CIN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

AMONTAE WILLIAMS, et al.,

Plaintiffs,

v.

BOARD OF EDUCATION OF THE 

CITY OF CHICAGO, et al., 

Defendants.

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)

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)

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)

Case No. 1:20-cv-04540

Judge Matthew F. Kennelly

Magistrate Judge Heather M. McShain

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’

MOTION FOR LEAVE TO FILE THEIR THIRD AMENDED COMPLAINT

Defendants, Board of Education of the City of Chicago (“Board”), The University of 

Chicago (the “University”), and the David Lynch Foundation (“DLF”) (hereinafter “Defendants”), 

through their undersigned counsel, oppose Plaintiff Amontae Williams and Plaintiff Darryl 

Williams’ (together, “Plaintiffs”) Motion For Leave To File Their Third Amended Complaint (the 

“Motion”). As set forth below, Plaintiffs’ request to file an amended pleading after the close of 

fact discovery, long after the deadline for the amendment of pleadings and after Plaintiffs filed 

their motions for class certification fails to satisfy Rule 16 and Rule 15. In support of their

opposition, Defendants state as follows:

BACKGROUND & PROCEDURAL HISTORY

Plaintiffs filed their original Complaint on August 3, 2020. See Compl. (Dkt. 1). Plaintiffs 

amended their complaint to add class claims on September 25, 2020. See Am. Compl. (Dkt. 35). 

Defendants moved to dismiss Plaintiffs’ Amended Complaint on October 23, 2020. See Dkt Nos. 

42-51. This Court ruled on Defendants’ Motions to Dismiss on May 21, 2021 and granted 

Defendants’ motions in part. See generally Mem. Op & Order (Dkt. 65). Among other things, the 

Court dismissed both Plaintiffs’ Section 1983 claims against the University, and dismissed 

Plaintiff Darryl Williams’ Illinois Religious Freedom Restoration Act (“IRFRA”) claim. See id.

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at 20, 35-41. On June 28, 2021 Plaintiffs moved for leave to amend and file their proposed second 

amended class action complaint. See Mot. for Leave (Dkt. No. 71). This Court ruled on Plaintiffs’ 

motion for leave to amend on August 17, 2021, holding that Plaintiffs had failed to state a Section 

1983 claim against the University and noting that Plaintiff Darryl Williams had not attempted to

re-plead his dismissed IRFRA claim. See Mem. Op. & Order (Dkt. 81) at 13. The operative 

complaint, Plaintiffs’ Second Amended Class Action Complaint was filed on September 9, 2021. 

See Am. Compl. (Dkt. No. 89). This complaint contains two (2) counts: Count I, a Section 1983 

claim for violation of the First Amendment’s Establishment and Free Exercise Clauses against the 

Board and DLF (but not the University); and Count II, a claim for violation of the IRFRA against 

all Defendants on behalf of Amontae Williams. See id.; see also Mem. Op. & Order (Dkt. 81) at 

14 (identifying remaining claims).

On September 2, 2021, this Court set a December 3, 2021 deadline for amending pleadings 

and adding parties. See Dkt. No. 88. On September 30, 2021, Defendants filed their Answers and 

Affirmative Defenses to Plaintiffs’ Second Amended Complaint. See Dkt. Nos. 91-93. On 

November 10, 2021, the Board produced the two Agreements (2015 Master Research Services 

Agreement between the University and Board and 2018 DLF Services Agreement between the 

Board and DLF), which Plaintiffs now identify as the basis for wishing to amend their complaint. 

See Mot. (Dkt. 172) at 11, 13. After the Board had already produced these agreements, on 

December 2, 2021, Plaintiffs moved to extend the deadline to amend the pleadings to December 

24, 2021. See Mot. (Dkt. 110). Granting Plaintiffs’ motion on December 9, 2021, the Court set a 

December 24, 2021 deadline for amending the pleadings. See Minute Entry (Dkt. 114). Plaintiffs 

did not seek to further amend their pleadings by that deadline, nor did Plaintiffs ask that the 

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deadline be extended in light of ongoing discovery. On December 21, 2021, this Court extended 

the fact discovery deadline to March 11, 2022. See Minute Entry (Dkt. 121). 

