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Thomas v. Fuerst

January 16, 2004

AARON THOMAS, PLAINTIFF-APPELLANT,
v.
SHMUEL FUERST, YOSEF WAINKRANTZ, CHAIM GOLDZWEIG, AND DANNY SHABAT, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 01 L 013593. Honorable Lynn M. Egan, Judge Presiding.

The opinion of the court was delivered by: Justice O'brien

Plaintiff, Aaron Thomas, a member of an orthodox Jewish community, filed a second amended complaint against defendants Rabbi Shmuel Fuerst, Rabbi Yosef Wainkrantz, Rabbi Chaim Goldzweig (collectively referred to as the Rabbinic Court), and Danny Shabat, claiming the Rabbinic Court had excommunicated plaintiff from the Jewish community in order to punish him for initiating a civil action against Shabat. Plaintiff alleged, by excommunicating him, the Rabbinic Court committed libel, violated his right to due process, intentionally inflicted emotional distress, and engaged in a conspiracy with Shabat. The circuit court dismissed plaintiff's second amended complaint pursuant to section 2-619.1 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2 - 619.1 (West 2000). Plaintiff appeals, claiming the circuit court erred in dismissing his second amended complaint, as each count in the complaint states a cause of action. We affirm.

In his second amended complaint, plaintiff pleaded that he lives "in a strict orthodox Jewish community and culture wherein observance of Jewish law is universal, and wherein such observance is a prerequisite for normal societal relations and normal economic activity." The Rabbinic Court, also referred to as a Beit Din, is responsible for administering proper law and order within the orthodox Jewish community.

Plaintiff pleaded that from 1998-2001, he prosecuted a civil complaint in the Cook County circuit court against Shabat and his wife for their "sexual exploitation" of plaintiff's minor son. During February 2001, Shabat asked Rabbi Fuerst to use his position as head of the Rabbinic Court to "neutralize" plaintiff's lawsuit against the Shabats. Plaintiff pleaded that in February, May, and July 2001, he received three summons to appear before the Rabbinic Court to "justify" his civil lawsuit against the Shabats. Each time, plaintiff agreed to appear before the Rabbinic Court, however, no hearing date was set.

Plaintiff pleaded that on October 30, 2001, Rabbi Fuerst telephoned him and demanded he immediately drop his civil lawsuit against the Shabats. Plaintiff refused and stated he was willing to appear before the Rabbinic Court to justify his lawsuit against the Shabats.

Plaintiff pleaded that on December 4, 2001, the Shabats' attorney contacted plaintiff regarding the settling of his case. Plaintiff refused to settle. Later that same day, plaintiff was served with a notice of excommunication, entitled a "Writ of Defiance" (the Writ) typed on Rabbi Fuerst's official stationary and composed in Hebrew. Translated into English, the Writ states:

"To our great sorrow we are enjoined to fulfill our duty under Torah law and publicly proclaim our anguish, that there now is a man by the name of [plaintiff], on whom we have served three summonses, and to whom we have also telecommunicated, to appear before the Rabbinic Court regarding the complaint of Mr. and Mrs. Daniel Shabat (they should be blessed with longevity); and he has defiantly refused to appear before the Rabbinic Court; and not only this but he has additionally sinned in laying claim to them in the gentile civil court, Heaven forfend, and even after being warned, he remains defiant and maintains his suit in civil court.

Therefore, it is our duty to uphold our holy law and proclaim in the most public fashion that [plaintiff] is a defiant scofflaw; both for his defiant refusal to appear before the Rabbinic Court, and for his resorting to the gentile civil court, proscription for which is found in Chosen Mishpat, Sections 11 and 26, and in Yoreh Deah, Section 334. And the severity for which is explicit in Chosen Mishpat, Section 26, that whoever resorts to the gentile civil courts is a blasphemous infidel who strikes out against Mosaic Law, and he deserves to be shunned and excommunicated.

And therefore we proclaim it befitting that all good Jews distant this man from their homes, and likewise do not let him participate as part of the worship quorum, or any religious activity until he fully repents. And we have also informed [plaintiff] that he must reimburse the Shabat family (they should be blessed with longevity) for all monies they have paid to their attorneys as a result of his civil court claim against them, as elucidated in the codes."

The Writ was signed by Rabbis Fuerst, Wainkrantz, and Goldzweig and "circulated and published *** to influential Rabbinic leaders and family members in the U.S.A. and Israel." The Writ forced plaintiff to abandon his profession (designing customized sunrooms for members of the Orthodox Jewish community), and seek employment in his father's law office as a secretary.

Plaintiff pleaded that by excommunicating him via the Writ of Defiance, the Rabbinic Court committed libel, violated his right to due process, intentionally inflicted emotional distress, and engaged in a conspiracy with Shabat. Defendants brought a combined motion to dismiss, relying on sections 2-615 and 2-619 of the Code. See 735 ILCS 5/2-619.1 (West 2000). Pursuant to section 2-615, defendants argued that plaintiff's second amended complaint failed to state a cause of action. Pursuant to section 2-619, defendants argued the trial court lacked subject matter jurisdiction under the first and fourteenth amendments to the United States Constitution. The circuit court granted the motion to dismiss. Plaintiff filed this timely appeal.

A motion to dismiss under section 2-615 of the Code tests the legal sufficiency of a pleading. Universal Scrap Metals, Inc. v. J. Sandman & Sons, Inc., 337 Ill. App. 3d 501, 504 (2003). The court accepts as true all well-pleaded facts and the inferences that can reasonably be drawn from those facts. Universal Scrap Metals, 337 Ill. App. 3d at 504. The issue is whether, when viewed in the light most favorable to plaintiff, the allegations are sufficient to state a cause upon which relief can be granted. Universal Scrap Metals, 337 Ill. App. 3d at 504.

A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and raises defects, defenses, or other matters that act to defeat the claim. Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70 (2002). When ruling on a section 2-619 motion, the trial court may consider the pleadings, depositions, and affidavits. Krilich, 334 Ill. App. 3d at 570. The issue on appeal is whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether the dismissal is proper as a matter of law. Krilich, 334 Ill. App. 3d at 570. We review de novo the trial court's decision to grant a section 2-619.1 combined motion to dismiss. Lawson v. City of Chicago, 278 Ill. App. 3d 628, 634 (1996).

First, plaintiff argues the trial court erred by dismissing his libel claims. Although the common law originally distinguished between spoken and written defamation (slander and libel, respectively), in Illinois the same standard applies whether an allegedly defamatory statement is spoken or written. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 89, (1996). To establish either slander or libel, plaintiff must show that: (1) defendant made a false statement concerning plaintiff; (2) there was an unprivileged publication of the ...


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