Keim v. Woodford County

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

SARAH KEIM, )

)

Plaintiff, )

)

v. ) Case No. 1:23-cv-1156

)

TIM ABNEY, WOODFORD COUNTY, )

JUSTIN PETERSON, LISA KIRBY, AND )

PETERSON VET, INC., )

)

Defendants. )

ORDER & OPINION

This matter is before the Court on motion by Defendants Justin Peterson (“Dr.

Peterson”), Lisa Kirby (“Dr. Kirby”), and Peterson Vet, Inc. (“Associated”) to dismiss

Counts II, VII, and VIII of the Amended Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). (Doc. 24). Defendants provided a Memorandum of Law in Support

of their Motion to Dismiss. (Doc. 25). Plaintiff responded (doc. 28), making this matter

ripe for review. For the following reasons, Defendants’ Motion is granted.

BACKGROUND

On November 7, 2023, Plaintiff Sarah Keim (“Plaintiff”) filed an Amended

Complaint alleging federal claims pursuant to 42 U.S.C. § 1983 and state-law claims

related to the euthanasia of her kitten, Kiki. (Doc. 21). After Plaintiff “adopted Kiki

as a companion animal” in January 2023, she kept Kiki at her place of employment,

the Razor Zone Salon in Eureka, Illinois. (Doc. 21 at 5–6).

On March 23, 2023, Tim Abney (“Abney”) appeared at the Razor Zone Salon in

his capacity as the Woodford County Animal Control Administrator in response to an

alleged biting incident. (Doc. 21 at 6). Plaintiff provided Abney documentation

regarding Kiki’s veterinary care. (Doc. 21 at 6). Abney advised Plaintiff and others

present that he would take Kiki to the University of Illinois for rabies testing, was

“following procedure,” and informed relevant authorities about the biting incident.

(Doc. 21 at 7). Instead, however, Abney transported Kiki to Associated, a veterinary

clinic in nearby Washington, Illinois. (Doc. 21 at 7). Upon his arrival at Associated,

Abney allegedly completed a “Euthanasia Authorization” form identifying Kiki as a

stray animal and certifying that the kitten “has not bitten any person or animal . . .

.” (Doc. 21 at 7). As alleged, Abney’s misrepresentation on Associated’s form provided

him with the opportunity to bypass the ten-day observation period required by Illinois

statute before testing an animal for rabies after a biting incident. 510 ILCS § 5/13(a).

The statute allows the Administrator, or Deputy Administrator, to reduce the ten-

day period if he or she is a licensed veterinarian. Id. Abney is not a licensed

veterinarian; thus, to immediately euthanize Kiki, he allegedly misrepresented Kiki

as a stray animal who had not bitten any person or animal. (Doc. 21 at 7–8).

At Associated, an Illinois Department of Public Heath Animal Rabies

Laboratory Submission Form (“IDPH form”) was also completed, indicating the

reason for the rabies laboratory submission was an “[u]nprovoked bite from pet, after

approval from local health department.” (Doc. 21 at 8). Kiki was then euthanized at

Associated. (Doc. 21 at 8). Plaintiff alleges that either Dr. Peterson or Dr. Kirby, both

licensed veterinarians working at Associated, performed the euthanasia procedure.

(Doc. 21 at 8).

Plaintiff, “unsettled by the ordeal,” called the University of Illinois, which

informed her that Kiki was never brought in by Abney. (Doc. 21 at 8). Her next call

was to Woodford County officials, who similarly informed her there was no

information on Kiki or an alleged biting incident. (Doc. 21 at 8). When Abney returned

to the salon, he informed Plaintiff that he actually took Kiki to Associated. (Doc. 21

at 9). An Associated employee then told Plaintiff that if they had known Kiki was a

pet, she would not have been euthanized. (Doc. 21 at 9).

