# Weiss v. Logan County Cemeteries District

> District Court, C.D. Illinois · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10135558

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10135558

## How later opinions describe it (automated extraction)

- finding no action directed at a third party where the defendant merely told the plaintiff that defendant would seek to enforce the non-competition agreement in court
- holding that a plaintiff “must plead facts to show interference of a business relationship with specific third parties or an identifiable prospective class of third persons”
- noting that the Seventh Circuit has repeatedly held that plaintiffs do not need to identify in their complaints specific examples of similarly situated persons

## Opinion text

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

PHILLIP G. WEISS and )
MANLEY MONUMENTS, INC., )
)
Plaintiffs, )
)
v. ) No. 3:19-CV-3118
)
LOGAN COUNTY CEMETERY )
MAINTENANCE DISTRICT, an )
Illinois local body politic, )
)
Defendant. )

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on the Motion to Dismiss
Amended Complaint (d/e 14) filed by Defendant Logan County
Cemetery Maintenance District. Because the Amended Complaint
states an equal protection and a tortious interference with
prospective economic advantage claim, the Motion is DENIED.
I. JURISDICTION
This Court has federal question jurisdiction over Count I
because that Count alleges a claim arising under the Fourteenth
Amendment to the United States Constitution and brought
pursuant to 42 U.S.C. § 1983. See 28 U.S.C. ' 1331. The Court

has supplemental jurisdiction over Count II, which alleges a state
law claim arising from the same general set of facts. See 28 U.S.C. '
1367(a). Venue is proper because Defendant resides within the

District and a substantial part of the events or omissions giving rise
to the claim occurred within the District. 28 U.S.C. § 1391(b)(1),
(b)2).

II. LEGAL STANDARD
A motion under Rule 12(b)(6) challenges the sufficiency of the
complaint. Christensen v. Cty. of Boone, Ill., 483 F.3d 454, 458

(7th Cir. 2007). To state a claim for relief, a plaintiff need only
provide a short and plain statement of the claim showing he is
entitled to relief and giving the defendant fair notice of the claims.

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
When considering a motion to dismiss under Rule 12(b)(6), the
Court construes the complaint in the light most favorable to the

plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in plaintiff’s favor. Id.
However, the complaint must set forth facts that plausibly
demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007). A plausible claim is one that alleges factual

content from which the Court can reasonably infer that the
defendant is liable for the misconduct alleged. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Merely reciting the elements of a cause

of action or supporting claims with conclusory statements is
insufficient to state a cause of action. Id.
III. FACTS ALLEGED IN THE COMPLAINT

The following facts come from the Amended Complaint and are
accepted as true at the motion to dismiss stage. Tamayo, 526 F.3d
at 1081.

Plaintiff Philip G. Weiss is one of the owners of Weiss
Monument Works, a family-owned business that has fabricated,
sold, and installed cemetery monuments and grave markers in

Illinois for over 85 years. Mr. Weiss has developed a substantial
clientele and a profitable business and has a reputation as a
competent, dependable, honest businessperson.
In 2004, the Weiss family purchased Manley Monuments, Inc.

(Manley) in Lincoln, Illinois, in an effort to expand their business.
Manley operates a cemetery monument fabrication and sales
business in Logan County.

The operation and maintenance of public cemeteries in Logan
County is carried out by Defendant Logan County Cemetery
Maintenance District (District) and its governing body, the Board of

Trustees, in accordance with the provisions of the Illinois Cemetery
Maintenance District Act, 70 ILCS 105/1.1 et seq. Before Manley
can place a monument on a grave site for one of its customers in

Logan County, Manley must first construct a foundation at the
grave site upon which the monument can sit. Permission to
construct such a foundation must be obtained from the District

before Manley or any of its similarly situated competitors in Logan
County can construct such foundation in a Logan County public
cemetery.

