UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

ANTONIO SPIZZIRRI JR., )

 ) 

 Plaintiff, )

 ) 

v. ) Case No. 1:20-cv-03839 

 ) 

 ) Honorable Judge Sharon Johnson Coleman 

PNC BANK, N.A, and SAFEGUARD ) 

PROPERTIES MANAGEMENT, LLC, ) 

 ) 

 Defendants. )

DEFENDANT SAFEGUARD PROPERTIES MANAGEMENT, LLC’S 

RULE 12(b)(6) MOTION TO DISMISS COUNT VII OF PLAINTIFF’S 

COMPLAINT 

Now comes defendant, SAFEGUARD PROPERTIES MANAGEMENT, LLC, by and 

through its attorneys, Tribler Orpett & Meyer P.C., and for its motion to dismiss Count VII of 

ANTONIO SPIZZIRRI, JR’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) states as follows: 

INTRODUCTION 

Antonio Spizzirri, Jr. is attempting to assert various causes of against Safeguard Properties 

Management, LLC ("Safeguard") and PNC Bank, N.A. (“Co-Defendant”) in its Complaint, filed 

on June 30, 2020. (Dkt. #1). In the six counts filed against Safeguard, Plaintiff asserts claims for 

(1) Intentional Infliction of Emotional Distress; (2) Intrusion Upon Seclusion; (3) common law 

trespass; (4) violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, 805 

ILCS 505, et. seq.; (5) conversion; and (6) negligence. These claims stem from, inter alia, alleged 

entries into Mr. Spizzirri’s home by Safeguard from late July, 2018, through March 16, 2019. For 

the reasons stated herein, Count VII of the Complaint for negligence must be dismissed with 

prejudice because Plaintiff was owed no duty by Safeguard. 

Case: 1:20-cv-03839 Document #: 17 Filed: 08/24/20 Page 1 of 5 PageID #:93
FACTS 

I. Introduction 

Plaintiff alleges that he owned the property located at 5725 Riviera Boulevard, Plainfield, 

Illinois 60586 (“Property”) originally secured by a mortgage in 2007. On March 6, 2015, Plaintiff 

refinanced an existing loan secured by the Property by executing a mortgage (“Mortgage”) in favor 

of PNC. (Complaint, ¶ 13). 

The Complaint alleges that on or about August 1, 2018, Plaintiff visited the Property to 

find that he was unable to gain access to the home due to a lockbox placed on the door. (Complaint, 

¶ 26). Plaintiff also alleges that on this date, he discovered that his supplies, tools, collectibles and 

mementos were missing from the Property. (Complaint, ¶ 29). Upon making this discovery, 

Plaintiff contacted PNC on August 1, 2018 to inform them of his findings. (Complaint, ¶ 30). The 

Complaint further alleges that soon after November 8, 2018, Plaintiff found water in the basement 

at the Property and discovered that the sump pump was unplugged. (Complaint, ¶46). Plaintiff 

alleges that as a result of the purported flooding and resulting damage, he was forced to remove 

the Property from the real estate market. (Complaint, ¶ 56). Additionally, Plaintiff alleges that 

Safeguard “winterized” the Property despite his own previous winterization activities. (Complaint, 

¶ ¶ 47-48). Plaintiff filed this action against Safeguard on June 30, 2020. 

LEGAL STANDARD 

The Federal Rules of Civil Procedure require a plaintiff to allege "a short and plain 

statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); 

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). "[N]aked assertions devoid of further factual 

enhancement" that are merely consistent with a violation of law do not satisfy this standard. 

Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Instead, a plaintiff must allege facts 

Case: 1:20-cv-03839 Document #: 17 Filed: 08/24/20 Page 2 of 5 PageID #:94
that establish a claim to relief that is plausible on its face and which allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678. 

Allegations that are “consistent with” liability but which have “more likely explanations” do not 

plausibly state claims for relief. Id. at 678-79. 

ARGUMENT 

I. COUNT VII OF THE COMPLAINT DIRECTED AGAINST SAFEGUARD 

ASSERTING A CLAIM FOR NEGLIGENCE MUST BE DISMISSED FOR 

FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 

BECAUSE PLAINTIFF WAS NOT OWED A DUTY BY SAFEGUARD.

