Minor Scott, III v. Chuhak & Tecson, PC , 725 F.3d 772 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3449
MINOR M. SCOTT, III, as personal
representative for the Estate of
MAUREEN K. SCOTT, deceased,
Plaintiff-Appellant,
v.
CHUHAK & TECSON, P.C., et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 6858 — Ronald A. Guzmán, Judge.
ARGUED OCTOBER 26, 2013 — DECIDED AUGUST 5, 2013
Before EASTERBROOK, Chief Judge, and CUDAHY and TINDER,
Circuit Judges.
TINDER, Circuit Judge. This case has its origins in a dispute
between two sisters, Maureen Scott and Diane Shah, over their
parents’ estate. Minor Scott, the former husband of now-
deceased Maureen and personal representative of her estate,
2 No. 11-3449
brought suit against Chuhak & Tecson, P.C. (“C&T”), and two
of its attorneys, alleging breach of fiduciary duty arising out of
the firm’s estate-planning representation. Minor also sued
Diane, a C&T client, in state court. Concerned with the need to
protect privileged documents and communications arising out
of the attorney-client relationship between Diane and C&T
from disclosure to the attorneys representing Maureen’s estate
in the state litigation, the federal district court entered an
agreed protective order and denied the estate’s motion to
compel the production of certain documents. When the estate
violated this protective order, the district court imposed
sanctions.
The estate appeals the imposition of sanctions, the court’s
denial of its motion to reconsider the sanctions order, its grant
of C&T’s motion for summary judgment, its grant of C&T’s
motion to dismiss several of the estate’s claims, and its denial
of several of the estate’s motions to compel. We affirm on all
issues.
I.
Since 1973, Ruth Kiver and Milton Kiver have employed
C&T, an Illinois law firm, for estate-planning purposes. Among
the instruments that C&T prepared for the Kivers were the
Milton S. Kiver Grantor Trust (“MGT”), the Ruth A. Kiver
Grantor Trust (“RGT”), the Ruth A. Kiver Wealth Trust
(“RWT”), and the Ruth A. Kiver Wealth Trust II (“RWT II”).
These trusts were intended to benefit the Kivers’ daughters,
Diane and Maureen, among others.
Ruth and Milton designated Diane as the trustee of the
MGT, RGT, and RWT II. Maureen and Diane were both
No. 11-3449 3
designated trustees of the RWT. The MGT requires that, upon
Milton’s death, if any of the trust estate is determined to be
part of Milton’s estate for federal estate tax purposes, the
smallest fraction of the trust estate that will result in the lowest
federal estate tax liability is to be placed in a separate trust for
Ruth, and the remainder is to be divided in separate trusts, of
equal value, for Diane and Maureen. The MGT also states that,
if a separate trust beneficiary dies before her trust is completely
distributed, “such separate trust or the remainder thereof shall
be distributed to or for the benefit of any [of] … the benefi-
ciary’s heirs.” Also relevant to this appeal, the RGT, RWT, and
RWT II allow the trustee to make distributions for certain
purposes to Ruth’s descendants, including Diane and Maureen.
Milton died in 2005. After his death, C&T created separate
trusts for Maureen and Diane. C&T attorneys were present at
a family meeting following Milton’s death. During this
meeting, the attorneys distributed an eighteen-page summary
of the Kiver estate plans, identifying each trust’s rights of
distribution, powers of appointment, and other significant
features. Maureen and Minor attended this meeting. The estate
claims that C&T did not at any point give Maureen or Minor
a physical copy of the actual MGT. Later that year, Maureen
hired C&T to prepare her own estate plan.
By 2006, both sisters had accumulated intra-family debts:
Maureen owed a significant amount of money to Ruth, and
Diane owed a significant sum to a trust for which Ruth was the
primary beneficiary. To enable the sisters to repay their debts,
Ruth, Diane, and the family accountant decided that equal gifts
would be made to Diane and Maureen from various family
trusts. Diane received her gift, but did not repay the family
4 No. 11-3449
trust to which she owed money. Maureen did not receive her
gift, but her debts were forgiven. We adopt the parties’ use of
the term “the gift plan” to refer to this episode.
