Both Chinn and the Crabhouse moved to dismiss the Illinois tort claims of assault and battery and intentional infliction of emotional distress pursuant to the exclusive remedy provision of the Illinois Human Rights Act (the "Act"). 775 ILCS 8-111(C). After extensive analysis, the Court denied the Motion, holding that Section 8-111(C) does not bar the state claims for intentional infliction of emotional distress, assault, and battery. (Mem. Op. & Ord. of Aug. 14, 1996 at 3-12). In so holding, the Court declined to follow several decisions by judges of the Northern District of Illinois, including two in which Chinn and the Crabhouse prevailed on that issue. Grassmuck v. Chinn Enter., 1996 U.S. Dist. LEXIS 9876, 1996 WL 400046 (N.D. Ill. July 15, 1996) (Holderman, J.) & Cosek v. Chinn Enter., 1996 U.S. Dist. LEXIS 9223, 1996 WL 377056 (N.D. Ill. July 1, 1996) (Grady, J.).
Additionally, Chinn moved to dismiss the Title VII claims brought in Counts I and II against him as the alter ego of his co-defendant corporation, arguing that he cannot be liable under 42 U.S.C. § 2000e as an individual pursuant to Williams v. Banning, 72 F.3d 552 (7th Cir. 1995) and EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1280 n.2 (7th Cir. 1995). The Court denied the Motion, finding that Chinn was collaterally estopped from relitigating that issue, having litigated and lost the issue in Curcio v. Chinn Enterprises, 887 F. Supp. 190 (N.D. Ill. 1995).
See Gilldorn Sav. Ass'n v. Commerce Sav. Ass'n, 804 F.2d 390 (7th Cir. 1986) (reversing district court's failure to give denial of motion to dismiss preclusive effect). In so holding, the Court followed Grassmuck v. Chinn Enter., 1996 U.S. Dist. LEXIS 9876, No. 95 C 3729, 1996 WL 400046, at *2-3 (N.D. Ill. July 15, 1996) and Cosek v. Chinn Enter., 1996 U.S. Dist. LEXIS 9223, No. 94 C 6660, 1996 WL 377056, at *1-2 (N.D. Ill. July 1, 1996), 1995 U.S. Dist. LEXIS 17509, 1995 WL 699723, at *1 (N.D. Ill. Nov. 24, 1995), the same cases in which Chinn and the Crabhouse prevailed on the Illinois Human Rights Act issue.
Defendants initially argued in their Motion for Reconsideration that, because the Grassmuck court, which gave preclusive effect to Curcio, dismissed the Illinois tort claims, "if collateral estoppel precludes this Court from reconsidering the individual liability issue, it also precludes this Court from reconsidering whether the Illinois Human Rights Act precludes Compton's state law court claims."
Of course, as Plaintiff correctly submits, Defendants' argument is meritless: "It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 649 n.7, 58 L. Ed. 2d 552 (1979). In reply, Defendants wisely retract their erroneous argument and state "in moving this Court for reconsideration, Defendants merely wish to point out the unfairness of applying collateral estoppel in the instant case." Specifically, Defendants argue that the Court's application of collateral estoppel is unfair because
rather than join that action and cast her lot with the Curcio plaintiffs, Plaintiff filed a separate action (as she was certainly entitled to do) and now selectively invokes the doctrine of collateral estoppel to preclude Defendants from relitigating certain issues (while ignoring those not helpful to her case). In effect, Plaintiff argues Defendants are bound by the Curcio decision as to the individual liability of Defendant Chinn but Plaintiff is not bound by any decision favorable to Defendants. This is precisely the type of unfair use of collateral estoppel that the Supreme Court cautioned against in Parklane Hosiery. See 439 U.S. at 329-33.
(Reply at 2).
Defendants' new argument widely misses the mark as well. First, the Court previously entertained, and rejected, Defendants' argument as to Plaintiff's failure to join the first action, finding that she is not a wait-and-see plaintiff, because her claim rests upon independent facts. (Mem. Op. & Ord. of Aug. 14, 1996 at 14). Thus, the argument is not cognizable here. Second, the "selective invocation" argument appears to resurrect the initial argument rejected above and, in so doing, further demonstrates a fundamental misapprehension of the doctrine of collateral estoppel.
As explained above, the Curcio court's dismissal of the state claims does not collaterally estop Plaintiff, as she has never previously litigated that issue. Regardless, collateral estoppel results in issue preclusion. Accordingly, the resolution of other issues is completely irrelevant to the propriety of estopping relitigation of the issue in question.
Finally, the Court is mystified by Defendants' characterization of Chinn being bound on the Title VII issue and Compton not being bound on the other issues as "precisely the type of unfair use of collateral estoppel that the Supreme Court cautioned against in Parklane Hosiery," with a citation to five pages of that decision. None of the Supreme Court's examples of unfair estoppel involved such a situation. Perhaps Defendants' argument derives from its misapprehension of the scope of collateral estoppel, namely, to an issue that was actually litigated by the party against whom it is applied. Specifically, the Court gave three examples where offensive use of collateral estoppel may be unfair: if (1) the defendant had little incentive to vigorously defend the first suit; (2) "the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant"; and (3) procedural opportunities in the second action were unavailable in the first and "could readily cause a different result." 99 S. Ct. at 651. Although Defendants have not specified which example is "precisely the type here," the Court presumes that they invoke the second, as the first and third are facially inapposite here. However, the second is also inapposite, as the Curcio court's denial of Chinn's Motion to Dismiss the Title VII claim, upon which the Court relied as a basis for the estoppel, has not been shown to be inconsistent with one or more previous judgments in favor of Defendants. In other words, it is not akin to
Professor Currie's familiar example, [in which] a railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26. Professor Currie argues that offensive use of collateral estoppel should not be applied so as to allow plaintiffs 27 through 50 automatically to recover.
Id. at 651 n.14. Professor Currie's example is also inapposite to the extent Defendants rely upon it in support of the proposed finding that offensive use of collateral estoppel in this case would "not promote judicial economy in the same manner as defensive use does," a finding that would counsel against collateral estoppel. Id. at 650. As the Court previously explained, unlike the railroad-collision plaintiffs, Compton's claims arise from independent facts.
For the reasons given, the Court DENIES Defendants' Motion for Reconsideration.
JOHN A. NORDBERG
United States District Judge
DATED: Feb. 13, 1997