Johnson v. Johnson and Bell, LTD. , 2014 IL App (1st) 122677 ( 2014 )

Illinois Official Reports
Appellate Court
Johnson v. Johnson & Bell, Ltd., 2014 IL App (1st) 122677Appellate Court MERDELIN JOHNSON, Plaintiff-Appellant, v. JOHNSON AND
Caption BELL, LTD., and TARGET CORPORATION, ROBERT BURKE,
and JENNIFER ROSE, Defendants-Appellees.
District & No. First District, First Division
Docket No. 1-12-2677
Filed February 24, 2014
Held The trial court properly dismissed plaintiff’s complaint against
(Note: This syllabus defendant retailer and its counsel alleging invasion of privacy,
constitutes no part of the negligence, negligent infliction of emotional distress, and breach of
opinion of the court but oral and written contracts arising from defendants’ failure to seal and
has been prepared by the redact plaintiff’s personal information in the final pretrial order
Reporter of Decisions entered in the underlying personal injury action plaintiff filed against
for the convenience of defendant retailer, notwithstanding plaintiff’s contention that the
the reader.) absolute litigation privilege did not apply, since the absolute litigation
privilege applied to the invasion of privacy claim and the remaining
claims in plaintiff’s suit, and furthermore, plaintiff’s claims in
connection with defendants’ alleged misconduct in failing to seal and
redact the information were heard before the federal court in which the
personal injury action was tried, and the failure of that court to impose
any sanctions did not provide a basis for plaintiff’s instant civil action
in state court.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-L-8493; the
Review Hon. Jeffrey Lawrence, Judge, presiding.
Judgment Affirmed.
Counsel on Merdelin Johnson, of Evanston, appellant pro se.
Appeal
Michael Resis and Michael J. McGowan, both of SmithAmundsen
LLC, of Chicago, for appellee Target Corporation.
David M. Macksey, Garrett L. Boehm, Jr., and Anne E. Zipfel, all of
Johnson & Bell, Ltd., of Chicago, for other appellees.
Panel PRESIDING JUSTICE CONNORS delivered the judgment of the
court, with opinion.
Justices Cunningham and Delort concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff Merdelin Johnson (plaintiff) filed suit against defendants Johnson & Bell, Ltd.
(Johnson & Bell), Target Corporation (Target), Robert Burke, and Jennifer Rose (collectively,
defendants) alleging invasion of privacy, negligence, negligent infliction of emotional distress,
and breach of contract. Defendants filed a motion pursuant to section 2-619 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)) to dismiss, contending that plaintiff’s
claims were barred by the absolute litigation privilege, res judicata, and collateral estoppel.
The trial court granted defendants’ motion to dismiss, and plaintiff now appeals.
¶2 I. BACKGROUND
¶3 Prior to this lawsuit, plaintiff filed a personal injury lawsuit against Target, alleging that
she suffered injuries when she slipped and fell in one of Target’s stores. Plaintiff originally
filed her complaint in the circuit court of Cook County, but Target removed the case to the
United States District Court for the Northern District of Illinois (hereinafter, District Court).
Attorneys Robert Burke and Jennifer Rose of Johnson & Bell represented Target in the lawsuit.
¶4 Prior to trial in that suit, a joint final pretrial order was prepared and signed by all parties,
including plaintiff. The final pretrial order had appendices containing all exhibits and
deposition transcripts the parties planned to use at trial. The final pretrial order was entered
into the Northern District’s electronic filing system on August 16, 2010. The case proceeded to
trial on August 30, 2010, and a jury verdict was entered in favor of Target and against plaintiff
on August 31, 2010. On September 29, 2010, plaintiff appealed to the United States Court of
Appeals for the Seventh Circuit, which affirmed the trial court in Johnson v. Target Corp., 487
F. App’x 298 (7th Cir. 2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1735 (2013).
¶5 During the pendency of that appeal, plaintiff purportedly discovered that unbeknownst to
her, certain documents were attached to the final pretrial order that included her social security
number, date of birth, financial information, medical information, and references to “G.J.,” a
minor. She filed a motion in the District Court, pursuant to Federal Rules of Civil Procedure
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5.2 and 37 (Fed. R. Civ. P. 5.2, 37), requesting that the court seal and redact certain documents,
and for sanctions against Target for violating the court’s redaction rules and failing to protect
plaintiff’s right to privacy. Plaintiff claimed that on August 12, 2010, she met with Target’s
counsel and told them to redact her personal information from certain documents, pursuant to
Rule 5.2(a) (Fed. R. Civ. P. 5.2(a)). Plaintiff argued that the failure to redact was extreme bad
faith on the part of Target and that Target was negligent in failing to redact and seal. Plaintiff
alleged that her identity could have been stolen and that the information had been in the system
for “almost four months.”
