United States District Court, N.D. Illinois
March 15, 2004.
Gregory and Margaret Weizeorick,
ABN AMRO Mortgage Group, Inc.
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Gregory and Margoret Weizeorick move this Court to
reinstate three state law claims. Defendant ABN opposes the
Weizeoricks' motion, claiming that the state law claims are now
barred by res judicata. For the reasons described below,
the Court denies the Plaintiffs' motion.
I. Procedural History
The Weizeroicks sued ABN in February 2001, alleging that ABN has
violated the Real Estate Settlement Procedures Act (RESPA) by
splitting fees with a third party. The Weizeoricks also included three
state law claims in their complaint against ABN: 1) breach of contract;
2) restitution; and 3) a violation of the Illinois Consumer Fraud Act
(ICFA). The Court dismissed the RESPA claim with prejudice in November
2001 and dismissed without prejudice the Weizeoricks' state law claims,
pursuant to 28 U.S.C. § 1367(c), in June 2002. The Weizeroicks
then appealed to the United States Court of Appeals for the Seventh
Circuit. But on the same day they filed their appeal with the Seventh
Circuit, the Weizeoricks re-filed their state law claims in the Circuit
Court of Cook County. A few weeks later, the Weizeoricks moved to amend
their notice of appeal and withdrew the appeal of this Court's Order
dismissing their state law claims and limited the appeal to the Court's
dismissal of their RESPA claim.
While the appeal of their RESPA claim was pending, the state court
dismissed with prejudice the Weizeoricks' claims for breach of contract
and restitution, on the grounds that those claims were moot. The state
court did not, however, dismiss the Weizeoricks' claim that ABN violated
the ICFA, In July 2003, the Seventh Circuit reversed this Court's order
dismissing the Weizeoricks' RESPA claim. The Weizeoricks now move to
reinstate their state law claims.
ABN contends that the doctrine of res judicata bars this Court
from reinstating the Weizeoricks' claims for breach of contract and
restitution because the state court has dismissed those claims with
prejudice. In order for res judicata to apply, there must be,
among other things, a "final adjudication on the merits." SDS
Partners Inc. v. Cramer, 713 N.E.2d 239, 241 (Ill.App. Ct. 1999).
"A judgment is deemed final, for purposes of res judicata, if it
terminates litigation on the merits so that the only issue remaining is
proceeding with its execution." Id. (citing In re Marriage
of Verdung, 535 N.E.2d 818, 823 (Ill. 1989)). ABN contends that
even though the Weizoericks' ICFA claim is still pending in the state
court that the state court's decision to dismiss the breach of contract
and restitution claims is nonetheless a "final judgment." In support, ABN
points to McDonald's Corp. v. Levine, 439 N.E.2d 475, 487 (Ill.
App. Ct. 1982), which suggests that interlocutory orders can be "final
judgments" for purposes of res judicata. But Levine
contains no explanation of this position and does not appear to
accurately state Illinois law. Under Illinois law, an interlocutory order
is not a final judgment for purposes of res judicata. See, e.g., Rein
v. David A. Noyes & Co., 665 N.E.2d 1199 (Ill. 1996); Estate
of Cooper v. Humana Health Plan, Inc., 789 N.E.2d 361, 365-66 (Ill.
App. Ct. 2003). Illinois, unlike a majority of jurisdictions, reasons
that a judgment is not final for res judicata purposes because
the losing party may still file a motion to reconsider or an appeal.