Maureen died in March 2007. At the time of her death, she
and Minor had two children, Samuel and Rebecca. Minor now
serves as personal representative of Maureen’s estate. Two
months later that year, the IRS accepted Milton’s final estate
tax returns.
The estate filed this suit in federal district court against
C&T and two of the firm’s attorneys in November 2009,
alleging that C&T failed to disclose the existence and terms of
certain family trusts to Maureen, to her detriment, and failed
to make distributions to her. The estate claimed that these
allegations constitute a breach of fiduciary duty, namely legal
malpractice. Arthur Gold represented the estate in federal
court, and Michael Flaherty represented C&T.
The estate also filed a separate suit in state court against
Diane, alleging that Diane breached her fiduciary duties as
trustee of various family trusts by failing to disclose the
existence of certain trusts to Maureen or make distributions to
her from them. Andrew Fleming represented the estate in this
state court case. Importantly, Fleming was not an attorney of
record for the estate in the federal case, and had not filed any
appearance on behalf of the estate in federal court. Mark Stang
represented Diane in the state case. Diane was a client of C&T
during the relevant period.
The discovery period in this case began on January 6, 2010,
and, following an extension, was set to expire on August 9.
During discovery, the estate filed a motion to compel C&T to
No. 11-3449 5
produce metadata, billing records, other documents, and a
response to an interrogatory. This motion to compel was
denied on March 23, 2011.
On July 9, the district court granted in part C&T’s motion
to dismiss under Rule 12(b)(6). The district court dismissed
with prejudice the estate’s claims based on C&T’s alleged
interference with the gift plan and struck the estate’s request
for punitive damages. (The district court also ruled on other
claims that are not relevant to this appeal.) In response, the
estate filed an amended complaint, which did not contain
allegations related to the gift plan or request punitive damages.
Since Diane was a client of C&T, the estate’s pursuit of
simultaneous suits against C&T and Diane presented some
knotty issues concerning attorney-client privilege during the
discovery process. To address these issues, the federal district
court entered an agreed protective order governing discovery
disclosure. That order included the following passages:
§7 All information or documents designated
as Privileged Material in accordance with
this Order shall be used only for the pur-
pose of prosecuting or defending this
lawsuit … and not for any other
litigation … . All information designated
as Privileged Material in accordance with
this Order shall not be … communicated
in any way to anyone except those per-
sons designated in this Protective Order
to whom it is necessary that such docu-
ments or information be … communi-
6 No. 11-3449
cated for purposes permitted under this
paragraph.
…
§9 The [designated] persons … shall be as
follows:
(a) Counsel for the Parties (including
members or associates of such
counsel’s firm) as well as their para-
legal, investigative, secretarial and
clerical personnel only for purposes of
the prosecution or defense of this
litigation;
(b) Each Party to this action and those
representatives of each Party charged
with responsibility for the prosecution
or defense of the litigation, provided
that access is given only for purposes
of the prosecution or defense of this
litigation;
C&T produced over 9,500 documents during discovery, all
of which were marked “Privileged.” These documents in-
cluded some items that we typically would not think of as
privileged, e.g., a print-out from a publicly accessible govern-
ment website of information concerning interest rates. The
estate, however, did not contest the designation of any of these
documents as privileged.
When Minor appeared at C&T’s scheduled deposition of
him for the federal suit, he was accompanied by both Gold (the
No. 11-3449 7
estate’s attorney in the federal suit) and Fleming (its attorney
in the state court proceeding). C&T objected to Fleming’s
presence, based on a concern that privileged information
concerning Diane, the defendant in the state court proceeding,
would be disclosed during the deposition. Minor, however,
refused to be deposed without Fleming present. During the
ensuing dispute between the parties over Fleming’s presence,
Gold acknowledged that he had given privileged documents
to Fleming that C&T had produced in the federal case.
C&T moved for the district court to sanction the estate for
these actions. The court granted C&T’s motion for sanctions on
August 3, 2010. The court ordered that the discovery period
would close on that date—four business days before it was set
to expire—as a sanction for Fleming’s presence at Minor’s
deposition and the sharing of privileged documents with
Fleming. The court then denied the estate’s motion to recon-
sider the sanctions order.
