The opinion of the court was delivered by: MARK FILIP, District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Joseph Slovinec, Jr. ("Slovinec" or "Plaintiff)
brought a complaint against the Illinois Department of Human Services
("IDHS"), the Illinois Labor Relations Board ("ILRB"), and Illinois
Skills Match ("ISM") a program of the Illinois Department of Employment
Security ("IDES") (collectively, "Defendants"). Slovinec's pro se
pleadings are often difficult to follow. Reading them generously, it
appears that he alleges or may be alleging the following claims (1)
reverse race discrimination (presumably under Title VII); (2) violations
of the Fourteenth Amendment of the U.S. Constitution (although his
filings are often vague on this issue); (3) violation of Illinois's
Whistleblower Protection Act; (4) defamation; and (5) that the ISM
program of the IDES failed to provide him with sufficient employment
leads, such that it showed a lack of good faith by the IDES in helping
him get a job. Defendants move pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief
may be granted. For the reasons set forth below, the motion is granted
and Slovinec's complaint is dismissed without prejudice. Despite the
Defendants' request that this case be dismissed with prejudice, Plaintiff
will be given one final opportunity to amend his claims.*fn1
Before the Court considers Defendants' motion to dismiss, the Court
will first briefly recount the procedural history of the case. In
addition, the Court responds to several of Slovinec's recent filings that
appear to be minimally related to Defendants' motion to dismiss and
resolves a number of other pending motions that logically should be
resolved before the motion to dismiss.
Slovinec filed his eight-page complaint, along with some forty pages of
miscellaneous attachments, on June 7, 2002. (D.E. 1.) In his complaint
and attachments, Slovinec alleges often in scatter-shot fashion a
variety of wrongdoing on the part of Defendants. He also accuses certain
government officials of ethical and other violations. While it is
challenging to sort out Slovinec's precise legal claims, they appear to
boil down to allegations that: (1) the IDHS subjected him to reverse race
discrimination, presumably in violation of Title VII; (2) the IDHS and
ILRB violated his rights under the Fourteenth Amendment; (3) the IDHS and
ILRB defamed him; (4) the ILRB wrongly disposed of his labor complaint,
in contravention of the Illinois Public Labor Relations Act (D.E. at 10,
16 ("Activity Which Was Inconsistent With Fair Bargaining in the Illinois Public Labor Relations Act"); and (5)
that Plaintiff failed to receive sufficiently attractive employment
opportunities through the IDES's ISM program. It is also somewhat unclear
what Slovinec seeks in the way of damages, but the dozen-plus requests
for default judgment that he has filed (five of which were denied in 2002
by Judge Norgle) make clear that he seeks at least $128,000.
Following the filing of Slovinec's complaint, the parties spent the
next fifteen months litigating whether Slovinec had properly effected
service of process on Defendants. On October 7, 2003, Judge Norgle
referred Slovinec's case to Magistrate Judge Nolan to conduct an
evidentiary hearing on the service of process issue. (D.E. 72.) On
November 3, 2003, prior to the evidentiary hearing, the Illinois
Assistant Attorney General representing Defendants indicated that
Defendants would accept Plaintiff's service of process. (D.E. 81.)
Defendants then filed the pending motion to dismiss on December 5, 2003.
(D.E. 97.) Slovinec filed his response on December 29, 2003 (D.E. 106),
and Defendants filed their reply on January 12, 2004. (D.E. 109.) The
Executive Committee reassigned the case to this Court on March 3, 2004.
The Court notes that, in addition to many filings relating to
Slovinec's complaint and the service of process dispute, Slovinec has
filed a number of unsolicited documents and requests that appear to have
questionable relevance to his case.*fn2 Slovinec has submitted four such
filings in the weeks since the case was reassigned to this Court. They are
discussed, as relevant, in the treatment of the other issues pending
before the Court.
II. Threshold Motions and Requests of Mr. Slovinec
Mr. Slovinec makes a number of threshold requests and motions which
logically should be addressed before moving to the Defendants' motion to
dismiss. Plaintiffs various requests are discussed immediately below.
A. Plaintiff's Requests to Limit Public Access to Court Filings
Slovinec makes two requests to limit public access to the court record
in this case. First, Slovinec recently filed a "Request to Court to Not
List Materials on Public Internet Without My Permission: Caution." (D.E.
