Waterworth v. City of Joliet

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CONSTANCE WATERWORTH, as mother _) and next friend of CHRIST SAM MESSINO, _ ) IV, a minor, and as Special Administrator of __) the ESTATE OF CHRIST SAM ) MESSINO, III, ) ) Plaintiff, ) ) No. 17 C 4990 v. ) ) Judge Jorge L. Alonso CITY OF JOLIET, WILLIAM OTIS, ) and VON STEIN, ) ) Defendants. ) ORDER Defendants’ motion to dismiss [56] is granted, and the Court hereby strikes Count III from plaintiffs third amended complaint. Motion hearing date of 8/15/18 is stricken.

STATEMENT The Court previously dismissed with prejudice plaintiff's Count III for malicious prosecution on the grounds that the claim was barred by probable cause. When plaintiff filed the third amended complaint, plaintiff again included Count III for malicious prosecution.

Plaintiff seems to think Count III needs to be included to preserve it for appeal, but that is simply not so. See Serritella v. Markum, 119 F.3d 506, 512 n. 6 (‘[Plaintiff’s counsel’s] concern that he was required to replead the dismissed claim lest he be found to have waived the issue on appeal has no foundation in the law of this Circuit (or any other of which we are aware.”).

Accordingly, defendants’ motion to dismiss is granted, and the Court strikes Count I from plaintiff’ s third amended complaint.

SO ORDERED. ENTERED: August 13, 2018 JORGE L. ALONSO United States District Judge