On March 15, 2022 (four days after the close of fact discovery), Plaintiffs filed a Motion 

For Order Confirming Their Right To File Second Supplemental 26(a)(1) Disclosures Or, In The 

Alternative, To File Their Third Amended Complaint without attaching a copy of the proposed 

amended complaint. See Mot. (Dkt. 160). After briefing and a hearing, the Court denied the 

Motion For Order without prejudice on March 25, 2022. See Minute Entry (Dkt. 170). 

On April 8, 2022, almost one month after the close of fact discovery and almost four

months after the deadline to amend the pleadings, Plaintiffs filed the instant Motion For Leave, 

attaching a Proposed Third Amended Complaint containing significant new factual allegations, 

adding a Section 1983 claim against the University, an Illinois breach of contract claim against all 

Defendants, and a new “claim” for punitive damages against DLF and the University. See

Proposed Third Am. Compl. (Dkt. 172-1) ¶¶ 130-48, 153-62. In addition, while Darryl Williams 

has no claim against the University in the operative complaint, Plaintiffs’ Proposed Third 

Amended Complaint seeks to assert claims by Darryl Williams against the University under 

Section 1983 for violation of the First Amendment, as well as claims for violation of the IRFRA, 

breach of contract and punitive damages. See id. ¶¶ 2, 4-5, 130-162.

ARGUMENT1

1. The Court Should Deny Plaintiffs’ Untimely Request As Plaintiffs Have 

Failed To Meet Their Burden Under Rule 16

Plaintiffs have brought their Motion for Leave solely pursuant to Federal Rule of Civil

Procedure 15. See Motion at 1. In doing so, they have disregarded that this Court entered a

 

1 Unless stated otherwise, all emphasis is supplied, and all internal citations and quotations are omitted from 

all quoted material herein.

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Scheduling Order that initially imposed a deadline for amendment of the pleadings of December

3, 2021, and subsequently, at Plaintiffs’ request, extended that deadline to December 24, 2021 – a

deadline that expired almost four months ago. See Dkt. Nos. 88, 110, 114. Because Plaintiffs

seek to amend their pleadings after expiration of the deadline in the Court’s Scheduling Order,

Plaintiffs must show “good cause” under Federal Rule of Civil Procedure 16. See Fed. R. Civ. P.

16(b)(4) (“A schedule may be modified only for good cause and with the judge’s

consent”); Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir.

2005) (“To amend a pleading after the expiration of the trial court's Scheduling Order deadline to

amend pleadings, the moving party must show ‘good cause’”).

Good cause requires a showing of diligence by the party seeking the amendment. 

See Trustmark Ins. Co., 424 F.3d at 553; CMFG Life Ins. Co. v. RBS Sec., Inc., 799 F.3d 729,

749 (7th Cir. 2015). Rule 16(b)(4)'s “good cause” requirement, which focuses on diligence, is 

more onerous than Rule 6(b)(1)(B)'s “excusable neglect” requirement. See McCann v. Cullinan, 

2015 WL 4254226, at *11 (N.D. Ill. July 14, 2015). This heightened good-cause standard of Rule

16(b)(4) is applied before considering whether the requirements of Federal Rule of Civil Procedure

15(a)(2) are satisfied. See Alioto v. Town of Lisbon, 651 F.3d 715, 719-20 (7th Cir. 2011);

Simmons v. City of Pekin, 2021 WL 6104825, at *2 (C.D. Ill. 2021).

Here, Plaintiffs do not even argue, much less demonstrate, that good cause exists for their 

proposed untimely amendment. They base their new causes of action on evidence produced on 

November 10, 2021 by the Board: 1) 2015 Master Research Services Agreement between the 

University and Board and 2) the March 1, 2018-June 30, 2018 Services Agreement between DLF 

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and the Board. See Nov. 10, 2021 Corresp. fr. M. Penney, Ex. 1 hereto.

2 Neither contract is a

recently discovered piece of evidence. Not only are these agreements publicly available online, 

Plaintiffs have had both agreements for approximately five months. Indeed, Plaintiffs had these 

documents well in advance of filing a motion to extend the deadline for amendment of the 

pleadings from December 3, 2021 to December 24, 2021, and as their motion shows, they were 

looking at possible additional theories for amendment at that time. See Dkt. 110. Yet, despite 

having had these documents well before the deadline for amendment, Plaintiffs did not seek leave 

until almost four months after its expiration, after fact discovery has closed, and after they filed 

two currently pending motions for class certification.