Later in the litigation, the estate disclosed Robert Merrick
as its expert witness regarding legal ethics. Merrick stated that
C&T’s failure to inform Maureen of her rights under the trusts
constitutes a breach of fiduciary duty. C&T moved to strike
Merrick’s opinions, noting that Merrick did not review any
facts in this case aside from those told to him by Minor or
Gold, and that the actual facts contradicted Merrick’s opinion.
The district court determined that the undisputed facts show
that C&T informed Maureen of her rights concerning the RGT,
RWT, and RWT II when the law firm provided her with the
eighteen-page summary. Accordingly, the district court struck
Merrick’s opinion regarding these trusts. The court did not
strike his opinions regarding the MGT.
8 No. 11-3449
C&T then moved for summary judgment on all of the
estate’s claims. On September 26, 2011, the district court
granted C&T’s motion with respect to the RGT, RWT, and
RWT II, since the estate had presented no evidence that C&T
had concealed the terms of these trusts from Maureen. The
district court also granted C&T’s motion with respect to the
MGT. In doing so, the court noted that the MGT required C&T
to wait until the IRS issued a closing letter containing a final
determination of Milton’s federal estate tax obligations before
C&T could create a separate trust for Maureen, and that
Maureen died two months before the IRS issued this letter.
Hence, even if Maureen were fully informed of the terms of the
MGT, Maureen could not have obtained assets from the trust
for herself or her estate before she died. The district court
concluded, therefore, that C&T’s alleged breach concerning
this trust could not have proximately caused Maureen to suffer
damages.
II.
The estate appeals all of the district court’s orders. We
address the issues in the estate’s appeal in the sequence in
which it presents them. First, the estate argues that the district
court erred in granting C&T’s motion for sanctions (and,
relatedly, in denying the estate’s motion for reconsideration of
this order). Second, the estate claims that the district court
erred in granting C&T’s motion for summary judgment. Third,
the estate challenges the court’s granting C&T’s 12(b)(6)
motion to dismiss. Fourth, the estate contends that the court
erred in denying its motion to compel.
No. 11-3449 9
A.
We first address the estate’s challenge to the district courts
imposition of discovery sanctions. We review discovery
sanctions orders for an abuse of discretion. Maynard v. Nygren,
332 F.3d 462, 467 (7th Cir. 2003). “Under this standard, we
uphold any exercise of the district court’s discretion that could
be considered reasonable, even if we might have resolved the
question differently.” Id. A party meets its burden under this
standard “only when it is clear that no reasonable person
would agree [with] the trial court’s assessment of what
sanctions are appropriate.” Marrocco v. Gen. Motors Corp., 966
F.2d 220, 223 (7th Cir. 1992). This standard presents a heavy
burden to parties challenging the imposition of sanctions. See
id. (“We cannot understate the difficulty of the task litigants
face when challenging a district court’s choice of sanctions.”).
This burden is not insurmountable, however, as a district court
may only impose discovery sanctions “where a party displays
willfulness, bad faith, or fault.” Am. Nat’l Bank & Trust Co. of
Chi. v. Equitable Life Assur. Soc’y of U.S., 406 F.3d 867, 877 (7th
Cir. 2005) (internal quotation omitted).
Here, the district court imposed sanctions based on its
conclusion that Gold, the estate’s counsel in the federal suit,
violated the Protective Order by intentionally transferring
privileged documents to Fleming, who represented the estate
in state court against Diane. The estate claims that the language
in the Protective Order can be fairly interpreted as allowing
disclosure to Fleming, who is the estate’s lawyer in the state
court proceeding. The estate presents four arguments in
support of this position. We find all four unpersuasive.
10 No. 11-3449
First, the estate claims that the protective order “contains
no limiting language” or—in the alternative,
presumably—“generic language.” We call the estate’s attention
to the first sentence of § 7 of the order: “All information or
documents designated as Privileged Material in accordance
with this Order shall be used only for the purpose of prosecut-
ing or defending this lawsuit … and not for any other litiga-
tion” (emphasis in original). The inclusion of the words “only”
and “this lawsuit” (emphasis added) in this sentence should
have put the estate on notice of the permissible uses of material
obtained through discovery. The phrase “and not for any other
litigation,” complete with an emphasis on the word “not,”
serves as a symbolic exclamation point. Section 9 of the order
provides additional guidance regarding which individuals may
view privileged material. Each of the relevant subsections of §
9 includes a limiting phrase—e.g., “only for purposes of … this
litigation”—which clearly specifies that the designated individ-
uals may view the confidential materials exclusively in this
context. This repeated use of limiting language in §§ 7 and 9 is
more than sufficient to convey to the estate that it was prohib-
ited from disseminating privileged information to individuals
involved in other litigation, including Fleming.