The District’s Board of Trustees has adopted and promulgated
rules and regulations providing that the District will only approve
foundation orders and mark out the designated location of the
foundation at periodic intervals, no more than three or four times a

year. Plaintiffs allege that the District has a custom and policy of
enforcing the District’s rules and regulations governing the
processing and approval of foundation orders only against Manley
and only approving Manley’s foundation orders and marking out

the approved foundation locations for Manley’s monument and
markers no more than two or three times a year. The same officers
and employees of the District have waived this requirement for all of

Manley’s similarly situated competitors in Logan County by always
approving the competitors’ foundation orders and marking out the
foundation locations on an “as submitted” basis at any time

throughout the year. Plaintiffs allege that officers and/or
employees with final policymaking authority, including Tim Skelton,
Superintendent of Cemeteries for the District, adopted, maintained,

and carried out this custom, policy, and/or practice solely for the
improper and illegitimate purpose of driving Manley out of business
and not for any legitimate object or purpose of the District.

As a result of the District’s custom or policy, Manley has been
unable to obtain foundation order approvals and have the
foundation locations marked out on the same “as submitted” basis
as Manley’s similarly situated competitors, thereby impairing

Manley’s business goodwill and causing Manley to lose customers,
revenue, and profits.
In Count I, Plaintiff alleges that the District’s custom, policy,
and/or practice violated Plaintiffs’ right to equal protection of laws

in violation of the Equal Protection Clause of the Fourteenth
Amendment. Plaintiffs seek an injunction enjoining the District
from continuing to carry out its custom, policy, or practice of

intentional and purposeful unequal enforcement of the District’s
rules and regulations governing the processing and approval of
foundation orders and to require the District to process and

approve Manley’s applications on the same “as submitted” basis as
all other similarly situated cemetery fabrication and sales
businesses in Logan County. Plaintiffs also seek compensatory

damages and attorney’s fees and costs.
In Count II, Plaintiffs allege that the District interfered with
Plaintiffs’ prospective economic advantage. Manley had a valid

business relationship with a number of clients, including Dee
Roland as representative of the Estate of Deloris Oller. The District
had actual knowledge that the clients were customers of Manley
because the process of interring a loved one in a Logan County

public cemetery and installing a monument or grave marker
necessarily involves the District.
The District purposefully and wrongfully interfered with the
business relationships Manley had with its clients by approving and

processing Manley’s foundation orders in strict accordance with the
District’s stated policy of handling such requests only three or four
times a year while approving and processing the foundation orders

of the other local monument companies on an “as submitted” basis.
The District knew that Manley’s clients would become dissatisfied,
terminate their orders with Manley, and take their business to

competing monument companies who were able to place the
monuments and grave markers in drastically shorter periods of time
due to the District’s custom or policy of unequal and anti-

competitive enforcement of the District’s rules. Manley’s clients
would not have terminated their orders with Manley but for the
District’s interference with the timely processing and approval of

foundation orders submitted by Manley on behalf of its clients.
The District’s acts have caused Manley to suffer a loss of good
will, the loss of business income and profits, and to incur an
unwarranted reputation for being inferior to other monument

companies doing business in Logan County. Plaintiffs seek
compensatory damages, punitive damages, an injunction against
the District’s continuing intentional and wrongful interference with
the business relations of Plaintiffs, attorney’s fees, and costs.

IV. ANALYSIS
The District moves to dismiss both Counts for failure to state a
claim.

A. Count I Adequately Pleads a Cognizable “Class of One”
Equal Protection Claim

The Equal Protection Clause of the Fourteenth Amendment
guards against government discrimination on the basis of race, sex,
national origin and other class-based distinctions Geinosky v. City
of Chicago, 675 F.3d 743, 747 (7th Cir. 2012). The Equal
Protection Clause has also been interpreted to protect individuals
from “so called ‘class-of-one’ discrimination in which a government

arbitrarily and irrationally singles out one person for poor
treatment.” Brunson v. Murray, 843 F.3d 698, 705 (7th Cir. 2016).
To state an equal protection claim on a class-of-one theory, a
plaintiff generally must allege that he “has been intentionally

treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Whether a class-
of-one plaintiff must also allege that the government officials acted
with hostile intent or animus is unresolved in the Seventh Circuit.

