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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

D.A., A.A., and LUCINDA DEL CARMEN 

PADILLA-GONZALES,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA, 

HEARTLAND ALLIANCE FOR HUMAN 

NEEDS AND HUMAN RIGHTS, and 

HEARTLAND HUMAN CARE SERVICES, 

INC.

Defendants.

Case No. 1:20-cv-03082

Hon. Martha M. Pacold

HEARTLAND HUMAN CARE SERVICES’ REPLY MEMORANDUM IN SUPPORT OF 

ITS MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT

As set forth in Heartland Human Care Services’ (“HHCS”)1 motion to dismiss, ECF 40 

(“Motion”), Plaintiffs’ First Amended Complaint (“FAC”) fails to state any plausible claims for 

relief. Plaintiffs’ arguments to the contrary in their Response in Opposition, ECF 45 (“Response”),

are unpersuasive, and the FAC should be dismissed.

I. The First Amended Complaint fails to state a claim under § 504 of the 

Rehabilitation Act.

Plaintiffs’ Rehabilitation Act claim fails in several regards and should be dismissed.

a. The FAC fails to allege facts that plausibly suggest that A.A. and D.A.’s 

claimed impairments substantially limited one or more of their major life 

activities during their time in HHCS’s care.

In its Motion, HHCS explained that the FAC failed to “allege any facts that indicate how

[A.A. and D.A.’s] claimed impairments prevented or restricted [their identified major life

activities] during their time in HHCS’s care.” ECF 40 at 5 (emphasis in original). In response, 

Plaintiffs inaptly cite to the FAC’s undisputed assertions that mental impairments can qualify as 

 1 Plaintiffs originally named both HHCS and Heartland Alliance for Human Needs and Human Rights (“Heartland 

Alliance”) as defendants. In their response, Plaintiffs have agreed to dismiss Heartland Alliance. See ECF 45 at 15. 

As such, only HHCS is submitting this reply. 
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disabilities under the Rehabilitation Act and that thinking, sleeping, eating, learning and playing 

are all major life activities. ECF 45 at 4-5 (citing FAC ¶¶ 5-8; 40-43; 29 C.F.R. § 1630.2(i)(1)(i)). 

Plaintiffs then repeat the FAC’s bare legal conclusion that “these impairments substantially limited 

life activities for both children.” Id. at 4 (citing FAC ¶¶ 38, 43, 156). According to Plaintiffs, 

HHCS “misunderstands [these] allegations.” Id. But it is Plaintiffs who misunderstand HHCS’s 

argument. HHCS acknowledges that the FAC recites the bare legal conclusion that the children’s 

alleged impairments substantially limited major life activities. See ECF 40 at 4 (“The FAC recites 

in conclusory fashion that [A.A. and D.A.’s] impairments ‘substantially limited one or more major 

life activities, including thinking, sleeping, eating, learning, and safe play...’”) (quoting FAC ¶ 

156). But such an allegation is insufficient and Plaintiffs do not meaningfully engage with HHCS’s 

argument that the FAC does not allege facts in support of this conclusory assertion, i.e., that it 

“fail[s] to allege any facts that indicate how [the children’s] claimed impairments prevented or 

restricted their ‘thinking, sleeping, eating, learning, and safe play’ during their time in HHCS’ 

care.” Id. at 5 (emphasis in original).

In support of their conclusion that A.A. and D.A.’s alleged disabilities “substantially 

limited their ability to think, sleep, eat, learn, and engage in safe play, and interact with others,” 

Plaintiffs cite allegations in the FAC that assert A.A. cried at night and asked for his mother on at 

least one occasion. See ECF 45 at 4 (citing FAC ¶ 38).2 But neither there nor elsewhere in the FAC 

are there allegations that plausibly suggest that A.A.’s alleged disability—as opposed to, say, a 

small child’s natural uncertainty about being in an unfamiliar place and desire to see his mother—

caused this behavior. Moreover, since the FAC does not allege facts showing the frequency or 

 2 Plaintiffs also cite to other paragraphs in the complaint to support their legal conclusion, but these paragraphs contain 

no allegations of fact that connect their alleged impairments with major life activities. See ECF 45 at 4 (citing FAC ¶ 

