~4-
adequately informed of the claims against them, in that the state
law claims referred to in Count VI are set forth specifically in
Counts III, IV, and V. However, we can already forsee the problem
of parsing the three claims out of Count VI. The plaintiffs have
withdrawn the assault and battery claim asserted in Count IV, so we
presume that they mean to withdraw that portion of Count VI
claiming respondeat superior liability for assault and battery. We
believe it would be easier to handle the plaintiffs’ distinct
claims separately, without having to surmise the plaintiffs’
intentions. Moreover, we could find ourselves dismissing another of
the state law claims forming the basis of Count VI while retaining
the third claim. Therefore, we order the plaintiffs to amend the
complaint into a separate count for each distinct claim they wish

to allege. See Demes v. ABN Amro Services Co. Inc., No. 01 C 0967,

2001 WL 563813, *2 (N.D. Ill. May 23, 2001) (noting that courts
generally order the plaintiff to replead rather than dismiss the
complaint for violations of Rule 10(b)).

There is another problem with the complaint that the
defendants mention as an aside and which merits comment here. By
referring simply to “plaintiff,” the complaint often fails to make
clear which plaintiff is asserting which claim. Exacerbating the
problem, the complaint vacillates at times between the singular and

plural of “plaintiff,” even within the same count. For example,

Count II alleges an unreasonable search of the “plaintiffs’ abode”


-7-
not pay a judgment. To dismiss the Plaintiff’s section 9-102 claim
against the City of Joliet, Oviedo simply relied on earlier cases,

Rosentreter v. Munding, 736 F. Supp. 165 (N.D. Ill. 1990) ana

Spiegel v. City of Chicago, 920 F. Supp. 891 (N.D. Ill. 1996), both

of which pre-date Wilson and were overruled by Wilson. See Buttron,

2001 WL 111028, *3 (“The Seventh Circuit's decision in Wilson

overrules these two cases; Defendant should know this.”); see also

Cortez v. Defendant Deputy Sheriffs, No. 99¢ 2397, 1999 WL 569542,

*2 - 3 (N.D.I1L. July 28, 1999) (allowing the plaintiff's section
9-102 claim to go forward and noting that the cases pre-dating

Wilson had been called into serious question).

None of the post-Wilson cases discussing section 9-102

Suggests that Wilson applies only if the municipal defendant balks
at paying any judgment later entered against its employees. See

Buttron, 2001 WL 111028 at *3; Saffold, 47 F.Supp.2d at 931;

Cortez, 1999 WL 569542 at *2 - 3. If it did, municipal defendants
could obtain dismissal of section 9-102 claims simply by remaining
silent as to their intentions. The plaintiffs would then be forced
to initiate ancillary proceedings to obtain Payment later on when

the municipality refuses to indemnify. See Wilson, 120 F.3d at 685.

We do not believe Wilson can be so easily circumvented.

We deny the Village’s motion to dismiss Count VII on the basis

that the plaintiffs’ claim under section 9-102 is premature.


a nennnene ate

-3-

a judgment against any employee of the Village.

ANALYSIS
On a motion to dismiss we accept as true all factual
allegations in the complaint and draw all reasonable inferences in

the plaintiff’s favor. Hentosh v. Herman M. Finch Univ. of Health

Sciences, 167 F.3d 1170, 1173 (7th Cir. 1999). Dismissal is
appropriate only if “‘it is clear that no relief could be granted

under any set of facts that could be proved consistent with the

allegations.’” Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.
1997).
I. Count VI

Federal Rule of Civil Procedure 10(b) states, in pertinent
part, that “[e]ach claim founded upon a separate transaction or
occurrence ... shall be stated ina separate count ... whenever a
separation facilitates the clear presentation of the matters set
forth.” In keeping with the rule, the courts have required “a
separate count for each distinctive statutory and constitutional
claim.” Casler v. Janus, No. 97 C 5049, 1998 WL 151811 at *1 (N.D.
Ill. March 26, 1998) (citing cases). There are two purposes for
requiring separate counts: (1) to give fair notice to the
defendants of the claims against them, and (2) to enable the court
to grant relief on an entire count, not just part of a count. Id.

We agree with the plaintiffs that the defendants are


oom nations emia

-5-
but the relief is sought only by “plaintiff.” The amended
complaint should make clear which plaintiff is asserting which

claim.

TI. Count VII

In the event the defendant officers are found liable for
damages, the plaintiffs seek indemnification by the Village under
the Illinois Local Governmental and Governmental Employees Tort
Immunity Act, which states in pertinent part:

A local public entity is empowered and directed to pay

any tort judgment or settlement for compensatory damages
for which it or an employee while acting within the scope

of his employment is liable in the manner provided in
this Article.

745 ILCS 10/9-102. The Village argues that it cannot be sued under

this section until liability has been established against its

employees. In Wilson v. City of Chicago, 120 F.3d 681, 684-86 (7th
Cir.1997), the Seventh Circuit observed that a municipality cannot
be made to pay a judgment while the liability of its employee is in
question. It does not follow, however, that the plaintiff has to
wait until judgment becomes final before he can state a claim under
section 9-102. "[T]he- plaintiff, in order to expedite the
collection of the judgment, could ask the court to enter a judgment
against [the municipality] that would take effect when and if a
judgment against [its employees] was entered and no longer

contestable." Id. at 685. Wilson further observed that there would


~8-
CONCLUSION

For the reasons explained above, the defendants’ motion to
dismiss Counts VI and VII is denied. The defendants’ motion to
dismiss Counts I and IV is also denied because the plaintiffs have
withdrawn those counts. We order the plaintiffs to amend the
complaint in the manner described in section I. The amended
complaint should be filed by October 24, 2001, and defendants may

have until November 14, 2001 to plead.

