APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLIAM J. LASSERS, JUDGE PRESIDING.
As Corrected October 10, 1995.
The Honorable Justice Gordon Delivered The Opinion OF The Court: Cousins, Jr., P.j., and T. O'brien, J., concur.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:
Plaintiff, Reuben H. Donnelley Corporation (Donnelley) brought a breach of contract action against defendant, Richard Brauer, an attorney, alleging a failure to pay for charges associated with classified advertisements in the "Yellow Pages" directories published by plaintiff. Brauer filed an answer which included several affirmative defenses and counterclaims. Two of Brauer's counterclaims in his "Amended Answer, Third Amended Affirmative Defenses and Third Amended Counterclaims," are the subject of the instant appeal. Those counterclaims alleged that Donnelley's attorneys, McDermott, Will & Emery (McDermott), violated Brauer's civil rights (count VI) and that Donnelley and McDermott aided and abetted the commission of a tort against Brauer (count VII). The instant appeal, brought under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), is taken from the trial court's dismissal with prejudice of counts VI and VII of Brauer's third amended counterclaims pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)). Brauer contends that the dismissal was improper.
A section 2-615 motion to dismiss is used to attack defects in a pleading and does not test the plaintiff's ability to recover where a cause of action is adequately stated. ( Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267, 57 Ill. Dec. 904.) When ruling on a motion to dismiss, all well-pleaded facts in the complaint are admitted and taken as true. (E.g., Michael Reese Hospital & Medical Center v. Chicago HMO Ltd. (1990), 196 Ill. App. 3d 832, 554 N.E.2d 472, 143 Ill. Dec. 537.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle a plaintiff to recover. E.g., Zadrozny v. City Colleges of Chicago (1991), 220 Ill. App. 3d 290, 581 N.E.2d 44, 163 Ill. Dec. 93.
I. Section 1983 Counterclaim
Count VI of Brauer's third amended counterclaims alleged that Donnelley's attorneys, McDermott, Will & Emery (McDermott), violated Brauer's civil rights pursuant to section 1983 of the Civil Rights Act of 1871 (42 U.S.C. § 1983 (1988)) by depriving him of "fair and equal access to the courts and to hearing of his defenses." Specifically, Brauer alleged that McDermott purposely delayed service of process for over a year by instructing the sheriff of Cook County to attempt service at Brauer's business offices on twelve occasions knowing or having reason to believe that service would not likely occur because Brauer occupied his offices on an appointment-only basis and no appointments had been made. Brauer further alleged that McDermott did this:
"in order to accomplish MWE's [McDermott, Will & Emery's] objectives of
(a) changing the issue in the litigation from the validity and legitimacy of Plaintiff's alleged contracts *** to whatever advantage Plaintiff might garner from the passage of time and the fact Defendant was an attorney who could be made to appear dilatory by not being where service could be made.
(b) making it appear that Plaintiff and its attorneys were being reasonably diligent in attempting to effectuate service.
(c) make Defendant suffer a deprivation of his rights to access to the courts and to a fair hearing to defend this action by making it more probable that vital evidence would be lost and material witnesses would become unavailable through the passage of time."
In dismissing with prejudice count VI of Brauer's third amended counterclaims, the court found that Brauer's allegations concerning service of process failed to allege facts that rose to the level of intrusive state action. The court also found and that there was no denial of due process because of the adequacy of remedies provided by Illinois law pursuant to Supreme Court Rule 103(b) (87 Ill. 2d R. 103(b) (dismissal for lack of diligence in obtaining service)).
A section 1983 action can be maintained against "every person who, under color of any statute *** of any State *** subjects *** any citizen *** to deprivation of any rights, privileges, or immunities secured by the Constitution and laws." (42 U.S.C. § 1983 (1988).) The purpose of such an action is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights. (E.g., Wyatt v. Cole (1992), 504 U.S. 158, 112 S. Ct. 1827, 118 L. Ed. 2d 504.) While the more typical section 1983 action is brought against a state officer, a private person may also be subject to liability under section 1983 if state action is found. Apostol v. Landau (7th Cir. 1992), 957 F.2d 339.
To establish a section 1983 action, the plaintiff must establish: (1) that the defendant deprived him of a right secured by the "Constitution and laws" of the United States; and (2) that the defendant deprived him of this constitutional right "under color of law." ( Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142.) A private party acts under color of law if his actions satisfy the following two conditions: (1) the deprivation of the federal right must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible; and (2) the private party must act together with or obtain significant aid from state officials or engage in conduct otherwise chargeable to the State. ( Lugar v. Edmondson Oil Co. (1982), 457 U.S. 922, 932-35, 102 S. Ct. 2744, 2751-52, 73 L. Ed. 2d 482; see Wyatt v. Cole.) Generally, with respect to the first condition, state action or action under color of state law will not be found where the only conduct alleged is the private person's use of state-sanctioned remedies or procedures. ( Flagg Brothers Inc. v. Brooks (1978), 436 U.S. 149, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (private party's enforcement of warehouseman's lien pursuant to provisions of Uniform Commercial Code); Winterland Concessions Co. v. Trela (7th Cir. 1984), 735 F.2d 257 (mere use of courts, without more, does not constitute state action); Executive ...