Plaintiffs do not and cannot show diligence in pursuing an amendment under these 

circumstances. Courts in this Circuit have ruled that good cause does not exist where the plaintiff 

knew or should have known of the facts underlying the proposed amendment, but waited until after 

the deadline to seek leave to amend. See Mintel Int'l Grp., Ltd. v. Neergheen, 636 F. Supp. 2d

677, 689-90 (N.D. Ill. 2009) (no good cause existed where plaintiff knew of the facts underlying

the amendment but waited 56 days after the deadline to seek leave to amend); Curtis v. TransCor

Am., LLC, 2012 WL 1080116, *3 (N.D. Ill. Mar. 29, 2012) (no good cause where plaintiff's theory

of the case did not change and he had a significant portion of the evidence relevant to the

amendment prior to the deadline); Arrigo v. Link, 836 F.3d 787, 797 (7th Cir. 2016) (affirming 

the denial of leave to amend four months after the deadline); USA Track & Field, Inc. v. Leach,

2017 WL 2901220, *1 (S.D. Ind. Apr. 12, 2017) (denying request for leave made three months 

after the deadline). 

 

2 The 2015 Master Research Services Agreement between the Board and University is bates numbered BOE 

001231-001251; the 2018 Services Agreement between DLF and the Board is bates numbered BOE 

001179-001206.

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2. The Court Should Deny Plaintiffs’ Untimely Request As Plaintiffs Have

Failed To Meet Their Burden under Rule 15

Even under Rule 15’s more lenient standard, Plaintiffs’ Motion should be denied. See disc. 

infra at 5-15. Although Rule 15 permits the amendment of pleadings, “leave to amend is not 

granted automatically.” JP Morgan v. Drywall Serv., 265 F.R.D. 341, 346 (N.D. Ind. 2010). 

Courts have broad discretion to deny leave to amend where there is undue delay, bad faith, a 

dilatory motive, a repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opponent, or if the amendment would be futile. See Right Field Rooftops, LLC 

v. Chi. Cubs Baseball Club, LLC, 870 F.3d 682, 693 (7th Cir. 2017); Villa v. City of Chi., 924 

F.2d 629, 632 (7th Cir. 1991). Plaintiffs bear “the burden of proof to show that no unfair prejudice 

will result to” Defendants. Id. at 352. Plaintiffs fail to establish that they satisfy Rule 15 and as 

set forth below, they do not.

A. Plaintiffs Unduly Delayed Seeking To File A Third Amended Complaint

Plaintiffs have unduly delayed seeking to amend their pleading. See JP Morgan, 265 

F.R.D. at 346 (denying leave to amend where proposed amendment followed the close of fact 

discovery). Plaintiffs’ Motion does not—and presumably cannot—explain why they waited

approximately five months after receiving the agreements that apparently form the basis for their 

new claims to move to amend their Complaint. See generally Mot. (Dkt. 172); see also disc. supra

at 4-5. While delay alone generally is an insufficient reason to deny a motion to amend, “the 

longer the delay, the greater the presumption against granting leave to amend.” Ernst v. City of 

Chicago, 2012 WL 27594, at *2 (N.D. Ill. Jan. 5, 2012) (internal quotations and citations omitted); 

Schor v. Daley, 563 F. Supp. 2d 893, 904 (N.D. Ill. 2008) (motion to amend was unduly delayed 

when the motion to dismiss had been fully briefed for almost two months, and plaintiffs had 

already amended their complaint almost five months previously). 