¶6 The District Court stated that “for the reasons stated in open court” plaintiff’s motion was
granted in part and denied in part. Her motion for sanctions was denied, but her motion to seal
and redact certain documents was granted.
¶7 On November 24, 2010, plaintiff filed a motion in the Seventh Circuit to seal certain
documents attached to the final pretrial order and for sanctions. Plaintiff’s motion was
substantially similar to that she filed in the District Court. She noted that her District Court
motion was granted.
¶8 On December 1, 2010, the Seventh Circuit stated that the motion was granted:
“to the extent that the clerk of this court shall place combined documents nos. 135 and
138 under seal. The clerk of the district court shall retransmit document nos. 135-138
as separate PDFs. The clerk of this court shall then place and maintain document no.
138 under seal.”
¶9 On August 15, 2011, plaintiff filed a complaint in the instant action. In her complaint,
plaintiff alleged invasion of privacy, negligence, and negligent infliction of emotional distress
stemming from the failure to redact certain personal information from documents that were
attached to the final pretrial order. Plaintiff argued that while both the District Court and the
Seventh Circuit granted her motions to redact her personal information, as well as seal the
documents in question, plaintiff’s private information “had been in the Court’s public record
filing system for over four months, well enough time for the records to be copied and
transmitted to any number of individuals.”
¶ 10 Johnson & Bell, Burke, and Rose filed a motion to dismiss plaintiff’s complaint pursuant to
section 2-619 of the Code because plaintiff’s claims were barred by the absolute litigation
doctrine and because plaintiff’s complaint constituted an improper collateral attack on the
Northern District of Illinois’s order sealing the documents in question. Target joined in this
motion to dismiss, and additionally alleged that the sole basis of plaintiff’s complaint was an
alleged violation of Federal Rule of Civil Procedure 5.2, and that a failure to comply with the
federal rules cannot create a private right of action.
¶ 11 Plaintiff moved for, and was granted, leave to file an amended complaint. On February 2,
2012, plaintiff filed an amended complaint which again alleged invasion of privacy,
negligence, and negligent infliction of emotional distress against all defendants, but added
both a breach of written contract claim and a breach of oral contract claim against Target and
Johnson & Bell.
¶ 12 In response to plaintiff’s amended complaint, defendants Johnson & Bell, Burke, and Rose
stood on the arguments raised in their prior section 2-619 motion to dismiss. Target filed a new
motion to dismiss pursuant to section 2-619(a)(9) of the Code alleging again that a violation of
the federal court rules does not create a private cause of action. Target also alleged that the
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absolute litigation privilege applied. On July 31, 2012, the circuit court dismissed with
prejudice plaintiff’s amended complaint, finding that the absolute litigation privilege,
res judicata, and collateral estoppel applied to bar the claims. Plaintiff now appeals.
¶ 13 II. ANALYSIS
¶ 14 On appeal, plaintiff contends that her amended complaint for invasion of privacy,
negligence, negligent infliction of emotional distress, and breach of oral and written contracts
should not have been dismissed pursuant to section 2-619 of the Code because the absolute
litigation privilege, res judicata, and the doctrine of collateral estoppel do not bar her claims.
Subsection 2-619(a)(9) of the Code provides for dismissal of a complaint if “the claim asserted
against defendant is barred by other affirmative matter avoiding the legal effect of or defeating
the claim.” 735 ILCS 5/2-619(a)(9) (West 2010). Thus, under this subsection, the moving
party admits the legal sufficiency of the complaint but asserts an affirmative defense or other
matter that avoids or defeats the claim. Thompson v. Frank, 313 Ill. App. 3d 661, 663 (2000).
The “motion to dismiss should be granted only when it raises affirmative matter which negates
the plaintiff’s cause of action completely or refutes critical conclusions of law or conclusions
of material, but unsupported, fact.” Employers Mutual Cos. v. Skilling, 256 Ill. App. 3d 567,
569 (1994). On appeal, we review a section 2-619 dismissal de novo. Moran v. Gust K.
Newberg/Dugan & Meyers, 268 Ill. App. 3d 999, 1004-05 (1994).
