United States District Court, N.D. Illinois, Eastern Division
August 31, 2005.
ROBERT P. CUMMINS and CUMMINS & CRONIN, LLC, Plaintiffs,
JOHN T. HEANEY and JOHN T. HEANEY, A LAW CORPORATION, Defendants.
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
This dispute concerns two lawyers who represented opposing
parties in California litigation. Robert Cummins and Cummins &
Cronin, LLC (collectively "Cummins") sue John Heaney and the John
Heaney law corporation (collectively "Heaney") for defamation
per se, defamation per quod and false light. Cummins claims
Heaney defamed him through e-mail correspondence. Heaney moves to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
For purposes of the motion, the court accepts all well-pleaded
allegations in the complaint as true and all reasonable
inferences are drawn in Cummins' favor. Stachon v. United
Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). Cummins
is an experienced trial attorney with a reputation for integrity,
honesty and professionalism. Compl. ¶ 8. Cummins was elected a
2004 Laureate of the Academy of Illinois Lawyers, has served as
chairman and a member of several legal committees and boards, and
has lectured on trial practice and professional conduct. Id. at
¶¶ 8-15. In 2004, Cummins was retained to represent two
defendants in a California case. Id. at ¶ 17. The two clients were referred to Cummins by the law firm of Shefsky &
Froelich Ltd., who represented another defendant in the same
action. Id. Heaney represented the plaintiffs. Id. at ¶ 18.
The case was set for trial on March 4, 2005.
A week before trial, Cummins' ten year old grandson was
diagnosed with a brain tumor. Id. at ¶ 20. Upon learning of his
grandson's diagnosis, Cummins immediately notified the
defendants, opposing counsel and his co-counsel at the Shefsky
firm that the emergency might necessitate a short trial
continuance. Id. Cummins was present with his grandson during
emergency testing and surgery and later informed all parties that
a continuance was necessary. Id. at ¶¶ 21-22. The California
court granted a two-week continuance. Id. at ¶ 23.
Due to one plaintiff's voluntary bankruptcy and removal to
bankruptcy court, the trial did not occur in March 2005. Id. at
¶ 24. The parties agreed to remand the case to state court and to
conduct formal mediation. Id. Through e-mail communications,
with the subject line "Mediation deiv/LABN v. USAB, et al.,"
the parties discussed possible mediation dates. See Compl. Ex.
A.*fn1 On June 3, 2005, Heaney sent the following e-mail to
other lawyers on the case specifically to Thomas Cronin, Robert
Cummins, Michael Sheehan and Douglas Ramsey:
The 14th is not going to work. I'm still good for the
6th or 7th, but, unless something has changed at the
defendants' end, it looks like those dates won't work
either. The good news is that with the protracted
delay between now and the new trial date the time
pressures are off. We might therefore begin
considering dates in the July-September range.
As for compliance with the stipulation, I note that
we have dismally failed, through no fault of
Plaintiffs. The stipulation and order directed us to
select a mediator and date within two weeks of its approval by
the court. Before the stipulation was even signed on
behalf of the defendants, and a full two weeks before
it was approved by the court, I circulated an
extensive list of possible mediators and sources for
possible mediators. No one responded. Had defense
counsel been as prompt as I in commencing their
efforts, perhaps we would have been able to schedule
a mediation in June before our respective calendars
as well as the calendars of our clients, claims
adjustors and the mediator had become so congested.
Compl. at Ex. A (emphasis in original). On June 6, 2005, Cummins
Given Mr. Heaney's observation in the 1st paragraph
of his epistle, it is obvious that the self-serving
observations in the 2nd paragraph were for some
purpose other than advancing this matter toward a
resolution. In this latter connection and given the
lapse of time, we need an accurate update on the
state of Mr. Clark's health. Please advise asap.
Id. That same day, Heaney responded:
Given Mr. Cummins' history of honesty and integrity,
we need an accurate update on the state of his
grandson's health, including the grandson's full
name, the city and state of his residence, and the
name and location of the hospital at which the
purported emergency surgery occurred.
Id. On June 7, 2005, Cummins replied:
Mr. Heaney: ABSENT AN IMMEDIATE AND EXPLICIT APOLOGY
AND WE UNDERSCORE IMMEDIATE BOTH BY E-MAIL AND IN
HARD COPY FORM, YOU WILL FIND YOURSELF A DEFENDANT IN
A SERIOUS DEFAMATION ACTION. We also await an update
on Mr. Clark which we assume will be forthcoming
without the need for Court intervention.
Id. (emphasis in original). The correspondence ended on June 7,
2005 with Heaney's reply, "Grow up." Id.
