Because Cingular

indicated that it would be moving to dismiss the anticipated Third
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1/ We also stayed the time for Park to plead to the complaint until

further order of court. 

Amended Complaint, we set a prospective briefing schedule.1 Then,

after Cingular’s attorney requested that no additional amendments

to the complaint be allowed, we specifically advised counsel:

“I’ll deal with any question of another complaint if I dismiss this

one, but I do suggest to you, Mr. Vitale, if you can improve this

one in some way that would avoid a dismissal, now is the time to do

it.” Counsel replied: “I understand that, Your Honor. I’ve

advised my client of that.” We also instructed plaintiff’s counsel

as follows: “If you do make any changes [to the complaint], let

[defendant’s] counsel know what the changes are so she doesn’t have

to pore through the voluminous third amended complaint to find out

what they are.” (Tr. of Tr. of September 7, 2005 Motion Hearing at

7-8.) 

Plaintiff’s counsel did not make any substantive changes to

the complaint. On October 14, 2005, Cingular moved to dismiss the

Third Amended Complaint. Shortly thereafter, Mr. Vitale moved to

withdraw as counsel for plaintiff. The motion was granted.

Plaintiff then hired another attorney--plaintiff’s fourth attorney

in this case--who requested, and received, an extension of time to

respond to the motion to dismiss. The motion to dismiss is now

fully briefed. 
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DISCUSSION

A. Plaintiff’s Request for Leave to

File a Fourth Amended Complaint

We will first address a threshold issue. In its response to

Cingular’s motion to dismiss, plaintiff requests leave to file yet

another amended complaint: “Plaintiff’s former lawyers failed to

modify or edit any of the pleadings supplied by the Plaintiff.

Plaintiff consequently has had to obtain other counsel in his

attempt to cure any deficiency in accordance with this Court’s

prior opinions. To that end only does Plaintiff make his request

for leave to file a fourth amended complaint.” (Response at 1.)

Although Federal Rule of Civil Procedure 15(a) provides that

leave to amend a complaint should be “freely given when justice so

requires,” we need not grant such leave where a plaintiff has

repeatedly failed to cure the same deficiencies. See General Elec.

Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th

Cir. 1997). As described supra, plaintiff has had numerous

opportunities to plead its case. Moreover, in our previous

opinions, we provided detailed analyses of the deficiencies of the

prior complaints and explicit guidance for curing those

deficiencies. We previously warned plaintiff that if the Third

Amended Complaint failed to state a claim, there would be no

additional opportunities to amend. Cingular has expended

considerable time and expense responding to the prior deficient
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2/ Plaintiff adds in a footnote that it may “wish to bring a separate

action against” Park. (Response at 4 n.1.)

complaints, and we have already remarked upon the inordinate amount

of time the court has devoted to the pleadings. Therefore,

plaintiff’s request for leave to file a Fourth Amended Complaint is

denied. 

B. Plaintiff’s Request to Voluntarily Dismiss Certain Claims

In his response to the motion to dismiss, plaintiff “prays for

leave to voluntarily dismiss Count V of its complaint with respect

to the Sherman Act and Clayton Act claims against Defendant

Cingular.” (Response at 3.) Plaintiff also “prays for leave to

voluntarily dismiss” all of its claims against Park Management

“without prejudice to Plaintiff’s right to reinstate.”2 (Id. at 3-

4.) 

Plaintiff’s request for leave to dismiss Count V is granted,

and Count V will be dismissed with prejudice. Plaintiff’s request

for leave to dismiss all the claims against Park Management (Counts

VI-X) is granted, and those claims will be dismissed without

prejudice. 

We are left with the following claims in the Third Amended

Complaint, all against Cingular: breach of contract (Count I);

violation of 42 U.S.C. § 1981 (Count II); violation of the Illinois

Franchise Disclosure Act (Count III); and tortious interference

with contract (Count IV). 
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C. Cingular’s Motion to Dismiss

1. Federal Claim (Count II)

Count II is a claim for violation of 42 U.S.C. § 1981, which

prohibits race-based discrimination in the making, performing, and

modifying of contracts. Cingular contends that this claim fails to

comply with Federal Rule of Civil Procedure 8, which requires a

“short and plain statement of the claim.” 