Second, the estate argues that the sanctions were draconian,
because they prevented the estate from developing relevant
facts to establish C&T’s alleged concealment of Maureen’s
entitlements. According to the estate, the sanctions order
enabled C&T to gain an “unconscionable advantage” by
“cut[ting] off [the estate’s] right to properly develop [its] case,”
and thereby “eliminat[ing] a level playing field.” We do not
think that there is anything unconscionable about ending
No. 11-3449 11
discovery four business days early, following an approxi-
mately six-month window for discovery, based on the estate’s
violation of the express terms of the protective order.
Third, the estate faults the district court for penalizing it
while ignoring similar conduct by C&T. The estate notes that
Mark Stang, a C&T attorney who represented Diane in the
state court case, was present when Minor was deposed by
other C&T attorneys concerning the federal case. The estate
also notes that Flaherty, a C&T attorney in the federal case,
asked questions during that deposition of Minor that were
related to the state court case, which the estate presumed were
asked for Stang’s benefit. The estate argues that Stang’s
presence at a deposition in the federal case constitutes an
equivalent violation of the protective order by C&T. The estate
presents no legal authorities to support its argument that a
district court’s supposedly disparate treatment of parties that
engage in arguably similar conduct constitutes abuse of
discretion. Moreover, we are not so sure that the parties’
alleged misdeeds are analogous. Most significantly, since Stang
did not ask any questions in the deposition and the estate
cannot substantiate its allegation that other C&T attorneys
asked questions for Stang’s benefit, it is a stretch to conclude,
as the estate does, that Stang “clearly participated in this
federal case.” Without more, the estate’s argument that the
district court treated the estate and C&T differently based on
the parties’ similar—but far from identical—conduct does not
rise to the level of abuse of discretion.
12 No. 11-3449
Finally, the estate criticizes C&T for having stamped
“Privileged” on all of the documents that C&T produced. But
this alleged bad faith conduct on the part of C&T cannot justify
the estate’s intentional violation of the protective order. If the
estate believed that C&T was not complying with the spirit of
the discovery order, the estate should have alerted the district
court. By claiming in the course of its challenge to the discov-
ery sanctions that C&T engaged in bad faith conduct prior to
the estate’s violation of the protective order, the estate is
treading dangerously close to a self-help argument.
For these reasons, we find the estate’s claim that the district
court abused its discretion in imposing sanctions to be unper-
suasive. We agree with the district court’s determination that
the estate violated the clear language of the protective order.
Given the importance of shielding privileged materials from
unauthorized disclosure to adverse parties in the state court
case, we find nothing unreasonable about the district court’s
ending discovery four days early as a means of sanctioning the
estate for intentionally enabling its attorney in the state
proceedings to access privileged documents.
B.
Next, we turn to the estate’s claim that the district court
erred in granting, in part, C&T’s motion for summary judg-
ment. We review the district court’s grant of summary judg-
ment de novo, construing all relevant facts and inferences in
favor of nonmoving party. Porter v. City of Chicago, 700 F.3d
944, 950 (7th Cir. 2012). We will affirm a grant of summary
judgment only if the movant—here, C&T—“shows that there
No. 11-3449 13
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The estate alleges that C&T committed malpractice by
failing to inform Maureen of the terms of the RGT, RWT, RWT
II, and MGT, and by failing to obtain from her a waiver of
C&T’s alleged conflict-of-interest inherent in the firm’s
concurrent representation of both Maureen and Diane. To
succeed on these claims for each of the four trusts, the estate
must show that: (i) C&T owed Maureen a duty of care based
on the attorney-client relationship; (ii) C&T breached that duty;
and (iii) C&T’s breach proximately caused Maureen to suffer
actual damages. Fox v. Seiden, 887 N.E.2d 736, 742 (Ill. App. Ct.
