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AHR v. COMMONWEALTH EDISON COMPANY

United States District Court, N.D. Illinois


May 10, 2004.

ROBERT W. AHR, DONALD J. AREND ARCZYK, RANDY BALES, RONALD CLARK, RICHARD CLEMENS, RICHARD CONLEY, JAMES P. CURRIE, TERRY L. DuTOUR, HORACE T. GAINES, ROGER L. GRITTERS, RICK GROOMES, CLARENCE HAMANN, JOE HAMM, RONALD HANSON, JOHN T. HARTZLER, LARRY HENNING, MARGARET N. HOGAN, WILLIAM ISAACSON, MICHAEL A. KLEIN, JOHN J. LaROCK III, JACK JESSERSCHMITT, JAMES A. NARDONE, EDMUND J. ONGENAE, RAYMOND PEREK, WALLIS REICHERT, CHARLES ROBISON, CHARLES RUDD, PHILIP SPOTOFORA, WAYNE VANPATTEN, JAMES R. WALSH, KENNETH WEHRLE, PAUL WILLIAMSEN, Plaintiffs
v.
COMMONWEALTH EDISON COMPANY, an Illinois corporation, and the COM ED SERVICE ANNUITY COMMITTEE, Defendants

The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

Thirty-two plaintiffs (hereinafter "Plaintiffs") have filed with this court a complaint alleging that Commonwealth Edison Company, an Illinois Corporation, and the Commonwealth Edison Service Annuity Committee (hereinafter "Defendants") (1) breached their fiduciary duty to Plaintiffs by making misrepresentations upon which Plaintiffs justifiably relied; (2) engaged in a civil conspiracy to make intentional misrepresentations of which Plaintiffs justifiably relied; (3) engaged in negligent misrepresentation; and (4) made an amendment of ERISA welfare benefit plan without notice. For the reasons stated below, this case is dismissed without prejudice.

BACKGROUND

  On September 25, 2001, Ronald Cook and seven other plaintiffs (hereinafter "original plaintiffs") filed a complaint against the Defendants before the Honorable Chief Judge Kocoras. On May 12, 2003, original plaintiffs filed a motion for leave to file a Second Amended Complaint with Plaintiffs in the action before the Honorable Chief Judge Charles Kocoras. Plaintiffs in the instant action were also named as plaintiffs in the proposed second amended complaint that was the subject of the motion. On July 3, 2003, in Cook v. Commonwealth Edison Company, 2003 WL 21530562, at *3 (N.D. Ill. 2003)(hereinafter `Cook'), Chief Judge Kocoras denied the motion for leave to file a Second Amended Complaint and dismissed all counts in the action. The court further stated that ". . . the dismissal of those counts is now properly deemed a final and appealable judgment." Id. On August 3, 2003, Plaintiffs filed a Notice of Appeal from the July 3, 2003 judgement with the Seventh Circuit Court of Appeals. According to the Plaintiffs, they "have asked the Court of Appeals to hold as a matter of law that Judge Kocoras' ruling does not apply to them." Despite the fact that the Appeal was pending, on September 18, 2003, Plaintiffs filed an action before this court similar to the action filed by the original plaintiffs.

  DISCUSSION

  Defendants have requested that we stay the proceedings, pending the outcome of the appeal. However, Plaintiffs have affirmatively stated in their response that they "see no reason for a stay". In the response, Plaintiffs have also advised this court that "if the eventual ruling of the Court of Appeals affects the administration of this case in some way, then the parties will just have to adjust."

  Plaintiffs attorneys have also notified this court that ". . . it is difficult for these Plaintiffs, with limited financial resources, to engage in this war of attrition while simultaneously prosecuting an appeal, all before they have even had a chance to begin discovery on their underlying claims." In Cook, Chief Judge Kocoras denied the original plaintiffs' motion to file a second amended complaint to add the additional Plaintiffs due to unreasonable delay and prejudice to the Defendants on the original plaintiffs' part and dismissed the action filed by the original plaintiffs. WL 21530562, at *2-3 (N.D. Ill. 2003). The Plaintiffs in this action have stated in briefs filed with this court that they have filed an appeal from Chief Judge Kocoras' ruling and have asked the Court of Appeals to determine if Chief Judge Kocoras' ruling applied to them. Depending on the outcome of the appeal, the Plaintiffs may be barred from bringing the instant action or in the alternativeres judicata might be applicable. It appears that Plaintiffs are concerned about res judicata which caused them to file an appeal from Chief Judge Kocoras' ruling, yet Plaintiffs prematurely filed a similar action before this court. This court also notes that, in filing the instant action, Plaintiffs have attempted in a crafty manner to include additional three counts in the complaint. However, such additional counts merely reincorporate the original count, and the action before this court appears to arise from the same facts and claims that are currently on appeal. It further appears that there may also be an identity of causes of action. The doctrine of res judicata exists under the federal common law and bars a claim in a subsequent suit "if the claim on which it is based arises from the same incident, events, transaction, circumstances, or other factual nebula as a prior suit that had gone to final judgment." Okoro v. Bohman, 164 F.3d 1059, 1062 (7th Cir. 1999). The doctrine precludes relitigation of all matters offered to support or defeat the claim. Hawxhurst v. Pettibone Corp., 40 F.3d 175, 180 (7th Cir. 1994). The elements for res judicata are: (1) final judgment, (2) identity of the cause of action, and (3) identities of parties or privies in the suits. Id.

  Before this Court is Defendants' motion to dismiss the complaint based upon claim preclusion, ERISA preemption, and failure to sufficiently plead or prove a claim for negligent misrepresentation. In the alternative, Defendants have asked for a stay pending ruling by the Seventh Circuit Court of Appeals in the Cook case. See Cook v. Commonwealth Edison Company, 2003 WL 21530562, (N.D. Ill. 2003). Plaintiffs have affirmatively stated in their response that they "see no reason for a stay."

  After a careful review of the motions and the record, the Defendants' motion to stay is denied. Furthermore, this court is of the opinion that it need not make a ruling on the merits of the Defendants' motion to dismiss at this time based upon the reasons stated in such motion inasmuch as the Plaintiffs have an appeal in the Cook case presently pending before the Seventh Circuit Court of Appeals which may be dispositve of this action. However, Plaintiffs have not indicated that they needed to file this premature action to preserve their claim and avoid a bar under the statute of limitations. Therefore, this court will dismiss Plaintiffs' premature action without prejudice.

20040510

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