¶ 15 Plaintiff’s first argument on appeal is that the absolute litigation privilege does not bar the
claims set forth in her amended complaint. The issue of absolute privilege is treated as an
affirmative defense that may be raised and determined in a section 2-619 motion. Thompson,
313 Ill. App. 3d at 663. An attorney is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a judicial proceeding in which he
participates as counsel, if he has some relation to the proceeding. Restatement (Second) of
Torts § 586 (1977). A private litigant enjoys the same privilege concerning a proceeding to
which he is a party. Restatement (Second) of Torts § 587 (1977). An absolute privilege
provides a complete bar to a claim for defamation, regardless of the defendant’s motive or the
unreasonableness of his conduct. Thompson, 313 Ill. App. 3d at 664.
¶ 16 In Illinois, the “rules on absolute privileges to publish defamatory matter stated in §§ 583
to 592A apply to the publication of any matter that is an invasion of privacy.” Restatement
(Second) of Torts § 652F (1977); McGrew v. Heinold Commodities, Inc., 147 Ill. App. 3d 104,
114 (1986) (“[T]he rules on absolute privilege in defamation actions apply to invasion of
privacy suits as well.”). Accordingly, we find the absolute litigation privilege applies to
plaintiff’s invasion of privacy claim.
¶ 17 We further find that the trial court did not err in finding that plaintiff’s remaining claims in
her amended complaint were also barred by the absolute litigation privilege. Illinois courts
have not specifically discussed whether absolute immunity extends to claims for negligent
infliction of emotional distress or breach of contract. However, a number of other courts have
held that the absolute litigation privilege can apply in such cases because “[t]he absolute
privilege would be meaningless if a simple recasting of the cause of action *** could void its
effect.” Barker v. Huang, 610 A.2d 1341, 1349 (Del. 1992); see also Laffer v. Levinson, Miller,
Jacobs & Phillips, 40 Cal. Rptr. 2d 233, 237 (Cal. Ct. App. 1995); Franson v. Radich, 735 P.2d
632, 635 (Or. Ct. App. 1987); Petyan v. Ellis, 510 A.2d 1337, 1343 (Conn. 1986); see also
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McNall v. Frus, 336 Ill. App. 3d 904, 907 (2002) (defendant immune from suit of negligence
by absolute litigation privilege).
¶ 18 In contending that the litigation privilege does not extend to all of her claims, plaintiff
relies on the following three cases. In Zdeb v. Baxter International, Inc., 297 Ill. App. 3d 622,
628-29 (1998), this court found that Illinois courts have not extended the absolute privilege to
claims for intentional interference with prospective economic advantage. In Thompson v.
Frank, 313 Ill. App. 3d 661 (2000), this court found that the absolute privilege did not extend
to a libel action based on an allegedly defamatory communication between one party’s
attorney and the spouse of the opposing party to pending litigation. In Kurczaba v. Pollock,
318 Ill. App. 3d 686 (2000), this court found that the absolute privilege did not apply to a
defendant’s out-of-court dissemination of a complaint to third parties not involved in the
action. These cases are unpersuasive, as none of them deal with the recasting of a defamation
claim in order to avoid the absolute litigation privilege, and none of them deal with the
remaining claims in her suit.
¶ 19 Morever, we note that “[t]here is no civil cause of action for misconduct which occurred in
prior litigation.” Harris Trust & Savings Bank v. Phillips, 154 Ill. App. 3d 574, 585 (1987).
“Petitions to redress injuries resulting from misconduct in judicial proceedings should be
brought in the same litigation.” Id. Here, plaintiff complains of the alleged misconduct on the
part of Target and its attorneys in a prior federal lawsuit in which they failed to redact certain
personal information. Plaintiff brought the mistake to the attention of both the District Court
and the Seventh Circuit. Both courts ordered the documents to be sealed and redacted, and
neither court chose to assess sanctions against Target or its counsel for failing to redact the
documents prior to filing the pretrial order. Plaintiff’s arguments regarding Target’s counsel’s
alleged misconduct were heard in federal court, which was the proper venue. Plaintiff received
the result she asked for in federal court, which was to have the documents redacted. The fact
that neither court chose to assess sanctions against Target or its counsel does not provide an
adequate basis for a civil action in state court based on the same conduct. Harris, 154 Ill. App.
3d at 585 (public policy precludes a second lawsuit because otherwise there would never be an
end to litigation and it is improper for a trial court to review previous litigation that has gone on
before another judge).
¶ 20 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 21 Affirmed.
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