43, 156).
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extent of the conduct, it fails to show “substantial” interference with the major life activity of 

sleeping. Plaintiffs also cite allegations that A.A. “was . . . bullied by larger children.” Id. Here 

too, the FAC is bereft of allegations explaining how A.A.’s alleged anxiety and depression 

contributed to the misbehavior of other children. And as to D.A., Plaintiffs cite to no factual 

allegations at all connecting her alleged impairment with the major life activities that Plaintiffs 

claim were substantially limited, nor do they allege any facts showing any “substantial” limitation 

that she suffered. Id. Without this crucial, factual nexus between A.A. and D.A.’s alleged 

impairments and the major life activities, Plaintiffs have failed to adequately allege that the 

children were disabled within the meaning of the act. Accordingly, their § 504 claim should be 

dismissed. See, e.g., Jackson v. Northwestern Univ. School of Law, No. 10-C-1986, 2010 WL 

5174389, *3 (N.D. Ill. Dec. 15, 2010) (dismissing complaint partially because “[plaintiff] does not 

plead . . . how [her disability] substantially limits one or more major life activities” but “simply 

makes the conclusory statement that it does”).

b. Plaintiffs have failed to adequately identify which programs or activities they 

are challenging.

In its Motion, HHCS detailed Plaintiffs’ failure to adequately identify the program or 

activity at issue as a fatal flaw in their Rehabilitation Act claim. See ECF 40 at 5-6. As HHCS

pointed out, the FAC is unclear whether Plaintiffs are challenging HHCS’s care generally or 

specific policies, actions, or omissions (and, if the latter, which ones). Compare FAC ¶ 156 (stating 

that A.A. and D.A. “required the ability to interact and develop in a therapeutic setting that did not 

restrict basic human interaction”); ¶ 43 (suggesting that HHCS should have provided “programs 

and detention conditions [that] address these disabilities”); with id. ¶ 45 (alleged punishment of 

A.A. for “crying and getting into a scuffle”).
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Instead of responding to this argument, Plaintiffs engage in misdirection. They begin by 

cribbing together quotes from elsewhere in HHCS’s Motion to mischaracterize HHCS’s argument. 

According to Plaintiffs, HHCS’s argument is that “Plaintiffs have not sufficiently pleaded ‘how 

[A.A. and D.A.’s] particular impairments’ limited their ability to take advantage of programs 

provided by HHCS, since the FAC ‘fails to make any specific allegations at all’ about HHCS’s 

services.”3 ECF 45 at 5. But HHCS’s argument is not that Plaintiffs neglected to make any

allegations about HHCS’s services. Indeed, HHCS quotes such allegations its Motion. See ECF 40 

at 5, 6 (quoting FAC ¶¶ 43, 45,156). Rather, HHCS argues that despite the generalized allegations 

concerning the alleged shortcomings of HHCS’s care, at bottom, it is not clear which program or 

activity serves as the basis for Plaintiffs’ § 504 claim.

Plaintiffs then argue that the Rehabilitation Act applies to all of HHCS’s operations. ECF 

45 at 5. But even assuming that all of HHCS’s operations could constitute a “program or activity” 

under the Rehabilitation Act, this does not relieve Plaintiffs of the responsibility of affirmatively 

identifying which operations they are challenging. See, e.g., Heth v. Lasalle Cty., No. 19-C-1096, 

2019 WL 6327364, at *5 (N.D. Ill. Nov. 26, 2019) (dismissing Rehabilitation Act and ADA claims 

partly because the plaintiff “d[id] not identify the[] services, programs, or activities” being 

challenged). The case Plaintiffs cite, Oconomowoc Residential Programs v. City of Milwaukee, 

illustrates this point. Although the court noted that the ADA “applies to anything [the City of 

Milwaukee] does,” the plaintiff still challenged a specific operation—the denial of a zoning 

variance—rather than all of the city’s operations. 300 F.3d 775, 782 (7th Cir. 2002).

 3 Plaintiffs misattribute HHCS’s words. The phrase “fails to make any specific allegations at all,” as used by HHCS

in its Motion to Dismiss, does not refer to HHCS’s services, but rather to certain major life activities that Plaintiffs 

claim were impacted by A.A. and D.A.’s alleged disabilities. See ECF 40 at 5 (“As to other major life activities, the 

FAC fails to make any specific allegations at all . . .”) (emphasis added).
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c. Plaintiffs have not adequately alleged facts to support a “failure to 

accommodate” claim.

