The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the motion for reconsideration filed by defendants Southern Illinois Riverboat/Casino Cruises, Inc. ("Harrah's"), Glen Melcher and Jason Cecil (collectively, "the Harrah's defendants") (Doc. 111). The Harrah's defendants seek reconsideration of the Court's order denying them summary judgment on plaintiff Kenneth Williams's ("Williams") state law causes of action for malicious prosecution (Count VIII) and intentional infliction of emotional distress (Count X) (Doc. 105). Williams has not responded to the motion.
In this order, the Court also addresses the claims against the John Doe and Jane Doe defendants and a jurisdictional issue.
The Court has set forth the facts as viewed for the purposes of the summary judgment motion in its order ruling on that motion, so it need not repeat them here. The Court will begin addressing each of the arguments in the motion to reconsider in turn.
The Harrah's defendants ask the Court to reconsider its denial of summary judgment on Williams's malicious prosecution claim for the reasons the Court granted summary judgment for co-defendants Michael Hamilton ("Hamilton") and Don Helm ("Helm") on similar claims. In the order ruling on Hamilton and Helm's motion, the Court stated:
To succeed on a claim for malicious prosecution, a plaintiff must prove "(1) the commencement or continuation of an original criminal or civil proceeding by defendants, (2) termination of the proceeding in favor of plaintiff, (3) the absence of probable cause for the proceeding, (4) the presence of malice on defendants' part, and (5) damages resulting to plaintiff." Boyd v. City of Chicago, 880 N.E.2d 1033, 1045 (Ill. App. Ct. 2007) (citing Reynolds v. Menard, Inc., 850 N.E.2d 831, 837 (Ill. App. Ct. 2006)). * * *
As for the second element, "a malicious prosecution action cannot be predicated on underlying criminal proceedings which were terminated in a manner not indicative of the innocence of the accused." Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996). Illinois has adopted the rule that abandonment of criminal proceedings is not indicative of the innocence of the accused if it was the result of the impracticability of bringing the accused to trial. Id. at 1243 (citing Restatement (Second) of Torts §§ 660, 661 (1977)). The plaintiff bears the burden of establishing that the facts and circumstances surrounding the decision to terminate the proceeding lead to the inference that there was no reasonable ground to pursue the prosecution. Swick, 662 N.E.2d at 1243.
In this case, there is no evidence from which Williams could demonstrate his criminal prosecution was terminated in his favor in a manner indicative of his innocence. When he made the decision to dismiss the criminal case against Williams, Windhorst had in front of him witness statements in the arrest and patron incident reports, which provided reasonable grounds to pursue the prosecution, and the casino's video surveillance tape, which could have been construed to support the case against Williams. Windhorst believed he could convict Williams, rightly or wrongly, based on this evidence. Windhorst's deposition testimony indicates he made the decision to dismiss the case not because he believed Williams was innocent or because he could not succeed in prosecuting Williams but instead purely to ensure the State's Attorney was able to try more important cases.
In his response to the motion, Williams does not address the evidence he could use to show his criminal prosecution was terminated in a manner indicative of his innocence. Again, the Court construes Williams's failure to respond to the argument as an admission of its merits. See Local Rule 7.2(c). In any case, Williams certainly has not carried his burden of presenting evidence to support the conclusion that his criminal prosecution was terminated in his favor.
Because there is no evidence from which a reasonable jury could find Williams's prosecution was terminated in a manner indicative of his innocence, Hamilton is entitled to summary judgment on Count VII. . ..
Mem. & Order, Doc. 104 at 11-13.
In its order ruling on the Harrah's defendants' motion for summary judgment, the Court noted that the Harrah's defendants had conceded for the purposes of the motion that Williams's criminal prosecution was terminated in his favor. This finding was based on the following statement in the Harrah's defendants motion: "The proceedings were terminated in favor of plaintiff. . . ." Had the Harrah's defendants not made that concession, the Court would have reached the same result it did with respect to the Hamilton and Helm motion.
In the pending motion to reconsider, the Harrah's defendants argue that it did not intend to concede in the legal sense Williams's ability to prove the second element of his malicious prosecution claim -- that his criminal prosecution was terminated in his favor. Indeed, it notes that it submitted evidence similar to that considered in conjunction with ...