Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80-C-4994 -- Marvin E. Aspen, Judge.
Before SWYGERT and PECK,*fn* Senior Circuit Judges, and ESCHBACH, Circuit Judge.
PECK, Senior Circuit Judge. Plaintiff-appellant Millicent Geist brought this diversity action against seven officers of the Massachusetts Mutual Life Insurance Corp. alleging that those officers acted "individually and together" to cause the termination of plaintiff's husband as a general agent for the company. Plaintiff alleged that the sole purpose of that termination was to retaliate against plaintiff for her exercise of certain loan privileges under insurance policies issued by the corporation and held by the plaintiff. The complaint further asserted that the defendants had acted "with the intent, or with reckless disregard of the probability, of causing emotional distress" to plaintiff. Plaintiff sought damages under Illinois law for the intentional infliction of emotional distress, a tort first recognized by Illinois in Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157 (1961).
The district court granted a motion to dismiss the complaint for lack of personal jurisdiction as to three of the seven defendants. The court found that the only jurisdictional fact asserted in the complaint as to those three defendants was that they had acted "individually and together" with the remaining four defendants to cause the termination of plaintiff's husband. The three defendants had supported their motion to dismiss with affidavits stating that they had had no contacts with the State of Illinois, and plaintiff failed to respond to those affidavits, apparently relying on the allegations of the complaint. The court concluded that the "weak and general allegation" that the three defendants acted together with the remaining four defendants, who had been physically present in Illinois in connection with the husband's termination, was insufficient to rebut the affidavits submitted by the defendants.
The district court subsequently granted the remaining four defendants' motion to dismiss the complaint for failure to state a claim upon which relief may be granted. Taking the allegations of the complaint to be true, the court found that the alleged tortious act was the termination of the husband's employment. However, there was no allegation that the husband was anything more than an employee at will whom the defendants were privileged to terminate at anytime without cause. The court concluded that under Illinois law, "The defendants are not liable for doing what they had a legal right to do." Citing Public Finance Corp. v. Davis, 66 Ill.2d 85, 92, 360 N.E.2d 765, 768 (1976). The district court further held that even if the termination of plaintiff's husband had been wrongful, the complaint alleged acts "legally insufficient to constitute such extreme and outrageous conduct calculated to cause severe emotional distress," and therefore did not state a cause of action under Illinois law.
On appeal, plaintiff asserts that the district court erred both in granting the motion to dismiss for want of personal jurisdiction and in granting the motion to dismiss for failure to state a claim. Because the plaintiff's cause of action against all of the defendants must fall if the complaint failed to state a claim upon which relief could be granted, we will first deal with that question.
In this diversity action we are required to decide questions of law as would the courts of Illinois. Accordingly, we must determine whether Illinois courts would conclude that it was proper to dismiss the complaint as legally insufficient to state a claim for the intentional infliction of severe emotional distress.We believe that the district court erred to the extent that it determined that a cause of action for the infliction of emotional distress may never be sustained in Illinois where the defendant's conduct was the exercise of a legal right. The district court cited language from Public Finance, supra, for that conclusion. However, in Public Finance the Illinois Supreme Court considered at length whether the defendants' exercise of the undisputed legal right to collect a debt was concluded in a "permissible" manner, or whether the defendants had behaved "outrageously" in exercising that right. The court concluded that the complaint in Public Finance failed to state a claim because it did not allege extreme, excessive, or outrageous conduct. It did not affirm the dismissal of the complaint on the ground that the defendants had exercised a legal right.
Accordingly, we believe that the issue on appeal in the present case is whether the district court was correct in dismissing the complaint because the defendants' alleged conduct can never constitute the extreme and outrageous conduct required by Illinois to sustain the cause of action.
The Illinois cases teach that the determination whether alleged tortious conduct is so extreme to sustain a complaint for intentional infliction of emotional distress is a question to be resolved on a case-by-case examination of the facts asserted in the complaint. In Public Finance the Illinois Supreme Court upheld the dismissal of a complaint where the debtor-plaintiff alleged persistent attempts by the creditor-defendant to collect a debt. The court noted the absence of allegations of threats, abusive language or other similarly excessive conduct that might have made the defendants' efforts to collect the debt outrageous.
