In their motion to reconsider, plaintiffs point out that a number of the facts regarding
Bonaventure’s supposed provision of services are disputed, and they argue generally that
Bonaventure’s residence is nothing like the nursing home at issue in Antler. Though the Court is
not entirely convinced of the materiality of the factual disputes cited by plaintiffs in this regard,
the issuc of the applicability of the CRLTO, like that of the FED Act, is a state-law issuc on
which we have precious little governing precedent. To put it another way, plaintiffs’ claim under
the CRLTO, like their claim under the FED Act, is a novel one on which the state courts have not
spoken.

Given the Court’s doubt regarding the correctness of its earlier rulings on the FED Act
and CRLTO claims, and due to the novelty of the issues of state law that these claims present, the
Court now believes that we should have declined to exercise supplemental jurisdiction over those
claims. See 28 U.S.C. §1367(a); cf Insolia v. Philip Morris Inc., 216 F.3d 596, 607 (7th Cir.
2000) (diversity case; noting that “[iJnnovative state law claims should be brought in state
court.”). The Court therefore vacates its Memorandum Opinion and Order of July 7 insofar as it
concerns the FED Act and CRLTO claims and hereby dismisses thosc claims without prejudice
pursuant to 28 U.S.C. §1367(a) so that plaintiffs may pursue them in slate court if they wish to do
so. Our declination of jurisdiction over these particular claims does not affect our jurisdiction
over plaintiffs’ claims for intentional infliction of emotional distress, claims on which there is
ample precedent and which present no novel issues.

Conclusion
For the reasons stated above, the Court grants plaintiffs’ motion to reconsider the July 7,

2003 Memorandum Opinion and Order [docket # 52-1]. The portion of that Memorandum


Act based in part upon the existence of ISRA, a statute specifically governing supporting
residences like Bonaventure House. Principles of statutory construction that apply in Illinois
hold that when two statutes covering the same subject conflict, the specific statute controls. See,
e.g,, Knolls Condominium Ass'n v. Harms, 202 Ul. 2d 450, 459, 781 N.E.2d 261, 267 (2002);
Newland vy. Budget Rent-A-Car Systems, Inc., 319 Tl. App. 3d 453, 459, 744 N.E.2d 902, 906
(2001). But JSRA itself does not contain a provision regarding termination of residency, and
though the implementing regulations do, they do not say what an agency like Bonaventure is to
do when a terminated resident will not leave. Thus it is not clear that there is a conflict between
ISRA and the FED Act; there is a decent argument that the FED Act provides the proper
mechanism for actually ejecting a resident who refuses to leave a facility subject to ISRA. Resort
to the criminal trespass law (which Bonaventure appears to have relied on at least in Cotton’s
case) is questionable in light of that law’s cxemption for persons “living on the land with
permission,” see 720 ILCS 5/21-3(c), an exemption that appears to apply to persons who once
lived with permission but refuse to leave after the permission is revoked. See People v.
Flanagan, 133 WM. App. 3d 1, 4-5, 478 N.E.2d 666, 668 (1985). In sum, the Court is no longer
confident that the ISRA actually trumps the FED Act in this context,

The CRLTO provides an exemption for an “extended care facility” but does not define
thal term. In Aniler v. Classic Residence Mgmt. Ltd. P’ship, 315 Til. App. 3d 259, 733 N.E.2d
393 (2000), the Illinois Appellate Court defined the term by reference to the Illinois Nursing
Home Care Act’s definition of “long term care facility.” In ruling that the CRLTO did not apply,
this Court concluded that Bonaventure qualified as an “extended care facility” due to its offer of

supportive services to residents, and we also relied on the existence of the more-specific ISRA,


Opinion and Order which addressed the merits of Counts 2 and 3 of plaintiffs’ complaints is
vacated, and an amended Memorandum Opinion and Order will be entered. Counts 2 and 3 of
the complaint in cach of these cases is dismissed without prejudice pursuant to 28 U.S.C.
§1367(a). Counts 1 and 4 of both complaints remain set for trial at 9:45 a.m. on November 17,

2003.

MATTHEW F. KENNEL]
United States District Judge
Date: September 9, 2003


‘Minute Order Fora (06/97)

United States District Court, Northern District of Minois

—
Name of Assigned Judge Sitting Judge if Oth
- Magiewnte Tudge Matthew F. Kennelly than Assited Judge
CASE NUMBER 02 C 7969 DATE 9/9/2003
CASE Cotton vs. Alexian Brothers
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (>) slate briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

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

(2) o Brief in support of motion due _ _

(3) a Answer brief to motion due____. Reply to answer briefdue____-

(4 Qo Ruling/Hearingon ss setfor_— at.

