plaintiffs’ claim is and the grounds upon which it rests. Thus, defendant’s motion to dismiss
Count I is denied.
B. Count IT: Section 1981

Plaintiffs allege that defendant deprived them of the right to make and enforce contracts
thereby violating section 1981. Under section 1981, “all persons within the jurisdiction of the
United States shall have the same right to make and enforce contracts as enjoyed by white
citizens.” 42 U.S.C. § 1981 (West 1982). “The term ‘make and enforce contracts’ under this
section, includes the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Jd. §
1981(b). The aim of this statute was to remove the impediment of discrimination from a
minority citizen’s ability to participate fully and equally in the marketplace. Patterson v,
McClean Credit Union, 491 U.S. 164, 170 (1989),

Jn the Seventh Circuit, to establish a section 1981 claim, “the plaintiff must show that (1)
he or she is a member of a racial minority; (2) the defendant had an intent to discriminate on the
basis of race; and (3) the discrimination concerned one or more of the activities enumerated in
the statute, in this case, the making and enforcing of a contract.” Bellows v. Amoco Oil Co., 118
F.3d 268, 274 (7th Cir. 1997); see Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996).

Defendant argues that plaintiffs have pleaded themselves out of court. The Court agrees.
It is well settled that a plaintiff cannot maintain a section 1981 claim when the plaintiff was the
party responsible for terminating the transaction. Bagley y, Ameritech Corp,, 220 F.3d 518, 521
(7th Cir. 2000), This is true even if the plaintiff left the establishment because of what they
perceived to be racial animus, /d, at 521. A section 1981 claim “must allege that the plaintiff

was actually prevented, and not merely deterred, from making a purchase or recciving service



For the foregoing reasons, the Court grants in part and denies in part defendant’s motion
to dismiss (doc. no. 10-1]. The motion is granted as to Counts II and UI and dented as to Count

I. Defendant shall answer the First Amended Complaint within ten days of the date of this

Memorandum Opinion and Order.

SO ORDERED.

CONCLUSION

ENTERED: 16/2./ 0 a

hat 22

HONORABLE RONALD A. GUZMAN
United States Judge



would entitle him to relief.” Conley v. Gibson, 355 U.S, 41, 45-46 (1957). A motion to dismiss
does not test whether the plaintiff will prevail on the merits, “but whether the claimant is entitled
to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

A. Count I: Title II

Plaintiffs allege that defendant deprived them of the full and equal enjoyment of their
restaurant because of their race thereby violating Title II. Under Title I, “‘all persons shall be
entitled to the full and equal enjoyment of goods, services, facilities, privileges, advantages, and
accommodations of any place of public accommodation, without discrimination or segregation
on the ground of race, color, religion, or natural origin.” 42 U.S.C. § 2000a(a) (West 1981).

Defendant argues that plaintiffs have failed to state a claim upon which relicf may be
granted because they do not allege any particularized facts of race discrimination under Title IT.
The Court disagrees. “{T]he Fedcral Rules of Civil Procedure do not require a claimant to set out
in detail the facts upon which he bases his claim.” Conley, 355 U.S. at 47. Rule 8(a)(2) provides
that a complaint must include only a short and plain statement of the claim showing that the
pleader is entitled to relief. Jd. Such a statement must simply give the defendant fair notice of
what the plaintiff's claim is and the grounds upon which it rests. /d.

Clearly, plaintiffs have made a short and plain statement alleging a violation of Title II.
Plaintiffs allege that they were refused service at defendant’s restaurant when other non-
Hispanics were allowed to enjoy the services at the restaurant on different terms. (Am. Comp. {{
14, 23.) Plaintiffs allege that the reason why they were not seated was because they were
Hispanic. (/d. 23.) Plaintiffs allege they have suffered damages and personal injury, including,
but not limited to, humiliation, embarrassment, loss of personal dignity, and sclf worth as a direct

and proximate result. (Jd. 35.) Such statements give the defendant fair notice of what the



after attempting to do so.” Henderson v. Jewel Food Stores Inc., No. 96 C 2666, 1996 WL
617165, at *3 (N.D. Ill, Oct. 23, 1996).

