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Fogel et al v. Bukovic et al

May 5, 2011

FOGEL ET AL
v.
BUKOVIC ET AL



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The Court denies Plaintiffs' consolidated motion for sanctions for abuse of discovery process and to quash subpoenas [17]. Defendants shall file a brief addressing the question whether they are entitled to their reasonable expenses by 5/12/11. Plaintiffs shall file a response by 5/17/11.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

On February 18, 2011, Defendants Lynwood Police Sergeant Bukovic, Lynwood Police Officer Suroviak, and the Village of Lynwood removed the instant case from the Circuit Court of Cook County to this Court. (R. 1.) Plaintiffs Richard Fogel, Trustee for the Bankruptcy Estate of Belinda Montgomery, and Robert Reid allege that Defendants failed to protect them from Ms. Montgomery's deceased husband, who on October 8, 2008, shot Ms. Montgomery and himself. (R. 1 at 41-63.) In their Third Amended Complaint, Plaintiffs submit that the Defendant officers failed to arrest Ms. Montgomery's husband on October 6, 2008, following a domestic dispute. (Id. at 52-53.) They bring claims for violation of the Illinois Domestic Violence Act, for intentional infliction of emotional distress, for civil conspiracy, and for violation of civil rights. (Id. at 51-62.)

Previously, while the case was before the Circuit Court of Cook County, Defendants filed a motion to dismiss, arguing that the statute of limitations barred Plaintiffs' state-law actions because, although Ms. Montgomery's injuries arose from Defendants' alleged failure to arrest Ms. Montgomery's husband on October 6, 2008, Plaintiffs did not file their complaint until more than a year later, on December 9, 2009. (R. 25 at 2-3.) In response, Plaintiffs argued that Illinois law tolled the statute of limitations until January 2009 "based on the severity of Plaintiff Montgomery's life-threatening injuries and incapacitation[.]" (Id. at 22-23.) The state court denied Defendants' motion to dismiss "after accepting as true all well-pled facts of the first amended complaint" on the ground that "plaintiff alleged sufficient facts to establish that she was not fully able to manage her person or estate and was, therefore, under a legal disability." (Id. at 50-51.) Defendants subsequently sought discovery with respect to Ms. Montgomery's alleged disability. (Id. at 5-6.)

Courtroom Deputy KF

Initials:

On March 31, 2011, after removal, Plaintiffs filed the consolidated motion for sanctions for abuse of discovery process and to quash subpoenas that is presently before the Court. (R. 17.) Plaintiffs take issue with subpoenas that Defendants served on a nonparty witness, Cynthia Frye. (Id. at 2.) They object that, "[a]lthough an attorney can certainly interview a witness, it is patently improper to do so by using a subpoena to compel a witness to come to an office to be interviewed[.]" (Id. at 4.) They further submit that Defendants improperly applied coercive tactics on Ms. Frye, presenting her with a four-page affidavit, "which she hurriedly reviewed and signed, but which contained mischaracterizations[.]" (Id. at 3.) Plaintiffs also contend that Defendants did not serve them with copies of the subpoenas that the latter served on Ms. Frye. (Id. at 2-3.) Plaintiffs thus request that this Court enter an order providing that "all information obtained through the abuse of discovery procedures as described above including, but not limited to the affidavit obtained from Ms. Frye be suppressed; award Plaintiffs their reasonable attorney's [sic] fees in connection with time spent bringing this Motion; and such other relief as this Honorable Court deems necessary and just." (Id. at 5.)

Furthermore, Plaintiffs seek to quash subpoenas that Defendants served on U.S. Employee Credit Union, Capital One, Chase Card Services, Citi Financial Retain Services, HSBC Card Services, JC Penney, Macy's, Target Corporation, Chase Manhattan Mortgage Corp., and GMAC Mortgage. (Id. at 5-7.) These subpoenas seek information about Ms. Montgomery's credit-card and bank-account activities from October 8, 2008, through January 2009-the period in which Ms. Montgomery maintains that she was legally disabled. Plaintiffs submit that, "[i]n seeking to subpoena documents regarding all of Plaintiff's financial activities, Defendants have engaged in an abusive fishing expedition which is far beyond the scope of permissible discovery in this case[.]" (Id. at 7.)

I. State Procedural Law Governs Pre-Removal Conduct, but Federal Procedural Law Applies to Post-Removal Conduct

A preliminary question concerns the parties' dispute over the operative procedural law that governs the instant consolidated motion. Defendants submit that federal law applies to the instant dispute, while Plaintiffs maintain otherwise on the ground that "the Motion alleges violations of state rules, while the case was pending in the Circuit Court." (R. 25 at 1-2; R. 28 at 2.) Neither side cites any case law in favor of, or against, their respective positions. (Id.)

The Court determines that state procedural rules apply to conduct that predated removal, but that federal procedural rule govern post-removal conduct. See Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 (7th Cir. 2001) ("The Federal Rules make clear that they do not apply to filings in state court, even if the case is later removed to federal court. . . . The parties do disagree, however, as to the applicability of Illinois Supreme Court Rule 103(b) to the case. The Romos claim that the rule has no place in federal court because it is procedural . . . Gulf Stream asserts in reply that the state rule is the proper tool to test the diligence of service effectuated prior to removal. We agree with Gulf stream and conclude that federal courts may apply state procedural rules to pre-removal conduct.") (citations omitted); see also Price v. Wyeth Holdings Corp., 505 F.3d 624, 628 (7th Cir. 2007) ("Because federal procedure does not apply until removal occurs, we apply state rules to preremoval conduct.") (internal citation omitted). See generally Fed. R. Civ. P. 81(c)(1) ("These rules apply to a civil action after it is removed from a state court."). But cf. Porte v. Home Fed. Sav. & Loan Ass'n of Chi., 409 F. Supp. 752, 753 (N.D. Ill. 1976) ("In our judgment, Rule 81(c) does not mean that all pleadings filed before removal need be judged only according to state court ...


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