M.D. Alabama Remands Case Based on Lack of Evidence that Amount in Controversy Exceeds $75,000
Per Jackson v. Peoples South Bank, Slip Copy, 2007 WL 1857169 (M.D.Ala . Jun 27, 2007) (NO. 2:06-CV-21-WKW):
Removal is proper pursuant to Title 28, section 1441 of the United States Code if a federal court would have had original diversity or federal question jurisdiction over the initial action. See 28 U.S.C. § 1441(a). The removing defendant has the burden of establishing the existence of federal jurisdiction. Leonard v. Enterprise Rent A Car, 279 F.3d 967 (11th Cir.2002). For purposes of diversity jurisdiction, a federal court has original jurisdiction over an action where there is complete diversity between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. The court will analyze whether it has jurisdiction under 28 U.S.C. § 1332.
. . .
Defendant first posits that because plaintiffs borrowed $148,000, that such number alone satisfies the amount in controversy and is facially apparent from the complaint. Defendant misconstrues the relief requested by the plaintiffs. The plaintiffs admit that they have refinanced the $148,000 loan with a different lender, therefore there is no allegation that the plaintiffs were somehow cheated out of the sum. The gist of the complaint is not the plaintiffs' request for the totality of the loan, but compensation for excess monies paid for allegedly unauthorized "higher interest rates"; "additional monies [paid because of plaintiffs'] re-financ[ing] with a different lender"; costs incurred for the allegedly unauthorized overdraft; expenses incurred in this lawsuit; excess monies paid which plaintiffs "never received the full use and benefit from"; and mental distress and other damages. (Compl.¶ 8.) Nowhere in the complaint, most noticeably in the allegations of breach of contract, do plaintiffs request a refund of the totality of the loan. Morever, the only real dollar evidence of damages clearly appearing in the removal documents is the $1,600 overdraft.
Defendant also cites a litany of cases involving compensatory and punitive damages in the context of fraud and negligence as evidence that the amount in controversy exceeds $75,000. The Eleventh Circuit recently ruled such evidence speculative, doubting whether "[evidence regarding the value of other tort claims] is ever of much use in establishing the value of claims in any one particular suit." Lowery, 483 F.3d at 1221. The evidence submitted by defendant is just the sort the Eleventh Circuit directed the district courts to ignore. See id. (holding that evidence of other tort verdicts from outside sources is not within the contemplation of 1446(b)).
In order to overcome their heavy burden, the defendants must establish by a preponderance of the evidence that the amount in controversy exceeds $75,000. Nothing in the removal documents establishes a dollar amount for the plaintiffs' requested relief by that evidentiary standard. The court concludes that the defendants have not established by a preponderance of the evidence that the amount in controversy of this action exceeds $75,000. Therefore, the court lacks diversity jurisdiction even if a resident defendant is fraudulently joined.
posted by A. Benjamin Spencer @ 4:08 AM
2 comments
2 Comments:
SETH S. PATINKIN, by and through his attorney, Joe Frankus, bring forth this cause of action against the above – named Defendants:
INTRODUCTION
1. Seth S. Patinkin (“Patinkin”) is a noted alumnus of Indiana University who resides in Chicago, Illinois.
2. Patinkin, who is Jewish, has owned rental properties since he graduated from Indiana University (“IUB”) in 1998. Patinkin currently owns and/or is the agent for four (4) properties in Bloomington located at: 414 E. 1st Street, 816 E. 2nd Street, 709 South Anita and 319 E. 12th Street.
3. In December of 2004, Patinkin entered into a business partnership with Defendant Jan P. Szatkowski (“Szatkowski”) for the purpose of purchasing student rental properties in Bloomington.
4. Szatkowski would soon reveal his anti – Semitic sentiment.
5. In July of 2005, Patinkin brought suit against Szatkowski for breach of contract relating to their business partnership. That suit, Patinkin v. Szatkowski (Cause No. 53C04 0507 PL 01424), is currently pending in the Monroe Circuit Court of the State of Indiana.
6. Shortly after being sued, Szatkowski’s attorney, William J. Beggs (“Beggs”) launched into a series of judicial and extra – judicial measures to force Patinkin to abandon his legitimate claims.
7. Beggs enlisted the help of the City of Bloomington in an attempt to destroy Patinkin’s student rental property business and to secure a favorable outcome in the Patinkin v. Szatkowski lawsuit.
8. The City has used the Title 20 Zoning Ordinance (“Title 20”), a regulation that limits occupancy in certain non – grandfathered houses to three (3) unrelated adults, as a pretext to deprive Patinkin of his civil rights under law.
9. The City has told Patinkin’s student lessees that they were violating Title 20 when in fact they were not. The City further suggested that the student lessees vacate the premises in violation of valid leases between Patinkin and his student lessees.
10. The City’s Title 20 enforcement policies have resulted in multiple student lessees vacating Patinkin’s student rental properties in violation of valid leases.
11. City employee, Neighborhood Compliance Officer (“NCO”) Kevin Bowlen (“Bowlen”), told Patinkin during an official rental home inspection of Patinkin’s property that:
“We do not like your kind of people around here. You are going to be fined a lot and there is nothing you Jews can do about it. Your kind of people have no business owning property around here.” Bowlen muttered “F------ Jews” as he exited the home.
Bowlen’s comments were made in the presence of Pamela Koszut (“Koszut”),
Patinkin’s fiancée.
12. Bowlen has falsified documents relating to Patinkin’s rental properties.
13. In response to Patinkin’s pleas, the City reluctantly investigated Bowlen’s targeted actions towards Patinkin. The City determined that there was no improper conduct by Bowlen.
14. The City has employed Title 20 to direct unannounced late night Police visits to student lessees residing in Patinkin’s rental homes. Police entered a home without permission and threatened “possible jail time” for alleged Title 20 over – occupancy violations.
15. The City has continued to demonstrate that it has an interest in forcing Patinkin to discontinue his student rental property business in Bloomington.