As set out in HHCS’s Motion, the FAC fails to plausibly allege that HHCS was aware that 

D.A. and A.A. were disabled, as allegations that “it was well known that children like D.A. and 

A.A. are disabled” and “require[] accommodation” are insufficient to allege such knowledge. ECF 

40 at 8 (citing FAC ¶¶ 42, 157). In response, Plaintiffs point to allegations suggesting that HHCS 

knew that the children had undergone a traumatic experience. See ECF 45 at 7 (citing FAC ¶¶ 32, 

42, 43 n.3). But Plaintiffs’ argument conflates knowledge of injury with knowledge of disability. 

Plaintiffs must allege that HHCS knew that A.A. and D.A. were disabled within the meaning of 

the act, i.e., that the children were in fact impaired, not just that they had gone through a traumatic 

experience, and that these impairments were in fact substantially limiting one or more major life 

activities. Plaintiffs have failed to do so.4

 

Plaintiffs’ response is equally lacking with respect to HHCS’s argument that Plaintiffs 

failed to identify the specific accommodations that should have been made or to allege how they 

could have been provided without imposing significant costs or fundamentally altering the 

program or activity in question. ECF 40 at 7-8; see Riley v. Vilsack, 665 F. Supp. 2d 994, 1007 

(W.D. Wis. 2009) (finding that the plaintiff failed to adequately allege failure-to-accommodate 

claim because his complaint did not, among other things, identify the accommodation he needed).

According to Plaintiffs, HHCS’s position is that “the FAC fails to allege that [HHCS] could 

have made reasonable modifications to accommodate A.A. and D.A.’s disabilities.” ECF 45 at 7. 

 4 Plaintiffs point out that the FAC contains allegations that A.A. and D.A. hugged each other after arriving at HHCS

and that D.A. had trouble sleeping on at least one occasion. ECF 45 at 7 (citing FAC ¶¶ 7, 38). These ambiguous 

occurrences—far more likely to be caused by factors other than the children’s alleged disability (particularly given 

the children’s ages)—are not sufficient to impute knowledge that A.A. and D.A. were disabled within the meaning of 

the act to HHCS. A child may be unhappy or distressed without necessarily being disabled, and Plaintiffs failed to 

allege facts showing that they were disabled or that HHCS had knowledge of any alleged disability.
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Not so. In its Motion, HHCS recognizes that the FAC recites that reasonable modifications “could 

have been offered” to A.A. and D.A. ECF 40 at 8 (citing FAC ¶ 156). HHCS’s actual argument, 

however, is that bare allegations that reasonable accommodations could have been made is not 

enough to state a claim under a “refusal to accommodate” theory. ECF 40 at 7-8.

Plaintiffs decline to engage with this argument. Instead, they assert that “A.A. and D.A. 

required the ability to interact and develop in a setting that did not restrict basic human interaction.” 

ECF 45 at 8 (citing FAC ¶ 156). Even assuming that “physical touch and hugging between the 

siblings, greater access to phone calls with family and relatives, and personal conversation,” id.,

would have allowed A.A. and D.A. to fully participate or receive the benefit of HHCS’s programs 

or activities, Plaintiffs have identified the children’s needs rather than the accommodations HHCS

should have made to its programs and activities in order to meet those needs.

Plaintiff then restate the bare legal conclusion that HHCS’s “programs could have been 

modified to permit basic human interaction, but were not.” ECF 45 at 8 (citing FAC ¶ 157). 

Amazingly, Plaintiffs argue that there “is no reason to think that the modest modifications Plaintiffs 

identified” would have meaningfully “changed the nature of services that [HHCS] provided—nor 

does [HHCS] claim they would.” Id. (emphasis added). But the FAC does not identify any 

“modifications,” let alone “modest” ones, so it is impossible to assess whether they would have 

imposed significant costs or fundamentally changed the nature of HHCS’s services. It is not 

HHCS’s burden to identify the accommodations that could have been made so that the parties can 

debate their reasonableness; it is Plaintiffs’, and they have failed to shoulder it.5

 5 To the extent that Plaintiffs propose such accommodations for the first time in their Response, see ECF 45 at 7, the 

Court should disregard these allegations. See Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir. 