In Bagley v, Ameritech, where an assistant manager of a retail store told the plaintiff that
she would not serve him and plaintiff left only to return later at which time defendant offered to
help plaintiff make a purchase and plaintiff refused, the United States Court of Appeals for the
Seventh Circuit held that the defendant was not responsible for terminating the transaction and
that defendant’s offer to help plaintiff make a purchase upon his return later that day definitely
established that the defendant would have sold plaintiff a phone. 220 F.3d at 522.

As in Bagley, in the instant case, plaintiffs were told they would not be served. Plaintiffs
then left the restaurant. Plaintiffs re-entered the restaurant. Plaintiffs were offered service.
Plaintiffs refused such service. Consequently, the plaintiffs, not the defendant, were responsible
for terminating the transaction and defendant's offer to serve the plaintiffs made upon their later
return established that the defendant would have seated and served them, Plaintiffs cannot
maintain a race discrimination claim when they were the party that opted not to enter the
contract, Accordingly, defendant’s motion to dismiss Count I] is granted.

(on Count IIT: [inois Human Rights Act

Plaintiffs allege that defendant deprived them of the full and equal enjoyment of their
restaurant because of their race in violation of the Illinois Human Rights Act (““IHRA”). The
THRA states that it is a civil rights violation for any person on the basis of unlawful
discrimination to deny or refuse to another the full and equal enjoyment of the facilities and
services of any public place of accommodation. 775 ILL. CoP. STAT. 5/5-102 (2001). A place
of public accommodation includes restaurants. /d. 5/5-101.

The IHRA was enacted to create a state cause of action for various civil rights violations


Minute Order Porm (04i97)

United States District Court, Northern District of Tlinois

Name of Assigned Judge Ronald A. Guzman Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 C 1819 DATE 10/2/2002
CASE GERALDO MENDEZ,et al vs. PIZZA HUT OF AMERICA,INC.
TITLE
[ln the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3ed party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
a) o 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.
@ a Ruling/Hearing on ___sct for _ at
() Oo Status hearing[held/continued to) [set for/re-sct for) on setfor_ at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) QO Trial[set for/re-set for] on ato
(8) oO [Bench/Jury trial] [Hearing] held/continued to ato
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a\(1) O FRCP41(a)(2).
ao [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: the Court grants in
part and denies in part defendant’s motion to dismiss [10-1]. The motion is granted as to Counts II and
Tif and denied as to Count I, Defendant shall answer the First Amended Complaint within ten days of the
date of this Memorandum Opinion and Order.
aby @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required, vue o ies
Notices mailed by judge's staff. OCT 0 3 2002
Nolified counsel by telephone. date dosketed
wo | Docketing to mail notices,
Mail AO 450 form, Aooketing deputy iain
Copy to judge/magistrate judge.

TBK

courtroom _davy mailed notion

depuly's
initials

Date/time received in
central Clerk's Office

‘mailing deputy initile



amounting to discrimination based on, among other things, race. Jd. 5/1-102(A). The IHRA has
an exclusivity or preemption provision which provides: “Except as otherwise provided by law,
no court of this state shall have jurisdiction over the subject of an alleged civil rights violation
other than as set forth in this Act.” Jd. 5/8-111(C). Based on that provision, the Iinois Human
Rights Commission (“THRC”) is vested with exc/usive jurisdiction over claims which fall under
the THRA. Daulo vy, Commonwealth Edison, 938 F. Supp. 1388, 1404 (N.D. UL 1996); see also
Mobley v, Kelly Kean Nissan, Inc., 864 F, Supp, 726, 729 (N.D. Ill. 1993). Thus, courts have no
jurisdiction to hear actions for alleged human rights violations until administrative remedies are
exhausted before the IHRC and the IHRC has issued a final order. Talley v. Washington
Inventory Serv., 37 F.3d 310, 312-13 (7th Cir. 1994); see also Jablonski v. Chas. Levy
Circulating Co., 888 F. Supp. 84, 86 (N.D. Ill. 1995); Allen v. City of Chicago, 828 F. Supp. 543,
559 (N.D. Ill. 1993), A plaintiff must allege that he or she exhausted administrative remedies to
state a cause of action. Radaszewski v. Metro. Water Reclamation Dist., No. 96 C 8320, 1998
WL 386358, at *2 (N.D. ILL. July 6, 1998).