In Sherman v. Field Clinic, 74 Ill. App.3d 21, 392 N.E.2d 154 (1979), the Illinois Appellate Court distinguished Public Finance on its facts and held that a complaint was sufficient to state a claim for the intentional infliction of severe emotional distress. As in Public Finance, Sherman involved the efforts of a creditor-defendant to collect a debt. However, in Sherman the debtor-plaintiff complained that the defendant's actions included not only persistent efforts to collect a debt, but also frequent obscene language, threats of public embarrassment, threats of imprisonment, threats to garnish wages, and a contact with the plaintiff's minor daughter. On those facts the Illinois court concluded that plaintiff had stated a claim. The court also distinguished Sherman from Kelly v. Franco, 391 N.E.2d 54 (Ill. 1979), where a complaint for the infliction of emotional distress that alleged only "mere indignities, threats, and trivialties" was found not to assert outrageous conduct. Clearly, Illinois had adhered to the statement in Knierim, supra, that "outrageousness" must be determined on the facts of each case.
The manner in which the Illinois courts have resolved the question whether the facts asserted by a complaint constitute outrageous conduct guides our analysis of the instant complaint. In Public Finance the court upheld dismissal of a complaint alleging that the defendant had engaged in repeated efforts to collect a debt at the home of the plaintiff, had made repeated efforts to collect from the plaintiff at a hospital where plaintiff's daughter was hospitalized, had informed an acquaintance of the plaintiff that the plaintiff was writing bad checks, and that the defendant had refused to leave the plaintiff's home. In determining that these allegations did not assert outrageous conduct by the defendant, the Illinois Supreme Court considered the totality of the circumstances surrounding the alleged conduct, and apparently found that any wrongful character of the acts was mitigated by the traditional "latitude to pursue reasonable methods of collecting debts. . . ."
We believe that this analysis is instructive in resolving whether the plaintiff in the present case alleged outrageous conduct by the defendants. When the totality of circumstances surrounding defendants' alleged conduct is considered, Public Finance is readily distinguishable. Whereas the defendants in Public Finance acted in furtherance of obtaining payment of a debt, the defendants in the present case are alleged to have acted solely to punish plaintiff because she exercised her rights under her insurance contracts with the defendants' company. In the former case any inappropriateness of the defendants' conduct was tempered by the fact that the defendant had a right to pursue the nonpaying creditor-plaintiff. In the present case the defendants may have had a right to terminate plaintiffs' husband, but they had no right to take a punitive action against the plaintiff solely because she exercised her rights under her contracts with the defendants' company. The issue before us is whether the defendants' conduct was outrageous as to the plaintiff as a reprisal against her, not whether the conduct was outrageous as to her husband. Because the defendants had no right to punish plaintiff, the alleged fact that they did so by firing plaintiff's husband makes their conduct extreme or excessive. Consequently, we are of the opinion that plaintiff has alleged outrageous conduct by the defendants as to her and that the district court erred in dismissing her complaint for failure to state a claim upon which relief could be granted.
Because we have determined that plaintiff alleged conduct sufficient to state a cause of action, we must now consider plaintiff's contention that the district court erred in dismissing the complaint as to defendants Martin, Ingram, and Kessler for lack of personal jurisdiction. Plaintiff does not dispute the fact that these defendants were never themselves present in the State of Illinois in connection with this case. However, plaintiff asserts that in alleging that all defendants acted "individually and together" her complaint asserts that Martin, Ingram, and Kessler acted in Illinois through the remaining defendants, and furthermore that Illinois long-arm jurisdiction extends to the three defendants by virtue of the fact that their acts caused an injury to occur in Illinois.
We need not determine whether the complaint in fact was sufficient to assert these facts. We conclude that the district court correctly held that plaintiff's failure to answer the affidavits of Martin, Ingram, and Kessler supporting their motion for dismissal was a failure by the plaintiff to carry her burden of showing personal jurisdiction in the face of the affidavits ...