2012) (recognizing that it is a “basic principle that the complaint may not be amended by the briefs in opposition to a 

motion to dismiss”).
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d. Plaintiffs have not adequately pled intentional discrimination under a 

“deliberate indifference” theory.

Since Plaintiffs do not (and cannot) request an injunction, which is the primary remedy 

under § 504 of the Rehabilitation Act, they must allege that HHCS intentionally discriminated 

against A.A. and D.A. on the basis of their disability to be entitled to relief. See Phipps v. Sheriff 

of Cook Cty, 681 F. Supp. 2d 899, 917 (N.D. Ill. 2009) (noting that “it is necessary to show 

intentional discrimination in order to recover compensatory damages”). Perhaps to avoid dismissal 

on this ground, the FAC makes the conclusory statement that HHCS “actively discriminated 

against A.A. and D.A. because of their disabilities.”6 FAC ¶ 158. In its Motion, HHCS

convincingly argued that the facts alleged by Plaintiffs cannot support the conclusion that HHCS 

treated the children unfavorably on the basis of their alleged disabilities.7 See ECF 40 at 6-7. Since 

the FAC fails to plausibly allege intentional discrimination, no relief is available and the FAC 

should be dismissed on this ground alone. Id.

Unsurprisingly, Plaintiffs have seemingly abandoned this “active” discrimination theory 

completely. In their Response, Plaintiffs now argue that HHCS discriminated against the children 

through “deliberate indifference.” ECF 45 at 9. But while a plaintiff may prove intentional 

discrimination under a “deliberate indifference” theory, Lacy v. Cook Cty., 897 F.3d 847, 863 (7th 

Cir. 2018), nowhere in the FAC do Plaintiffs allege that HHCS was indifferent, let alone 

deliberately so. A court may consider a new theory presented in an opposing brief only if it is 

supported by allegations in the complaint. See Epstein v. Epstein, 843 F.3d 1147, 1151 n.5 (7th 

 6 Plaintiffs failed to allege intentional discrimination in their initial complaint. See ECF 1. Only after HHCS pointed 

out in its first motion to dismiss that this failure meant that Plaintiffs were not entitled to any of their requested relief, 

see ECF 29 at 8, did Plaintiffs allege that HHCS “engaged in active disability discrimination,” see ECF 35 at 13.

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As evidence of this purported “active disability discrimination,” the FAC alleges that HHCS employees 

“punish[ed]...A.A. for crying and getting in a scuffle” and “ma[de] hostile remarks to A.A. and D.A. 

regarding...traumatic events...to which both children had been exposed.” FAC ¶ 45.
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Cir. 2016) (rejecting theory presented for the first time on appeal where it was unsupported by the 

allegations in the amended complaint). That is not the case here.

The FAC contained no allegations whatsoever supporting a claim of deliberate 

indifference. A plaintiff seeking to prove deliberate indifference must show (1) that the defendant 

“kn[ew] that a harm to a federally protected right [was] substantially likely,” and (2) “a failure to 

act upon that likelihood.” Lacy, 897 F.3d at 863. The crux of deliberate indifference is a conscious 

decision to refrain from acting to prevent an imminent and obvious violation of a federally 

protected right. See Strominger v. Indiana Dep’t of Correction, No. 115CV01654TWPMPB, 2017 

WL 4236570, at *4 (S.D. Ind. Sept. 25, 2017) (“Deliberate indifference in [the Rehabilitation Act] 

context ‘must be a deliberate choice, rather than negligence or bureaucratic inaction.’”) (quoting 

S.H. ex rel. Durrell v. Lower Merion School Dist., 729 F.3d 248, 263 (3d Cir. 2013); Reyes v. Dart, 

No. 17-C-9223, 2019 WL 1897096, at *10 (N.D. Ill. April 29, 2019) (“[F]ailure to act [for purposes 

of an ADA damages claim] is a result of conduct that is more than negligent, and involves an 

element of deliberateness.”) (citing Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1264 (10th 

Cir. 2018); Updike v. Multnomah Cty., 870 F.3d 939, 951 (9th Cir. 2017)). This is a demanding 

standard. See Audia v. Briar Place, Ltd., No. 17-CV-6618, 2018 WL 1920082, at *5 (N.D. Ill. 