16. To this end, the City has additionally enlisted the help of permanent residents unhappy with rental homes in their neighborhoods, IUB via its legal clinic, Student Legal Services (“SLS”), and cooperated with Beggs and his associates.
17. Szatkowski, his attorney Beggs, and RE/MAX realtor Andrew Walker (“Walker”), have attempted to have Patinkin’s student lessees sign a false certification document drafted by Beggs (“Beggs Release”) in direct conflict of an existing Court Order relating to the Patinkin v. Szatkowski case.
18. SLS has advised Patinkin’s student lessees to sign false statements and breach valid rental leases.
19. Permanent residents, unhappy with student rental homes in their neighborhoods, have cooperated with the City in their attempt to oust Patinkin from the student rental business in Bloomington.
20. Patinkin has made numerous attempts to try to work out an amicable arrangement with the City to no avail. These attempts have included: copies of valid leases, affidavits from Patinkin’s property managers and student lessees, rent receipts and countless letters and e – mails to City agents and employees.
21. Patinkin has and continues to suffer an illegal and unjustified attack on his civil rights, property rights and reputation as a result of the defendants’ ongoing conspiracy to cause Patinkin’s student rental business to fail.
22. The net effect of this conspiracy between the defendants is that Patinkin’s student rental property business has been nearly ruined and Patinkin’s personal and professional reputation in Bloomington has been permanently harmed.
PARTIES
23. The City of Bloomington (“City”) is a city in southern Indiana.
24. Jan P. Szatkowski (“Szatkowski”) is Patinkin’s estranged business partner with residences in Rochester, Minnesota and Chicago, Illinois.
25. Kevin Bowlen (“Bowlen”) is employed by the City in the Housing and Neighborhood Development Department (“HAND”) as a Neighborhood Compliance Officer (“NCO”).
26. Carol Jack (“Jack”) is employed by the City in HAND as a NCO.
27. Susie Johnson (“Johnson”) was the Director of HAND during 2005.
28. Lisa Abbott (“Abbott”) is the current Director of HAND.
29. Mayor Mark Kruzan (“Mayor Kruzan”) is the Mayor of the City.
30. Barbara McKinney (“McKinney”) is the Human Rights Attorney and Contract Compliance Officer for the City.
31. Daniel Grundmann (“Grundmann”) is the Director of Employee Services for the City.
32. Kevin Robling (“K. Robling”) is Corporation Counsel for the City.
33. Patricia M. Mulvihill (“Mulvihill”) is an Assistant Attorney for the City.
34. Sarah Webber – Liu (“Liu”) is an Assistant Attorney for the City.
35. Indiana University (“IUB”) is a Big Ten University located in the City.
36. Stacee Evans (“Evans”) is a Staff Attorney at SLS.
37. William J. Beggs (“Beggs”) is a licensed attorney at the law firm of Bunger & Robertson in the City.
38. RE/MAX Acclaimed Properties (“RE/MAX”) is an independently owned and operated franchisee of RE/MAX of Indiana.
39. Andrew Walker (“Walker”) is a RE/MAX Acclaimed Properties realtor in the City.
40. Virginia “Jenny” Southern (“Southern”) is president of the Elm Heights Neighborhood Association in the City.
JURISDICTION AND VENUE
41. This action arises under the Constitution of the United States, the Fourteenth Amendment, the laws of the United States, 42 U.S.C. Sections 1981, 1982, 1983, 1985, and 1988, and the Constitution of the State of Indiana, Article I, Section 12.
42. This Court has jurisdiction over the subject matter of this action under 28 U.S.C. Sections 1331 and 1343.
43. This Court has personal jurisdiction over the defendants because the relevant actions taken by these defendants occurred within the State of Indiana.
44. This Court has supplemental jurisdiction over the state law claims under 28 U.S.C. 1367.
45. Venue is proper in this Court as Defendants reside in this judicial district and the claims arose in this judicial district.
STATEMENT OF FACTS
The Patinkin - Szatkowski Partnership
46. On 14 February 2005, Patinkin and Szatkowski entered into two (2) signed partnership agreements for the purposes of purchasing and maintaining two (2) student rental properties in the City.
47. Subsequently, the partnership purchased rental properties located at 414 E. 1st Street and 816 E. 2nd Street in the City.
48. The business relationship between Patinkin and Szatkowski deteriorated when Szatkowski failed to (a) make requisite capital contributions; and (b) to transfer the deeds for these properties to the partnership.
49. Szatkowski threatened to sell their properties in the open market without Patinkin’s consent. When Patinkin complained, Szatkowski referred to him as “jewish.” A copy of Szatkowski’s e – mail message is attached as Exhibit A and made part of this Complaint.
50. When it became apparent that the 816 E. 2nd Street property required major improvements following their purchase, Szatkowski referred to the property as “jewish.” A copy of Szatkowski’s e – mail message is attached as Exhibit B and made part of this Complaint.
51. On or about 21 June 2005, Patinkin purchased 816 E. 2nd Street from Szatkowski.
52. The 414 E. 1st Street property remains in Szatkowski’s name with Patinkin as property manager and landlord.
53. On 22 July 2005, Patinkin filed Patinkin v. Szatkowski in the Monroe Circuit Court of the State of Indiana for breach of contract pertaining to 414 E. 1st Street.
Beggs, Szatkowski and Walker’s Judicial and Extra – Judicial Activities
54. On or about 22 September 2005, Moshe Berman (“Berman”), Ryan Dumas (“Dumas”) and Tom Byrd (“Byrd”) were Patinkin’s student lessees at the 414 E. 1st Street property.
55. On or about 22 September 2005, Beggs wrote to Patinkin’s student lessees at the 414 E. 1st Street property indicating that Patinkin was not the property manager, and instructed the student lessees to pay their rent to Szatkowski. This letter is attached hereto as Exhibit C and made part of this Complaint.
