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Deborah Orlando Cooney, Individually and On Behalf of All Others v. Lesley Magnabosco

February 10, 2011

DEBORAH ORLANDO COONEY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
LESLEY MAGNABOSCO, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, THE DEPARTMENT OF
AND FAMILY SERVICES, AND THE MARY ANNE MASON, DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 09 CH 22744 Honorable CHILDREN Judge Presiding.

The opinion of the court was delivered by: Judge Epstein

JUDGE EPSTEIN delivered the judgment of the court, with opinion.

Justices Joseph Gordon and Howse concurred in the judgment and opinion.

OPINION

Plaintiff-appellant, Deborah Orlando Cooney, appeals the involuntary dismissal of her complaint with prejudice pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 2008)). She maintains, inter alia, that the trial court erroneously construed the Illinois Certified Shorthand Reporters Act of 1984 (225 ILCS 415/1 et seq. (West 2008)) (the Act), on which all her claims are based, and that the trial court abused its discretion in denying her leave to amend her complaint. For the reasons below, we affirm.

BACKGROUND

In 2005 plaintiff appealed an indicated finding of abuse against her by the Illinois Department of Children and Family Services (DCFS). Lesley Magnabosco, who is not certified under the Act, allegedly "reported" those proceedings. In July 2009 plaintiff filed the instant lawsuit against Magnabosco, DCFS, and the Illinois Departments of Financial and Professional Regulation (IDFPR), maintaining, individually and on behalf of all others similarly situated, that DCFS violated and continues to violate the Act by using uncertified individuals like Magnabosco to report its administrative proceedings. Section 3 of the Act prohibits anyone from "practic[ing] shorthand reporting on a temporary or permanent basis in this State without being certified under this Act. Th[e] Act does not prohibit any nonresident practicing shorthand reporter from practicing shorthand reporting in this State on a purely temporary basis with reference to one single proceeding." 225 ILCS 415/3 (West 2008).

" 'The practice of shorthand reporting' means reporting, by the use of any system of manual or mechanical shorthand writing, of *** proceedings of an administrative agency when the final decision of the agency with reference thereto is likely to be subject to judicial review under the provisions of the Administrative Review Law." 225 ILCS 415/4(4) (West 2008).

Plaintiff claimed breach of the Act (count I) and aiding and betting violations of the Act (count II), and she sought a declaration that defendants' conduct violates the Act (count III). Defendants each moved to dismiss the complaint. IDFPR maintained, pursuant to section 2-619(a)(1), that plaintiff's claims are barred by the doctrine of sovereign immunity and that the Act does not authorize claims against IDFPR. DCFS contended, pursuant to section 2-619(a)(1), that the instant lawsuit was one of several retaliatory lawsuits by plaintiff against it, that there is no private right of action under the Act, and that plaintiff's claims are barred by the doctrine of sovereign immunity. Magnabosco argued that no private right of action exists under the Act. She also claimed, pursuant to section 2-615, that plaintiff's conclusory allegations did not state a claim under the Act, and that, pursuant to section 2-619, Magnabosco did not engage in shorthand reporting because she was not present at plaintiff's administrative proceedings and merely transcribed an audio tape DFCS provided to her employer. Magnabosco submitted an affidavit in support of her motion, as well a copy of the certification allegedly provided to plaintiff with the transcript of her proceedings that states:

"I, Lesley Magnabosco, have transcribed the proceedings of said hearing by listening to an audio cassette tape, and that the foregoing is a true and correct transcript of my type written notes so taken aforesaid off said audio cassette tape and contains the proceedings given at said hearing off of said audio cassette tape as could be heard to the best of my ability."

Plaintiff responded by seeking discovery pursuant to Supreme Court Rule 191(b) (Ill. S. Ct. R. 191(b) (eff. July 1, 2002) claiming Magnabosco's affidavit and certification were conclusory and that discovery was needed to determine

"exactly how Magnabosco transcribes the tapes and whether the machine she uses could be deemed a 'system of mechanical shorthand writings' under the Act. As Magnabosco's own affidavit indicates, her transcription process took place oustide of Plaintiff's presence. (See, Magnabosco affidavit ¶ 14). Plaintiff needs to conduct discovery to learn exactly how Magnabosco generates DCFS reports of proceedings."

The trial court stayed Magnabosco's section 2-619 motion and denied plaintiff's motion for discovery as moot. It nevertheless considered Magnabosco's certification in ruling on defendants' motions, stating:

"I know that I said I wasn't going to require you to brief the 2-619, but I can take judicial notice of this certification that Ms. Magnabosco attached to her Motion to Dismiss, and it says 'I, Lesley Magnabosco, have transcribed the proceeding of said hearing by listening to an audio ...


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