Plaintiff filed an Amended Complaint against Woodford County, Associated

Veterinary Clinic, Dr. Peterson, Dr. Kirby, and Animal Control Administrator Tim

Abney.1 (Doc. 21). Count I alleges a violation of Plaintiff’s Fourth Amendment rights

as incorporated by the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983 against

Abney. (Doc. 21 at 11–13). Count II uses 42 U.S.C. § 1983 to allege a violation of

Plaintiff’s Fourth Amendment rights against Drs. Peterson and Kirby. (Doc. 21 at 13–

16). Count III alleges “Monell liability” through 42 U.S.C. § 1983 against Woodford

County. (Doc. 21 at 16–18). Count IV is a state-law claim of intentional infliction of

emotional distress against Woodford County and Abney. (Doc. 21 at 19). Count V is a

state-law claim of trespass to chattel against Woodford County and Abney. (Doc. 21

at 19). Count VI is a state-law claim of indemnification against Woodford County.

1 Plaintiff’s Amended Complaint refers to two claims as “Count II” and does not

include a Count III. (See Doc. 21 at 13–18). For purposes of this Order, the Court has

labeled the second “Count II” claim as Count III.

(Doc. 21 at 20). Count VII is a state-law claim of negligence against Drs. Peterson and

Kirby. (Doc. 21 at 20–21). Count VIII is a state-law claim of respondeat superior

against Associated. (Doc. 21 at 21). Defendants Abney and Woodford County

answered Plaintiff’s Amended Complaint. (Docs. 30, 31). Defendants Associated, Dr.

Peterson, and Dr. Kirby move to dismiss the claims against them. (Doc. 24).

LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6), the complaint must contain “a short and plain statement”

of the plaintiff’s claim sufficient to plausibly demonstrate entitlement to relief. Fed.

R. Civ. P. 8(a); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (2007). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

“Rule 8(a)’s notice pleading standard applies to pendant state law claims that are

pleaded in federal court.” Christensen v. Cnty. of Boone, IL, 483 F.3d 454, 459 (7th

Cir. 2007).

When considering a motion to dismiss, the Court construes the complaint in

the light most favorable to the plaintiff, accepting all well-pleaded factual allegations

as true and drawing “all reasonable inferences from those facts in favor of the

plaintiff.” U.S. ex rel. Berkowitz v. Automation Aids, Inc., 896 F.3d 834, 839 (7th Cir.

2018). Those statements which are legal conclusions rather than factual allegations

are not taken as true but are disregarded at this stage. McReynolds v. Merrill Lynch

& Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012).

DISCUSSION

As stated, the Amended Complaint contains eight counts alleged against the

various Defendants. The instant Motion concerns only Counts II, VII, and VIII. The

Court is authorized to address Plaintiff’s Section 1983 claims pursuant to 28 U.S.C.

§ 1331 and 28 U.S.C. § 1343(a)(3). There is supplemental jurisdiction pursuant to 28

U.S.C. § 1367 over the related state-law claims. Defendants’ arguments will be

addressed in turn.

I. Count II

Count II is brought pursuant to 42 U.S.C. § 1983, alleging Drs. Peterson and

Kirby (collectively “Defendant Veterinarians”) violated Plaintiff’s constitutional right

to be free from unreasonable seizures under the Fourth Amendment. (Doc. 21 at 13–

16). Defendant Veterinarians make several arguments that Plaintiff’s Count II

should be dismissed, including that Plaintiff largely repeated the mistake that caused

her first complaint to be dismissed—pleading a constitutional violation under only

the Fourth Amendment. (Doc. 25 at 1–2).

