Morton High Sch, 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967
F.2d 1166, 1168 (7th Cir. 1992). The plaintiff need not allege all of the facts
involved in the claim and can plead conclusions. Higgs v. Carter, 286 F.3d 437, 439
(7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must
"provide the defendant with at least minimal notice of the claim,"id., and the
plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal
conclusions to narrated facts which fail to outline the bases of [his] claim." Perkins,

939 F.2d at 466-67.

DISCUSSION

Defendants argue that we should dismiss Count V as to all defendants because
Rothman seeks relief in Count V that is not available under the applicable provisions
of the ADA. Defendants also argue that this court should dismiss Count IV of
Rothman’s complaint under the doctrine ofres judicata. We also note that on June
15, 2004, by minute order we indicated that Rothman was required to file an answer
to the instant motions to dismiss by July 29, 2004. Rothman never filed an answer
brief to either motion to dismiss. Therefore, we shall only be addressing the merits
of Defendants’ arguments since Rothman failed to file any brief in opposition to the

instant motions.


chose to file his claims for malicious prosecution both in this court and in Illinois
state court, a litigation strategy that the Seventh Circuit has sharply criticized. See
Rogers v. Desiderio, 58 F.3d 299, 300 (7th Cir. 1995)(stating that the Seventh
Circuit “deprecates the practice of filing two suits over one injury ....”). In
addition, while the precise status of Rothman’s state claims is uncertain, it is clear
that the litigation in that court is closer to final disposition than the case before us.
The state court, though it dismissed Rothman’s malicious prosecution claim and
denied his motion to reconsider, also gave him leave to file an amended claim on
that count. Thus, Illinois courts have already expended their judicial resources on
this case, and there is no justification for continuing to duplicate their efforts in this
court. As the Seventh Circuit explained in Rogers, courts do not reward plaintiffs
for filing duplicate litigation, and we decline to do so here. Jd. We find that under
the circumstances in the instant action that a dismissal of Count IV would promote
the efficient use of judicial resources.

There is also more recent case law in the Seventh Circuit that indicates that a
district court should avoid addressing remaining supplemental claims when possible.
The Seventh Circuit has stated that where a court dismissed a federal claim and the
sole basis for invoking federal jurisdiction is now nonexistent, that court should not
exercise supplemental jurisdiction over remaining state law claims. See Williams v.
Aztar Indiana Gaming Corp., 351 F.3d 294, 300 (7th Cir. 2003)(stating that if there
is a dismissal of the original jurisdiction claim and only a supplemental jurisdiction

claim remains “the sole basis for invoking federal jurisdiction is nonexistent and the


section 2000a-3(a) of this title are the remedies and procedures this subchapter
provides. ...” 42 U.S.C. § 12188(a)(1). Section 2000a-3(a) in turn permits a
plaintiff to initiate “a civil action for preventive relief, including an application for a
permanent or temporary injunction, restraining order, or other order.” 42 U.S.C. §
2000e-3(a). Thus, a plaintiff alleging retaliation based on public accommodation
discrimination may seek only injunctive relief under the ADA. See Newman v.
Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (noting that plaintiffs proceeding
under Title II of the Civil Rights Act of 1964, which includes 42 U.S.C. § 2000a-
3(a), “cannot recover damages”); 4.R. v. Kogan, 964 F.Supp. 269, 271 (N.D. Il.
1997)(stating that 42 U.S.C. § 2000a-3 “(which was originally enacted as part of the
public accommodation provisions of the Civil Rights Act of 1964) is specifically
limited to providing injunctive relief and not damages.”). Rothman alleges in his
complaint that “Defendant Betancourt Realty Network is a place of public
accommodation” and cites to 42 U.S.C. § 12182, which relates to public
accommodation discrimination. (SA Compl. Par. 133, 135, 159). It is evident from
these allegations that Rothman bases his ADA retaliation claim upon Betancourt’s
alleged status as a place of public accommodation. See Early v. Bankers Life and
Cas. Co., 959 F.2d 75, 79 (7 Cir. 1992)(stating that “a plaintiff can plead himself
out of court. . . [i]f he alleges facts that show he isn't entitled to a judgment. . . .”).
Thus, Rothman may only seek injunctive relief for Count V.