April 24, 2018) (noting that the deliberate indifference standard is “remarkably similar” to the 

“standard for assessing whether conduct is willful and wanton”) (quoting Chapman v. Keltner, 241 

F.3d 842, 847 (7th Cir. 2001)).

The allegations in the FAC do not support a “deliberate indifference” claim. In support of 

their contention that HHCS was deliberately indifferent, Plaintiffs point to allegations that HHCS

was aware that A.A. and D.A. had experienced trauma and that HHCS did not make modifications 

to the programs and services it provides to unaccompanied minors. ECF 45 at 9. But the FAC 
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contains no factual allegations that plausibly state that HHCS engaged in such conduct with the 

requisite deliberateness; i.e., that HHCS was aware that it was substantially likely that A.A. and 

D.A. would be unable receive the benefits of HHCS’s programs or services because of their alleged 

disabilities and made a conscious choice to refrain from acting.8 Since Plaintiffs fail to allege any 

facts showing intentional discrimination, their § 504 claim should be dismissed.

II. Plaintiffs Fail to Plead a Prima Facie Case of Breach of Fiduciary Duty

HHCS’s Motion demonstrated that Plaintiffs did not plead a prima facie case for breach of 

fiduciary duty, as they failed to properly allege the existence of a fiduciary duty or how any alleged 

fiduciary duty was breached, or caused the harm. ECF 40 at 9-11. Plaintiffs’ Response fails to cure 

these deficiencies. 

In its Motion, HHCS explained that the FAC fails to allege the existence of a legally

recognized fiduciary relationship. Specifically, under Illinois law a guardian must be appointed by 

the court, and in the absence of a formal fiduciary relationship, the party seeking to allege that an 

implied fiduciary relationship exists must do so by clear and convincing evidence. ECF 40 at 10.

Plaintiffs cite to several cases that purportedly show a guardian-ward fiduciary relationship has 

been found under allegedly analogous circumstances. ECF 45 at 10-11. The authority on which 

these cases depend, however, has been misinterpreted and in any event is fact-bound. 

Plaintiffs’ argument relies on language in Parks v. Kownacki that a guardian-ward fiduciary 

relationship may be formed if the alleged guardian “accept[s] the responsibility of plaintiff’s care 

and education ... even though he was not given that title by a court.” 737 N.E.2d 287, 290 (Ill. 

2000); see ECF 45 at 10 (quoting Parks). All of the other cases Plaintiffs cite on this point rely 

 8 Plaintiffs do allege that HHCS employees made “mocking and psychologically damaging comments” to the children. 

ECF 45 at 9. But this cannot provide a basis for a deliberate indifference claim because Plaintiffs have failed to identify 

which “federally-protected right” this harmed.
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almost exclusively on the Parks quote to support their findings. See Clayton v. Millers First Ins. 

Co., 892 N.E.2d 613, 619 (Ill. Ct. App. 2008) (“[a]lthough the supreme court reversed the appellate 

court decision...it did state [quote]”); T.S. v. Twentieth Century Fox Television, No. 16-cv-8303, 

2017 WL 1425596, *10 (N.D. Ill. Apr. 20, 2017) (citing Parks quote and Clayton to find “[b]ased 

on this Illinois case law” a fiduciary relationship similar to guardian-ward existed). 

Plaintiffs’ reliance on Parks is misplaced because the quoted language was neither holding 

nor dicta: it was merely an allegation in the complaint that the court accepted as true for purposes 

of ruling on the motion to dismiss. Parks v. Kownacki, 737 N.E.2d 287, 290 (Ill. 2000) (“The 

following facts are alleged in the complaint, and we accept them as true for purposes of our review 

of the rulings on defendants’ motions to dismiss . . . [w]hen Kownacki accepted the responsibility 

of plaintiff’s care and education, he took on the role of her guardian, even though he was not given 

that title by a court.”). Because the court dismissed the claim as time-barred, it never reached the 

merits of this allegation. Without the support of Parks, and the concomitant weakening of the cases 

that rely on it, Plaintiffs’ claim to a per se rule that a fiduciary duty arose “as a matter of law 

without a court order” is erroneous. 