56. On or about February 2006, the Honorable Mary Ellen Diekhoff, the Judge presiding in the Patinkin v. Szatkowski case, issued an order (“Diekhoff Order”) that preserved Patinkin’s role as landlord and property manager for the property located at 414 E. 1st Street.
57. On or about 15 August 2006, Ryan Rieff (“Rieff”), Bryan Haney (“Haney”) and Robert Tokars (“Tokars”) began the school semester at IUB as Patinkin’s student lessees at the 414 E. 1st Street property.
58. Upon information and belief, Szatkowski has listed 414 E. 1st Street for sale with Walker as the real estate agent.
59. Upon information and belief, Walker showed Rieff, Haney and Tokars possible housing for them to occupy if they would move out in violation of their lease with Patinkin.
60. On or about 27 December 2006, while the Diekhoff Order was in effect, Beggs wrote to Rieff, Haney and Tokars requiring that they must vacate or face eviction. The letter is attached hereto as Exhibit D and made part of this Complaint.
61. On or about January 2007, Beggs drafted an agreement (“Beggs Release”) while the Diekhoff Order was in effect. The Beggs Release alleged that: (a) the student lessees entered the lease with Patinkin with the understanding they could violate Title 20 by allowing more than three people to live there, (b) that Szatkowski would have no objection to the tenants vacating the leased premises, and (c) that Szatkowski would not institute eviction proceedings if the student lessees vacated the premises on or before January 17, 2007. A copy of the Beggs Release is attached hereto as Exhibit E and made part of this Complaint.
62. Upon information and belief, Walker made repeated attempts to have Rieff, Haney and Tokars to sign the Beggs Release.
63. SLS advised the student lessees to sign the Beggs Release. A copy of the e – mail message sent by SLS is attached hereto as Exhibit F and made part of this Complaint.
64. Upon information and belief, on or about 02 February 2007, Szatkowski appeared at 414 E. 1st Street in an attempt to get the student lessees to sign the Beggs Release and vacate the house.
65. Rieff, Haney and Tokars have held steadfast in their position regarding their assertion that they have never over – occupied 414 E. 1st Street in violation of Title 20 as of the filing of this case. A copy of Rieff’s Motion in a related legal proceeding is attached hereto as Exhibit G and made part of this Complaint
66. On or about March 2007, Beggs filed an eviction lawsuit against the 2006 – 2007 student lessees of 414 E. 1st Street, Szatkowski v. Rieff et al.(Cause No. 53C 04 0702 SC 00895), despite the fact that Szatkowski is not a party to the lease and the student lessees were performing their obligations under the existing valid lease.
67. Beggs filed the suit, Szatkowski v. Rieff et al. without providing a notice of the filing of the lawsuit to the Honorable Mary Ellen Diekhoff, the presiding Judge in the case of Patinkin v. Szatkowski.
Mulvihill’s Harassment and Bowlen’s Anti – Semitism (414 E. 1st Street & 816 E. 2nd Street)
68. Patinkin manages the properties located at 414 E. 1st Street and 816 E. 2nd Street.
69. On or about 15 August 2005, Berman, Dumas and Byrd moved into 414 E. 1st Street.
70. On or about 15 September 2005, Adam Mikos (“Mikos”) and Ankit Bhargava (“Bhargava”) moved into 816 E. 2nd Street.
71. The City claimed that Dumas, Berman, Byrd, Mikos and Bhargava all lived together at 414 E. 1st Street and initiated the use of Title 20 enforcement tactics.
72. On or about 13 October 2005, NCO Bowlen submitted a memorandum to HAND Director Johnson indicating that the 414 E. 1st Street property was over – occupied because he allegedly conducted a interview with Patinkin’s student lessees. A copy of Bowlen’s memo and the alleged interview is attached hereto as Exhibit H and is made part of this Complaint.
73. Berman, Dumas and Byrd have denied participating in any type of interview with Bowlen. A copy of Berman’s affidavit is attached hereto as Exhibit I and is made part of this Complaint. Dumas and Byrd submitted similar affidavits.
74. There is no evidence of any tenant interview having taken place on 05 October 2005 at 414 E. 1st Street in the official records. A copy of official HAND file #8062 is attached hereto as Exhibit J and made part of this Complaint.
75. Upon information and belief, Bowlen did not perform an inspection at 414 E. 1st Street until on or about 28 October 2005, during a cycle inspection with Patinkin.
76. This first inspection on or about 28 October 2005 of 414 E. 1st Street is where Bowlen made derogatory comments to Patinkin in the presence of his fiancée, Pamela Koszut (“Koszut”), and subsequently muttered “F------ Jews” as he exited the home. A copy of Koszut’s affidavit attesting to the derogatory behavior by Bowlen is attached hereto as Exhibit K and is made part of this Complaint.
77. On or about 28 October 2005, City Attorney Mulvihill wrote to Dumas, Berman, Byrd and Patinkin indicating that the 414 E. 1st property was over – occupied in violation of Title 20. A copy of this letter is attached hereto as Exhibit L and made part of this Complaint.
78. On or about 07 November 2005, Berman, Dumas and Byrd sent a letter to City Attorney Mulvihill stating that they were not over – occupying the property and that they had never spoken to Bowlen. A copy of this letter is attached hereto as Exhibit M and is made part of this Complaint.
79. On or about 16 November 2005, Mulvihill wrote back to the student lessees, copying Mikos and Bhargava, declaring that their letter did not constitute sufficient proof of compliance with Title 20, citing the alleged tenant interview conducted by Bowlen with Berman, Dumas, Byrd and Bhargava. A copy of this letter is attached hereto as Exhibit N and made part of this Complaint.
80. Around the same time, leases were also provided to the City showing that Berman, Dumas and Byrd resided at 414 E.1st Street, and Mikos and Bhargava resided at 816 E. 2nd Street.
81. On or about 30 November 2005, Berman, Dumas and Byrd sent a second letter to City Attorney Mulvihill stating that they were not over – occupying and have never spoken to or met Bowlen in response to a 16 November 2005 letter sent by Mulvihill. A copy of this letter is attached hereto as Exhibit O and is made part of this Complaint.