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In addition, courts in this Circuit have held that a plaintiff unduly delayed seeking leave to 

amend where the proposed amendment appeared to be motivated by the plaintiff’s concern it 

would lose at summary judgment. See, e.g., Johnson v. Methodist Med., 10 F.3d 1300, 1304 (7th 

Cir. 1993) (affirming denial of leave to amend where plaintiff chose to amend claims “suggest[ed] 

a doubt about being able to prove” original claims); Kleinhans v. Lisle Sav. Profit Sharing Tr., 810 

F.2d 618, 625 (7th Cir. 1987) (affirming denial of leave to amend where motion “represents an 

attempt to avoid the effect of summary judgment on his other claims”); JP Morgan, 265 F.R.D. at 

352. Plaintiffs’ proposed amendment seems to be motivated by similar reasons. For example, 

Plaintiff Amontae Williams’ Section 1983 First Amendment and IRFRA claims require, among 

other things, that he prove the complained-of government action—i.e., his participation in 

transcendental meditation—burdened his sincerely-held religious beliefs. See Diggs v. Snyder, 

775 N.E.2d 40, 45 (Ill. App. Ct. 2002); 775 ILCS 35/20; Mayle v. U.S., 891 F.3d 680, 685 (7th 

Cir. 2018). In support of his IRFRA claim, Amontae Williams claimed that he “was a Christian 

of the Baptist denomination” prior to being trained and participating in transcendental meditation, 

but “now identifies as an agnostic and believes the loss of his Christian faith was due to the Quiet 

Time program.” See Pl.’s Resp. to Interrog. No. 8, Ex. 2 hereto. 

 

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In addition, Mr. Williams has claimed that as a result of participating in transcendental 

meditation, Amontae “changed from having a normal outward appearance, being lighthearted, and 

enjoying time with his friends to becoming gothic, wearing dark and strange clothes and becoming 

isolated in his room and less social” and began punching holes in walls. See Pl.’s Resp. to Interrog. 

Nos. 9-10, Ex. 2 hereto. 

Plaintiffs and their counsel no doubt recognize that Mr. Williams’ deposition testimony 

undercuts his claims, and this revelation (along with Mr. Williams’ sworn testimony) no doubt 

explains Plaintiffs’ eleventh-hour pivot to new legal theories. But see Johnson, 10 F.3d at 1304 

(denying motion for leave to amend where plaintiff “realized that she would lose based on the 

specific claims contained in the second amended complaint”). But the fact that discovery has 

undermined Mr. Williams’ claims does not justify inserting new claims at this late stage of the 

litigation. See id.; see also Doe v. Howe Military Sch., 227 F.3d 981, 990 (7th Cir. 2000) 

(“[P]leading is not like playing darts: a plaintiff can’t keep throwing claims at the board until she 

gets one that hits the mark.”).

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B. Allowing Plaintiffs To Amend Their Complaint To Add New Claims Would 

Unfairly Prejudice Defendants 

Allowing Plaintiffs to amend their pleadings at this late stage—after the close of fact 

discovery and after Plaintiffs have filed their motions for class certification—would unfairly 

prejudice Defendants. “Undue prejudice has been found to exist when an amended complaint 

would require the non-moving party to engage in substantial discovery and when it would deprive 

the non-moving party of a summary judgment victory.” JP Morgan, 265 F.R.D. at 352. Unfair 

prejudice may also result if the non-moving party could not have foreseen litigating the new claims. 

See Campania Mgmt. v. Rooks, Pitts & Poust, 290 F.3d 843, 850 (7th Cir. 2002). Plaintiffs’ 

proposed amendment unduly prejudices Defendants for several reasons. 

First, Plaintiffs’ new legal theories would “require new discovery and would require 

duplication of efforts” that Defendants already underwent once to comply with their discovery 

obligations. JP Morgan, 265 F.R.D. at 353. Plaintiffs’ assertion that “additional discovery by 

Defendants should be unnecessary” or even “limited” is simply untrue. See Mot. (Dkt. 172) ¶ 11. 

For example, because Plaintiff Darryl Williams does not have a claim against the University (see

disc. supra at 2-3), the University did not seek discovery from him. The Proposed Third 

Amendment, however, re-asserts or otherwise brings claims on behalf of both Plaintiffs (i.e., 

Darryl Williams and Amontae Williams). See Proposed Third Am. Compl (Dkt. 172-1). If 

Plaintiffs were permitted to amend the Second Amended Complaint to add claims by Darryl 

Williams against the University, the University would seek to serve discovery requests on Darryl 

Williams related to those claims and seek to depose him, as is the University’s right. See, e.g., 

Murphy v. White Hen, 691 F.2d 350, 353 (7th Cir. 1982) (“Amending the complaint at this late 

stage clearly would have prejudiced the defendant, who . . . may have been forced to duplicate its 

efforts if discovery were reopened.”). 