Moreover, the facts in Parks are entirely distinguishable. Parks involved a priest who was 

sexually abusing an underage girl and convinced her parents to let the girl move with him to a new 

parish, where the abuse continued. Id. at 290. The fact that the plaintiff’s parents in Parks

consented to the temporary living arrangement is significant, because a legal parent or guardian 

may transfer guardianship without prior judicial approval. See, e.g., 755 ILL. COMP. STAT. § 5/11-

5.4 (“[a] parent...may appoint...without court approval, a short-term guardian of an unmarried 

minor”). 

Finally, Plaintiffs’ claim that the FAC “allege[s] that A.A. and D.A. were placed in 

Heartland’s custody,” ECF 45 at 11, is unclear, because the FAC admits that children at HHCS remain 
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in “ORR [i.e., the government’s] custody.” FAC ¶ 18. Plaintiffs’ argument then, is to ask the Court 

to find that HHCS was a fiduciary, despite no court adjudication to that effect, or to impose a 

fiduciary duty as if HHCS was functionally the children’s parents despite the fact that “Illinois 

does not recognize functional parent theories.” See ECF 40 at 10; In re Scarlett Z.-D., 2015 IL 

117904, ¶ 46; 28 N.E.3d 776, 790 (Ill. 2015). 

Even if the Court were to find that a fiduciary relationship existed, Plaintiffs failed to 

identify fiduciary duties that HHCS allegedly breached. ECF 40 at 10-11. The FAC alleges only 

that HHCS failed to “act in the best interest of D.A. and A.A,” (id. at 11), an allegation that sounds 

in the duty of loyalty. Plaintiffs concede, however, that they do not allege a breach of the duty of 

loyalty. ECF 45 at 11. Instead, they now attempt to shoehorn their allegations into a breach of the 

fiduciary duty of care (though the FAC makes no mention of such a duty). Id. And, according to 

Plaintiffs, the duty of care requires only that a caretaker “protect the child from harm” and “watch 

out for the well-being of the child.” Id. The authority Plaintiffs rely on for this standard, however,

is a criminal case that does not so much as mention fiduciary relationships or duties. Id. Rather, 

the court in Watson merely rejected (in a single paragraph, without citing to authority) one of the 

defendant’s many arguments on appeal of his conviction for involuntary manslaughter: that he had 

no duties generally to the child he was watching as a caretaker. People v. Watson, 431 N.E.2d 

1355 (Ill. Ct. App. 1982). Plaintiffs use this brief reference in a criminal case to argue both that 

the relationship between a caretaker and child was fiduciary in nature, and that the “duty to watch 

out for the well-being of the child” and to “protect the child from harm” were fiduciary duties. 

ECF 45 at 11. Plaintiffs’ claim finds no support in the law Plaintiffs cite. 

Plaintiffs also fail to rebut that the applicable standard of care to plead a breach of the 

fiduciary duty of care is gross negligence. Id. Plaintiffs argue that ordinary negligence is sufficient
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under Illinois law, but this is not so. 805 ILL. COMP. STAT. § 215/408(c) (violation of the fiduciary 

duty of care requires gross negligence); see also In re Estate of D.W., 134 Ill. App. 3d 788, 481 

N.E.2d 355, 356-357 (1985) (Illinois courts give guardians broad discretion to act in the best 

interest of a ward, and should not intervene after a good-faith choice was made). So long as the 

fiduciary’s motives in acting are not self-interested—i.e., covered by the duty of loyalty—courts 

are loath to substitute their hindsight-enhanced judgment for that of the fiduciary, and will 

therefore require more than regular negligence to find a breach of the fiduciary duty of care. See 

Stamp v. Touche Ross & Co., 263 Ill. App. 3d 1010, 1015-16 (Ill. Ct. App. 1993) (explaining why 

a business fiduciary who acts in good faith is shielded from negligence liability). This reasoning 

is as true for the officer making business decisions as it is for the guardian making care decisions. 

See In re Estate of D.W., 481 N.E.2d at 356-57. 

In any event, regardless of the applicable standard of care, Plaintiffs have not alleged 

anything substantive that shows the fiduciary duty of care was breached, or explains what the 

fiduciary duty of care entails. As shown above, the authority Plaintiffs cite for this purpose, 

Watson, is not a fiduciary case and does not articulate breach-able fiduciary duties. Without 

establishing duty or breach, any causation argument must also fail. ECF 40 at 11. 