82. On or about 01 December 2005, in an e – mail message to 414 E. 1st Street neighbor K. Gutowsky, Mulvihill indicated that Mikos and Bhargava lived at 816 E. 2nd Street and it appeared that there was no over – occupancy in violation of Title 20. These statements are attached hereto as Exhibit P and made part of this Complaint.
83. On or about 09 December 2005, Mulvihill reversed her stance by writing a letter to the 414 E. 1st Street student lessees stating that: (a) the leases of 414E. 1st Street and 816 E. 2nd Street were fictitious, (b) Patinkin had declared that Mikos and Bhargava did not reside at 816 E. 2nd Street, and (c) the City was “extremely displeased”. The letter additionally threatened fines and legal action for the alleged over - occupancy. A copy of this letter is attached hereto as Exhibit Q and made part of this Complaint.
84. On or about 26 January 2006, Berman, Dumas and Byrd submitted affidavits stating that they had never spoken to Bowlen and that only Berman, Dumas and Byrd lived at 414 E. 1st Street. Dumas and Byrd submitted similar affidavits. (See Exhibit I)
85. On or about January 2006, Mikos and Bhargava submitted affidavits stating that they were living at the 816 E. 2nd Street property.
86. On or about 22 March 2006, Assistant City Attorney Liu sought a payment of $2,500.00 from Patinkin to settle alleged Title 20 violations at 414 E. 1st Street. A copy of this letter is attached hereto as Exhibit R and made part of this Complaint.
87. On or about 28 October 2005, Bowlen also conducted his initial inspection of the property at 816 E. 2nd Street. Bowlen thereafter submitted an affidavit that Patinkin told him that Patinkin and Koszut resided at 816 E. 2nd Street. A copy of Bowlen’s affidavit is attached hereto as Exhibit S and made part of this Complaint.
88. On or about 28 October 2005, Koszut resided at 5539 W. Cullom in Chicago, Illinois and worked for the law firm of Katz, Friedman in Chicago while attending DePaul College of Law also located in Chicago. (See Exhibit K)
89. On or about 28 October 2005, Patinkin maintained two (2) residences: one residence was at 319 E. 12th Street in Bloomington, Indiana and the other with his brother at 1227 W. Wellington in Chicago, Illinois.
90. On or about March 2006, NCO Jack told Patinkin: “We don’t like your kind around here” during a visit to the property located at 816 E. 2nd Street.
City Investigates Bowlen
91. On or about 24 March 2006, Patinkin notified the City’s Human Rights Attorney McKinney about Bowlen’s derogatory behavior and Mulvihill’s unsubstantiated allegations of Title 20 violations and related harassment. A copy of Patinkin’s e – mail message to McKinney is attached hereto as Exhibit T and made part of this Complaint.
92. On or about 24 March 2006, Patinkin forwarded the above – mentioned e – mail to Mayor Kruzan and requested a meeting to discuss the relevant situation. A copy of Patinkin’s e – mail message to Mayor Kruzan is attached hereto as Exhibit U and made part of this Complaint.
93. On or about 18 April 2006, McKinney, City Director of Employee Services Grundmann, Rabbi Sue Laikin Shifron (“ Rabbi Shifron”) and Patinkin met in City offices to discuss the issues raised by Patinkin.
94. Upon information and belief, Mayor Kruzan appointed McKinney and Grundmann to investigate Patinkin’s grievances.
95. Upon information and belief, McKinney and Grundmann did conduct an investigation and concluded the investigation by determining that the City would have their NCOs attend an upcoming seminar on how better to deal with the public. A copy of McKinney’s letter to Patinkin dated 01 May 2006 concluding the investigation is attached hereto as Exhibit V and made part of this Complaint.
96. Patinkin and Rabbi Shifron requested information about how the investigation was conducted. McKinney refused to provide any information citing the privacy rights of Bowlen.
97. Upon information and belief, Bowlen continues to work as a NCO for the City as of the filing of this case.
New school semester - new student lessees
98. On or about 15 August 2006, Berman, Dumas and Byrd moved out of 414 E. 1st Street and Ryan Rieff (“Rieff”), Bryan Haney (“Haney”) and Robert Tokars (“Tokars”) moved into 414 E. 1st Street.
99. On or about 15 August 2006, Mikos and Bhargava moved out of 816 E. 2nd Street and Stephany Goldzband (“Goldzband”), Neha Sharma (“Sharma”) and Jessica Leary (“Leary”) moved into 816 E. 2nd Street.
100. On or about 15 August 2006, Eric Quebbeman (“Quebbeman”), Brian Faires (“Faires”) and Chris Lott (“Lott”) moved into Patinkin’s student rental property located at 709 South Anita.
101. On or about 15 August 2006, Evan Gerard (“Gerard”), Ben Kreinbrink (“Kreinbrink”) and James Stucky (“Stucky”) were scheduled to move into Patinkin’s student rental property located at 319 E. 12th Street. The student lessees did not move in because they did not submit their required security deposit.
102. These student lessees have experienced unannounced late night police visits and the City’s continuing threats of fines and legal action for alleged violations of Title 20.
414 E. 1st Street
A New Tactic: Unannounced Late Night Police Visits
103. Upon information and belief, Liu wrote letters and sent e – mail messages to Patinkin and to Patinkin’s student lessees at 414 E. 1st Street threatening legal action for alleged Title 20 violations.
104. On or about 05 December 2006, Lieutenant Anthony Pope (“Officer Pope”) made an unannounced late night visit to 414 E. 1st Street to investigate for alleged Title 20 violations.
105. K. Robling, Corporation Counsel for the City, instructed Officer Pope to make the unannounced late night visit to 414 E. 1st Street. A copy of the Police Department Case Report is attached as Exhibit W and made part of this Complaint.
