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Zvunca v. Motor Coach Industries International

February 26, 2009


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Before the Court are Motions to Dismiss Plaintiffs' Amended Complaint filed by Defendants Clancy & Stevens and Jeanine L. Stevens, Marina E. Ammendola and F. John Cushing pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). For the following reasons, Defendant Cushing's Motion is granted, Defendant Ammendola's Motion is granted, and Defendants Clancy & Stevens and Stevens' Motion is granted in part and denied in part.


This lawsuit arises out of the death of Claudia Zvunca ("Claudia") when she was crushed by a Greyhound bus she was attempting to board with her daughter, Plaintiff Cristina Zvunca ("Cristina"), in January 2002. Plaintiffs Vasile and Maria Zvunca ("Vasile" and "Maria," respectively) were Claudia's parents. Vasile and Maria are now Cristina's adoptive parents and all three now reside in Romania where they are citizens. There is a lawsuit related to Claudia's death currently pending in the Circuit Court of Cook County, Illinois, in which Defendants Motor Coach Industries International, Inc. ("MCI"), Greyhound Lines, Inc. ("Greyhound"), and Wesley Jay Tatum ("Tatum"), are also defendants. The Amended Complaint does not identify the plaintiff in the underlying Cook County action but does allege that the Cook County action "involv[es] matters related to the injuries sustained by the Plaintiffs in this case."

Plaintiffs allege that they retained Defendant Clancy & Stevens, a law firm, and Defendant Stevens, an attorney, to represent their interests in connection with Claudia's death and that Defendant Stevens subsequently engaged in a variety of improper acts. According to Plaintiffs, Stevens successfully petitioned the Circuit Court to appoint Defendant Ammendola, an attorney and business associate of Stevens, as Cristina's Guardian as Litem ("GAL") without their knowledge or consent. Plaintiffs claim that Stevens, with Ammendola's assistance, fraudulently induced Vasile and Maria to relinquish custody of Cristina to Stevens so that Stevens could increase her legal fees and that Stevens neglected and abused Cristina during that custody. Plaintiffs also claim that Stevens fraudulently induced them to accept Defendant Cushing as the Administrator of Claudia's estate and then Cushing hired Clancy & Stevens and Stevens as counsel for the estate.

At some point after these events, Plaintiffs allegedly discharged Clancy & Stevens and Stevens as their counsel. Plaintiffs assert that at the time of that discharge, Clancy & Stevens, Stevens, Cushing, and Ammendola were all required to withdraw from the underlying Cook County action yet they refused. Plaintiffs also allege that all Defendants have made fraudulent representations to the Circuit Court of Cook County and have taken positions in that action that are contrary to Plaintiffs' best interests such as agreeing to meet and discuss settlement of that action without Plaintiffs' involvement or consent.

Plaintiffs bring state law claims against Defendants for fraud, legal malpractice, intentional infliction of emotional distress, aiding and abetting an unlawful act, and loss of society. Plaintiffs' claims against MCI, Greyhound and Tatum have been severed and those parties are not involved in the pending motions. The remaining Defendants have moved to dismiss Plaintiffs' claims against them pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Because Plaintiffs are citizens of Romania and currently reside there, they claim that the Court has diversity jurisdiction over their claims pursuant to 28 U.S.C. § 1332(a)(2).


A. Plaintiffs' Claims Against Defendant Cushing

Defendant Cushing filed a Motion to Dismiss Plaintiffs' claims against him for fraud, legal malpractice, aiding and abetting an unlawful act, and loss of society. Plaintiffs did not respond to Cushing's motion but, in responding to Defendant Ammendola's Motion to Dismiss, Plaintiffs stated, "Plaintiffs . . . have reached an agreement with Mr. Cushing through his counsel that they will voluntarily dismiss him as a party in this lawsuit and will not respond to his motion." To date, Plaintiffs have not voluntarily dismissed Defendant Cushing but their failure to respond to his Motion to Dismiss, alone, warrants dismissal of their claims against him. See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir., 1999); Stransky v. Cummins Engine Co., 51 F.3d 1329, 1335 (7th Cir., 1995). Given Plaintiffs' failure to respond to Cushing's motion and their intention to dismiss him voluntarily as stated in their brief submitted to this Court, Plaintiffs' claims against Defendant Cushing are dismissed with prejudice.

B. Motion to Dismiss Pursuant to Rule 12(b)(1)

Defendant Ammendola argues in her Motion to Dismiss that Cristina Zvunca is actually a citizen of Illinois and, because the Amended Complaint states that Defendants Clancy & Stevens, Stevens, Ammendola and Cushing are Illinois citizens, complete diversity of citizenship does not exist among the parties and this Court does not have subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(2). The Court will look to a Plaintiff's physical location and intent to make that place his home indefinitely at the time the action was commenced in resolving jurisdiction questions involving diversity. See Perry v. Pogemiller, 16 F.3d 138, 140 (7th Cir., 1993); Castellon-Contreras v. I.N.S., 45 F.3d 149, 152 (7th Cir., 1995); 24 Hour Fitness USA, Inc. v. Bally Total Fitness Holding Corp., No. 08-3853, 2008 WL 4671748, at *5 (N.D.Ill., Oct. 21, 2008). Plaintiffs have the burden of establishing that diversity jurisdiction exists "to a reasonable probability." See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir., 1995). If any of the plaintiffs have common citizenship with even a single defendant, federal diversity jurisdiction is destroyed. Carden v. Arkoma Associates, 494 U.S. 185 (1990). The Court may consider matters beyond the pleadings in considering a motion to dismiss brought pursuant to Rule 12(b)(1). See Lumpkin v. U.S., 791 F.Supp. 747, 749 (N.D.Ill., 1992).

Here, the Amended Complaint states that all Plaintiffs are citizens and residents of Romania. Defendant Ammendola concedes that Cristina moved to Romania with Vasile and Maria in late July 2008, before commencing this action in August 2008, and that she still lives there. However, Ammendola claims that Plaintiffs do not intend for Cristina to remain in Romania but rather for Cristina to return to Illinois to live with her stepfather and attend school. In support of her position, Ammendola has submitted a July 2008 report of Cristina's GAL and the transcript of a July 2008 proceeding before the Circuit Court of Cook County, Probate Division.

The documents submitted by Ammendola do not support her position that Cristina is an Illinois citizen. These documents merely show that Vasile and Maria, as Cristina's grandparents and adoptive parents, chose to move Cristina back to Romania with them before filing this action because her stepfather's work schedule in Illinois would have left her unsupervised for excessive amounts of time. While Vasile and Maria's attorney stated before the Cook County Court that Vasile and Maria hoped Cristina could one day return to the United States, he also made it clear such a move was not possible at this time and that Cristina will remain in Romania indefinitely. Thus, Cristina's physical location and intention to remain in Romania establish that her domicile and citizenship are Romanian. Accordingly, this Court has diversity jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. § 1332(a)(2).

C. Motions to Dismiss Pursuant to Rule 12(b)(6)

Defendants also move to dismiss Plaintiffs' claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss, the court accepts all well-pleaded facts as true, and draws all reasonable inferences in favor of the plaintiff. See, e.g., Jackson v. E.J. Brach Corp., 176 F.3d 971, 977-78 (7th Cir., 1999). "A complaint must always . . . allege 'enough facts to state a claim to relief that is plausible on its face.'" Limestone Development Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir., 2008) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). To avoid dismissal, the "allegations must plausibly suggest that the plaintiff has ...

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