2008). With respect to the estate’s claims relating to the RGT,
RWT, and RWT II, the district court determined that no
genuine dispute as to any material fact existed concerning the
breach-of-duty element. For the estate’s MGT and conflict-of-
interest claims, the court found that no genuine dispute as to
any material fact existed regarding the damages element.
Concerning the RGT, RWT, and RWT II, the district court
determined that there was no triable issue of fact regarding
whether C&T breached the duty that it owed to Maureen
based on the firm’s attorney-client relationship with her. As
evidence that C&T’s allegedly breached its duty to Maureen,
the estate offered a report from Merrick, an expert in legal
ethics. Merrick reviewed the estate’s allegation in its amended
complaint that C&T failed to inform Maureen of her rights
under the RGT, RWT, and RWT II. Based on these allegations,
Merrick concluded that C&T violated the common-law duty of
care that lawyers owe to their clients, as reflected in the Illinois
Rules of Professional Conduct.
14 No. 11-3449
The district court, however, noted that the estate later
admitted additional facts that refute the allegations in its
amended complaint. Most significantly, the estate later
admitted that, during a meeting between Maureen and C&T
attorneys, C&T gave Maureen an eighteen-page summary of
the relevant properties of the RGT, RWT, and RWT II. The
district court concluded that this admission—which the estate
made after it had filed its amended complaint, the document
on which Merrick based his expert opinion—refutes Merrick’s
earlier conclusion that C&T breached its duty to Maureen by
failing to inform her of her rights under these trusts. In light of
this new and undisputed evidence, the district court deter-
mined that Merrick’s opinion did not meet the evidentiary
requirements for expert testimony. See Fed. R. Evid. 702(b)
(expert testimony must be “based on sufficient facts or data”).
Since the estate had presented no other evidence of breach
concerning these trusts, the district court concluded that no
triable issue regarding C&T’s alleged breach of duty existed
and therefore granted C&T’s motion for summary judgment
on these claims.
On appeal, the estate claims that the district court erred in
reaching this conclusion, but its argument is truly cursory,
skirting our rules on waiver. The estate devotes considerable
ink in its appellate brief to the argument that C&T breached its
duty to Maureen by failing to explain the workings of the MGT
to her. The estate then asserts that “[t]he same is true for
similar trusts,” and references the sections of its amended
complaint that discuss the RGT, RWT, and RWT II.
No. 11-3449 15
The estate’s discussion of breach with respect to the MGT
claim is a red herring in the context of its claim that the district
court erred in dismissing claims regarding the RGT, RWT, and
RWT II. Simply put, the district court’s grant of summary
judgment to C&T on the estate’s MGT claim has to do with the
lack of a triable issue concerning damages, not breach of duty.
In fact, the district court expressly stated that the estate had
offered “sufficient [evidence] to create a triable issue as to
whether defendants breached their duty to Maureen by failing
to tell her about the terms of the MGT.” For the estate to
devote considerable attention to the uncontested proposition
that a triable issue exists with respect to breach on the MGT
claim, and then breezily assert that “[t]he same is true”
concerning the RGT, RWT, and RWT II, assumes away the
central issue in this portion of the estate’s appeal. Because the
estate has presented no reason why the district court was
incorrect in finding that no triable issue exists regarding
whether C&T breached its duty to Maureen concerning the
RGT, RWT, and RWT II, we affirm this portion of the district
court’s grant of summary judgment for C&T.
Having rejected the estate’s claims concerning the RGT,
RWT, and RWT II, we turn to its breach-of-duty claim regard-
ing the MGT and to its claim that C&T failed to obtain
Maureen’s informed consent for the firm’s representation of
both sisters. For these two claims, the district court found that
no triable issue existed on the damages element, i.e., whether
C&T’s alleged breach of duty proximately caused Maureen to
suffer damages. For these claims, the district court determined
that, absent C&T’s alleged breach, Maureen would have been
informed of the following: (1) that separate trusts would be
16 No. 11-3449
established for the Krivers’ descendants, including Maureen,
following Milton’s death, and (2) that the provision requiring
the establishment of separate trusts was subject to the contin-
gent martial trust provision, which states that separate trusts
will be created only if the IRS makes a final determination that
any portion of the MGT is includible in Milton’s estate for
federal estate tax purposes. In other words, absent C&T’s
alleged breach, Maureen would have learned that a separate
trust would be established for her following the fulfillment of
two necessary conditions: Milton’s death and the final determi-
nation of Milton’s federal tax liability.