106. Upon information and belief, the unannounced late night visit by the Police frightened and intimidated the student lessees.
107. Officer Pope informed the student lessees that “jail time” was possible in relation to these alleged Title 20 violations.
108. Upon information and belief, Officer Pope entered the home uninvited and proceeded to sit in the living room for a period of time demanding the names of the “over – occupying tenants”. Rieff, Haney and Tokars denied any violation and did not provide any names.
109. On or about 12 December 2006, Liu wrote to Rieff in regards to the unannounced late night Police visit: “The City is currently undetermined as to whether or not it will inform the Dean of Students at Indiana University”. A copy of this letter is attached hereto as Exhibit X and made part of this Complaint.
Discriminatory Treatment by City
110. Upon information and belief, Mulvihill and the City were aware that Szatkowski was the deed holder of 414 E. 1st Street and of the Patinkin v. Szatkowski case during the time Patinkin and his student lessees were threatened with fines and legal action for alleged Title 20 violations. A copy of Mulvihill’s hand written notes from a meeting in December 2005 with Patinkin and his attorney is attached hereto as Exhibit Y and made part of this Complaint.
111. Upon information and belief, Szatkowski was not threatened with fines and legal action until on or about December 2006 when the City decided to pursue litigation against Patinkin for alleged violations of Title 20.
112. When Patinkin expressed concerns that his student lessees were being unjustly harassed, Robling responded in part:
“Please be advised that Ms. Liu, my Assistant City Attorney in charge of enforcement actions, has not threatened your tenants in any manner. Any action that she has taken to date, she has taken at my direction.”
A copy of this e – mail message is attached hereto as Exhibit Z and made part of this Complaint.
113. On or about 15 December 2006, Patinkin again sought the assistance of Mayor Kruzan to help him address the issues he and his student lessees were having with the City. A copy of the e – mail message is attached hereto as Exhibit A1 and made part of this Complaint.
114. Patinkin has not received a response from Mayor Kruzan as of the filing of this case.
SLS Becomes Involved
115. On or about January 2007, the City filed a lawsuit, City v. Rieff et al. (Cause No. 53C 08 0701 OV 00049), against Rieff, Haney and Tokars for alleged violations of the Title 20 Zoning Ordinance.
116. Shortly after being served with the City lawsuit, the student lessees completed an Intake Form in the offices of SLS, the legal clinic which provides legal representation to IUB students.
117. Stacee Evans (“Evans”), SLS Staff Attorney, subsequently took on the representation of Rieff, Haney and Tokars.
118. During one of their first meetings at the offices of SLS, the Department Secretary, Dorothye Robling, relative of K. Robling, told the student lessees:
“Just bring us everything you can on [Patinkin]. What is good for the City is good for you”.
119. SLS subsequently “strongly advised” the tenants to sign the Beggs Release. (See Exhibit F)
120. Rieff, Haney and Tokars have repeatedly denied over – occupying the property at 414 E. 1st Street. (See Exhibit G)
121. SLS corresponded a second time with the student lessees that in part informed the students to provide additional identities of alleged over – occupiers or expect SLS to withdraw from representation. The e – mail message is attached hereto as Exhibit B1 and made part of this Complaint.
122. Rieff, Haney and Tokars denied over – occupying the property and did not provide the alleged over – occupier’s identities.
123. Upon information and belief, SLS soon thereafter withdrew its legal representation of the student lessees.
124. Rieff, Haney and Tokars have continued to deny that they violated Title 20 by over – occupying the property at 414 E. 1st street.
709 South Anita
Another Unannounced Late Night Police Visit
125. On or about 15 August 2006, Quebbeman and Lott signed a move – in inspection agreement accepting the condition of the property.
126. On or about 05 December 2006, Officer Pope made an unannounced late night visit to 709 South Anita Street to investigate alleged over – occupancy violations at the request of City Corporation Counsel K. Robling. A copy of the Bloomington Police Department Case Report is attached hereto as Exhibit C1 and made part of this Complaint.
127. Upon information and belief, shortly after Officer Pope’s visit, the student lessees sought and located alternate and less expensive housing.
128. Upon information and belief, the student lessees contacted SLS.
129. SLS advised Quebbeman, Faires and Lott to enter plea agreements with the City stating that: 1) they over – occupied the property, and 2) that the living conditions were uninhabitable. The agreement further stated that the City would reduce the total fine by ninety - five (95%) percent. A copy of the Plea Agreement signed by Lott is attached hereto as Exhibit D1 and made part of this Complaint.
130. In addition, on or about 14 December 2006, Rabah Rahil (“Rahil”) identified himself as a tenant of 709 S. Anita and requested an inspection of the property.
131. Rahil’s address during the period he claimed he was living at 709 S. Anita was 2711 E. 10th Street as confirmed at the IUB Registrar’s Office. A copy of the IUB Registrar’s contemporaneous record for Rahil is attached hereto as Exhibit E1 and made part of this Complaint.
132. Patinkin only learned of Rahil on or about December 2006.
133. Quebbeman, Faires and Lott signed the City plea agreements and moved out of the 709 S. Anita property on or about 15 December 2006 in violation of their lease with Patinkin.
134. Patinkin was able to re – rent the property effective 15 January 2007 for six hundred ($600) dollars less per month than the rent contractually agreed by Quebbeman, Faires and Lott.
The City and SLS Abuse Title 20
816 E. 2nd Street
135. On or about 16 August 2006, Goldzband, Sharma and Leary moved into Patinkin’s rental property at 816 E. 2nd Street.
136. Southern stopped to talk to the new student lessees and advised them to go to SLS if they wanted to get out of their lease with Patinkin. A copy of Southern’s e – mail message is attached hereto as Exhibit F1 and made part of this Complaint.
137. On or about 17 August 2006, an alleged fourth tenant, Megan Cangelosi (“Cangelosi”), met with NCO Jack to complain about the living conditions at 816 E. 2nd Street. A copy of the Request Order signed by Cangelosi and received by Jack is attached hereto as Exhibit G1 and made part of this Complaint.
