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SLOVINEC v. ILLINOIS DEPARTMENT OF HUMAN SERVICES

April 30, 2004.

JOSEPH SLOVINEC, JR., Plaintiff V. ILLINOIS DEPARTMENT OF HUMAN SERVICES, ILLINOIS LABOR RELATIONS BOARD, ILLINOIS SKILLS MATCH, OF THE ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, Defendants


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

I. Procedural History

  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 ...


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