See Del Marcelle v. Brown Cty. Corp.,680 F.3d 887 (7th Cir. 2012)
(en banc) (wherein one judge believed motive and intent had “no
role at all” in a class-of-one suit; four judges believed a plaintiff

must demonstrate the state actors acted for personal reasons with
discriminatory intent and effect; and the dissenting four judges
believed a plaintiff could rely on animus to prove the defendant’s

action lacked a rational basis).
This Court need not attempt to resolve the issue at this time
because Plaintiffs have alleged an equal protection claim, including

allegations of hostile intent or animus. Plaintiffs allege that the
District intentionally treated Manley differently from the similarly
situated business competitors in Logan County by only approving

Manley’s foundation orders two or three times a year while
approving the foundation orders of Manley’s competitors on an “as
submitted” basis. Am. Compl. ¶ 14. Plaintiffs also allege that there
was no rational basis for the difference in treatment because the

District did so for the purpose of driving Manley out of business
and to favor Manley’s competitors in Logan County and not for any
legitimate government object or goal. Id. ¶¶ 14, 21.

The District argues that Plaintiffs failed to identify any
similarly situated monument company that was treated differently
by the District. However, Plaintiffs allege that all of Manley’s

competitors in the monument business in Logan County were
similarly situated to Manley. Plaintiffs are not required to plead
with any more specificity. See Miller v. City of Monona, 784 F.3d

1113, 1120 (7th Cir. 2015) (noting that the Seventh Circuit has
repeatedly held that plaintiffs do not need to identify in their
complaints specific examples of similarly situated persons);

Geinosky, 675 F.3d at 748 n. 3 (noting that, even in a case where a
plaintiff would have to identify a similarly situated person to prove
his case, the plaintiff is not required to identify the person in the

complaint, even under Iqbal and Twombly).
The District also argues that Plaintiffs’ allegations are merely
formulaic. Plaintiffs do not specify how or when it submitted a
foundation order; how many times Plaintiffs submitted a foundation

order; how long the District took to process its foundation orders;
which competitors submitted foundation order; when the
competitors submitted the orders; or how long the approval process
took.

The District cites no authority for such a requirement, and the
Court finds none. Because Plaintiffs have sufficiently alleged a
Section 1983 claim for intentional class-of-one discrimination in

violation of the Fourteenth Amendment’s Equal Protection Clause,
the motion to dismiss Count I is denied.
B. Count II States a Claim for Intentional Interference With
Prospective Economic Advantage

To state a claim for intentional interference with prospective
economic advantage under Illinois law, a plaintiff must allege “(1) a
reasonable expectancy of entering into a valid business
relationship, (2) the defendant's knowledge of the expectancy, (3) an

intentional and unjustified interference by the defendant that
induced or caused a breach or termination of the expectancy, and
(4) damage to the plaintiff resulting from the defendant's
interference.” Anderson v. Vanden Dorpel, 172 Ill.2d 399, 406-07

(1996); see also Foster v. Principal Life Ins. Co., 806 F.3d 967, 971
(7th Cir. 2015). In addition, the plaintiff must also allege that the
defendant directed his behavior toward a third party. Boffa
Surgical Grp. LLC v. Managed Healthcare Assocs. Ltd., 2015 IL App
(1st) 142984, ¶ 28.

