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 February 2005, Defendants filed a Rule 12(b)(1) and (6)
Motion To Dismiss or in the Alternative To Stay (#12). In July
2005, the Court filed an Order (#20) granting the motion to
dismiss. In August 2005, Plaintiff filed a Motion To Reconsider
(#23). After reviewing the parties' pleadings and memoranda, this
Court DENIES Plaintiff's Motion To Reconsider (#23).
I. Standard of Review for a Motion To Reconsider
A motion to reconsider is a method of "correct[ing] manifest
errors of law or fact or to present newly discovered evidence."
In re August, 1993 Regular Grand Jury, 854 F.Supp. 1403, 1406
(S.D. Ind. 1994) (quoting Keene Corp. v. Int'l Fid. Ins. Co.,
561 F.Supp. 656, 665-66 (N.D. Ill. 1982)). In matters involving
interlocutory orders, such as motions to dismiss, the Seventh
Circuit has made it clear that district courts have the
discretion to reconsider their decisions at any time. Cameo
Convalescent Ctr., Inc. v. Percy, 800 F.2d 108, 110 (7th Cir.
In her motion to reconsider, Plaintiff asks the Court to (1)
reverse its order dismissing Counts I and II; (2) hold that the
issue of reasonable reliance cannot be determined as a matter of
law; and (3) rule on Defendant's motion to stay. As an initial matter, the Court notes that Plaintiff's motion
stated that the Court's previous Order (#20) relied on
allegations in the complaint filed by Plaintiff in the Illinois
Court of Claims. The Court's footnote in its previous order
referred to that complaint to support one statement regarding the
positions held by Defendants Leipold, Colombo, and Shoben. All
other background information was based on Plaintiff's complaint
filed in this case.
A. Count I
Plaintiff argues that the Court should reconsider its decision
to dismiss Count I, in which Plaintiff alleges a claim of fraud
against Defendant Mengler. The Court dismissed the claim on the
basis of sovereign immunity. In determining whether a lawsuit
against a state official is a lawsuit against the State and must
be brought in the Court of Claims, courts consider three factors,
as follows: (1) whether the official acted within the scope of
his authority, (2) whether the duty the official allegedly
breached is owed solely by virtue of State employment, and (3)
whether the action the official allegedly took involved matters
within his normal and official functions. Sovereign immunity will
apply whenever a judgment for the plaintiff could operate either
to control the actions of the State or subject it to liability.
Welch v. Ill. Supreme Court, 1187, 1193 (Ill.App.Ct. 2001);
Robb v. Sutton, 498 N.E.2d 267, 270-71 (Ill. 1986).
In support of her motion, Plaintiff's memorandum describes the
holdings for a number of cases addressing this issue. The
following quote summarizes Plaintiff's point in citing these
cases: "Sovereign immunity affords no protection, however, when
it is alleged that the State's agent acted in violation of
statutory or constitutional law or in excess of his authority,
and in those instances an action may be brought in circuit
court." Healy v. Vaupel, 549 N.E.2d 1240, 1247 (Ill.App.Ct.
1990). In her motion to reconsider, Plaintiff argues that
Defendant Mengler acted in excess of his authority, so that
sovereign immunity does not bar the claim.
Plaintiff has also filed a copy of the Court of Claims decision
in her suit against the Board of Trustees (No. 03 CC 4162). In
that decision, the Court of Claims stated as follows: The Board of Trustees had the power to give the Dean
of the College of Law the right to contract to hire
teachers. At this point of the proceedings there is
nothing before the Court to show whether the Dean of
the College of Law was authorized to make the
contract or not.
(Court of Claims Order, dated 12 August 2005, pp. 2-3.) Plaintiff
apparently is citing this case as support for her allegation that
Defendant Mengler, acting on behalf of the Board, was acting
within the scope of his authority when he made promises and
assurances to Plaintiff regarding her entitlement to tenure and
otherwise negotiated the conditions of Plaintiff's employment.