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And the new claims Plaintiffs intend to assert would require that discovery be re-opened 

so that Defendants could take discovery related to those claims as well as defenses to those claims. 

For example, no discovery was taken on the circumstances surrounding the drafting or 

implementation of the Master research services agreement, whether the Board and the University 

intended there to be any third-party beneficiaries to the research services agreement, or the facts 

that supposedly created duties on the part of Defendants to Plaintiffs. Neither Plaintiff was 

deposed on their apparent newfound belief that they are third-party beneficiaries of any 

agreements, or that Defendants owed them duties. Written and oral discovery would need to be 

re-opened.3 In addition, the Defendants could not have foreseen the possibility of litigating the 

asserted new claims, as the parties did not conduct discovery on those claims (let alone potential 

defenses to those claims). See JP Morgan, 265 F.R.D at 355; Campania, 290 F.3d at 850; disc. 

supra at 3-8. 

Second, Plaintiffs filed motions for class certification on March 7, 2022 based on the claims 

in the Second Amended Complaint. See Mot. for Class Cert. (Dkt. 155); Mot. for Class Cert. (Dkt. 

156).4 Defendants are currently drafting a consolidated response to Plaintiff Amontae Williams’ 

motion to certify a student class, and DLF and the Board are also preparing their response to Darryl 

Williams’ motion to certify a parent class. The Court has entered the Parties’ agreed briefing 

schedule on Plaintiffs’ motions for class certification, and Defendants’ oppositions to those 

 

3 Written discovery closed on January 31, 2022. See Minute Entry (Dkt. 121). Fact discovery closed on 

March 11, 2022. See id.

4 Plaintiff Amontae Williams filed a motion to certify a proposed class of students who participated in the 

Quiet Time program in CPS during the academic calendar for 2015-16, 2016-17, 2017-18 and 2018-19. 

See Mot. for Class Cert. (Dkt. 156) at 3. Plaintiff Darryl Williams filed a motion to certify a proposed class 

of parents, legal guardians, or other persons acting in loco parentis for any student in the proposed student 

class. See Mot. for Class Cert. (Dkt. 155) at 3.

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motions are due in one week, on April 22, 2022. See Minute Entry (Dkt. 163). Allowing Plaintiffs 

to file a pleading now asserting new claims would require Defendants to file another set of answers 

and/or motions to dismiss and to divert significant resources from the opposition to Plaintiffs’ 

motion for class certification in order to do so, and also to engage in significant additional fact 

discovery. Moreover, Plaintiffs have not indicated if they would seek leave to file new motions 

for class certification that account for the proposed new claims. Even if they did not, however, 

Defendants would want to address those new claims in responding to the class motions, including 

to rebut adequacy and incorporate facts from re-opened discovery as appropriate. Allowing 

Plaintiffs to amend their pleadings would thus postpone rulings on Plaintiffs’ motions for class 

certification and Defendants’ motions for summary judgment.5 Because Plaintiffs’ belated 

proposed amendments would delay the case further and require the Defendants to “engage in a 

new contest on different issues” more than 18 months after this case was filed, after fact discovery 

has closed and as the Parties are engaging in expert discovery and briefing on class certification,

Plaintiffs’ Motion should be denied. See, e.g., Johnson, 10 F.3d at 1304 (denying leave to amend 

where defendant would have to engage in substantial additional discovery). 

C. Plaintiffs’ Proposed Amendments Would Plainly Be Futile

Plaintiffs’ motion for leave should also be denied because their proposed amendment 

would be futile. See, e.g., Bethany Pharmacal v. QVC, 241 F.3d 854, 861 (7th Cir. 2001) 

(affirming denial of motion for leave where proposed amendment to add new claim would be 

futile). An amendment is futile when it “reasserts a claim previously determined.” Bower v. Jones, 

978 F.2d 1004, 1008 (7th Cir. 1992). An amendment is also futile when it fails to state a valid 

 

5 Under the current schedule, dispositive motions shall be filed by July 25, 2022. See Minute Entry (Dkt. 

121.)