See, e.g., Robertson v. Winnebago County Forest Preserve Dist.,
703 N.E.2d 606, 612 (Ill.App. Ct. 1998); Pelon v. Wall,
634 N.E.2d 385, 388 (Ill.App. Ct. 1994); Luckettv. Human Rights
Commission, 569 N.E.2d 6, 10 (Ill.App. Ct. 1989); but see
Restatement (Second) of Judgments $13 cmt. b (1982) ("when res judicata
is in question a judgment will ordinarily be considered final in respect
to a claim . . . if it is not tentative, provisional, or contingent
and represents the completion of all steps in the adjudication of the
claim by the court, short of any steps by way of execution or
enforcement"). Thus, ABN's claim that the Weizeoricks' breach of contract
and restitution claims are barred by res judicata is without
ABN also argues that the Weizeoricks' claims are moot. According to ABN
it reimbursed the Weizeoricks' the $10 fee that is the center of this
dispute and forms the basis for the Weizeoricks' state law claims. The
Weizeoricks cry foul, as well they should. The Weizeoricks filed this
suit as a class action and filed a motion for class certification 11 days
after filing suit. The Court asked the Weizeoricks to withdraw that
motion without prejudice while the Court considered ABN's motion to
dismiss. The Weizeoricks voiced the concern that if they withdrew the
motion, ABN would attempt to "pick off the named plaintiff and destroy
the class" by making an offer of judgment. The Court thus ruled in April
2001 that ABN was barred from making such an offer. Despite the ruling,
ABN decided to mail the Weizeoricks a check for the
disputed $10 fee. Indeed, ABN later argued in its motion to dismiss that
its tender of the $10 mooted the Weizoricks' breach of contract claim.
The Court rejected this argument, informing ABN that it would hold the
Defendant to "both the letter and the spirit of its order and the law."
(Nov. 16, 2001 Order). Defendant managed to convince the state court that
its tender of the $10 did not violate the spirit of this Court's order
and now seeks to convince this Court of the same, arguing yet again that
the Weizoricks' state law claims have been mooted. The Court is not so
convinced. Instead, the fact that Defendant so blatantly violated the
spirit of the Court's April 2001 Order and the November 2001 Order, in
which the Court clarified its position regarding the mootness of
Plaintiffs' claims, is pause for concern. The Defendant's argument that
the Weizeoricks' state law claims are moot is also without merit.
But the mere fact that ABN's arguments regarding res indicate
and mootness are without merit does not necessarily mean that the
Weizeoricks' claims should be reinstated. When this Court dismissed the
Weizeoricks' claims they opted to appeal, as was their right. But during
the appellate process, the Weizeoricks made a strategic decision to
withdraw the appeal of their state law claims so that they could pursue
them in state court. The Weizeoricks suggest that ABN forced it down this
road and that they "only refiled their state law claims in the state
court after ABN insisted that [they] do so in its request that this Court
dismiss the state law claims." But the mere fact that this Court lacked
jurisdiction to hear the Weizeoricks' state law claims and therefore
dismissed them did not obligate the Weizeoricks to refile those claims in
state court. Nor could any insistence from ABN cause the Weizeoricks to
take such action. The Weizeoricks were free to appeal the Court's
dismissal of their state law claims along with the dismissal of their
RESPA claim. They chose not to and instead split their claim. Now the
state law claims are
pending in state court, while the RESPA claim is pending here. The
Weizeoricks ask the Court to undo their decision and rejoin their split
However, claim splitting is not favored because it multiplies the costs
of litigation on an opponents adversaries and the judicial system.
See Davis v. Chicago, 53 F.3d 801 (7th Cir. 1995). The
Weizeoricks argue that they are not the ones seeking to split the claim
because they desire the state law claims to be reinstated while ABN
opposes such a move. But the Weizeoricks ignore the fact that they are
the party who created the state court action. As noted earlier, had they
believed that they would prevail on their appeal of the RESPA claim, they
could also have appealed the dismissal of the state law claims. If the
Court were to reinstate the Weizeoricks1 claims now, it would create a
situation in which two courts were addressing the same claims. This is a
waste of judicial resources, particularly since the state court has ruled
on two of the three claims. Indeed, if the Weizeoricks' claims were
reinstated, ABN would have a colorable argument under Colorado River
Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236,
47 L.Ed.2d 483 (1976), for abstention.
In short, the Weizeoricks attempt to have their cake and eat it too.
They chose to pursue their state law claims in state court instead of
waiting until their appeal was resolved (or perhaps instead of risking
that the appellate court would rule against them). Now that the Seventh
Circuit has returned a decision in their favor they wish to change the
for a in which they litigate the state law claims. The Court will not
allow them to transfer their claims between for a depending on which way
the winds happen to blow that is forum shopping at its worst. The
Weizeoricks made their decision to pursue the state law claims in state
court, and now they must live with it.
The motion to reinstate is therefore DENIED. IT IS SO ORDERED.
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