In Jablonski v. Chas. Levy Cireulating Co., the court held that because a plaintiff failed to
allege that she exhausted her administrative remedies, she could not maintain her claim in federal
court and her claim was thereby dismissed. 888 F. Supp. al 86. The same is true in this instance.

Plaintiffs have not alleged that they exhausted all of their administrative remedies in the

Amended Complaint. Therefore, defendant’s motion to dismiss Count III is granted.



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

EASTERN DIVISION
GERALDO MENDEZ AND NORMA MENDEZ, )
Plaintiffs, }
v. } 02 € 1819
PIZZA HUT OF AMERICA, INC, a Delaware } Judge Ronald A. Guzman
corporation, ) :
Defendant. ,

MEMORANDUM OPINION AND ORDER ocT 3 2002

Plaintiffs Geraldo and Norma Mendez have sued Pizza Hut of America, Inc. for racially
discriminatory practices. Defendant has moved to dismiss the Amended Comp]&int-pursuant to |. -r"aev
Federal Rule of Civil Procedure (“Rule) (12)(b)(6). Plaintiffs assert three claims in their
Amended Complaint: (1) defendant deprived them of full and equal enjoyment of goods,
services, facilities, privileges, advantages, and accommodations of any place of public
accommodation because of their race in violation of 42 U.S.C. § 2000a et seg. (“Title IT”); (2)
defendant deprived them of a right to make and enforce contracts in violation of 42 U.S.C. §
1981 (“section 1981”); and (3) defendant denied and refused them the full and equal enjoyment
of their facilities and services thereby violating 775 ILL. Comp. STAT. 5/5-102. For the reasons
set forth in this Memorandum Opinion and Order, defendant’s motion to dismiss is granted in
part and denied in part.

FACTS
On February 14, 2002 at 8:25 p.m., plaintiffs Geraldo and Norma Mendez, as well as

their three children, entered defendant’s Pizza Hut restaurant. (Am. Comp. { 8.) Inside the

—

/S



restaurant a sign was posted instructing patrons to “Wait to be seated.” (Jd. 49.) There was no
sign posted that the dining room of the restaurant was closed. (Jd. 10.) A waitress approached
plaintiffs and asked if they wanted to dine in or carry out. (/d. § 11.) Plaintiffs indicated they
wanted to dine in. (/d.) The waitress said that she would clear a table for them and walked
away. (/d.) There were approximately eighteen other patrons in the restaurant seated at
approximately eight tables. (/d. | 13.) All of the patrons seated in the restaurant were African
American. (/d.) After approximately fifteen minutes, an African American woman who
identified herself as Rachel Jackson, a Pizza Hut Manager, told plaintiffs that they were no
longer seating people but only taking carry out orders, ({d. 13-14.) It being Valentine’s Day,
plaintiffs wanted to dine in, so they exited the restaurant. (/d. 14.) Plaintiff Geraldo Mendez
re-entered the restaurant after reading the sign posted on the door to the restaurant that indicated
the restaurant was open until 10 p.m. (/d. 17.) Upon re-entering the restaurant, Mr. Mendez
complained to Ms. Jackson about not being seated when the sign on the restaurant door indicated
that the restaurant was open until 10 p.m. (/d. | 18.) When Mr. Mendez told Ms, Jackson that he
was going to “phone in” a complaint of race discrimination to the Pizza Hut complaint number,
Ms. Jackson offered to seat the family. (/d. 4 19.) Mr. Mendez declined Ms. Jackson’s offer,
(Ud. 4 20.)
DISCUSSION

In ruling on a motion to dismiss, a court must presume all of the well-pleaded allegations
of the complaint to be true. Mariee v. DeKalb County, 433 U.S. 25, 27 (1977). A court must
review those allegations in the light most favorable to the plaintiff. Vaden v. Village of
Maywood, 809 F.2d 361, 363 (7th Cir. 1987). Dismissal under Rule (12)(b)(6) is proper only if

it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which