III. Plaintiffs’ Negligence Claim Remains Inadequate

HHCS’s Motion showed that Plaintiffs’ negligence claim should be dismissed because the 

allegations against HHCS were an impermissible “statement of facts that merely create a suspicion 

of a legally cognizable right of action.” ECF 40 at 12. In other words, the FAC failed to make clear 

“which of Heartland’s acts or omissions Plaintiffs allege to have been negligent, and on what 

basis.” Id. In an effort to remedy this pleading deficiency, Plaintiffs assert that HHCS’s duty to act 
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with ordinary care encompasses the duty to avoid compounding the trauma the children 

experienced at the hands of the government. ECF 45 at 14. This argument is without merit. 

As an initial matter, Plaintiffs’ assertion that HHCS “takes no issue” with FAC ¶ 122 is 

misleading. ECF 45 at 14. The allegation in FAC ¶ 122 merely recites the general duty standard, 

and as HHCS noted, “labels and conclusions or formulaic recitations of the elements of a cause of 

action are insufficient.” ECF 40 at 2-3. Plaintiffs have to take the next step and allege facts that 

show the existence of a duty and how that duty was breached through an articulated standard of 

care. They have failed to do so. 

Plaintiffs further argue that it was reasonably foreseeable to HHCS that its conduct could 

compound the trauma the children suffered at the hand of the government. ECF 45 at 14. Plaintiffs 

are correct to point out that the existence of a duty requires the plaintiff’s injury to have been a 

reasonably foreseeable consequence of defendant’s conduct. Id. Where Plaintiffs err, however, is 

in their conclusion. Even if it were reasonably foreseeable to HHCS that children can experience 

trauma prior to their arrival, it does not follow that it was reasonably foreseeable to HHCS that the 

normal operation of its program would compound trauma for children in its care, particularly those 

who exhibited no signs of trauma while they were with HHCS. Id.

The only allegation in the FAC that suggests that the children exhibited signs of distress

while in HHCS’s care was that A.A. would cry at night asking for his mother. FAC ¶ 38. While 

the context in which the child was separated from his mother at the hands of the government is 

tragic, it can hardly be said that a young child missing his or her mother at night is a sign of trauma 

triggering a negligence-based duty to avoid compounding that trauma. ECF 45 at 14. Properly 

understood, Plaintiffs are asking the Court to impose an affirmative duty on HHCS to identify and 

rectify the trauma inflicted on the children by others, a duty Plaintiffs do not and cannot allege 
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HHCS undertook. See Demos v. Ferris-Shell Oil Co., 317 Ill. App. 3d 41, 48, 740 N.E.2d 9, 16 

(Ill. Ct. App. 2000) (affirmative duties are limited to what the defendant expressly undertook). 

More fundamentally, the issue with Plaintiffs’ negligence claim—an issue that is not 

addressed in the FAC and not referenced in the Response—is that it does not identify what standard 

of care applies to Plaintiffs’ allegations. As noted above, Plaintiffs state that HHCS “failed to act 

with ordinary care” (FAC ¶ 122) and list several allegations that Plaintiffs imply make HHCS

negligent, but they never take the crucial next step of saying why these actions fall below the 

standard of care or what HHCS should have done differently. Plaintiffs cite to the “regimented 

routine” and “inadequate medical care” as apparent signs of negligence, but do not articulate what 

would have been reasonable under the circumstances. ECF 45 at 14. Plaintiffs do not say whether

these isolated acts are negligent and trauma-compounding in and of themselves, or only in 

combination. In either case, Plaintiffs have not alleged the bar upon which the factfinder can 

determine the reasonableness of HHCS’s conduct. Therefore, Plaintiffs never articulate the 

“certain standard of conduct” pleading a negligence claim demands. ECF 40 at 12. 