(5) q Status hearingfheld/continued to] (set for/te-set for]on_ ss _setfor_ at.
(6) Q Pyctrial conference[held/continued to} [set for/re-set for] on__——ssetfor_ at
(7) Oo Trial[set for/re-set for}on, at _

(8) im) (Bench/Jury tial] [Hearing] held/continucd to at

(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

DOFRCP4(m) CO Local Rule 41.1 CUFRCP41(a\(1) 0 FRCP41(aj(2),

qo «of [Other docket entry] _ For the reasons set forth on the attached order, the Court grants plaintiffs’
motion to reconsider the 7/7/03 Memorandum Opinion and Order (52-1). The portion of that order which
addresses the merits of Count 2 and 3 of plaintiffs’ complaint is vacated, and an amended Memorandum
Opinion and Order will be entered. Counts 2 and 3 of the complaint in each of these cases is dismissed
without prejudice pursuant to 28 U.S.C. §1367(a). Counts 1 and 4 of both complaints remain sct for trial
at 9:45 am. on 11/17/03.

(ay | {For further detail sec order attached to the original minute order.]

No notices required, advised in open court. Document.
Number

No notices required.

umber of notices

Notices mailed by judge's staff.

Notitied counse} by telephone,

ov | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge,

tyqO] APES SD

courtroom moro) OE GIR a
OR deputy’s . “
initials

"igi |. Datertime received in
ogntval Clerk's Office masting deputy initials



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

GREGORY COTTON and
EMORY BOLDEN,

Plaintiffs,

Case Nos. 02 C 7969 and
02 C 8437 consolidated

ys.

ALEXIAN BROTHERS
BONAVENTURE HOUSE, an Illinois
not-for profit corporation,

DOCKETED

SEP 11 2003

Defendant.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiffs Gregory Cotton and Emory Bolden have moved for reconsideration of the
Court’s July 7, 2003 ruling insofar as it granted summary judgment in favor of defendant Alexian
Brothers Bonaventure House on plaintiffs’ state law claims. For the reasons stated below, the
Court has concluded that it was improvident to address these claims on their merits and that, due
to their novelty, we should have declined to exercise supplemental jurisdiction over them. The
Court therefore vacates the July 7 ruling insofar as it addressed those claims.

Plaintiffs were residents at Bonaventure’s transitional residency program for persons with
HIV / AIDS. Bonaventure terminated Cotton’s residency on October 30, 2002, supposedly
because he had made a threat to another resident. It advised Cotton that if he did not leave the
same day, Bonaventure staff would call the police to remove him. Bonaventure terminated
Bolden's residency on November 19, 2002, allegedly because he had entered another resident's

room uninvited and attempted to initiate sexual contact. He, too, was told to leave the same day,

(,\



though there is no indication that Bonaventure threatened to call the police.

In addition to claiming that the terminations violated the plaintiffs’ rights under the
federal Housing Opportunities for People With AIDS Act, 42 U.S.C. §12901 et seq., plaintiffs
also alleged that Bonaventure acted in violation of the Illinois Forcible Entry and Detainer Act,
735 ILCS 5/9-101 ef seqg., and the Chicago Residential Landlord Tenant Ordinance. The Court
ruled that the FED Act did not apply because no landlord-tenant relationship existed and because
a mote specific Ilinois statute, the Iinois Supportive Residences Act, 210 ILCS 65/5, provided
(through its implementing regulations) an involuntary discharge procedure specifically applicable
to supportive residences for persons with HIV. We ruled that the CRLTO did not apply because
Bonaventure qualified as an “extended care facility” and thus was cxempt under a provision of
the Ordinance. Those are the conclusions that plaintiffs have asked the Court to reconsider.

Both the FED Act claim and the CRLTO claim are state law claims. The applicability of
both of these statutes to the termination of plaintiffs’ residencies at Bonaventure is subject to
serious dispute. In addressing these claims, the Court was asked to write on a virtually clean
slate. After consideration of the parties’ written and oral arguments regarding the motion to
reconsider, the Court is no longer confident thal it reached the correct result in addressing the
FED Act and CRLTO claims.

Language in the FED Act indicates that it applics beyond the landlord-tenant context.

See 735 LLCS 5/9-101, 9-102(a). Lf the Act applies, it prohibits an owner of land from “forcibly”
entering to remove a person who the owner claims is not entitled to possession, 735 ILCS 5/9-
101, and “forcible” entry includes calling the police and claiming trespass. See People v. Evans,

163 TH. App. 3d 561, 565, 516 N.E.2d 817, 819 (1987). The Court declined to apply the FED