In her Response, Plaintiff states “[t]here is simply no question that Keim’s

Complaint suing Kirby and Peterson under 42 U.S.C. § 1983 for violating her Fourth

Amendment rights, as incorporated by the Fourteenth Amendment, is proper and a

claim is stated in Count II.” (Doc. 28 at 5). However, that statement is false. Plaintiff

does not plead her claim under the Fourteenth Amendment within Count II despite

the direct instruction to do so. (Doc. 21 at 13–16). On October 25, 2023, this Court sua

sponte dismissed Plaintiff’s Complaint for failure to adequately plead the elements

necessary to bring an action pursuant to Section 1983. (See doc. 20). In amending her

pleading, Plaintiff was instructed to cure the deficiencies in the federal claims,

including her failure to properly allege violations under the Fourth and Fourteenth

Amendments.2 (Doc. 20 at 4–5). Only a violation of her Fourth Amendment rights is

pled. (Doc. 21 at 13–16). For this reason, Count II is dismissed.

Even if the claim was properly amended, it would fail for other reasons, which

guides this Court to dismiss Count II with prejudice. Plaintiff alleges that Drs.

Peterson and Kirby are state actors who may be sued under Section 1983 for their

purported role in testing Kiki for rabies. (Doc. 21 at 14–16). In moving to dismiss,

Defendant Veterinarians argue that they are private individuals and were not acting

under the color of state law. (Doc. 25 at 4–8).

Section 1983 authorizes a claim against a person, acting under color of state

law, who deprived the plaintiff of a right, privilege, or immunity under the

2 A wide variety of constitutional rights are enforced by using Section 1983. The

Fourteenth Amendment’s Due Process Clause incorporates the Bill of Rights and

applies those constitutional rights to the states. See McDonald v. City of Chicago, 561

U.S. 742, 763 (2010). This includes the Fourth Amendment’s protections against

unreasonable searches and seizures. Additionally, this Court pointed Plaintiff to

consider that her claim is factually like a procedural due process claim under the

Fourteenth Amendment. While she doubles down on the contention that her Count

II is most similar to Section 1983 claims under the Fourth Amendment, this Court is

not convinced. Cases like hers, where an animal is allegedly seized by a government

official and later euthanized, generally allege a procedural due process violation

against the “euthanizer.” Plaintiff’s claim against Defendant Veterinarians is derived

from the Fourteenth Amendment’s Due Process Clause, as she is alleging either Dr.

Peterson or Dr. Kirby unconstitutionally deprived her of her property interest in Kiki

after the purportedly unlawful seizure by Defendant Abney. See e.g., Madero v.

Luffey, 439 F. Supp. 3d 493, 513 (W.D. Pa. 2020).

Constitution or federal law. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d

816, 822 (7th Cir. 2009) (citing Daniels v. Williams, 474 U.S. 327, 330–31 (1986)).

When this type of claim is leveled against private individuals, as it is here, there are

two criteria that must be met:

First, the alleged deprivation of federal rights must have been caused

by the exercise of a right or privilege created by the state, a rule of

conduct imposed by the state, or someone for whom the state is

responsible . . . . Second, the private party must be a person who may

fairly be said to be a state actor.

London v. RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir. 2010) (citations omitted).

The first prong is met because Plaintiff alleged the deprivation was caused by

Defendant Abney, a local government official. The second compels an analysis of

whether Defendant Veterinarians acted under color of state law. This requirement is

critical, as it “sets the line of demarcation between those matters that are properly

federal and those matters that must be left to the remedies of state tort law.”

Rodriguez, 577 F.3d at 822 23.

There are various tes–ts to evaluate the “range of circumstances” that constitute

state action. See Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288,

295 (2001). The Seventh Circuit3 has outlined them as (1) the “symbiotic relationship

3 Recently, the Supreme Court described these tests, but did not refer to the symbiotic

relationship test, writing “[a] private entity can qualify as a state actor in a few

limited circumstances – including, for example, (i) when the private entity performs

a traditional, exclusive public function; (ii) when the government compels the private

entity to take a particular action; or (iii) when the government acts jointly with the

private entity.” Manhattan Comm. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928