In our latest memorandum opinion, we analyzed plaintiff’s

civil rights claims and held that plaintiff could likely make out

a § 1981 claim, but dismissed the § 1982 claim with prejudice.

There was an issue regarding the proper plaintiff for the § 1981

claim, and we dismissed that claim with prejudice as to plaintiff

Calderon, but without prejudice as to plaintiff Airborne, because

it would properly be asserted by Airborne. We gave plaintiff leave

to file a third amended complaint in which Airborne alone was the

plaintiff asserting the § 1981 claim. We also stated: “Paragraphs

8, 16, and 18a-w [of the Second Amended Complaint] will be

construed as the conduct that forms the basis of the § 1981 claim,

and they should be incorporated into Count I itself in the third

amended complaint.” (Memorandum Opinion of June 23, 2005 at 6.) 

Despite these explicit instructions, as well as our warning

that if the third amended complaint did not comply with our

instructions, it would be dismissed with prejudice, plaintiff fails

to incorporate these allegations into Count I of the Third Amended
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Complaint. In its response, plaintiff concedes this failure. We

can only conclude at this point that this is willful defiance

because plaintiff has failed over and over to comply with the

court’s simple directives despite warnings of the consequences. 

More importantly, though, in relation to the § 1981 claim, the

Third Amended Complaint reverts to the rambling, vague generalities

that we previously rejected in our previous opinions. The § 1981

claim, as set forth in the amended complaint, was dismissed for

failure to adequately state which actions constituted

discrimination. Plaintiff was given leave to “amend the complaint

to specify exactly, within the relevant count, which actions form

the basis for his § 1981 discrimination claim.” (Memorandum

Opinion of December 13, 2004 at 7 (emphasis deleted).) Even after

another intervening attempt, the Third Amended Complaint still

fails to do so in a coherent manner that would put Cingular on

notice of the alleged acts of discrimination. The complaint is 44

pages long and consists of 186 paragraphs, some with several subparagraphs. Plaintiff has added allegations, sprinkled throughout

the complaint, that only muddy the waters. For example, plaintiff

has added the repeated allegations that Cingular discriminated

against him by “refusing to modify [the] contract” and in various

other ways “[during] the performance of the contract.” The problem

(which has been a recurring problem that we have addressed in

relation to the breach of contract claim also) is that the
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existence of several different contracts is alleged in another

section of the complaint, but plaintiff does not specify to which

contract or contracts the discrimination related or specify to what

contractual obligations the discrimination related. (It does not

necessarily follow from an allegation that Cingular took some

particular action “during the performance of the contract” that the

action was related to a contractual obligation.) 

Instead of improving upon the most recent iteration of the

complaint, plaintiff has confused matters once again. The Third

Amended Complaint fails to alert the court or Cingular to the

principal alleged instances of discrimination. All that is

required of plaintiff is a simple, straightforward pleading, but

plaintiff has failed to provide such a pleading time and time again

despite repeated admonitions and guidance. Therefore, the § 1981

claim will be dismissed with prejudice. 

2. State Claims (Counts I, III, IV)

We have dismissed the federal claim in this case. In this

circuit, “the general rule is that, when all federal claims are

dismissed before trial, the district court should relinquish

jurisdiction over pendent state-law claims rather than resolving

them on their merits.” Kennedy v. Schoenberg, Fisher & Newman,

Ltd., 140 F.3d 716, 727 (7th Cir. 1998). We see no reason to

continue to exercise supplemental jurisdiction, see 28 U.S.C. §

1367(c); therefore, the state law claims are dismissed for lack of
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subject matter jurisdiction. (The dismissal is without prejudice

to the refiling of the state law claims in state court.)

CONCLUSION

Plaintiff’s request for leave to file a fourth amended

complaint is denied. Plaintiff’s request for leave to dismiss

Count V is granted, and Count V is dismissed with prejudice.

Plaintiff’s request for leave to dismiss all the claims against

Park Management (Counts VI-X) is granted, and those claims are

dismissed without prejudice.

Cingular’s motion to dismiss the third amended complaint is

granted. The dismissal is with prejudice and terminates the case,

so Cingular’s pending motion to compel arbitration is denied as

moot. 

DATE: April 11, 2006

ENTER: _____________________________________________

John F. Grady, United States District Judge