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theory of liability or would not survive a motion to dismiss. See id. Plaintiffs’ Proposed Third 

Amended Complaint seeks to assert three new causes of action against the University: 1) Section 

1983 for violation of the First Amendment (Proposed Third Am. Compl. (Dkt. 172-1) ¶¶ 130-48); 

2) breach of contract (id. ¶¶ 153-59); and 3) punitive damages (id. ¶¶ 160-162). It also appears to 

assert claims by Darryl Williams against the University without curing the bases for the Court’s 

previous dismissal of two of those claims (the Section 1983 and IRFRA claims). See id. ¶¶ 21, 

86, 130-148, 149-152; see also Mem. Op & Order (Dkt. 65) at 41; Mem. Op. & Order (Dkt. 81) at 

13. Further, Plaintiff’s proposed complaint seeks to assert two new claims against DLF: 1) breach 

of contract and 2) punitive damages. See Proposed Third Am. Compl. (Dkt. 172-1) ¶¶ 153-162. 

Finally, Plaintiffs’ Proposed Third Amended Complaint seeks to assert an additional breach of 

contract/third party beneficiary claim against the Board. Id. ¶¶ 153-59. None would withstand a 

motion to dismiss. 

First, Plaintiffs have twice already tried and failed to state a Section 1983 claim for 

violation of the First Amendment against the University. See Mem. Op. & Order (Dkt. 65) at 35-

37; Mem. Op. & Order (Dkt. 81) at 12-13. This third effort fares no better. In its August 17, 2021 

Order, the Court denied Plaintiffs leave to amend to assert a Section 1983 claim against the 

University because Plaintiffs “made no effort to allege” that the purported “constitutional violation 

was caused by an unconstitutional policy or custom of the [entity] itself.” See Mem. Op. & Order 

(Dkt. 81) at 12. Even with the benefit of discovery, Plaintiffs have again “made no effort” to allege 

that the University is liable under Monell.

6

 See generally Proposed Third Am. Compl. (Dkt. 172-

 

6

It should be noted that the Court previously declined to dismiss Plaintiffs’ claim against DLF under 

Monell, but only because Plaintiffs had represented to the Court that their theory of liability was not 

predicated upon DLF’s contracting with, and use of, certified meditation instructors. See Mem. Op. & 

Order (Dkt. 65) at p. 37. Plaintiffs’ proposed Third Amended Complaint now confirms that this is in fact 

precisely Plaintiffs’ theory, and thus, it would be subject to a motion to dismiss if amendment were allowed. 

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1); AM Int’l v. Graphic Mgmt. Assocs., 44 F.3d 572, 578 (7th Cir. 1995) (“There is no point in 

granting a motion to amend a complaint if the amendment would not cure the infirmity that caused 

the original complaint to be dismissed.”). 

Second, the Court previously dismissed Darryl Williams’s IRFRA claim, and Plaintiffs 

have not cured the previously identified deficiencies with that claim. See Mem. Op. & Order (Dkt. 

65) at 41; see also Mem. Op & Order (Dkt. 81) at 13; Proposed Third Am. Compl. (Dkt. 172-1) 

¶¶ 21, 130-148, 149-152.

Third, Plaintiffs propose to assert a breach of contract claim against all Defendants under 

a third-party beneficiary theory, a newly asserted theory that would not survive a motion to 

dismiss. See Proposed Third Am. Compl. (Dkt. 172-1) ¶¶ 153-59. To state a third-party 

beneficiary claim under Illinois law in general, “the alleged third-party beneficiary must be 

expressly named in the contract.” See Carlson v. Rehab. Inst., 50 N.E.3d 1250, 1256 (Ill. App. Ct. 