138. On or about 17 August 2006, Jack performed a complaint inspection of 816 E. 2nd Street. Defects were recorded by Jack that were not noted in a subsequent move – in inspection signed by Sharma three (3) days later.
139. On or about 20 August 2006, Sharma completed a walk – through inspection, accepting the condition of the property. A copy of the signature page of the walk – through inspection is attached hereto as Exhibit H1 and made part of this Complaint.
140. Upon information and belief, around this time period, the student lessees located alternate and less expensive housing and were informed that SLS could help them get out of the lease with Patinkin.
141. Upon information and belief, SLS advised the student lessees and Cangelosi to assert that: 1) they over – occupied the property in violation of Title 20, and 2) that the living conditions were uninhabitable.
142. On or about the dates of 19 August 2006 and 22 August 2006, respectively, Goldzband and Leary placed stops on their rental checks to Patinkin. Copies of these checks are attached hereto as Exhibit I1 and made part of this Complaint.
143. On or about 24 August 2006, SLS wrote to Patinkin informing him that SLS represented the student lessees and Cangelosi and that Patinkin should return the student lessees security deposit in part because there was a violation of Title 20. The correspondence further stated that Patinkin was violating the law by allowing four (4) residents to live there. A copy of SLS’s e – mail message is attached hereto as Exhibit J1 and made part of this Complaint.
144. Patinkin entered into a lease with Goldzband, Sharma and Leary and was not aware that Cangelosi allegedly resided at 816 E. 2nd Street.
145. Patinkin responded by denying any knowledge of alleged Title 20 violations and detailed his attempts to address concerns the student lessees had. A copy of Patinkin’s e – mail message is attached hereto as Exhibit K1 and made part of this Complaint.
146. The City Planning Department had approved an occupancy load of four (4) unrelated adults in 1998, prior to Patinkin owning the property. A copy of official findings are attached hereto as Exhibit L1 and made part of this Complaint.
147. Goldzband, Leary and Sharma subsequently vacated the premises on or about 30 August 2006.
148. Despite diligent efforts, Patinkin has been unable to re – rent 816 E. 2nd Street.
319 E. 12th Street
149. On or about 15 August 2006, Gerard, Kreinbrink and Stucky were scheduled to move into Patinkin’s student rental property located at 319 E. 12th Street.
150. The student lessees did not move in because they failed to submit the total funds required to move in.
151. Upon information and belief, Gerard, Kreinbrink and Stucky became aware of alternate and less expensive housing.
152. Upon information and belief, on or about 15 August 2006, the student lessees moved into 403 S. Jordan Avenue in the City instead of honoring the lease they signed with Patinkin.
153. Upon information and belief Gerard, Kreinbrink and Stucky went to the SLS offices to ask for assistance in breaking their lease with Patinkin.
154. Upon information and belief, SLS advised Gerard, Kreinbrink and Stucky to meet with NCO Jack and state that: 1) they over – occupied the property in violation of Title 20, and 2) that the living conditions were uninhabitable.
155. NCO Jack did meet with a student lessee and indicated to him that he would be violating Title 20 if five unrelated adults were intending to reside at 319 E. 12th Street. A copy of NCO Jack’s “Interdepartment Memo” from this meeting is attached hereto as Exhibit M1 and made part of this Complaint.
156. The zoning for 319 E. 12th Street allows an occupancy load of five (5) unrelated adults. A copy of the Certificate of Nonconforming Use is attached hereto as Exhibit N1 and made part of this Complaint.
157. Despite diligent efforts, Patinkin has been unable to re – rent 319 E. 12th Street.
The Manipulation of Neighbor Sentiment
158. In the summer of 2006, City Attorneys Mulvihill and Liu had numerous communications with permanent residents who lived near Patinkin’s student rental properties.
159. On or about 19 June 2006, Mulvihill stated that she thought it would be a good idea to meet with permanent resident Southern to discuss the alleged Title 20 violations by Patinkin and his student lessees. Mulvihill stated:
“Jenny, I copied Sarah Liu on this e – mail. Sarah is one of the new City attorneys and she is actually taking over the over – occupancy caseload…. We think a lunch meeting would be most cost effective; this way no [one] has to starve the rest of the day…. Thanks, Patty.”
A copy of Mulvihill’s e – mail message is attached hereto as Exhibit O1 and made
part of this Complaint.
160. In earlier e-mail, Southern represented to several individuals that
Patinkin was not honest in his student rental business. (See Exhibit F1)
161. K. Gutowsky, who lives next door to the 414 E. 1st Street property, wrote on a webblog in regards to Patinkin, on or about 01 December 2006:
“It’s time to stop the decay and save Bloomington from shameless, greedy, out – of – town landlords”.
162. The student lessees at 414 E. 1st Street were aware of K. Gutowsky and her husband Chris Gutowsky (”C. Gutowsky”) from prior experiences.
163. For example, on or about 28 October 2005, a loud pounding on the front door by C Gutowsky awakened student lessee Berman. When he opened the door Berman noticed that the front wooden panel on the door was kicked in. (See Exhibit I)
164. C. Gutowsky subsequently demanded that a car be moved. Student lessee Byrd went outside and moved the car. C. Gutowsky then told Berman that he and his roommates were going to be kicked out of their home by the City.
165. On or about 07 December 2005, K. Gutowsky walked through the front door of 414 E. 1st Street and asked Berman if he was Adam (Adam Mikos – City alleged 414 E. 1st Street over – occupier that resided at 816 E. 2nd Street). Berman responded that he was not Adam and K. Gutowsky then requested that a car be moved. (See Exhibit I)
166. On or about 21 November 2006, Assistant City Attorney Sarah Webber - Liu wrote to Southern:
“Jenny – are you acquainted with Theodore Miller? [Mr. Miller is a neighbor of 414 E. 1st Street]. I would like to get him to come in and sign an affidavit regarding over occupancy at 414 E. 1st Street, but am having a hard time getting him on the phone…. Thank you SO much, S.”
