United States District Court, C.D. Illinois, Urbana Division
December 21, 2005.
LYNN BRANHAM, Plaintiff,
THOMAS MENGLER, et al., Defendants.
The opinion of the court was delivered by: DAVID BERNTHAL, Magistrate Judge
In December 2004, Plaintiff, Lynn Branham, filed a Complaint at
Law (#1) against Defendants Thomas Mengler, Andy Leipold, John
Colombo, and Elaine Shoben. Federal subject matter jurisdiction
is based on diversity pursuant to 28 U.S.C. § 1332. The parties
have consented to the exercise of jurisdiction by a United States
In August 2005, the Court filed an Order (#20), dismissing both
counts of the suit for lack of jurisdiction. Plaintiff
subsequently filed an Amended Complaint Count II (#22). In
September 2005, Defendants filed a Motion To Dismiss Amended
Complaint Count II (#28). After reviewing the parties' pleadings
and memoranda, this Court GRANTS Defendants' Motion To Dismiss
Amended Complaint Count II (#28).
The Court dismissed the claims in the previous complaint based
on sovereign immunity. Regarding Count II, the Court stated "even
using its imagination, the Court cannot think of anything that
Defendants could do to induce the Board of Trustees to deny
Plaintiff tenure that would not be barred by sovereign immunity."
(#20, pp. 10-11.) The Court allowed Plaintiff to amend Count II
and directed her to include allegations "describing the conduct
by Defendants that she alleges induced the purported breach."
(#20, p. 11.)
Plaintiff's amended complaint included the following new
12. That at times relevant hereto, Andy Liepold was
Associate Dean of the College of Law for the
University of Illinois at its Urbana-Champaign campus
and that Andy Liepold was directly involved in a
purported unilateral modification of said agreement and its subsequent
breach by the Respondent.
13. That at times relevant hereto, John Colombo was
Associate Dean, or then Interim Dean of the College
of Law for the University of Illinois at its
Urbana-Champaign campus and that John Colombo also
sat on the Appointments Committee for the College of
14. That at times relevant hereto, Elaine Shoben was
Chair of the Appointments Committee at the College of
Law for the University of Illinois at its
. . . .
18. That Defendant Leipold, Colombo, and Sholen, with
actual knowledge that the Plaintiff had performed
pursuant to the terms of said agreement,
intentionally interfered with the execution of that
agreement by denying the Plaintiff the process to
which she had been entitled pursuant thereto in
refusing to permit the process to be implemented,
acting in a disparate and arbitrary fashion and for
reasons wholly unrelated to their responsibilities or
in furtherance their employer's responsibilities.
[(Sic)] #22, ¶¶ 12-14, 18.
II. Standard of Review
"Rule 12(b)(1) requires that an action be dismissed if the
court lacks jurisdiction over the subject matter of the lawsuit."
McCulley v. U.S. Dep't of Veterans Affairs, 851 F. Supp. 1271,
1276 (E.D. Wis. 1994) (quoting Unity Sav. Ass'n v. Fed'l Sav. &
Loan Ins. Corp., 573 F. Supp. 137, 140 n. 4 (N.D. Ill. 1983)).
Where subject matter jurisdiction is at issue, the party invoking
jurisdiction bears the burden of supporting the allegations of
jurisdictional facts with competent proof. McCulley,
851 F. Supp. at 1276.
When deciding a Rule 12(b)(1) motion, a court must accept as
true all well-pleaded factual allegations and draw all reasonable
inferences in favor of the plaintiff. See Ezekiel v. Michel,
66 F.3d 894, 897 (7th Cir. 1995). As usual, bald contentions,
unsupported characterizations, and legal conclusions are not
well-pleaded allegations and are insufficient to defeat a motion
to dismiss. Citibank, N.A. v. Itochu Int'l, Inc., No. 01 Civ.
6007, 2003 WL 1797847, *1 (S.D.N.Y. Apr. 4, 2003) (discussing
standard for a Rule 12(b)(6) motion). III. Analysis
Count II purports to allege a state law claim that Defendants,
in their individual capacities, tortiously interfered with
Plaintiff's employment relationship with the University of
Illinois. Defendants argue in their motion to dismiss that
Plaintiff's amended Count II is barred by sovereign immunity. As
a result, jurisdiction over Count II lies exclusively in the
Illinois Court of Claims and this Court lacks jurisdiction to
consider the claim. See Turner v. Miller, 301 F.3d 599, 602
(7th Cir. 2002).
