Zissu v. IH2 Prop. Ill., L.P.

157 F.Supp.3d 797

Pavel Zissu and Aise Zissu, Plaintiff,

v.IH2 Property Illinois, L.P. and The Brokerage Il Inc. d/b/a Invitation Homes, Defendants.

15 C 2394

United States District Court, N.D. Illinois, Eastern Division.

Signed January 19, 2016

Anthony J. Peraica, Jennifer Marie Hill, Selwyn M. Skevin, Anthony J. Peraica & Associates, Ltd., Chicago, IL, for Plaintiff.

Miles Victor Cohen, Sonia Sharma Kinra, Scott & Kraus, LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John Z. Lee, United States District Judge

Plaintiffs Pavel Zissu and Aise Zissu bring suit against the owner of the property where they resided, IH2 Property Illinois, L.P. The Zissus claim that after a Cook County Sheriff turned over possession of the premises to IH2 pursuant to an eviction order, the company removed all of their personal property from the premises and put it outside. In their complaint, the Zissus assert various torts: negligence (Count I), trespass to chattels (Count II), conversion (Count III), bailment (Count IV), and intentional infliction of emotional distress (Count V). For the reasons stated below, the Court denies IH2's motion to dismiss [12].¹

Factual Background

Prior to January 2015, the Zissus resided at a property in the City of Chicago owned by IH2. See Compl. ¶¶ 10, 15, 17. On October 16, 2014, a judge from the Circuit Court of Cook County issued an order for possession, allowing IH2 to evict the Zissus. See id. ¶ 17. The order was executed by a Cook County Sheriff on January 26, 2015. See id.

Once IH2 was given possession of the premises, its agents took all of the Zissus' personal property that was in the apartment and placed it outside on the curb. See id. ¶ 25–26. The property, which included jewelry, furniture, and personal documents, was then either stolen or damaged. See id. ¶¶ 24, 27.

Legal Standard

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cty. of Boone, I L , 483 F.3d 454, 457 (7th Cir.2007). Under the federal notice pleading standards, “a plaintiff's complaint need only provide a short and plain statement of the claim showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice of the claim and its basis.” Tamayo v. Blagojevich , 526 F.3d 1074, 1081 (7th Cir.2008) ; see also Fed. R. Civ. P. 8(a)(2). When considering a motion to dismiss under Rule 12(b)(6), the Court must “accept [ ] as true all well-pleaded facts alleged, and draw[ ] all possible inferences in [the plaintiff's] favor.” Tamayo , 526 F.3d at 1081.

A complaint, however, must also allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). For a claim to have facial plausibility, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Plausibility, however, “does not imply that the district court should decide whose version to believe, or which version is more likely than not.” Swanson v. Citibank, N.A. , 614 F.3d 400, 404 (7th Cir.2010).

Analysis

This is a diversity suit. See 28 U.S.C. § 1332. As such, we apply state substantive law and federal procedural law. Camp v. TNT Logistics Corp. , 553 F.3d 502, 505 (7th Cir.2009). Both parties cite Illinois law in their briefing, so the Court will apply Illinois law. See R.E. Wood v. Mid – Valley Inc. , 942 F.2d 425, 426–27 (7th Cir.1991).

I. Negligence

The Zissus allege that IH2 negligently removed their personal property from the premises following the eviction, causing much of it to be damaged or stolen. See Compl. ¶¶ 28–36. “To state a cause of action for negligence, a complaint must allege facts that establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Simpkins v. CSX Tra nsp., Inc. , 358 Ill.Dec. 613, 965 N.E.2d 1092, 1096 (2012). In its motion to dismiss, IH2 argues that the Zissus cannot state a claim for negligence because IH2, as the landlord, did not owe a duty to protect personal property left on the premises following the eviction.