134.) In this filing, Plaintiff requests "that the U.S. District Court
not list materials on the website under my name (Slovinec, Joseph)
without my prior permission." (Id. at 1.) Slovinec explains that he,
"Plaintiff[,] is not particularly friendly and somewhat begrudging about
toleration of evidence concerning an ILRB decision concerning him that he
believes is improper and incorrect. (Id.) Slovinec also contends that
publication of the ILRB order and decision (the apparent basis for his
defamation count against the ILRB) would perpetuate the harm of the
alleged defamation, create "devastating publicity to my job search," and
"cause me to increase damage awards by tens of thousands to hundreds of
thousands of dollars," (Id.) Second, in October 2003, Slovinec appears (this request is much less
clear) to have sought a protective order so as to seal certain
"designated pages of Illinois Labor Relations Board Records" (D.E. 82 at
1) that relate to his claims. This October 2003 motion seems to be
subsumed in his more current filing concerning public access to the case
file. (D.E. 134.)
The Court respectfully declines Slovinec's request to seal portions of
the court file in this case. The Seventh Circuit has repeatedly
emphasized that the litigation process, and the materials that are filed
as part of it, are strongly presumed to be public affairs. For example,
Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000),
taught that when litigants
call on the courts, they must accept the openness that
goes with subsidized dispute resolution by public (and
publicly accountable) officials. Judicial proceedings
are public rather than private property, U.S.
Bancorp. Mortgage Co. v. Bonner Mall Partnership,
513 U.S. 18, 27-29 (1994); In re Memorial Hospital of
Iowa County, Inc., 862 F.2d 1299, 1302-03 (7th Cir.
1988), and the third-party effects that justify the
subsidy of the judicial system also justify making
records and decisions as open as possible. [. . . .]
Judges deliberate in private but issue public
decisions after public arguments based on public
records.
Union Oil Co. of Cal., 220 F.3d at 568. Slovinec may believe that the
ILRB's opinion and/or records do not accurately reflect the truth
concerning his former employment situation with the State. But that
belief is no different from many litigants' view that the evidence
against them is ill-founded, or perjurious, or otherwise defective. In
this regard, many criminal defendants, for example, contend that they are
being framed or are being accused by perjurers, and the tradition of
public access to criminal proceedings in which the outcome of the
litigation typically involves far greater consequences than a civil
proceeding is well established. The tradition of public access to
judicial proceedings would mean very little if Slovinec's belief that the
ILRB opinion is erroneous was sufficient to warrant sealing court files
and proceedings. See generally id. (teaching that "[m]ost portions of discovery that are filed and form
the basis of judicial action must eventually be released and it would
go without saying that the judge's opinions and orders belong in the
public domain") (citing Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36-37
(1984)); accord, e.g., Citizens First Nat'l Bank of Princeton v.
Cincinnati Ins. Co.,
178 F.3d 943, 946 (7th Cir. 1999). Slovinec has not
discharged his burden of showing that there is good cause within the
meaning of the Federal Rules of Civil Procedure to preclude access to the
materials he seeks to keep from public view.
B. Plaintiff's Suggestion That The Court Should
Commission A Legal Opinion from the Inspector
General for the Office of the Governor of the State
of Illinois Concerning Enforcement Authority Within
Illinois State Government
Slovinec recently filed a copy of "Plaintiff's Letter to U.S. Attorney
John Ashcroft of March 18, 2004." (D.E. 127.) Reading this letter
generously to Plaintiff, it appears that Plaintiff asks the Court to
"commission a legal opinion from Inspector General Z. Scott," the
Inspector General for the Office of the Governor of the State of
Illinois, concerning "who was responsible for investigating misconduct on
boards and commissions appointed by the Governor between July 31, 2002
and April 2003 when she [Ms. Scott] started her term." (Id. at 3.)
Slovinec appears to believe such a step is warranted because "[t]he
offices of Attorney Generals [sic] James Ryan and Lisa Madigan have
continuously refused to cooperate with any of my requests for
investigations. . . ." (Id.) Although it is difficult to determine
exactly why Slovinec believes investigations are appropriate, it appears
that he believes they would produce evidence in support of his claims and
otherwise are needed to address criminal and other misconduct.
The Court respectfully declines Slovinec's request. The elected and
appointed officials of the State of Illinois are responsible for
exercising and stewarding the investigatory authority of the State. Slovinec has offered no basis for this Court to interfere in
their exercise of their authority or to otherwise attempt to second-guess
their exercise of prosecutorial or investigative discretion. Slovinec
will need to prove his case, if he can state a viable claim, though the
ordinary mechanisms available under the Federal Rules of Civil
Procedure.