In her response, Plaintiff appears to confuse the
jurisdictional question sovereign immunity presents with the
merits of her claim. She recites the elements of a claim of
tortious interference with business expectancy and then discusses
the existence of privilege in terms of privileges that operate as
affirmative defenses. However, the Court first has an obligation
to determine whether it has jurisdiction over the claim before it
can consider the merits of the claim or any applicable
affirmative defenses. At this point, we cannot decide whether
Plaintiff does or does not have a claim. We can only determine
only whether this Court is the appropriate forum for bringing her
claim. See Welch v. Ill. Supreme Court, 751 N.E.2d 1187, 1196
Moreover, Plaintiff's reliance on Storey v. Sylvester is
misplaced, because in that case, the plaintiff alleged that the
defendants had violated the plaintiff's constitutional rights.
See Storey v. Sylvester, 2005-CV-4011-JPG, 2005 WL 1958399
(S.D. Ill. Aug. 12, 2005). There is no question that sovereign
immunity does not protect a State employee who acted "in
violation of statutory or constitutional law or in excess of his
authority." Healy v. Vaupel, 549 N.E.2d 1240, 1247
(Ill.App.Ct. 1990). Similarly, in Ulrich v. Bosmann, the plaintiff
alleged that defendants, who were university administrators, had
violated university policy and/or state law and had acted outside
the scope of their authority. Ulrich v. Bosmann,
664 N.E.2d 119, 123-24 (Ill.App.Ct. 1996).
The Court has discussed the issue of sovereign immunity at
length in its previous orders and will not repeat that analysis.
Claims of tortious interference with contract made against a state employee generally fall within the jurisdiction of the
Illinois Court of Claims. See, e.g., Feldman v. Ho,
171 F.3d 494, 498 (7th Cir. 1999); Fenje v. Feld, 301 F. Supp. 2d 781,
808 (N.D. Ill. 2003); Welch, 751 N.E.2d at 1194; Wozniak v.
Conry, 679 N.E.2d 1255, 1257-59 (Ill.App.Ct. 1997). In Fenje
v. Feld, the plaintiff alleged that the defendant's actions were
based on ill will, an illegitimate animus, personal reasons,
retribution or spite, and/or were an effort to unlawfully punish
the plaintiff, and they were unjustified, illegal, and were
intended to harm and damage the Plaintiff without right or
justifiable cause. Fenje, 301 F. Supp 2d at 808. Nevertheless,
the district court held that sovereign immunity attached.
In her amended complaint, Plaintiff alleged that Defendants
interfered with the execution of her agreement "by denying the
Plaintiff the process to which she had been entitled pursuant
thereto in refusing to permit the process to be implemented,
acting in a disparate and arbitrary fashion and for reasons
wholly unrelated to their responsibilities or in furtherance
their employer's responsibilities." (#22, ¶ 18.) Those additional
allegations do not allege any conduct that is illegal,
unconstitutional, or outside Defendants' authority.
The Court has not forgotten that federal court is a notice
pleading environment. However, "it is well established that
counsel must make a reasonable inquiry before filing a complaint,
as a party may not file a lawsuit in order to conduct a fishing
expedition based on a hunch." Densmore v. Gen. Motors Acceptance
Corp., No. 03 C 1866, 2003 WL 22220177, *2 (N.D. Ill. Sept. 25,
2003) (unreported) (citing Bankers Tr. Co. v. Old Republic Ins.
Co., 959 F.2d 677, 684 (7th Cir. 1992)). Because Defendants have
raised the issue of the Court's jurisdiction, Plaintiff bears the
burden of establishing that jurisdiction is proper. Selcke v.
New England Ins. Co., 2 F.3d 790, 792 (7th Cir. 1993). Plaintiff
has been allowed to amend; however, the allegations in her
amended complaint do not take her tortious interference claim
outside the general rule. Accordingly, the Court lacks
jurisdiction to consider the claim. IV. Summary
For the reasons stated above, the Court GRANTS Defendants'
Motion To Dismiss Amended Complaint Count II (#28) without
prejudice to Plaintiff's ability to file suit against Defendants
in the Illinois Court of Claims. This case is terminated.
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