(2019) (citations omitted). This list was not intended to be exhaustive, and Plaintiff’s

arguments extend to each test described in Rodriguez; thus, the Court will not limit

its consideration of the four tests.

test”; (2) the “state command and encouragement test”; (3) the “joint participation

doctrine”; and (4) the “public function test.” Rodriguez, 577 F.3d at 823–24. In

response to Defendants’ Motion, Plaintiff argues that Drs. Peterson and Kirby are

liable for the alleged constitutional harm as state actors under all four doctrines. (See

doc. 21 at 6–10). However, after viewing the well-pleaded allegations as true and

drawing all reasonable inferences in favor of Plaintiff, the Court finds that only a

version of the joint participation test applies to the alleged circumstances.4

4 To explain how each test fruitfully applies to Defendant Veterinarians, Plaintiff

largely makes the same argument, which boils down to “Defendant Abney could not

euthanize Kiki, so the actions of Kirby and Peterson are subject to the same liability

as the state by virtue of completing the task for him.” This contention fits only under

the joint participation test. As a reminder, Plaintiff has sued private individuals, not

a private entity. The symbiotic relationship test stems from Burton v. Wilmington

Parking, 365 U.S. 715 (1961), a case where a privately owned restaurant was

considered a state actor. Because the restaurant leased part of a building from the

state, the state maintained the building, the state provided parking for restaurant

guests, and the state depended on the restaurant’s financial success, the restaurant

could be considered a state actor for purposes of racial discrimination. Id. The holding

was limited to instances in which a state leased public property “in the manner and

for the purpose shown to have been the case here.” Id. at 726. No alleged facts could

support even a shadow of an argument under this test.

The state command and encouragement test also does not apply here, because

Plaintiff has only alleged that Abney’s unlawful actions and misrepresentations

influenced Defendant Veterinarians. This test is only met if the action is coerced

through the actions like a legislative enactment or a custom propagated by

government enforcement actions. See San Francisco Arts & Athletics, Inc. v. United

States Olympic Committee, 483 U.S. 522, 546 (1987) (“State action exists if the

government has exercised coercive power or has provided . . . significant

encouragement, either overt or covert, in effecting the challenged action.”). Plaintiff

then argues that the public function test applies because Peterson and Kirby assumed

the role of Woodford County’s Animal Control. The public function test examines

whether the state has delegated to the private entity a function which is “exclusively

reserved” to the state. Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th Cir. 2005).

While animal control is considered a power exclusively reserved to the state,

Within the Seventh Circuit, “a private citizen can act under color of law if there

is evidence of a concerted effort between a state actor and that individual.” Spiegel v.

McClintic, 916 F.3d 611, 616 (7th Cir. 2019); see also L.P. v. Marian Catholic High

Sch., 852 F.3d 690, 696 (7th Cir. 2017). This is known as the “conspiracy theory” of

Section 1983 liability, and the plaintiff must allege that “(1) a state official and

private individual(s) reached an understanding to deprive the plaintiff of his

constitutional rights, and (2) those individual(s) were willful participant[s] in joint

activity with the State or its agents.” Spiegel, 916 F.3d at 616. In other words,

Plaintiff must allege that the state and private actors “had an agreement in relations

to a shared unconstitutional goal.” T.S. v. Twentieth Century Fox Television, 2017 WL

4620841, at *2 (N.D. Ill. Oct. 16, 2017) (citation omitted); see also Tarkowski v. Robert

Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir. 1980) (“It is not sufficient to allege

that the (private and state) defendants merely acted in concert or with a common

goal. There must be allegations that the defendants had directed themselves toward

an unconstitutional action by virtue of a mutual understanding.”). Such factual

allegations must support “a meeting of the minds . . . with a state actor to deny

plaintiffs a constitutional right.” Wilson v. Warren Cnty Ill., 830 F.3d 464, 468 (7th

Cir. 2016) (internal quotation marks and citations omitted).