The Court previously dismissed Count I based on sovereign
immunity. A look at the allegations of the complaint may help
clarify the Court's reasoning. In Paragraph 3, Plaintiff alleged
that she was hired "pursuant to an oral agreement under which the
Plaintiff would be considered for tenure as an Associate
Professor within three years based upon the Plaintiff meeting
stated expectations regarding publications." Paragraph 8 states
that Plaintiff "entered into said agreement based upon promises
and assurances made by Thomas Mengler, . . . under the apparent
and vested authority conveyed unto him by the Board of Trustees
of the University of Illinois." Finally, Paragraph 14 states that
"the representations made by Thomas Menger regarding Plaintiff's
entitlement to tenure and the subsequent representations
regarding external review, . . . were similarly false and
fraudulent, and such fraudulent conduct was outside the scope of
the Defendant's authority and responsibility as Dean.
Based on these allegations, Plaintiff starts with the premise
that Defendant Mengler, acting on behalf of the Board, had the
authority to make certain promises and assurances to Plaintiff
regarding her entitlement to tenure. At the same time, Plaintiff
has alleged the "representations made by Thomas Mengler regarding
Plaintiff's entitlement to tenure and the subsequent
representations regarding external review" were "false and
fraudulent and such fraudulent conduct was outside the scope" of
Mengler's authority. (#1, ¶ 14.) Thus, Plaintiff alleges that the
same conduct was at once within the scope of Mengler's authority
and outside the scope of his authority. The Court will accept, for the sole purpose of responding to
Plaintiff's argument, that Defendant Mengler may have had the
authority to make the alleged promises and assurances to
Plaintiff regarding her entitlement to tenure. The only
distinction that Plaintiff makes between the conduct that was
allegedly within the scope of Mengler's authority and the conduct
that was allegedly outside his authority is that the conduct that
was outside his authority was fraudulent. Obviously, no state
employee has authority to commit a tort. Hopkins v. Clemson
Agric. Coll. of S.C., 221 U.S. 636, 643 (1911). "However, if one
could defeat sovereign immunity by simple reference to a tort,
there would be no such thing as sovereign immunity to tort
actions." Jackson v. Alvarez, 831 N.E.2d 1159, 1164
(Ill.App.Ct. 2005). In Jackson v. Alvarez, the Illinois appellate court
stated as follows:
Because sovereign immunity presupposes the
possibility of a legal wrong by a state employee
(Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682, 693, 69 S.Ct. 1457, 1463, 93 L.Ed. 1628,
1637-38 (1949)), and legal wrongs are, per se,
unauthorized, the relevant question cannot be whether
the employee had authority to commit the legal wrong.
Instead, the question is whether the employee
intended to perform some function within the scope of
his or her authority when committing the legal wrong.
Jackson, 831 N.E.2d at 1164. See also Wozniak v. Conry,
679 N.E.2d 1255, 1258 (Ill.App.Ct. 1997) ("It does not matter if,
as here, the plaintiff alleges the statements were knowingly
false. Instead, the relevant inquiry is whether the supervisor
would be acting within the scope of his duties by making truthful
statements of the general type alleged."). Here, Plaintiff
alleges that Mengler possessed the authority to make promises and
assurances regarding the terms of Plaintiff's employment. Thus,
he was performing a task within his authority when he allegedly
made fraudulent representations regarding those terms.
Plaintiff does not argue that Defendant Mengler failed to
satisfy the other elements of sovereign immunity. See Welch,
751 N.E.2d at 1193. Accordingly, the Court concludes that the
claim alleged against Mengler in Count I is barred by sovereign
immunity. Furthermore, based on this analysis, the Court need not
consider the question of reasonable reliance. B. Count II
The Court previously dismissed Count I based on sovereign
immunity. In her memorandum, Plaintiff has not articulated a
separate argument regarding Count II. Claims of tortious
interference with contract made against a state employee
generally will 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). Plaintiff's reiteration of her arguments regarding
sovereign immunity has not persuaded the Court that Count II
alleges conduct that is within its jurisdiction. Because
Defendants 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). Moreover, the Court allowed Plaintiff to amend her
claim in Count II. Accordingly, the Court denies the motion to
reconsider its decision regarding Count II.
Because the Court has dismissed both claims, it need not rule
on Defendant's motion to stay.
For the reasons set forth above, this Court DENIES
Plaintiff's Motion To Reconsider (#23).
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