02-1003 Shah v. Inter-Continental Hotel Chicago Operating Corp.

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“Shah’s complaint alleges that he had a lease with the defendant pursuant to which he invested money in renovating space for a gift shop and the defendant refused to renew the lease, in effect confiscating the improvements that the plaintiff had made through his renovations, because of animosity to people born in India. If the complaint had stopped there, it clearly could not have been dismissed consistent with Rule 8 of the civil rules. True, the defendant might be quite unsure what statute, state or federal, or common law principle the conduct alleged in the complaint might violate, but he could smoke out the plaintiff’s theory of the case by serving a contention interrogatory on him. Ryan v. Mary Immaculate Queen Center, 188 F.3d 857, 860 (7th Cir. 1999); Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997). Or the judge, if skeptical that there was any legal basis for such a complaint, could on his own initiative have asked the plaintiff to file a supporting legal memorandum. It is commendable rather than censurable in a judge to review complaints as they are filed and weed out the frivolous ones without putting the defendant to the burden of responding, provided of course that the review is conscientious and made by the judge himself (or herself) rather than delegated to staff. The complication here is the plaintiff’s confusing reference to ‘Illinois Public Policy,’ combined with the inapt reference in the motion to reconsider (the motion the district judge denied) to the Illinois Human Rights Act, and the astonishing answer that the plaintiff’s lawyer gave us at argument when asked what his legal theory was: his answer was that it was fraud. Had the plaintiff alleged not that the defendant had violated ‘Illinois Public Policy’ but that he had violated the Rule Against Perpetuities or the Geneva Conventions, the district judge would have been within his rights in dismissing the suit as frivolous. The complaint would fail, in the most literal sense, to state a claim upon which relief might be granted. But that is not quite this case. The reference to ‘Illinois Public Policy’ could be intended to invoke Illinois statutory and common law principles (not necessarily limited to the Human Rights Act) that would create a remedy for someone denied a contractual advantage on grounds of national origin, although we do not know whether such a remedy is available under Illinois law. And with a little research the plaintiff’s lawyer would have discovered 42 U.S.C. § 1982, which forbids discrimination against racial and related minorities in the sale and lease of real estate. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 616-18 (1987). The complaint was not frivolous on its face, though it is an open question whether the plaintiff’s lawyer will ever be able to identify a legal basis for his claim. He may wish to consult a specialist in discrimination litigation. But we think he should have an opportunity to try to show that the complaint has a legal basis. The dismissal was premature and the case must be remanded. But we emphasize that the defendant is entitled to be supplied by the plaintiff one way or another with a road map of the plaintiff’s suit so that he can know how to defend itself. We have suggested that the simplest way to do this is either for the judge to ask the plaintiff for a legal memorandum or for the defendant to serve the plaintiff with a contention interrogatory.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Castillo, J., Posner, J.