Fabrikant v. French, 691 F.3d 193, 208 (2d Cir. 2012), the alleged facts, which show

no delegation of authority beyond Abney’s request, do not come close to meeting this

test, even if the claim was alleged against a private entity. See id. at 211 (concluding

that animal rescue organizations are “state actors for purposes of § 1983 when they

perform surgery on animals in their care . . . following searches and seizures carried

out by the [organizations] pursuant to warrants”).

In the Amended Complaint, Plaintiff contends that Drs. Peterson and Kirby

“were the only veterinarians; therefore, the only way Kiki could be killed was by

Abney and either Peterson or Kirby, or both, to act jointly” and “[i]t is enough that

the private party is a willful participant in joint activity with the State or its agent.”

(Doc. 21 at 15). According to Plaintiff, “Kirby and Peterson agreed to provide specific

medial services for compensation, did so freely and for consideration; therefore,

assuming the same liability as the state.” (Doc. 28 at 9). During this interaction,

Plaintiff alleges that Abney informed Associated that Kiki was a stray animal and

completed requisite paperwork for rabies testing, labeling the kitten as “Stray 2” and

certifying that he was the owner. (Doc. 21 at 7). After completing the intake, Plaintiff

alleges one of or both Defendant Veterinarians performed the rabies testing and

euthanasia. (Doc. 21 at 8). A form related to the rabies testing was sent to the Illinois

Department of Public Health, which indicated that the testing was completed due to

an “[u]nprovoked bite from pet, after approval from local health department.” (Doc.

21 at 8).

These alleged facts support that Defendant Veterinarians were duped into

completing a task for Abney after he arrived at their place of work. This transaction,

without more, is not enough to demonstrate that the private individuals acted under

the color of state law. This Court cannot say that Dr. Peterson or Dr. Kirby “directed

themselves toward an unconstitutional action by virtue of mutual understanding”

with Abney. Tarkowski, 644 F.2d at 1206. The alleged facts, when viewed in the light

most favorable to Plaintiff, demonstrate that Defendant Veterinarians were

fortuitously inveigled by Abney to immediately test and euthanize Kiki and bypass

the statutory waiting period. The Court notes the allegation that the IDPH form

completed at Associated contained untrue information, which was unknown to

Defendant Veterinarians and indicated Kiki was a pet who had bitten someone. Drs.

Peterson and Kirby’s ignorance of the falsehood coupled with the fortuitousness of

their involvement with Defendant Abney is patently insufficient to show their

participation in a conspiracy to deprive Plaintiff of her constitutional rights in Kiki.

A “mere suspicion” that third parties fortuitously became involved with a person

adverse to Plaintiff cannot, without some showing of complicity, make a plausible

conspiracy. See Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009).

For example, in recent case Costa v. Ramaiah, the court granted a motion to

dismiss after the plaintiff failed to plausibly allege that hospital staff who perform

“administrative and investigatory functions on behalf of certain state agencies . . . in

cases of suspected child abuse or neglect” were state actors. No. 21-cv-5165, 2023 WL

5581261, at *20 (N.D. Ill. Aug. 29, 2023). There, the complaint only supported that

the state and hospital staff “worked together” and was not enough to demonstrate

that the staff had an agreement with the state to deprive the plaintiff of a

constitutional right. Id. at *21. The court wrote that “a relationship between a

government and a private institution, without more, is not enough to convert the

private actor into a state actor.” Id. In another relevant case, a court decided whether

the defendants conspired with state actors when it reached an agreement to film a

television show in a juvenile detention center. T.S. v. Twentieth Century Fox

Television, No. 16 C 8303, 2017 WL 4620841, at *3 (N.D. Ill. Oct. 16, 2017). The

plaintiff detainees alleged the defendants offered to pay the wages of the detention

center workers “on the condition that the [center’s] administrators would change the

facility’s normal operations to make the second and third floors available to television