Rothman asks only for damages and does not include a prayer for injunctive

telief in Count V of his complaint. In his order dismissing several counts of


1_ADA Claim (Count V)

Defendants contend that Rothman improperly seeks damages in Count V
under the ADA and does not include a request for injunctive relief. At the end of
Count V of Rothman’s second amended complaint is a heading entitled “RELIEF
REQUESTED.” (SA Compl. 167). Under that heading Rothman states specifically
that he is seeking compensatory damages, punitive damages, attorneys’ fees, and
costs. Jd. Rothman has the same “RELIEF REQUESTED” heading at the end of
each count. Rothman seeks a remedy in Count V under 42 U.S.C. § 12203(a), (SA
Compl. 165), which is the retaliation provision of the ADA. The retaliation
provision outlines the remedies available for ADA retaliation claims, providing that
“[t]he remedies and procedures available under sections 12117, 12133, and 12188 of
this title shall be available to aggrieved persons for violations of subsections (a) and
(b) of this section, with respect to subchapter I, subchapter II and subchapter III of
this chapter, respectively.” 42 U.S.C. § 12203(c). Section 12188(a)(1) provides
remedies for a public accommodation claim. Where the plaintiff alleges retaliation
based on a defendant’s position as an owner, lessor, or operator of “a place of public
accommodation,” then the available remedies are those provided under 42 U.S.C. §
12188(a)(1). See Van Hulle v. Pacific Telesis Corp. 124 F. Supp. 2d 642, 646 (N.D.
Cal. 2000) (noting that the remedy for retaliation depends upon whether that
retaliation “occurred with respect to employment [subchapter I], public services
[subchapter I], or public accommodations [subchapter II]”).

Section 12188(a)(1) states that “[t]he remedies and procedures set forth in


Il. Doctrine of Res Judicatta (Count IV)

Defendants argue that Count IV of Rothman’s complaint is barred under the
doctrine of res judicata. We need not address Defendants’ argument concerning the
doctrine of res judicatta because, even if the claim in Count IV is not barred in the
instant action, the claim is the only remaining claim in this action and we decline to
exercise supplemental jurisdiction over this remaining claim. Rothman states
specifically in his second amended complaint that this court has subject matter
jurisdiction in this action pursuant to 28 U.S.C. § 1331 and has subject matter over
the state law claims pursuant to 28 U.S.C. § 1367 and the doctrine of supplemental
jurisdiction. (SA Compl. Par. 16).

Under 28 U.S.C. § 1367(c)(3), a federal district court may dismiss a plaintiffs
supplemental state law claims if it “has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c)(3). The decision to dismiss supplemental
claims is discretionary. Larsen v. City of Beloit, 130 F.3d 1278, 1286 (7th Cir.
1997). In exercising that discretion, the court should consider a number of factors,
including “the nature of the state law claims at issue, their ease of resolution, and the
actual, and avoidable, expenditure of judicial resources. . . .” Timm v. Mead Corp.,
32 F.3d 273, 277 (7th Cir. 1994).

In this case, the factors listed above strongly support the dismissal of
Rothman’s malicious prosecution claim in the instant action. A malicious
prosecution claim concerning a matter in state court is by its nature more

appropriately addressed in state court. Also, Defendants have shown that Rothman


Minute Order For (0617)

: —ss fyi States District Court, Northern District of Minois

vee Magieeee Judge { Samuel Der-Yeghiayan “than aasiged Judge

CASE NUMBER 02 C 3533 DATE 10/5/2004
CASE Rothman vs. City of Chicago
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

MOTION;
DOCKET ENTRY:
qd) Qo Filed motion of ( use listing in “Motion” box above.]

(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due :
(4) oO Ruling/Hearing on set for at
(5) a Status hearing{held/continued to) [set for/re-set for] on set for at
(9) ia} Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(O) Oo Trial[set for/re-set for] on at
(8) D [Bench/Jury trial) [Hearing] held/continued to at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) Local Rule 41.1 CFRCP41(a)\(1) CI FRCP41(a)(2).
qo) =f [Other docket entry} For the reasons stated in the attached memorandum opinion, defendants”
motions to dismiss Counts IV and V of the plaintiff's second amended complaint are granted. All pending
dates and motions are hereby stricken as moot. Terminating case. Enter Memorandum Opinion. This is
a final and appealable order.
apy a (For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court,
No notices required. mmnder of polices
Notices mailed by judge's staff.
Notified counset by telephone. OCT..0,6,2004
wv | Docketing to mail notices, Memorandum

Opinion distributed in open Court.

Mail AO 450 form.
Copy to judge/magistrate judge. wes
courroom gta ey 9 LINDT
MW6 deputy’s .
itials SegEEReY
" (is Datettlme recetved in
central Clerk's Office



federal courts should not exercise supplemental jurisdiction over his remaining state
law claims.”); Wright v. Associated Ins. Cos. Inc, 29 F.3d 1244, 1251 (7th Cir.
1994) stating that "the general rule is that, when all federal-law claims are
dismissed before trial, the pendent claims should be left to the state courts.”).
Therefore, we decline to exercise continuing supplemental jurisdiction over Count

TV of Rothman’s complaint.
CONCLUSION

Based on the foregoing analysis, we grant Defendants’ motions to dismiss

Counts IV and V of the second amended complaint.

.

