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CHRISTOPHER LASALLE & CO. v. HELLER FIN.

January 16, 1990

CHRISTOPHER LaSALLE AND COMPANY, INC., Plaintiff
v.
HELLER FINANCIAL, INC., Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Christopher LaSalle and Company, Inc. ("Christopher") has sued Heller Financial, Inc. ("Heller") in a nine-count First Amended Verified Complaint ("Complaint"), alleging several federal constitutional and statutory violations as well as a number of pendent state law claims: *fn1"

 
1. Violation of the Supremacy Clause.
 
2. Violation of the Due Process Clause.
 
3. Violation of 42 U.S.C. § 1983 ("Section 1983").
 
4. Violation of Section 2-1203 of Illinois' Code of Civil Procedure ("Code § 2-1203," Ill. Rev. Stat. ch. 110, para. 2-1203).
 
5. Tortious Interference with Existing Business Relations.
 
6. Tortious Interference with Corporate Bank Account.
 
7. Conversion.
 
8. Violation of Section 12-701 of Illinois' Code of Civil Procedure ("Code § 12-701," Ill. Rev. Stat. ch. 110, para. 12-701).
 
9. Abuse of Process.

 Heller has filed motions seeking:

 
1. to dismiss Counts 1, 2, 4, 6 and 8 pursuant to Fed. R. Civ. P. ("Rule") 12(b)(6); and
 
2. to obtain summary judgment on Count 3 under Rule 56.

 For the reasons stated in this memorandum opinion and order, all three federally-based claims in the Complaint--Counts 1, 2 and 3--are dispatched as a final matter. That being so, it is inappropriate under the circumstances to address the state law claims. This action is therefore dismissed in its entirety. *fn2"

 Factual Background3

 In January 1985 Christopher was in the business of consolidating shipping orders for its clients to obtain discounted bulk shipping rates, taking as a commission a percentage of each customer's savings under the arrangement. Heller engaged Christopher to act for it in that manner.

 On November 20, 1985 Heller filed suit against Christopher in the Circuit Court of Cook County, alleging breach of contract, breach of fiduciary duty, unjust enrichment and conversion--all arising out of Christopher's claimed breaches of duty in its handling of Heller's account. On February 6, 1986 Heller moved for a default judgment against Christopher for failure to file an answer. That motion was denied and Christopher was given until February 17 to respond.

 Assertedly acting in reliance on an agreement with Heller as to settlement possibilities, Christopher still did not answer. Heller again moved for default, and this time the Circuit Court entered an order of default on March 19 and then a $ 42,884.61 default judgment on April 10. *fn4" Christopher's timely motion to vacate the default judgment was denied, as was its later request for a rehearing of the motion to vacate. On June 10 Christopher filed a Notice of Appeal to the Illinois Appellate Court challenging the propriety of the default judgment (see Rule 305(d)).

 For Christopher to obtain a stay of execution of the default judgment pending appeal, Illinois Supreme Court Rule 305 ("Rule 305") required that Christopher post a supersedeas bond for an amount in excess of the judgment (see Rule 305(d)). As permitted by Rule 305(a)(2), the Circuit Court stayed execution of the judgment 45 days to allow Christopher an opportunity to obtain a bond. Lacking sufficient cash collateral, Christopher was unable to obtain a supersedeas bond before expiration of the 45-day stay period. On July 25 Christopher requested and the Appellate Court granted a ten-day temporary restraining order enjoining execution of the default judgment--that interim action was taken pending Heller's response to Christopher's effort to enjoin application of the supersedeas bond requirement. Without issuing an opinion the Appellate Court then denied the latter motion on August 5.

 In a last gasp effort to stave off execution of the default judgment, Christopher moved for reconsideration of the just-denied preliminary injunction motion and for reinstatement of the temporary restraining order pending such reconsideration. With the Appellate Court having taken no action on those motions, on August 13 Christopher filed this federal action to prevent Heller from executing on the judgment, asserting that:

 
1. Imposition of the Circuit Court's bond requirement violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment, because it effectively prevented Christopher from pursuing an appeal.
 
2. All the steps leading to entry of the default judgment, and also the Circuit Court's refusal to vacate that judgment, were so infected with procedural and substantive errors as to constitute denial of due process.

 After holding an evidentiary hearing this Court granted the "Preliminary Injunction," *fn5" finding in part (Preliminary Injunction at 7-8 (citations omitted)):

 
Both the probability of success on the merits and the balancing of harms weigh heavily in Christopher's favor. Accordingly, the "sliding scale" approach to comparative evaluation appropriate in Preliminary Injunction cases tips substantially in Christopher's favor.

 That same order implemented a Cash Control Reporting System to monitor Christopher's financial situation. Christopher's operations rocked along under the protection of the Preliminary Injunction for several months. Then, as a result of substantial deterioration in Christopher's financial condition, which tipped the balance of hardships in Heller's favor, this Court dissolved the ...


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