DATE: October 2, 2001

Thé Hgnorable John P. Grady



 Minvie Order Form (06/97)

United States District Court, Northern District of Illinois

Ni f Assigned Juds Sitting Judge if Othe
ior Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 01 C 4121 DATE October 2, 2001
CASE Savin v. Robinson, Village of Glenco
TITLE

MOTION:

(Un the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.]

DOCKET ENTRY:

ay
2)
@)
(4)
6)
(6)
7)
(8)
(9)

(10)

(uly

ia} Filed motion of [ use listing in “Motion” box above.]

a Brief in support of motion due

ia) Answer brief to motion due___._ Reply to answer brief due_____

Q Ruling/Hearing on eset for at

o Status hearing[held/continued to] [set for/re-set for]on_setfor at

a Pretrial conference[held/continued to] [set for/re-set for] on —__setfor_ at.

a Trial[set for/re-set for] on____at

o [Bench/Jury trial] [Hearing] held/continued to at

Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O General Rule 21 OO FRCP41(a)(1) 0 FRCP4i(a)(2).

a {Other docket entry] Defendants’ motion to dismiss [4-1] is denied.

See attached for details. ENTER MEMORANDUM OPINION.

x {For further detail see order (on reverse side offattached to) the original minute order.]

No notices required, advised in open court.

No notices required.
eq number of notices

Document .
Number

Notices mailed by judge's staff. e) OCT 6 5 2001

Notified counsel by telephone. date docketed

Docketing to mail notices.

nh pee ,
Mail AO 450 form. Ui0lT-& p, docketing deputy inials

Copy to Oct. 2, 2001
date mailed notice
courtroom
KAM deputy’s KAM
initials Date/time received in
central Clerk’s Office ‘mailing deputy initials



~6-
be no benefit in requiring the plaintiff to initiate a separate

lawsuit to obtain payment. Id.; see also Buttron v. Sheahan, No. 00

C 4451, 2001 WL 111028, *4 (N.D.I11. Feb. 2, 2001) (noting that
such a requirement would consume judicial resources unnecessarily).

The plaintiffs seek payment from the Village under section 9-
102 in the event they obtain a judgment against the defendant
officers. Wilson expressly allows this type of claim. Wilson, 120

F.3d 685; see also Saffold v. City of Calumet Park, Ill., 47

F.Supp.2d 927, 931 (N.D. Tll. 1999) (noting that plaintiff was
within the confines of Wilson where his claim against defendant
cities was contingent upon obtaining a judgment against their
employees).

The Village argues that Wilson should not apply because this
case presents distinct factual circumstances. In Wilson, the City
of Chicago declared that it would not pay a judgment obtained
against its employee, but here, an action under section 9-102 is
premature because the Village has made no declaration that it would
refuse to pay a judgment obtained against Robinson.’ The Village

cites Oviedo v. Heavener, No. 96 C 0474, 1997 WL 445933 (N.D. Til.

July 31, 1997), to support its position. But Oviedo, decided just

10 days after Wilson, does not mention Wilson or make any

distinction between municipalities that declare they will or will

Y the Village does not state that it will pay a judgment entered against
Robinson. The Village says nothing about judgments entered against the unknown
officer defendants.


01-4121.011-MEV October 2, 2001

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION NOCKETED

OCT 05 2001

SUZANNE SAVIN and KURT
KARCHMER,

Plaintiffs,
v. No. 01 ¢€ 4121
OFFICER STANLEY ROBINSON,

VILLAGE OF GLENCOE, and
UNKNOWN OFFICERS,

Defendants.

MEMORANDUM OPINION

Before the court is the motion of Stanley Robinson and the
Village of Glencoe to dismiss Counts I, IV, VI, and VII of the
plaintiffs’ complaint. For the reasons explained below, the motion

is denied.

BACKGROUND

The following facts were drawn from the plaintiff’s complaint,
which we take as true for the purpose of deciding this motion to
dismiss. On May 10, 2001, at approximately 2:00 a.m., police
officers (“defendant officers”) of the Village of Glencoe (“the
Village”) entered the plaintiffs’ home without @ warrant and

without probable cause. The defendant officers did not ring the


~2-
doorbell or telephone the home prior to forcing entry. The
officers proceeded upstairs, where they found plaintiffs Suzanne
Savin and Kurt Karchmer ‘sleeping. The plaintiffs were removed from
their home, and the house was searched. Neither plaintiff was
charged with any wrongdoing.

The plaintiffs filed a seven count complaint against Officer
Stanley Robinson, Unknown Officers, and the Village of Glencoe.
Plaintiffs sue under 42 U.S.C. § 1983 for the use of unreasonable
force (Count I), and for unreasonable search (Count II). They also
allege state law claims for unreasonable search (Count III),
assault and battery (Count IV), and trespass (Count V). Count VI
alleges respondeat superior claims against the Village of Glencoe
for the officers’ unreasonable search of the home, assault and
battery, and trespass. Under Count VII (which is mislabeled “Count
Iv”), the plaintiffs seek payment from the Village for any judgment
entered against its employee officers. See 745 ILCS 10/9-102.

Robinson and the Village move to dismiss Counts I, IV, VI, and
VII. The plaintiffs have agreed to withdraw Counts I and Iv.
Plaintiffs’ Response, at 1. With respect to Count VI, the
defendants argue that the plaintiffs violated Federal Rule of Civil
Procedure 10(b) by including three separate legal claims against
the Village in one count. As to Count VII, the defendants argue
that a claim for indemnification under 745 ILCS 10/9-102 is

improper and premature because the plaintiffs have not yet obtained