Could Maureen have suffered damages based on C&T’s
alleged failure to share this information? We think not. It is
undisputed that Maureen died two months before Milton’s
federal tax liability was finally determined. Thus, according to
the terms of the MGT instrument, C&T was not required to
create a separate trust for Maureen during Maureen’s lifetime.
Thus, we fail to see how Maureen could have benefitted from
possessing the information concerning the MGT that C&T
allegedly withheld from her.
On appeal, the estate notes that, regardless of whether C&T
was obligated to create a separate trust for Maureen, the
district court’s analysis ignored the estate’s evidence that C&T
actually did create a separate trust for Maureen (as well as
subtrusts for Maureen’s children) prior to the final determina-
tion of Milton’s federal tax liability. But even so, the estate does
not show how C&T’s alleged failure to provide Maureen with
information concerning the MGT trust caused Maureen or her
estate to suffer damages. According to the terms of the MGT,
any monies contained in a separate trust established for
No. 11-3449 17
Maureen could be distributed only “to or for the benefit of any
one or more of such of the Grantor’s then living or thereafter
born descendants, the beneficiary’s heirs at law, or such
religious, scientific, charitable or educational organizations …
as such beneficiary may appoint by his or her will.” Recall that
Minor brought suit against C&T not in his individual capacity,
but as personal representative for Maureen’s estate. Given that
a grantor’s estate is not included in this list of individuals or
entities to which disbursements may be made from a separate
trust established under the MGT, Maureen’s estate cannot
show that it has suffered damages.
For these reasons, we concur with the district court’s
determination that a triable issue does not exist concerning
whether C&T’s alleged breach proximately caused Maureen to
suffer damages. We therefore affirm the district court’s grant
of summary judgment for C&T on the estate’s MGT and
conflict-of-interest claims.
C.
The estate also challenges the district court’s partial grant
of C&T’s motion to dismiss. The estate’s appeal focuses on two
of the issues that the court addressed in its dismissal order.
First, the estate argues that the district court erred in dismiss-
ing with prejudice its claim that C&T interfered with the gift
plan. Second, the estate argues that the district court erred in
striking its request for punitive damages.1
1
The “Issues Presented for Review” section of the estate’s appellate brief
also raises the prospect that the district court erred in “dismissing with
(continued...)
18 No. 11-3449
We review de novo a district court’s dismissal under Rule
12(b)(6), construing factual allegations and any reasonable
inferences in the light most favorable to the plaintiff. Chavez v.
Ill. State Police, 251 F.3d 612, 648 (7th Cir. 2001). Although a
complaint “does not need detailed factual allegations” to
survive a motion to dismiss under Rule 12(b)(6), the complaint
must contain “enough facts to state a claim for relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
As an initial matter, we reject C&T’s contention that the
estate has abandoned these issues on appeal. C&T bases this
contention on the fact that the estate presented these argu-
ments only in its original complaint, and not in its amended
complaint. C&T appears to misunderstand the effect of an
amended complaint on the contents of the original complaint.
It is true that when a plaintiff files an amended complaint, the
amended complaint supersedes the original complaint. Massey
v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). That supersession,
however, does not mean that claims in the original complaint
1
(...continued)
prejudice” the estate’s claim that C&T “fail[ed] to tell Plaintiff’s decedent
about the existence and terms of her mother’s Wealth and Grantor Trusts.”
Since the estate’s brief does not contain any further discussion of this issue,
we consider it waived. See Sere v. Bd. of Trs. of Univ. of Ill., 852 F.2d 285, 287
(7th Cir. 1988) (“[A]n appellant must present in its brief the issues to the
appellate court that the appellant desires to litigate. In addition, the issues
must be supported by appropriate judicial authority.”). We also note that
the estate’s statement that the district court dismissed this third claim with
prejudice is incorrect.
No. 11-3449 19
that do not appear in the amended complaint are abandoned
or waived.