The District first argues that Plaintiffs fail to state a claim
because Plaintiffs only identify one specific customer and no other
clients are mentioned. The District asserts that such generalized

pleading fails to put the District on notice as to with whom the
District allegedly interfered.
The extent to which a plaintiff has to plead the identities of the

third parties is not entirely clear. In a case decided prior to Iqbal
and Twombly, the Seventh Circuit held that the Federal Rules do
not require that plaintiffs allege the specific third party or class of

third parties with whom they claim to have a valid business
expectancy. Cook v. Winfrey, 141 F.3d 322, 328 (7th Cir. 1998).
The Court need not decide whether Iqbal and Twombly change this

analysis, however, because, in this case, Plaintiffs identify a specific
person, Dee Roland, as well as a specific class of persons: clients
who agreed to pay Manley to manufacture and install monuments
or grave markers for the deceased loved ones who were to be

interred in a Logan County public cemetery operated or maintained
by the District. This is sufficient. See Downers Grove Volkswagen
v. Wigglesworth, 190 Ill. App. 3d 524, 529 (1989) (holding that a
plaintiff “must plead facts to show interference of a business

relationship with specific third parties or an identifiable prospective
class of third persons”).
The District next argues that Plaintiffs allege that a

governmental entity should be liable for its enforcement of its rules
and regulations if that enforcement leads to unsuccessful business
dealings. The District asserts that this result is “nonsensical” and

runs contrary to the elements of the cause of action. Def. Mem. at
7. Plaintiffs claim that this is a distortion of the allegations in
Count II, which alleges a custom or policy of unequal and anti-

competitive enforcement of the regulations which allowed Manley’s
competitors to construct the foundation and place monuments in
drastically shorter time periods. The Court agrees with Plaintiffs

that the District misconstrues Plaintiffs’ claim and will not dismiss
Count II on this basis.
Finally, the District argues that Plaintiffs have failed to allege
that the District directed its conduct toward the third party with

whom Plaintiffs expected to do business. According to the District,
all of the District’s alleged actions were directed toward Manley.
Plaintiffs respond that they have alleged that the foundation
orders were filed on behalf of Manley’s clients. Plaintiffs assert that

the District’s wrongful, unequal, and anti-competitive actions with
regard to the processing of the foundation orders were necessarily
directed towards Manley’s clients on whose behalf Manley

submitted the orders.
The Court finds Plaintiffs have sufficiently alleged that the
District directed its conduct toward third parties. Contact with the

third party is not required so long as the action is “directed in the
first instance at the third party.” Schuler v. Abbott Laboratories,
265 Ill. App. 3d 991, 994 (1993) (finding no action directed at a

third party where the defendant merely told the plaintiff that
defendant would seek to enforce the non-competition agreement in
court). The Court recognizes that an impact on the third party is

insufficient. Boffa Surgical Grp. LLC v. Managed Healthcare
Assocs. Ltd., 2015 IL App (1st) 142984, ¶ 28 (finding that
defendants’ conduct of not offering plaintiff membership in
defendants’ network was insufficient to allege conduct directed at

third parties, even if that conduct was likely to dissuade other
physicians from making referrals to plaintiff or dissuade patients
from using plaintiff’s services). However, Plaintiffs allege more than
just an impact on its clients here.

Plaintiffs allege that the foundation orders are submitted by
Manley on behalf of its clients. Am. Compl. ¶ 29. By only
approving orders submitted on behalf of Manley’s clients a few

times a year, the District is directing its conduct at those clients.
See, e.g., Beesen-Dwars v. Morris, No. 06 C 5595, 2007 WL
2128348, at *9-10 (N.D. Ill. July 24, 2007) (finding the defendants

directed their conduct at a third party where the defendants’
conduct substantially impaired the plaintiff’s ability to “complete
critical, time-sensitive work on behalf of her client” and the conduct

directly harmed the client). Therefore, Count II states a claim.
V. CONCLUSION
For the reasons stated, Defendant’s Motion to Dismiss

Amended Complaint (d/e 14) is DENIED. Defendant shall file an
answer to the Amended Complaint on or before October 15, 2019.
ENTERED: September 30, 2019

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10135558. Public record. Not legal advice.