This Court must dismiss Count VII of the Complaint attempting to plead negligence 

because Plaintiff has not, and is unable, to plead a recognized legal duty against Safeguard. It is 

well-established that “[t]o prove a defendant’s negligence under Illinois law, a plaintiff must 

establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that 

duty, and an injury proximately caused by that breach.” Hutchison v. Fitzgerald Equip. Co., Inc., 

910 F.3d 1016, 1022 (7th Cir. 2018). While a duty is not created automatically, “[e]very person 

owes a duty of ordinary care to all others to guard against injuries which naturally flow as a 

reasonably probable and foreseeable consequence of an act.” Simpkins v. CSX Transp., Inc., 965 

N.E.2d 1092, 1097 (Ill. 2012). 

Count VII must be dismissed because at no point in time did Safeguard exercise control or dominion 

over the Property or Plaintiff’s personal property as alleged in the Complaint. (Complaint, ¶ 134). Further, 

Plaintiff fails to allege with any detail how Safeguard breached its purported duty. Plaintiff propounds 

general allegations that Safeguard failed to secure the Property, violated the law, failed to follow its own 

formalized procedures, and failed to use reasonable care when securing the property (Complaint, ¶ 137). 

Nevertheless, Plaintiff does not allege how Safeguard failed to secure the Property, what law Safeguard 

purportedly violated, what formalized procedures Safeguard failed to follow, or how Safeguard failed to 

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use reasonable care when it secured the property. Plaintiff only raises broad and unsupported allegations 

concerning the loss of personal property as a result of Safeguard’s alleged negligence. Plaintiff fails to raise 

any allegations concerning how Safeguard proximately caused the resulting loss of property, the necessary 

legal relationship between plaintiff and Safeguard, or additional facts which would support a legal duty 

between plaintiff and Safeguard to establish a negligence claim. 

Plaintiff is unable to assert a cause of action for negligence against Safeguard. Safeguard did not 

owe a duty to Plaintiff nor could it be the proximate cause of the damages alleged. Plaintiff has failed to 

allege, and is unable to prove, any of the four elements required to sustain an action for negligence. 

Accordingly, Count VII of the Complaint against Safeguard for negligence must be dismissed with 

prejudice as a matter of law. 

CONCLUSION 

For the foregoing reasons, Safeguard Properties Management, LLC, respectfully 

requests that the Court dismiss Count VII of Plaintiffs Complaint. 

Respectfully submitted, 

TRIBLER ORPETT & MEYER, P.C. 

By: s/Panos T. Topalis 

One of defendant's attorneys 

Panos T. Topalis, Esq. ARDC #6202025 

Kevin J. Grigsby, Esq. ARDC #6332750 

pttopalis@tribler.com

kjgrisby@tribler.com 

TRIBLER ORPETT & MEYER, P.C. 

225 West Washington Street, Suite 2550 

Chicago, Illinois 60606 

(312) 201-6400 

Case: 1:20-cv-03839 Document #: 17 Filed: 08/24/20 Page 4 of 5 PageID #:96
CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of Safeguard Properties 

Management, LLC’s Rule 12(b)(6) Motion to Dismiss Count VII of Plaintiff’s Complaint was 

served upon: 

Attorney for Plaintiff 

Joseph Scott Davidson, Esq. 

Mohammed Omar Badwan, Esq. 

Victor Thomas Metroff, Esq. 

Sulaiman Law Group, Ltd. 

2500 S. Highland Avenue, Suite 200 

Lombard, IL 60148 

(630) 575-8181 

jdavidson@sulaimanlaw.com

mbadwan@sulaimanlaw.com

vmetroff@sulaimanlaw.com 

Attorney for Defendant 

Amelia Susan Newton, Esq. 

Clark Hill PLC 

130 East Randolph Street 

Suite 3900 

Chicago, IL 60601 

(312) 385-5900

Email: anewton@clarkhill.com 

service was accomplished pursuant to ECF as to Filing Users and complies with LR 5.5 as to any 

party who is not a Filing User or represented by a Filing User by mailing a copy to the abovenamed attorney or party of record at the address listed above, from 225 W. Washington Street, 

Suite 2550, Chicago, IL 60606, prior to 5:00 p.m. on the 24th day of August, 2020, with proper 

postage prepaid. 

s/Panos T. Topalis 

an Attorney 

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