The opinion of the court was delivered by: Richard Mills, U.S. District Judge
Asserting a legislative immunity defense, the Governor of Illinois, Defendant Rod Blagojevich, moves this Court to dismiss Plaintiffs' First Amended Complaint and to reconsider a prior order denying the imposition of a protective order forbidding or delaying his deposition. Defendant Julie Curry, also basing her claims on legislative immunity, urges this Court to enter a protective order prohibiting any questioning relating to Governor Blagojevich's veto actions. For the following reasons, the motions are denied.
Prior to August 1, 2003, Plaintiffs were employed as Correctional Captains in the Illinois Department of Corrections ("IDOC"). Late in 2002, the Plaintiffs attempted to unionize not only themselves but all Correctional Captains in the IDOC. The Plaintiffs sought to join with the Illinois State Employees Association ("ISEA"), a competitor of the American Federation of State, County, and Municipal Employees ("AFSCME") union. A major contributor to the campaign of Defendant Governor Rod Blagojevich ("Governor Blagojevich"), the AFSCME opposed the Plaintiffs' affiliation with the ISEA and allegedly convinced Governor Blagojevich to eliminate the position of Correctional Captain. Using his veto power, Governor Blagojevich struck the Correctional Captain position from the budget on June 4, 2003.*fn1 With their positions terminated, Plaintiffs were given the option of quitting the IDOC or accepting lower ranking positions. While only three of the sixty Plaintiffs left the IDOC, most were demoted to Correctional Officer, an entry level position, or were reduced to the rank of Correctional Lieutenant. Plaintiffs then brought suit against several individuals, including Governor Blagojevich and his then Deputy Chief of Staff, Julie Curry ("Curry"), alleging First Amendment violations under 28 U.S.C. § 1983. Specifically, Plaintiffs claim that Governor Blagojevich took retaliatory action against them by removing them from their positions and, after giving them new positions, stripping them of their seniority.
On February 27, 2007, Governor Blagojevich filed a "Memorandum of Law Regarding the Propriety of Taking the Deposition of the Governor" (d/e 46). This motion made no mention of legislative immunity. On March 28, 2007, the magistrate judge issued a written opinion denying the motion (d/e 49). Governor Blagojevich filed a timely objection to this order (d/e 52) under Federal Rule of Civil Procedure 72(a). This objection made only summary reference to legislative immunity and noted that the issue was not raised before the magistrate judge. On May 10, 2007, this Court denied the motion by adopting the magistrate judge's opinion in full (d/e 55). Governor Blagojevich responded with a Motion for Protective Order, urging this Court to reconsider its earlier ruling (d/e 56). This Court again affirmed its earlier ruling in a June 22, 2007, written opinion (d/e 64).
On July 25, 2007, Governor Blagojevich filed his latest reconsideration motion (d/e 71). Shortly thereafter, he also filed a Motion to Dismiss (d/e 74) and Defendant Curry filed her Motion for a Protective Order (d/e 76). Because all three of these motions concern the common core issue of legislative immunity, they have been consolidated into this single opinion.
II. APPLICABLE STANDARDS FOR JUDGMENT ON THE PLEADINGS
Defendant labels his filing as a "Motion to Dismiss," presumably under Rule 12(b)(6). See State Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007) ("It is well-settled that legislative immunity is not a jurisdictional bar, but is rather a personal defense that may be asserted to challenge the sufficiency of a complaint under Rule 12(b)(6)."). Such a characterization of the motion is improper, however, because Defendant has already filed an answer to the complaint. See Fed. R. Civ. P. 12(b) (requiring that a motion asserting a Rule 12(b)(6) defense "shall be made before pleading . . ."). Nevertheless, an untimely motion to dismiss can often be treated as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Republic Steel Corp. v. Pa. Eng'g Corp., 785 F.2d 174, 182 (7th Cir. 1986) (citations omitted). Therefore, Governor Blagojevich's "Motion to Dismiss" is hereby converted to a motion for judgment on the pleadings.
Despite this conversion, the standards of Rule 12(b)(6) continue to apply. Id. Therefore, all of the facts alleged in the complaint are taken as true and all reasonable inferences are drawn in favor of the Plaintiff. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (citing Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir. 2004)). A complaint fails to state a claim unless it sets forth "'enough facts to state a claim to relief that is plausible on its face.'" St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. __, 127 S.Ct. 1955, 1974, 167 L.Ed. 2d 929 (2007)). While "[c]complaints need not anticipate or attempt to defuse potential defenses," U.S. Gypsum Co. v. Ind. Gas Co., 350 F.3d 623, 626 (7th Cir. 2003), "in some cases a complaint so clearly reveals the existence of the defense that judgment on the pleadings is possible," Int'l Mktg., Ltd. v. Archer-Daniels-Midland Co., 192 F.3d 724, 731 (7th Cir. 1999).*fn2
The Defendants raise several claims based on ...