2016). But neither Plaintiff is mentioned or even broadly described anywhere in the contracts 

attached as Exhibits to the Proposed Third Amended Complaint. See generally Exs. K (DLF 

Agreement), L (University Agreement) (Dkt. 172-1). Notably, the Scope of Services in the DLF 

agreement does not cover services at Bogan High School where Plaintiff Amontae Williams 

attended, so it is unclear how he, let alone his father, could be a proposed third-party beneficiary 

under this contract. See Proposed Third Am. Compl. (Dkt. 172-1), Ex. K at Ex. A(III) (Program 

Structure). Plaintiffs cite a reference to the University’s interest in studying how programs and 

interventions affect students’ academic performance.7 See Proposed Third Am. Compl. (Dkt. 172-

 

7 Plaintiffs’ allegation that the “University Services Agreement and the DLF Services Agreement both make 

clear, explicitly and by context, that they are intended to benefit students” is unsupported by the actual 

language of the contracts, and indeed, Plaintiffs do not support this conclusory allegation with any citation 

to either Exs. K or L or any paragraph or page therein. See Proposed Third Am. Compl. (Dkt. 172-1) ¶ 

159. 

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1) ¶¶ 121-22. They similarly claim that the DLF Service Agreement creates a third-party 

beneficiary relationship with every CPS student because it makes a reference to Quiet Time 

positively affecting student stress. Id. ¶ 119. But a passing reference to the fact that the University 

generally intends to study programs that might affect students or that DLF’s program will have a 

positive effect on students is simply insufficient under Illinois law to render students intended 

third-party beneficiaries. See, e.g., Carlson, 50 N.E.3d at 1256 (“[T]he mere reference to a party 

in a contract will not confer third-party beneficiary status[.]”); see also id. (holding contract 

between rehabilitation institute and transportation company for transport of patients did not render 

patients intended third-party beneficiaries); Estate of Willis II v. Kiferbaum Constr., 830 N.E.2d 

636, 643 (Ill. App. Ct. 2005) (in order to overcome presumption against construing contract in 

favor of third-party beneficiary status, plaintiff must point to “an implication so strong as to be 

practically an express declaration”); F.H. Paschen/S.N. Nielsen, Inc. v. Burnham Station, LLC,

372 Ill. App. 3d 89, 96 (1st Dist. 2007) (those who only reap incidental benefits from a contract 

and are not expressly declared to be direct beneficiaries in the agreement are not third-party 

beneficiaries). 

Fourth, Plaintiffs appear to allege a hybrid common law breach and/or due process claim 

under the Illinois Constitution against the Board. To the extent Plaintiffs attempt to assert a Illinois 

common law claim against the Board through Count III, that attempt is also futile because 

Plaintiffs’ new Illinois breach of contract (common law claim) is time-barred, and Plaintiffs have 

done nothing to explain why the claim should “relate back” under Rule 15(c). See 745 ILCS 10/8-

101 (establishing a one-year limitations period for claims against a public entity). 

Moreover, Plaintiffs’ reference to the Board’s Illinois Constitutional Law duty to protect 

CPS students also fails to state a claim because it does not identify the particular article(s) of the 

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Illinois Constitution Defendants allegedly violated, nor what article within the Illinois Constitution 

confers on the Board this alleged “duty to protect.” See Proposed Am. Compl. ¶ 154. As a 

threshold matter, the Illinois Constitution does not expressly authorize a cause of action for 

constitutional violations, and the Illinois Supreme Court has not addressed whether an implied 

cause of action exists. See Doe v. Champaign Cmmty. Unit 4 Sch. Dist., 2012 WL 2370053, at *9

(C.D. Ill. Feb. 24, 2012), report and recommendation adopted in part, rejected in part on other 

grounds, 2012 WL 2370051 (C.D. Ill. June 22, 2012). Therefore, this Court would need to predict 

how the Illinois Supreme Court would rule to determine if there was a private right of action 

available to Plaintiffs. See id. However, without specific citations to the Illinois Constitution, the 

Board would be purely speculating about the basis of Plaintiffs’ alleged Illinois Constitutional 

violations. As such, the Board anticipates filing a motion to dismiss on this count for failing to 

sufficiently allege this new claim under Iqbal. 