= wo D2 . v

United States District Court Judge

Dated: October 5, 2004

10


Rothman’s complaint on May 14, 2003, Judge Darrah, the prior judge in this case,
noted that Rothman “concedes that he is not seeking injunctive relief” in the
dismissed counts “because injunctive relief will not compensate him for the loss of
his home.” While we do not have such a declaration before us as to Count V,
Rothman’ s prior indication of a lack of interest in injunctive relief is instructive.

In addition, regardless of Rothman’s interest or lack of interest in injunctive
relief, he fails to make the allegations necessary to assert standing for pursuing such
relief under the ADA. Rothman claims that Defendants’ criminal contempt petition
damaged his reputation and caused him public embarrassment and emotional
distress. (SA Compl. Par. 166). Even if we take these allegations as true, Rothman
does not have standing to pursue injunctive relief under the ADA. Past wrongs are ,
not enough to create standing for injunctive relief. The litigant must demonstrate a
“tealistic threat” of suffering similar wrongs in the future or “continuing, present
adverse effects” flowing from the initial wrong. Perry v. Sheahan, 222 F.3d 309,
313-14 (7th Cir. 2000).

Rothman’s complaint does not include any claim that Defendants will subject
him to similar actions in the future, and thus does not proffer any claim of injury that
preventive relief might redress. As that is the only remedy available under 42
U.S.C. 2000a-3(a), Rothman lacks standing to proceed with Count V of his

complaint. Therefore, we grant Defendants’ motion to dismiss that count.


misconduct constituted retaliation against him for asserting his rights under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101et seq.

On December 10, 2003, we dismissed this action pursuant to Local Rule 41.1
for want of prosecution. We subsequently granted Rothman’s motion to reinstate the
action. Defendants Bernard Rivkin and McNish, Knabe & Kroning have filed a
motion to dismiss the remaining counts. Defendants Betancourt Realty Network and
Saul Waimbeck have also filed a motion to dismiss the remaining counts.
Defendants move to dismiss Counts IV and V which are the remaining counts that

are pending.

LEGAL STANDARD

In ruling on motions to dismiss, the court must draw all reasonable inferences
that favor the plaintiff, construe the allegations of the complaint in the light most
favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in
the complaint. Thompson v. Illinois Dep't of Prof'l Regulation 300 F.3d 750, 753
(7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The
allegations of a complaint should not be dismissed on a 12(b)(6) motion for failure to
state a claim "unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). Nonetheless, in order to withstand a motion to dismiss, a

complaint must allege the "operative facts" upon which each claim is based. Kyle v.


prepared to close on his unit on October 4, 2001, but the partnership canceled their
agreement and litigation ensued, with Rothman alleging that the partnership
canceled the sale because Rothman suffers from epilepsy.

In August 2002, Betancourt and Waimberk, along with Defendant McNish,
Knabe & Kronig (“MKK), a Chicago law firm, and Defendant Bernard Rivkin
(“Rivkin”), an attorney employed by MKK, filed a criminal contempt petition
against Rothman in Illinois state court. This petition alleged improper service and
other procedural flaws surrounding Rothman’s Third Amended Complaint in his
state court case. Judgment was entered in Rothman’s favor on the petition in
November of 2002.

Rothman brought the instant action against Defendants and included fourteen
counts in his second amended complaint filed on December 26, 2002. On May 14,
2003, Judge Darrah, the prior judge in this action dismissed without prejudice
Counts I, If, HI, VI, VIE, XI, XII, XII, and XIV. Rothman was given leave to
amend the counts within fourteen days of the ruling and Rothman failed to file any
amendments for those counts. On May 14, 2003, Judge Darrah also dismissed with
prejudice Counts VIII, [X, and X, and denied Rothman’s motion for a preliminary
injunction on Counts VI, VII, VII, XI, and XII. Thus, after May 14, 2003, the only
remaining counts pending were Counts IV and V of the second amended complaint.
In Count IV Rothman alleges that Defendants’ actions constitute malicious

prosecution under Illinois state law. In Count V Rothman alleges that the same


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

RICHARD ROTHMAN, on behalf of
himself and classes of persons similarly
situated,

IN oma,
DOS Fi29
OCT 0 6 2004
Plaintiffs,,
No. 02 € 3533

v.

CITY O CHICAGO, BENTANCOURT
REALTY NETWORK, et al.,

Ne ed

Defendants.

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendants’ motion to dismiss Counts IV
and V of Plaintiff Richard Rothman’s (“Rothman”) second amended complaint. For

the reasons stated below, we grant Defendants’ motion.

BACKGROUND
Sometime between May 2000 and October 2001, Rothman had an agreement
to purchase a condominium unit from Wolfram Towers Partnership. According to
Rothman, defendants Saul Waimberk (“Waimberk”) and Betancourt Realty Network

(“Betancourt”) are limited partners in that partnership. Rothman claims that he was

| 4