If adopted, C&T’s position—that a litigant must replead in
later complaints claims that the court rejected in an earlier
complaint in order to preserve those issues on appeal—would
lead to needlessly duplicative pleadings and make-work for
district courts. See Bastian v. Petren Res. Corp., 892 F.2d 680, 683
(7th Cir. 1990) (“It is not waiver—it is prudence and econ-
omy—for parties not to reassert a position that the trial judge
has rejected. Had the plaintiffs repleaded their [claim] … the
judge would have dismissed the charge, not only with preju-
dice, but with annoyance.”). Instead, the statement that an
“amended pleaded supersedes the original,” Pirant v. U.S.
Postal Service, 542 F.3d 202, 207 (7th Cir. 2008), has two effects.
First, facts or admissions from an earlier complaint that are not
included in a later complaint cannot be considered on a motion
to dismiss. Id. Second, where the original complaint and an
amended complaint contain contradictory or mutually exclu-
sive claims, only the claims in the amended complaint are
considered; the contradicted claims in the original complaint
are knocked out. Moriarty v. Larry G. Lewis Funeral Dirs., Ltd.,
150 F.3d 773, 777 (7th Cir. 1998). Since the claims from the
original complaint to which the estate calls our attention do not
contradict any claims present in the amended complaint, this
scenario is not relevant. Thus, we will consider claims that the
estate raised in its original claim but omitted from its amended
complaint. See Bastian, 892 F.2d at 682–83.
Moving to the merits, we note that the estate’s claim of C&T
interference with the gift plan is premised on the allegation
that “[d]espite Ruth’s clear intentions, C&T did not implement
20 No. 11-3449
the documents signed by Ruth,” which purportedly would
have provided Maureen with a gift from one of the trusts. As
the district court correctly concluded, however, this purported
failure cannot support a legal-malpractice claim because
procuring gifts from the trusts for Maureen is beyond the
scope of C&T’s representation of Maureen. See Practical Offset,
Inc. v. Davis, 404 N.E.2d 516, 520 (Ill. App. Ct. 1980) (stating
that “an attorney’s duty to his client exists in relation to the
scope of the representation sought by the client and under-
taken by the attorney”). According to the estate’s complaint,
Maureen retained C&T “to prepare and document her estate
plan.” This work description cannot fairly be read to include a
duty to assist Maureen in obtaining gifts from Ruth’s trusts.
Hence, the estate’s complaint does not contain sufficient facts
to state a malpractice claim grounded in alleged C&T interfer-
ence with the gift plan that is plausible on its face.
On appeal, the estate provides a more expansive descrip-
tion of the reason why Maureen retained C&T: to “harmonize”
Maureen’s estate with her parents’ estates. The estate does not
explain how the proffered fact that Maureen retained C&T to
harmonize the family’s estates supports its allegation that C&T
breached its duty by not assisting Maureen in procuring a gift
from one of Ruth’s trusts—a necessary component of the
estate’s legal malpractice claim. Moreover, the evidence in the
record that the estate offers to support its contention that C&T
“w[as] retained to ‘harmonize’ Maureen’s estate with that of
her parents” is flimsy. To support this claim, the estate quotes
an October 28, 2004, letter from a C&T attorney to Maureen.
When read in its entirety, however, this letter makes clear that
the full scope of C&T’s representation of Maureen was to
No. 11-3449 21
prepare an estate plan for her.2 Thus, we agree with the district
court’s determination that the estate has not alleged sufficient
facts to support plausibly the claim that C&T owed Maureen
a duty to help her to procure a gift from Ruth’s trusts. The
court acted properly in granting the portion of C&T’s Rule
12(b)(6) motion pertaining to the estate’s claim that C&T’s
handling of the gift plan constitutes malpractice.
Concerning the second issue in this section of the estate’s
appeal, we agree with the district court’s decision to strike the
estate’s request for punitive damages. Illinois law bars punitive
damages in legal malpractice cases. 735 Ill. Comp. Stat. 5/2-
1115 (“In all cases … in which the plaintiff seeks damages by
reason of legal … malpractice, no punitive … damages shall be
allowed.”). On appeal, the estate cites Cripe v. Leiter, in which
an Illinois appellate court ordered an attorney who had
falsified billing records to pay punitive damages. 683 N.E.2d
516 (Ill. App. Ct. 1997). That case is inapposite, however. The
Cripe court distinguished between common-law fraud claims,
e.g., the fraudulent billing claim at issue in that case, and legal
malpractice claims, which the court “defined as ‘the failure of
an attorney to use such skill, prudence, and diligence as
lawyers of ordinary skill and capacity commonly possess in
performance of tasks which they undertake.’” Cripe, 683 N.E.2d
at 519 (quoting Black’s Law Dictionary 959 (6th ed. 1990)). The
2
The relevant portion of this letter reads: “We discussed having estate
planning documents for you to harmonize with your parents’ estate
planning documents. … The estate plan will encompass documents for both
you and Minor, but if you want a plan for you exclusively, that is doable
also. We will provide you with an abstract, summarizing the recommended
estate planning provisions.”