crew[,]” and “knew or were substantially certain that filming [the show] at the

[center] would result in the lockdowns and attendant restrictions on the children

housed there.” Id. However, the court concluded that the plaintiff failed to show the

defendants had a common, unconstitutional goal with the state actors. Id. The court

wrote

Plaintiffs’ allegations suggest that the Fox Defendants were aware that

their desire to film Empire at the [center] conflicted with the juvenile

detainees’ needs. At best, Plaintiffs have alleged that the Fox

Defendants sought to enter into an agreement that would induce the

administrators to exclude children from the [center]’s second and third

floors and that all of the Defendants knew that filming Empire would

result in restrictions on the children. Although the result of this alleged

agreement may have deprived Plaintiffs of their constitutional rights,

Plaintiffs’ allegations do not support the inference that the state and

private actors shared an unconstitutional goal in the first instance.

Id. at *4. There are even fewer supporting allegations here than in Costa and T.S.,

and the few only demonstrate that a one-time transaction occurred, and that it was

possible Defendant Veterinarians knew Kiki was a pet. As in T.S., awareness of an

unconstitutional result does not satisfy the standards of alleging a conspiracy, and as

in Costa, neither does an agreement for services. For those reasons, this Court

concludes that Plaintiff has not plausibly alleged that Defendant Veterinarians

reached an agreement with any state actor to deny Plaintiff her constitutional rights,

or that Defendants and a state actor shared a common, unconstitutional goal.

As the factual allegations are insufficient to support that either Dr. Peterson

or Dr. Kirby acted under the color of state law, Plaintiff cannot allege a Section 1983

claim against Defendant Veterinarians. This Court believes that any amendment

would be futile and dismisses Count II with prejudice.

II. Count VII

Count VII is a claim of negligence brought under state law against Drs.

Peterson and Kirby. (Doc. 21 at 20–21). Specifically, in the Amended Complaint,

Plaintiff alleges Defendant Veterinarians breached their duty to (1) “determine,

independent of Abney’s statements, whether Kiki should be killed in accordance with

their veterinary responsibilities”; (2) “ensure Kiki’s killing and beheading was

lawful”; and (3) “ensure all guidance was followed, including contacting the

appropriate health department and evaluating whether Kiki needed to be killed and

beheaded.” (Doc. 21 at 21).

Drs. Peterson and Kirby argue that as a matter of law they cannot be liable for

negligence because there is no duty owed to Plaintiff under the alleged facts. They

point to several allegations that support that Defendant Veterinarians relied on a

government official’s representation and that, as represented, the procedure was

authorized by Illinois law and relevant guidance. (Doc. 25 at 15–16). To find them

negligent, Plaintiff’s theory of liability “would necessarily be premised on a

veterinarian’s supposed duty to conduct an independent investigation into the

ownership of an animal, factual assertions related to reported animal attacks . . . as

well as authority of local government officials to request rabies testing, prior to

performing a requested procedure.” (Doc. 24 at 6).5

In Plaintiff’s Response, she contends that “Defendants only raise whether their

purported reliance upon Abney as a government official would insulate them from

negligence and that lawful conduct cannot be negligent.” (Doc. 28 at 12). In an

untasteful manner, Plaintiff likens Defendants’ arguments to “a present-day

Nuremburg defense.” (Doc. 28 at 13). She then informs the Court that a jury would

be entitled to find Defendant Veterinarians negligent for euthanizing Kiki if they

knew that she was a pet and had not bitten a person, regardless of the

misrepresentations made by Abney. (Doc. 28 at 13–14). However, that scenario is not

pled nor is it a reasonable inference from the factual allegations pled. The response

to Defendants’ arguments ignores that whether a duty exists is a question of law for

the Court to decide, and that in the “absence of allegations that would show the

existence of a duty, no recovery by the plaintiff is possible.” MacDonald v. Hinton,

361 Ill. App. 3d 378, 382 (1st Dist. 2005) (citations omitted); see also Simpkins v. CSX

Transp., Inc., 2012 IL 110662, ¶ 18.

