Finally, Hofmann may not institute criminal charges against Williams or
anyone else; even if there was a criminal violation involved in
interfering with a federal contract (which she has not successfully
alleged Williams has perpetrated anyway), criminal charges may be
instituted only by the government, not a private party. See Jones v.
Clinton, 206 F.3d 811, 812 (8th Cir. 2000) (criminal contempt context).
Neither can Hofmann charge Williams with retaliating against her under
Title VII or any statute that covers employers, since she does not allege
that he was her employer, nor under any civil rights statute that
requires state action, since she does not allege that he was a government
official or acting in concert with one.
As mentioned, Hofmann not only sues her lawyer in the previous case,
she sues the defendants' lawyers in that case, Valerie Hofmann, Deborah
Kop, and their law firm, Seyfarth, Shaw, Fairweather & Geraldson
("Seyfarth"). Insofar as Hofmann's allegations against these defendants
are not barred by claim and issue preclusion as explained above, Hofmann
fails to state a claim. First, Hofmann may not sue her former employer's
lawyers under the employment discrimination law; they were not her
Second, Hofmann's civil rights claims under 42 U.S.C. § 1983
against (URA, various attorney defendants, and all other private parties
are dismissed for failure to state a claim because such lawsuits cannot
be maintained against non-state actors, and she does not allege that the
named attorneys or Seyfarth were state actors, or were acting in concert
with state actors. Hoffman's claim under § 1985(2) is dismissed for
failure to state a claim because the pleadings show on their face that
any bar that may have existed. to Hofmann testifying or appearing in
federal court in this matter was due to the order of the district court
enforcing a settlement; that based on § 1985(3) is dismissed, among
other reasons, because she cannot show any legal harm. The defendants'
attorneys are entitled to defend their clients by lawful means, to her
detriment, and regardless of their motivations, whether or not these are
based on animus against plaintiffs' membership in a protected category.
In any event, Hofmann settled with the defendants, and so has no harm for
which she could recover against them or their attorneys. Her claim under
42 U.S.C. § 1986, which on the face of the statute depends on being
able to state a claim under § 1985, is likewise dismissed.
Third, Hofmann's vague assertions of fraud on the part of the Seyfarth
attorneys fail because she does not plead the circumstances constituting
the fraud with specificity, as required by Fed.R.Civ.P. 9(b), and her
claims against Seyfarth and its attorneys for allegedly false and
defamatory statements made in the course of their representation of
parties are barred by the absolute privilege accorded to statements made
in a judicial proceeding that are relevant even if otherwise defamatory.
Defend v. Lascelles, 500 N.E.2d 712, 718 (Ill.App. Ct. 1982).
Finally, the Seyfarth attorneys had no duty to Hofmann whatsoever to
make any provision for her interests with respect to Medicare in the
settlement negotiations; indeed, as the legal representatives of her
employer, which she was suing, they had a duty to zealously represent a
party whose interests were antagonistic to hers. If (which does not appear
to be the case here), they thought it was in the interests of their
client to act in a way that failed to protect or even resulted in harm to
Hofmann's prospects for Medicare recovery, and it was not otherwise
unlawful to do so, it would not violate their legal duties to so
Likewise, the Seyfarth attorneys had no duty to Medicare, which they did
not represent, and if they had had a duty to Medicare, and breached it,
Hofmann would have no standing to sue on its behalf.
Hofmann sues various federal agencies — the Department of Health
and Human Services, the Social Security Administration, and the
Department of Defense — apparently to prevent Medicare from seeking
repayment from her settlement for monies it expended on her behalf.
Compl. at 80. As indicated by the letter from Medicare to plaintiff of
August 25, 2000, attached to Compl., Tab F, Medicare has not yet sought
repayment, nor is there any evidence that it is likely to do so at any
time in the foreseeable future. The letter only informs her that she is
legally obligated to pay Medicare back for medical benefits expended on
her behalf if she has other coverage. There is no indication that this
has any bearing on her settlement agreement, which was not a settlement
for a personal injury claim for physical injury, but for an employment
discrimination claim. Moreover, the letter is not a demand for payment.
The claim against Medicare is dismissed as unripe; no actual or imminent
harm is alleged.
Hofmann also sues Champus as part of the Department of Defense,
apparently on the grounds that it failed to cover some of her medical
expenses. This is also precluded. Hofmann has already sued on this
matter, see Hofmann v. Hammack, 82 F. Supp.2d 898 (N.D. Ill. 2000)
(Bucklo, J.); I dismissed that action for failure to exhaust
administrative remedies, and there is no indication that the defect was
Hofmann has no claim against individual employees or contractors of the
federal government in either their official or personal capacities,
including Marion Nealon, Joanne Travolieri, or Linda Shovein. The United
States's characterization of Hofmann's naming these individuals as
"misguided harassment" is wholly justified. Her other allegations against
all defendants are dismissed for the reasons explained, and in the
alternative, for failure to set forth adequate notice of the basis of the
Hofmann's employment discrimination and related claims against URA are
DISMISSED with prejudice, as are her claims against H. Evan Williams, and
his law firm, O'Hagen, Smith & Amundsen, for his conduct in that case,
and her claims against Valerie Hofmann, Deborah Kop, and their law firm,
Seyfarth, Shaw, Fairweather & Geraldson, for their conduct in that case,
and also Hofmann's claim against Champus and the Department of Defense.
All claims against Marion Nealon, Joanne Travolieri, or Linda Shovein are
DISMISSED with prejudice. Hofmann's claim against Medicare is DISMISSED
for lack of subject matter jurisdiction. The various motions to strike
DENIED as moot.
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