Before addressing the merits of IH2's argument, the Court must resolve an issue that arose in the briefs regarding the proper stage to decide the question of IH2's duty. The Zissus, in their response to the motion to dismiss, seem to suggest that whether a duty existed is a question that should be left for summary judgment. See Resp. 6 (“Illinois law mandates that the determination of whether defendant [owes plaintiff a duty] is a question of law and such question is properly addressed by the court on a motion for summary judgment.” (citation omitted)). But the cases cited in support of this proposition state that whether a duty existed can be decided at the summary judgment stage, not that it must. See Horrell v. City of Chi. , 145 Ill.App.3d 428, 99 Ill.Dec. 524, 495 N.E.2d 1259, 1261 (1986) (rejecting the plaintiff's argument that the existence of a duty could not be addressed in a motion for summary judgment). The existence of a duty is a question of law, see Simpkins , 358 Ill.Dec. 613, 965 N.E.2d at 1096, and, although it can depend on the facts of a particular case, it can be addressed on a motion to dismiss, see August, Bishop & Meier, Inc. v. Premium Link, Ltd. , 738 F.Supp. 1166, 1168 (N.D.Ill.1990).

Turning to the merits of IH2's motion, the Court must decide whether IH2 owed a duty to the Zissus with respect to the property left behind in the unit. The source of the duty may be statutory or from common law. See Barnett v. Zion Park Dist. , 171 Ill.2d 378, 216 Ill.Dec. 550, 665 N.E.2d 808, 812 (1996). In many states, the legislature has spelled out the extent of a landlord's obligations with respect to personal property left behind by a tenant after an eviction. Some require a landlord to store the former tenant's personal property for a certain period of time. See, e.g. , Neb. Rev. Stat. § 69-2303 (requiring a landlord to provide notice of the property left on the premises and to store the property for no less than seven days); N.M. Stat. Ann. § 47-8-34.1 (stating that a landlord has no obligation to store personal property left on the premises after three days following the eviction). Others expressly shield a landlord from any liability with respect to property left by former tenants. See, e.g. , Fla. Stat. § 83.62(2) (allowing the landlord to remove personal property found on the premises and stating that the landlord shall not be liable for damage or loss of the property after it is removed); Ga. Code Ann. § 44-7-55(c) (same). Unfortunately, the Forcible Entry and Detainer statutes in Illinois are silent on this issue. But a number of other states that—like Illinois—lack a controlling statutory provision have addressed this point.

In those states, courts have relied upon the common law of bailment to conclude that, although a landlord does not owe a duty to care for a former tenant's personal property as a general matter, such a duty does arise when a landlord participates in removing the property from the premises or otherwise assumes control or possession over the property. For example, in Khan v. Heritage Property Management, an Iowa appellate court found no general duty, but then looked to the law of bailment to determine whether a duty might arise out of the landlord's role as a constructive bailee. 584 N.W.2d 725, 729 (Iowa Ct.App.1998). Ultimately, because the sheriff had removed the tenant's property from the apartment in that case, the court found that a bailment was not established and the landlord did not have a duty to care for the property.

In Christensen v. Hoover, the Colorado Supreme Court established a similar framework for determining the extent of a landlord's duty after eviction. 643 P.2d 525, 528 (Colo.1982) (en banc). Initially, the court held that “[a]fter the tenancy has been lawfully terminated, the landlord is under no obligation, statutory or otherwise, to store or maintain the tenant's possessions.” Id. The court went on to say, however, that “if the landlord actively participates in removing the tenant's property from the premises, or if he assumes possession or control of the tenant's property after the writ of restitution has been executed, a bailment is created between the landlord and the tenant which may subject the landlord to liability for damage to the tenant's property.” Id. There, the Colorado court ultimately held that there was a bailment relationship between the tenants and the landlord (as well as between the tenant and the moving company the landlord had hired to move the property). Id. at 529.

Because the Illinois Supreme Court has not addressed this issue, this Court must attempt to divine how the Supreme Court would rule. See Taco Bell Corp. v. Cont'l Cas. Co. , 388 F.3d 1069, 1077 (7th Cir.2004) (“The duty of a federal court in a diversity suit is to predict what the state's highest court would do if presented with the identical issue.”). In fact, only two courts have addressed the question of a landlord's duty under Illinois law. The first is the case cited by both parties, Centagon, Inc. v. Bd. of Dirs. of 1212 Lake Shore Drive Condo. Ass'n , 2001 WL 1491523 (N.D.Ill. Nov. 21, 2001). In Centagon, a condo association had obtained a judgment granting exclusive possession of a unit that had belonged to the plaintiff. See id. at *2. The sheriff's office executed the eviction and, with the help of a moving company hired by the sheriff, removed the personal property onto the curb and sidewalk. See id.

Noting that the...