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Sanchez and Daniels v. Koresko and Associates

January 3, 2007


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


Defendants John Koresko and Koresko & Associates, P.C. have moved for leave to amend their counterclaim. For the reasons stated below, the Court grants defendants' motion but dismisses their new claim for lack of subject matter jurisdiction.


This suit began as a declaratory judgment action by Sanchez & Daniels and its partners (S&D), all Illinois citizens, against their attorney John Koresko and his firm Koresko & Associates, P.C. (Koresko), both Pennsylvania citizens. S&D sought a declaratory judgment that it was not obligated to pay Koresko for certain legal services performed for S&D, including work in another case over which this Court presided, Daniels v. Bursey, Case No. 05 C 1550 (N.D. Ill.). Koresko filed a counterclaim against S&D that named additional parties as jointly liable. Counts 1 through 5 of the counterclaim were claims against S&D for breach of contract, unjust enrichment, conversion, quantum merit, and breach of fiduciary duty. Counts 6 and 7 were claims against S&D for conspiring with and aiding and abetting other persons and entities in committing various common law torts against Koresko. Numbered separately as part of what Koresko called a "third party complaint" which was, strictly speaking, part of his counterclaim, Koresko asserted claims against Clinton Krislov, his former co-counsel in Daniels, the defendants in that case, and their lawyers for committing various torts -- the same torts he alleged S&D had aided and abetted and conspired to commit. See "Third Party Complaint," Counts 3-10. Koresko also asserted claims against Krislov for breach of fiduciary duty and conversion.

Id., Counts 1-2. Finally, in his so-called "third party complaint," Koresko asserted claims against S&D and the so-called "third party defendants' for violating the Employee Retirement Income Security Act and the Racketeer Influenced and Corrupt Organizations Act. Id., Counts 11-14.

The Court severed S&D's claims against Koresko and Counts 1 through 5 of Koresko's counterclaim against S&D from the rest of the case for pretrial and trial purposes, and those claims eventually proceeded to conclusion. The Court then returned to the remainder of Koresko's counterclaim. On November 8, 2006, the Court dismissed Koresko's remaining claims. See Sanchez & Daniels v. Koresko & Assocs., No. 04 C 5183, 2006 WL 3253604 (N.D. Ill. Nov. 8, 2006). The Court's order noted that any motion to file an amended counterclaim had to be filed by a particular date, and that if no such motion was timely filed, the order of dismissal would become final with regard to the counterclaim. Id. at *8. The Court later extended that deadline by a short period.

Koresko has now filed a proposed amendment of just one count of his counterclaim -- actually, one count of what he had called his "third party complaint." Specifically, he seeks to amend Count 7 of the "third party complaint," which asserts a claim of defamation. The defendants oppose amendment on various grounds.


The original Count 7 of the so-called "third party complaint" asserted a claim of defamation against the original plaintiff S&D, Krislov, and numerous other parties. Though Koresko called his pleading a third party complaint, the Court concluded that it was in fact a counterclaim, because it asserted claims against the plaintiffs and named additional defendants pursuant to Federal Rules of Civil Procedure 13(h) and 20(a). See Sanchez & Daniels, 2006 WL 3253604, at *2-3. The Court was critical of the way in which Koresko pled the claim, noting that "[e]xactly who made what allegedly defamatory statements is somewhat murky." Id. at *5. The Court ruled that a more definite statement was required as to certain defendants because Koresko's allegations suggested that some of the allegedly defamatory statements might be protected by the privilege that applies to statements made in a judicial proceeding. The Court stated that "it is appropriate to require Koresko to parse his claim a bit more finely so that the wheat may be separated from the chaff at a reasonably early stage of any ongoing litigation."

Id. With regard to the remaining counterclaim defendants, the Court ruled that Count 7 failed to comply with Federal Rule of Civil Procedure Rule 8 because it provided those defendants "with no clue as to what they are claimed to have done." Id.

Koresko's proposed amended Count 7 cuts back significantly on the number of defendants alleged to have defamed Koresko. Specifically, the only named defendants are certain of the defendants in the Daniels litigation -- Wayne Bursey and Daniel Carpenter -- and lawyers who represented them in that litigation or otherwise -- Jack E. Robinson, Ira Silverstein, Charles Webster, and Richard Order. There is no allegation, suggestion, or hint in Count 7 that S&D aided and abetted the alleged defamation, conspired to commit it, or played any role whatsoever. Thus in its current proposed form, Count 7 is no longer a counterclaim; rather it is, given these modifications, actually a third party claim.

The Court grants Koresko leave to amend because the proposed new claim satisfies the concerns the Court raised in dismissing the original version. Specifically, the new claim sufficiently advises each named defendant what he is claimed to have done. The allegations are not made with pinpoint specificity, but that is not required in federal pleading.

The defendants named in the amended defamation claim have, however, questioned whether the Court has subject matter jurisdiction over that claim. Though the Court had subject matter jurisdiction over the original action brought by S&D by virtue of diversity of citizenship, at this point all other claims have been disposed of, and amended Count 7 of the counterclaim stands alone. The Court lacks an independent basis for subject matter jurisdiction over that claim; it is a state law tort claim, and both Koresko (the plaintiff on that claim) and Silverstein (one of the defendants) are Pennsylvania citizens. Defendants argue that the Court lacks subject matter jurisdiction over amended Count 7 and that even if it has jurisdiction, the Court should decline to exercise it. These issues are governed by the supplemental jurisdiction statute, 28 U.S.C. § 1367.

Section 1367 provides that when a district court has original jurisdiction over an action, the court has supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution," even if those claims "involve the joinder or intervention of additional parties." 28 U.S.C. ยง 1367(a). Two claims are part of the same case or controversy if they "'derive from a common nucleus of operative facts. A loose factual connection between the claims is generally sufficient.'" Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995) (quoting Ammerman v. Sween, 54 ...

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