A copy of this e – mail message from Liu is attached hereto as Exhibit P1 and made part of this Complaint.
167. Later that day, K. Gutowsky responded to Southern:
“Jenny, here is Ted’s e – mail address…. I put a print out of this e – mail on his doorstep”.
A copy of this e – mail message from K. Gutowsky is attached hereto as
Exhibit Q1 and made part of this Complaint.
168. On or about 18 November 2006, Southern wrote to Liu:
“…. As for Seth [Patinkin], I noticed that his property on 414 1st has had trash bags in the front yard for the last 2 weeks – care to sic HAND on them?”
A copy of this e – mail message from Southern is attached hereto as Exhibit R1
and made part of this Complaint.
169. Since on or about August 2005, the City has been responsible for initiating forty – one (41) unannounced visits to Patinkin’s student rental properties on the pretext to check for alleged ordinance violations.
170. Since on or about August 2005, the City has been responsible for issuing approximately seventy – eight (78) citations regarding Patinkin’s student rental properties for alleged ordinance violations.
COUNT I
Violation of Due Process and Equal Protection of the Fourteenth Amendment against City of Bloomington, Mayor Kruzan, Bowlen, Jack, K. Robling, McKinney, Grundmann, Johnson, Abbott, Mulvihill & Liu
171. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
172. Count I defendants utilized the Title 20 Ordinance as a pretext to intimidate and harass Patinkin which violated his rights to due process and to equal protection of the laws guaranteed by the Fourteenth Amendment to the United States.
173. Count I defendants enforced the Title 20 Ordinance in a discriminatory fashion against Patinkin by unjustly targeting Patinkin and his student lessees.
174. Count I defendants did not adequately address Patinkin’s repeated pleas to investigate and stop the unequal treatment he was receiving under the law and therefore deprived him of the equal protection of the laws.
WHEREFORE, Patinkin requests the following relief against the Count I defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment that the Count I defendants misuse of Title 20 deprived Patinkin of “his property rights without due process of law;”
B. Issue a declaratory judgment that the Count I defendants misuse of Title 20 and negligent investigations denied Patinkin the “equal protection of the laws;”
C. Award Patinkin judgment against each of the Count I defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial;
D. Award Patinkin the costs of this action together with reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988; and,
E. Grant such other and further relief as deemed appropriate by the Court.
COUNT II
Violation of 42 U.S.C. Section 1981 (Equal Rights under the Law) against City of Bloomington, Bowlen, Jack, K. Robling, McKinney, Mulvihill, Liu, IUB, Evans, Southern, RE/MAX, Walker, Beggs & Szatkowski
175. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
176. Count II defendants utilized the Title 20 Ordinance to discriminate against Patinkin, based in whole, or in part, because he is Jewish.
177. Count II defendants violated Patinkin’s civil rights by their practice and policy of using Title 20 to interfere with his right to make and enjoy the benefits of making contracts with student tenants.
WHEREFORE, Patinkin requests the following relief against the Count II defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment that the Count II defendants’ misuse of Title 20 denied Patinkin the “same right… To make and enforce contracts… as is enjoyed by white citizens” as provided by 42 U.S.C. Section 1981;
B. Issue a declaratory judgment that the Count II defendants were “acting under color of State law” when they misused Title 20 to deny Patinkin’s civil rights;
C. Issue a declaratory judgment that Count II defendants repeated misuse of Title 20 amounted to a City policy or custom;
D. Award Patinkin judgment against each of the Count II defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial;
E. Award Patinkin the costs of this action together with reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988; and,
F. Grant such other and further relief as deemed appropriate by the Court.
COUNT III
Violation of 42 U.S.C. Section 1982 (Property Rights of Citizens) against City of Bloomington, Bowlen, Jack, K. Robling, Mulvihill, Liu, IUB, Evans,
Southern, RE/MAX, Walker, Beggs & Szatkowski
178. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
179. Count III defendants utilized the Title 20 Ordinance to discriminate against Patinkin, based in whole, or in part, because he is Jewish.
180. Count III defendants’ violated Patinkin’s civil rights by their practice and policy of using Title 20 to interfere with his right to lease his student rental properties;
WHEREFORE, Patinkin requests the following relief against the Count III defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment that the Count III defendants’ misuse of Title 20 denied Patinkin the “same right… as enjoyed by white citizens to… lease… real and personal property” as provided by 42 U.S.C. Section 1982;
B. Issue a declaratory judgment that Count III defendants repeated misuse of Title 20 amounted to a City policy or custom;
C. Award Patinkin judgment against each of the Count III defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial;
D. Award Patinkin the costs of this action together with reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988; and,
E. Grant such other and further relief as deemed appropriate by the Court.
COUNT IV
Violation of 42 Section U.S.C. 1983 (Civil Action for Deprivation of Rights) against City of Bloomington, Mayor Kruzan, Bowlen, Jack, McKinney, Grundmann, Johnson, Abbott, K. Robling, Mulvihill, Liu, IUB, Evans, Southern, RE/MAX, Walker, Beggs & Szatkowski
181. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
182. Count IV defendants cooperated and engaged in a course of action by using Title 20 as a pretext to prevent Patinkin from exercising his rights as a property owner.
183. Count IV defendants, under color of Title 20, deprived Patinkin of his rights, privileges and immunities as an owner, property manager and landlord of student rental properties.