C. Plaintiff's Request for Default Judgment and Related Rule 60(b)
Filings
A review of the docket sheet indicates that Plaintiff appears to have
filed some twelve requests for default judgment against Defendants. For
example, on five occasions in 2002, Plaintiff filed various documents
which sought default judgments against the Defendants. (D.E. 8, D.E. 12,
D.E. 14-16, D.E. 18, D.E. 29.) By minute order of December 4, 2002, Judge
Norgle denied Slovinec's requests for an order of default against the
Defendants because "Plaintiff has failed to show that each defendant was
properly and timely served" under the Federal Rules of Civil Procedure.
(D.E. 25.)
The parties then appear to have engaged in a lengthy and contentious
battle concerning whether the Defendants had been properly served. This
issue was slated to be the subject of an evidentiary hearing before
Magistrate Judge Nolan on November 6, 2003 (D.E. 81); however, on
November 3, 2003, Illinois Assistant Attorney General Debbie Allen,
counsel for the Defendants, informed Judge Nolan that she would accept
service of process. (Id.) On November 6, 2003, Judge Nolan recommended to
Judge Norgle that the service issue was moot, that accordingly there was
no need for the planned evidentiary hearing to take place, and Judge
Nolan also set a schedule for the parties to proceed forward into
addressing the merits of the case. (D.E. 84.) On November 10, 2003, Judge
Norgle agreed that the service issue was moot, and he additionally denied
Plaintiff's motion for sanctions. (D.E. 85.) Shortly thereafter, on November 13, 2003, Plaintiff again began to file
documents that appear to have resumed his efforts for a default
judgment. In essence (again, it is often difficult to discern the exact
basis for Plaintiff's arguments), Plaintiff appears to believe that
because the State's service-of-process objection was, in his view,
unfounded, he is now entitled to a default judgment against the
Defendants who agreed eventually to accept service through their
attorney and to litigate the merits of the case without further delay.
Plaintiff has, in this regard, filed numerous motions and other documents
that purport to invoke Fed.R.Civ.P. 60(b). Plaintiff filed these
documents on November 13, 2003 (D.E. 93), November 24, 2003 (D.E. 92),
December 4, 2003 (D.E. 100), December 8, 2003 (D.E. 98), December 17,
2003 (D.E. 107), December 29, 2003 (D.E. 119), and February 13, 2004
(D.E. 117). All of the filings appear to seek default relief against the
Defendants, typically demanding $128,000. (E.g., D.E. 92 at 4; D.E. 199
at 1.) Defendants responded to most of these filings on January 29,
2004. (D.E. 112.)
Plaintiff's requests for a default judgment of $128,000 against the
various defendant agencies of the State of Illinois are respectfully
denied. Judge Norgle previously denied five of Plaintiff's requests for
default relief in December 2002, and Plaintiff has advanced no good
reason to revisit Judge Norgle's exercise of discretion on that issue.
See generally Silva v. City of Madison, 69 F.3d 1368, 1377 (7th Cir.
1995) ("As this court has long held, `[t]he decision to enter default
lies within the district court's discretion,'") (quoting O'Brien v. R.J.
O'Brien & Assocs., Inc., 998 F.2d 1394, 1398 (7th Cir. 1993)). In this
regard, the Seventh Circuit has instructed that "[d]efault judgments are
not favored, especially in hotly contested cases," Isby v. Clark,
100 F.3d 502, 504 (7th Cir. 1996), and the issue of whether Defendants
ever were properly served certainly was hotly contested. Defendants
should not be punished for agreeing to accept service so as to begin litigation on the merits with a default
judgment effectively finding that the Defendants lose on the merits.
Defaults are often vacated to promote litigation on the merits, and
Plaintiff has advanced no legitimate basis to deviate from that policy so
as to enter a default now while the merits litigation is in full swing.
See generally Chrysler Credit Corp. v. Macino, 710 F.2d 363, 367 (7th
Cir. 1983) (discussing ability of a trial court to vacate a default
judgment, even if one has been entered).
A default judgment would be substantively inappropriate in this case
under the facts presented, but also it bears mention that Rule 60(b)
appears to be an inappropriate procedural vehicle, so Plaintiff's more
recent requests are likewise procedurally defective. The Seventh Circuit
has instructed that a Rule 60(b) motion "`applies only to a `final
judgment, order, or proceeding. . . .' It is a method of reopening a
closed case." Kapco. Mfg. Co., Inc. v. C & O Enters., Inc., 773 F.2d 151,
154 (7th Cir. 1995) (quoting Rule 60(b) and citing, inter alia, 7 J,
Moore & J. Lucas, Moore's Federal Practice ¶ 60.20 (1983)). Here, the
case is open and is in the middle of litigation on the merits of the
allegations that form the basis for Plaintiff's demand for $128,000.
Plaintiff's requests for a default judgment are all denied with prejudice
and the Court will not entertain any further default request absent an
extraordinary ...