The “cause of action is typically framed in terms of general negligence” for a

pet’s wrongful death. Anzalone v. Kragness, 356 Ill. App. 3d 365, 370 (1st Dist. 2005)

(citations omitted). Thus, a complaint “must allege facts that establish the existence

5 The content of the IDPH form that rabies testing was performed due to “an

unprovoked bite from pet” raises a troubling issue—whether this allegation sufficient

to allow this claim to proceed to discovery to allow development of the record to

understand the circumstances underlying the completion of the IDPH form and its

significance to Defendant Veterinarians’ knowledge.

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.” Marshall v. Burger King Corp., 222 Ill.2d

422, 430 (2006). Under Illinois law, “the touchstone of [the] duty analysis is to ask

whether a plaintiff and a defendant stood in such a relationship to one another that

the law imposed upon the defendant an obligation of reasonable conduct for the

benefit of the plaintiff.” Simpkins, 2012 IL 110662 at ¶ 18. Generally, veterinarians

owe a duty of care to use such reasonable skill, diligence, and attention as might

ordinarily have been expected of careful, skillful, and trustworthy persons in the

profession. Loman v. Freeman, 229 Ill. 2d 104, 119 (2008) (relying on 299A of the

Restatement (Second) of Torts and citing C. Bailey, Annotation, Veterinarian’s

Liability for Malpractice, 71 A.L.R.4th 811, § 2(a), 1989 WL 571915 (1989)).

The Court declines to impose a duty on Defendant Veterinarians requiring

them to independently investigate claims made by a government official under these

circumstances. Plaintiff does not allege that any type of relationship existed between

herself and Defendant Veterinarians—there is no connection that supports a finding

that the harm could have been foreseeable. It is not alleged that either Dr. Peterson

or Dr. Kirby knew of Plaintiff, had previously treated Kiki, or had any other

knowledge of Plaintiff’s ownership of Kiki. But it is alleged that Abney made several

misrepresentations to dupe Defendant Veterinarians into euthanizing Kiki, molding

his story to make them believe the procedure was lawful. See MacDonald, 361 Ill.

App. 3d at 382 (“Ordinarily, a party owes no duty of care to protect another from the

harmful or criminal acts of third persons.”). Plaintiff herself stated that an Associated

employee told Plaintiff that “if [they] knew Kiki was vetted and . . . a companion

animal,” she would not have been euthanized. (Doc. 21 at 9). Considering these

factual allegations, it is not reasonable to infer that the mistake on the IDPH form

indicates Abney told inconsistent stories to Defendant Veterinarians that put them

on notice and required further action. The Court cannot plausibly infer that Drs.

Peterson and Kirby owed Plaintiff (who was unknown to them) a duty of care to

protect against the harmful actions of a third party, or to independently investigate

the statements of a local government official. Thus, Defendants’ Motion is granted as

to Count VII, and this claim against Drs. Peterson and Kirby is dismissed without

prejudice.

III. Count VIII

Plaintiff brings a claim of vicarious liability against Associated for the alleged

negligence of its employees. (Doc. 21 at 21–22). Plaintiff admits that if her negligence

claim against Associated’s employees is dismissed, then this claim against Associated

is subject to dismissal, as well. (Doc. 28 at 14). Her vicarious liability claim is

dismissed without prejudice. Defendants’ Motion is granted as to Count VIII.

CONCLUSION

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (doc. 24)

is GRANTED. Count II of Plaintiff’s Amended Complaint (doc. 21) is DISMISSED

WITH PREJUDICE. Counts VII and VIII are DISMISSED WITHOUT PREJUDICE.

SO ORDERED.

Entered this 23rd day of May 2024.

s/ Joe B. McDade

JOE BILLY McDADE

United States Senior District Judge