IV. Plaintiffs’ Fiduciary Duty and Negligence Claims Are Duplicative

As HHCS demonstrated in its Motion, Plaintiffs’ fiduciary duty and negligence claims are 

duplicative of one another. ECF 40 at 12. None of Plaintiffs’ three arguments in response 

effectively rebut this contention. First, Plaintiffs make the unsubstantiated and unsupported 

argument that claims are not duplicative if they have different standards of care. ECF 45 at 13. Not 

so. Claims are duplicative when they are based on the same operative facts and allege the same 

injury. Neade v. Portes, 193 Ill. 2d 433, 439-450 (Ill. 2000);739 N.E.2d 496, 500-504 (Ill. 2000); 

Pippen v. Pedersen, 986 N.E.2d, 697, 705 (Ill. Ct. App. 2013) (“we look to the operative facts and 

injury to determine whether the causes of action are duplicative...”). 
15

Plaintiffs next argue that these causes of action are not factually duplicative. But that is 

belied by Plaintiffs’ own memorandum. ECF 45 at 12-14. A reading of Plaintiffs’ fiduciary duty 

and negligence arguments shows that Plaintiffs rely on identical operative facts. Indeed, Plaintiffs 

go so far as to cite to the memorandum’s fiduciary breach section to show that the same alleged acts 

(e.g., isolation, adequacy of medical care, and an employee’s remark) are grounds to also find that

HHCS breached its negligence duties. Id. Injury is no different; the psychological harm alleged in the 

negligence and fiduciary sections are indistinguishable. Id. The claims are therefore duplicative and,

contrary to Plaintiffs’ position,

9 dismissal on the grounds of duplicative claims is regularly given 

at the pleading stage. Neade v. Portes, 193 Ill. 2d 433; Majumdar v. Lurie, 274 Ill. App. 3d 267, 

653 N.E.2d 915 (Ill. Ct. App. 1995).

While HHCS explained in its Motion that Plaintiffs’ fiduciary duty claim should be 

dismissed as duplicative under the circumstances, ECF 40 at 12, Plaintiffs contend that if the 

claims are found to be duplicative, their fiduciary duty claim should survive and the negligence 

claim should be dismissed. ECF 45 at 13, n.2. The important point is that because the claims are 

based on the same operative facts and allege the same injury they are duplicative, warranting 

dismissal of one of the claims. And the remaining claim should be dismissed for the reasons set 

forth above. 

V. CONCLUSION

For the foregoing reasons, HHCS respectfully requests that the Court grant its motion to 

dismiss Counts III, V and XI of the FAC pursuant to Fed. R. Civ. P. 12(b)(6), and grant such other 

relief as the Court deems appropriate.

 9 The case Plaintiffs cite in support of this position is not germane, as it involved a claim brought under multiple 

sections of the Fair Housing Act, and the court declined to find the FHA claims duplicative based on the particular 

statutory structure. See Willborn v. Sabbia, No. 10-cv-5382, 2011 WL 1900455, at *6 (N.D. Ill. May 19, 2011).
16

Dated: December 4, 2020 Respectfully submitted,

/s/ Kurt A. Mathas

Kurt A. Mathas

ARDC No. 6286812

Saranya Raghavan

ARDC No. 6321346

Nasir Hussain

ARDC No. 6324090

WINSTON & STRAWN LLP

35 W. Wacker Drive

Chicago, Illinois 60601-9703

(312) 558-8329

kmathas@winston.com

sraghavan@winston.com

nhussain@winston.com

Counsel for Heartland Alliance and HHCS
17

CERTIFICATE OF SERVICE

I, Kurt Mathas, an attorney, certify that on December 4, 2020, I caused the foregoing Reply 

Memorandum in Support of HHCS’s Motion to Dismiss the First Amended Complaint to be 

served via this Court’s CM/ECF system upon the ECF-registered parties at the email addresses 

below: 

Jimmy Lorenzo Arce

Jimmy.Arce@usdoj.gov

Phil Davis MacWilliams

phil.macwilliams@usdoj.gov

AUSA – Chicago

USAILN.ECFAUSA@usdoj.gov

Attorneys for the United States of America

Sarah Copeland Grady

sarah@loevy.com

Anand Swaminathan

anand@loevy.com

Stephen H. Weil

weil@loevy.com

Conchita Cruz

conchita.cruz@asylumadvocacy.org

Zachary Manfredi 

info@asylumadvocacy.org

Attorneys for A.A., D.A., and Lucinda del Carmen Padilla Gonzalez

/s/ Kurt A. Mathas

Kurt A. Mathas

ARDC No. 6286812

WINSTON & STRAWN LLP

35 W. Wacker Drive

Chicago, Illinois 60601-9703

(312) 558-8329

kmathas@winston.com

Attorney for Heartland Alliance and HHCS