Cummins filed this defamation complaint the next day June 8,
2005. See Compl. at p. 1. Cummins asserts Heaney's June 6th
e-mail is defamatory because it suggests Cummins lied to counsel
and the California court about his grandson's emergency in order
to obtain a trial continuance. Compl. at ¶ 27. Cummins contends
the e-mail is harmful because it: (1) lowers Cummins in the eyes of the community and deters third persons
from associating with him; and (2) was sent to Cummins'
colleagues, including attorneys at the Shefsky firm, and deters
those colleagues from continuing their client referrals. Id. at
¶¶ 29-30. Cummins asserts Heaney's statements were false and were
known to be false when made. Id. at ¶ 34. Finally, Cummins
alleges the statements presented him in a false light and were
highly offensive. Id. at ¶¶ 38-40.
Heaney moves to dismiss the complaint and contends his e-mail
communications are protected by the attorney litigation
privilege. Illinois law is well-settled that "anything said or
written in the course of a legal proceeding is protected by an
absolute privilege . . . [t]he purpose of the privilege is to
secure to attorneys as officers of the court the utmost freedom
in their efforts to secure justice for their clients." Zanders
v. Jones, 680 F.Supp. 1236, 1238 (N.D. Ill. 1988); see also
Vazquez v. Sears, Roebuck & Co., No. 97 C 8595, 1999 U.S. Dist.
LEXIS 16153, *16-17 (N.D. Ill. Sept. 30, 1999); Libco Corp. v.
Adams, 100 Ill. App. 3d 314, 316-17, 426 N.E.2d 1130, 1131-32
(1st Dist. 1981). Illinois courts have adopted the absolute
privilege as set forth by the Restatement (Second) of Torts, §
586. See Popp v. O'Neil, 313 Ill. App. 3d 638, 642,
730 N.E.2d 506, 510 (2nd Dist. 2000). Section 586 provides:
An attorney at law is absolutely privileged to
publish false and defamatory matter of another in
communications preliminary to the proposed judicial
proceeding, or in the institution of, or during the
course and as part of the judicial proceeding in
which he participates as counsel, if it has some
The privilege is consistently applied to false statements made by
lawyers in legal proceedings, and the privilege applies to both
defamation and false light suits. See Zanders,
680 F. Supp. at 1238; McGrew v. Heinold Commodities, Inc., 147 Ill. App. 3d 104, 114,
497 N.E.2d 424
, 432 (1st Dist. 1986).
Cummins argues Heaney's June 6th e-mail was not reasonably
related to the underlying litigation and the privilege does not
apply.*fn2 The authority cited does not restrict application
of the absolute privilege to communications reasonably related
to the litigation. "The requirement that statements made in a
judicial proceeding be pertinent or relevant is not strictly
applied. Indeed, the privilege attaches even where the defamatory
statement is not confined to specific issues related to the
litigation and all doubts should be resolved in favor of a
finding of pertinency. Inflammatory matter entirely unrelated to
the litigation, however, is not privileged." Medow v. Flavin,
336 Ill. App. 3d 20, 32, 782 N.E.2d 733, 744 (1st Dist. 2002).
Thus, the only question for the court is whether the allegedly
defamatory statements were made during the course of a legal
proceeding and were in any way related to that proceeding. Id.,
see also Zanders, 680 F. Supp. at 1238. If so, they are not
actionable as a matter of law. Zanders, 680 F. Supp. at 1238.
Cummins' contention that the June 6th e-mail was unrelated to
the California litigation lacks merit. The e-mail's subject line
reads "Mediation deiv/LABN v. USAB, et al." Compl. Ex. A. The
e-mail was part of an e-mail chain between attorneys on the case
that pertained to litigation scheduling. Heaney's request for "an
accurate update on the state of [Cummins'] grandson's health" was
in direct response to Cummins' requeset for "an accurate update
on the state of Mr. Clark's health." Id. Cummins' grandson's
health originally became relevant to the litigation because it
necessitated a trial postponement. Heaney's renewed inquiry into
Cummins' grandson's health could arguably advance his client's interest in connection with
litigation scheduling. Although the relevance of Heaney's comment
regarding Cummins' honesty and integrity is unclear, the comment
occurred in the course of litigation proceedings. Frankly, the
e-mail's relation to the underlying California litigation is
Cummins asserts Heaney's communication "impugned the integrity
of a prominent lawyer and made a mockery of his family tragedy."
Reply at 3. Heaney's June 6, 2005 e-mail was in poor taste.
Indeed, the sarcastic tone, hostile bickering and lack of
civility of the entire e-mail chain between all counsel is
disturbing. The court agrees with Cummins that "uncivil and
junkyard dog litigation tactics" should not be condoned. See
Compl. at ¶ 1. However, an attorney's responsibility to practice
law with integrity includes giving measured consideration to a
claim's merits before filing a lawsuit. Reactionary filings are
inappropriate and waste judicial resources particularly when the
law is well-settled that a cause of action does not exist.
Because Heaney's communications are clearly subject to an
absolute privilege, this case must be dismissed.
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