22 No. 11-3449
Cripe court also restated Illinois’ prohibition on punitive
damages in legal malpractice cases. Id. In the instant case, the
various breaches of fiduciary duty that the estate alleges based
on the substance of C&T’s representation of Maureen are
clearly classified as malpractice claims under Illinois law. See
Owens v. McDermott, Will & Emery, 736 N.E.2d 145, 155 (Ill.
App. Ct. 2000). Since the only allegations contained in the
estate’s complaint involved legal malpractice, the estate could
not have recovered punitive damages for its injuries.
D.
Finally, we consider the estate’s appeal of the district
court’s denial of its motion to compel C&T to produce
metadata, billing records, documents that the estate believes
may show that the trusts distributed funds to Diane following
Maureen’s death, and a response to an interrogatory asking
whether C&T distributed funds from the trusts to Diane
following Maureen’s death.
We review discovery rulings for an abuse of discretion. Gile
v. United Airlines, Inc., 95 F.3d 492, 495 (7th Cir. 1996). A district
court does not abuse its discretion “unless one or more of the
following circumstances is present: (1) the record contains no
evidence upon which the court could have rationally based its
decision; (2) the decision is based on an erroneous conclusion
of law; (3) the decision is based on clearly erroneous factual
findings; or (4) the decision clearly appears arbitrary.” Vallone
v. CAN Fin. Corp., 375 F.3d 623, 629 (7th Cir. 2004) (internal
quotation omitted). Moreover, we will not reverse a district
court’s decision concerning discovery “absent a clear showing
No. 11-3449 23
that the denial of discovery resulted in actual and substantial
prejudice.” Id. (internal quotation omitted).
The estate does not argue that any of these four circum-
stances are present here. The estate does not claim that the
record contains no evidence to support the decision; cites no
legal authority whatsoever to support its position; does not
point to any facts in dispute; and does not argue that the
decision is arbitrary. Naturally, the estate thinks that the
production of these items would have been helpful to its case,
but that obviously is not sufficient for reversal. Without any
references to legal authorities or any statement that generously
could be considered legal argumentation, the estate has given
us no reason to reverse. See Sanchez v. Miller, 792 F.2d 694, 703
(7th Cir. 1986) (“It is not the obligation of this court to research
and construct the legal arguments open to parties.”).3
The “district court is in the best position to decide the
proper scope of discovery and to settle any discovery dis-
putes.” Gile, 95 F.3d at 495. Here, the district court carefully
explained its reasons for denying the estate’s motion to compel
with respect to each of the items which the estate sought. Most
notably, the district court expressed concern over the possibil-
ity that allowing the estate to cast an overly wide net during
discovery in the federal case could risk compromising informa-
tion that is privileged and nondiscoverable in the state case.
Given this legitimate concern—along with the estate’s silence
regarding whether the district court acted irrationally, based
3
We also register our concern that the statement of facts in the estate’s
brief does not contain any facts pertaining to this issue, in violation of our
rules. See Fed. R. App. P. 28(a)(7).
24 No. 11-3449
on an erroneous conclusion of law or fact, or arbitrarily—we
conclude that the district court did not abuse its discretion in
denying the estate’s motion to compel.
III.
The complexity of the multiple trusts that the parents
created, the untimely death of Maureen, the pursuit of concur-
rent state and federal suits against Diane and C&T, the length
of this litigation, and the disorderly nature of the estate’s
presentation to our court, taken together, evoke a middle
installment of Bleak House. This opinion, however, may push
the federal chapter of the story to a close. For the aforemen-
tioned reasons, we AFFIRM the district court on all of its
challenged orders.