WHEREFORE, Patinkin requests the following relief against the Count IV defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment that the Count IV defendants acted under color of Title 20 in their attempts to harm Patinkin’s student rental business;
B. Issue a declaratory judgment that the Count IV defendants’ misuse of Title 20 caused Patinkin to be “subjected to the deprivation of rights, privileges or immunities secured by the Constitution and laws” in violation of 42 U.S.C. Section 1983;
C. Issue a declaratory judgment that Count IV defendants’ actions did in fact harm Patinkin;
D. Award Patinkin judgment against each of the Count IV defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial;
E. Award Patinkin the costs of this action together with reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988; and,
F. Grant such other and further relief as deemed appropriate by the Court.
Count V
Violation of 42 U.S.C. 1985 (Conspiracy to Interfere with Civil Rights)
against all Defendants
184. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
185. Count V defendants engaged in a coordinated effort to harm Patinkin’s student rental property business by alleging Title 20 violations and by threatening potential fines and legal action against Patinkin and his student lessees.
WHEREFORE, Patinkin requests the following relief against the Count V defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment that the Count V defendants conspired to harm Patinkin’s student rental property business;
B. Issue a declaratory judgment that the conspiracy caused Patinkin to be deprived of “ the equal protection of the laws, or of equal privileges and immunities under the laws ” secured by the Constitution and laws;
C. Issue a declaratory judgment that the Count V defendants “ engaged therein… or caused to be done… acts in furtherance” of the conspiracy;
D. Award Patinkin judgment against each of the Count V defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial;
E. Award Patinkin the costs of this action together with reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988; and,
F. Grant such other and further relief as deemed appropriate by the Court.
Count VI
Negligence against City of Bloomington, Mayor Kruzan, Bowlen, Jack, K. Robling,
McKinney, Grundmann, Johnson, Abbott, Mulvihill & Liu
186. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
187. Count VI defendants’ actions and statements to Patinkin and his student lessees violated their duty to serve the public.
188. Count VI defendants’ breach of their duties caused Patinkin to suffer harm by the resulting violation if his civil rights and the resulting injuries to his reputation and business interests in Bloomington.
WHEREFORE, Patinkin requests the following relief against the Count VI defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment that the Count VI defendants had a duty to Patinkin to perform their employment responsibilities in regards to their interactions and relationship with Patinkin;
B. Issue a declaratory judgment that the Count VI defendants acts and omissions as described in this complaint have breached their professional duties as agents and employees of the City of Bloomington;
C. Issue a declaratory judgment that the Count VI defendants acts and omissions described in this complaint were the proximate cause of Patinkin’s damages;
D. Issue a declaratory judgment that the Count VI defendants acts and omissions as described in this complaint did in fact cause Patinkin damages;
E. Award Patinkin judgment against each of the Count VI defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial; and,
F. Grant such other and further relief as deemed appropriate by the Court.
Count VII
Tortious Interference with Contractual Relationships against City of Bloomington, K. Robling, Mulvihill, Liu, Beggs, Szatkowski, IUB, Evans, Southern, RE/MAX & Walker
189. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
190. Patinkin has legal, valid contracts with numerous student lessees that the Count VII defendants interfered with by encouraging the students to vacate their respective properties in violation of these valid leases.
191. Count VII defendants have interfered with these valid contracts by encouraging Patinkin’s student lessees to not pay rents to Patinkin.
192. Count VII defendants have improperly informed Patinkin’s student lessees of over – occupancy regulations in regards to two (2) of Patinkin’s four (4) rental properties.
WHEREFORE, Patinkin requests the following relief against the Count VII defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment that the Count VII defendants interfered with Patinkin’s lease agreements;
B. Issue a declaratory judgment that the Count VII defendants caused pecuniary harm to Patinkin;
C. Award Patinkin judgment against each of the Count VII defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial; and,
D. Grant such other and further relief as deemed appropriate by the Court.
Count VIII
Violation of Indiana Constitution – Article I, Section 12 against City of Bloomington, Mayor Kruzan, Bowlen, Jack, K. Robling, McKinney, Grundmann, Johnson, Abbott, Mulvihill, Liu, IUB, Evans, Southern, RE/MAX, Walker, Beggs & Szatkowski
193. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
194. Count VIII defendants interfered with Patinkin’s rights and privileges secured by the Constitution of the State of Indiana in violation of Article 1, Section 12, which provides that “every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”
WHEREFORE, Patinkin requests the following relief against the Count VII defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment that the Count VIII defendants acts and omissions caused injury to Patinkin’s student rental property business;
B. Issue a declaratory judgment that the Count VIII defendants acts and omissions caused injury to Patinkin’s reputation;
C. Award Patinkin judgment against each of the Count VIII defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial;
D. Award Patinkin the costs of this action together with reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988; and,
E. Grant such other and further relief as deemed appropriate by the Court.
Count IX
Miscellaneous Claims against John Does 1 through 10
195. Patinkin repeats each and every allegation set forth in the preceding paragraphs as if such allegations were specifically set forth herein at length.
196. Upon information and belief, at all times instant to this matter, Defendants John Does 1 through 10 were City officials and members of the community, the identities of which are not presently known to Patinkin, who were related to and/or involved with one or more of the named Defendants in the activities more fully described in the complaint or were independently involved in those activities.
197. In order to effectively assert and preserve any claims which it may have against parties whose identities are not presently known, Patinkin includes this count in his complaint, subject to appropriate amendment if, as when the identity of other culpable parties may become known to him.
WHEREFORE, Patinkin requests the following relief against the Count VII defendants, each in their official and individual capacities and pray that the Court:
A. Issue a declaratory judgment with respect to the Count IX defendants;
B. Award Patinkin judgment against each of the Count IX defendants, jointly and severally, for actual compensatory damages in an amount to be determined at trial;
C. Award costs, expenses and reasonable attorneys fees, if appropriate; and,
D. Grant such other and further relief as deemed appropriate by the Court.
DEMAND FOR TRIAL BY JURY
Patinkin hereby requests a trial by jury on all issues so triable.
Respectfully Submitted,
Joe Frankus
228 South Wabash Avenue
Suite 330
Chicago, Illinois 60604
(312) 399 – 2337
Attorney No. 6289505
Attorney for Plaintiff
by: /s/__________________ ____________
Dated: 16 April 2007
I think there is some information
here:
http://markkruzan.blogspot.com
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