Finally, Plaintiffs purport to bring a count for “punitive damages” against DLF and the 

University. Punitive damages are a type of relief and are not an independent cause action in 

Illinois. See Brummel v. Grossman, 121 NE.3d 970, 998 (Ill. App. 2018) (“Illinois does not 

recognize a cause of action for punitive damages alone”). Any amendment asserting a punitive 

damages claim is therefore futile. Moreover, it is unclear whether punitive damages are available 

to Plaintiffs under the IRFRA. See Goodman v. Carter, 2001 WL 755137, at *8 (N.D. Ill. June 

29, 2001) (noting legislative text of IRFRA does not resolve whether punitive damages are 

embraced within the “appropriate relief”). If Plaintiffs’ Motion is granted, Defendants respectfully 

reserve the right to brief the unavailability of punitive damages under the IRFRA and other 

pleading deficiencies in a motion to dismiss.

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As set forth above, Plaintiffs’ proposed amendments would be futile, and Plaintiffs’ Motion 

should be denied. Bethany, 241 F.3d at 861.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that this Honorable Court deny 

Plaintiffs’ Motion. Defendants further request any additional relief the Court deems appropriate.

 

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Date: April 15, 2022 Respectfully Submitted,

For Defendant The University of Chicago:

/s/ Johanna Spellman 

Johanna Spellman, One of the Attorneys for 

Defendant The University of Chicago

Mark S. Mester (Illinois Bar No. 6196140)

mark.mester@lw.com

Johanna Spellman (Illinois Bar No. 6293851)

johanna.spellman@lw.com

Renatta Gorski (Illinois Bar No. 6332737)

renatta.gorski@lw.com

LATHAM & WATKINS LLP

330 North Wabash Avenue, Suite 2800

Chicago, Illinois 60611

Telephone: (312) 876-7700

Facsimile: (312) 993-9767

Carolyn M. Homer (pro hac vice)

carolyn.homer@lw.com

LATHAM & WATKINS LLP

555 Eleventh Street, NW, Suite 1000

Washington, D.C. 20004

Telephone: (202) 637-2200

Facsimile: (202) 637-2201

For Defendant the David Lynch Foundation:

/s/ James J. Sipchen (with consent)

James J. Sipchen

Pretzel & Stouffer, Chartered

One S. Wacker, Suite 2500

Chicago, IL 60606

jsipchen@pretzel-stouffer.com

For Defendant Board of Education of the City of 

Chicago:

/s/ Elizabeth K. Barton (with consent)

Elizabeth K. Barton, Atty No. 6295848

Elizabeth K. Barton / ekbarton@cps.edu

Kaitlin T. Salisbury / ktsalisbury@cps.edu

Christina Rosenberg / crosenberg@cps.edu

Board of Education of the City of Chicago

Case: 1:20-cv-04540 Document #: 175 Filed: 04/15/22 Page 17 of 19 PageID #:3003
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Law Department

1 N. Dearborn, #900

Chicago, IL 60631

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CERTIFICATE OF SERVICE

I, Johanna Spellman, certify that on April 15, 2022, a true and correct copy of the foregoing 

document was filed via email on all counsel of record as listed below.

John W. Mauck

Andrew S. Willis

MAUCK & BAKER, LLC

1 N. LaSalle St., Suite 600

Chicago, Illinois 60602

Telephone: (312)726-1243

Facsimile: (866)619-8661

jmauck@mauckbaker.com

awillis@mauckbaker.com

Counsel for Plaintiffs

James J. Sipchen

PRETZEL & STOUFFER, CHARTERED

One S. Wacker Drive- Suite 2500

Chicago, IL 60606-4673

(312) 578-7422

jsipchen@pretzel-stouffer.com

Counsel for The David Lynch Foundation

Elizabeth K. Barton

Kaitlin T. Salisbury

Christina L. Rosenberg

Board of Education of the City of Chicago

1 N. Dearborn St., Suite 900

Chicago, Illinois 60602

Telephone: (312)553-1700

ekbarton@cps.edu

ktsalisbury@cps.edu

clrosenberg@cps.edu

Counsel for Board of Education of the City of 

Chicago

Mark L. Zaiger

SHUTTLEWORTH & INGERSOLL, P.C.

500 U.S. Bank Bldg, P.O. Box 2107

Cedar Rapids, IA 52406

(319) 365-9461

mlz@shuttleworthlaw.com

Counsel for The David Lynch Foundation

Date: April 15, 2022 /s/ Johanna Spellman

Johanna Spellman, One of the Attorneys for 

Defendant The University of Chicago

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