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John F. Tamburo, D/B/A/ Man's Best Friend Software, and Versity Corporation v. Steven Dworkin

January 11, 2012


The opinion of the court was delivered by: Judge Joan B. Gottschall


In light of the death of defendant Steven Dworkin ("Dworkin"), Plaintiff Versity Corporation ("Versity") moves to substitute Darren Dworkin, Stacey Dworkin-Pressman and Lisa Dworkin-Miller (the "Dworkin Children") as defendants in this action under Federal Rule of Civil Procedure 25(a). Versity has also filed a corresponding motion for discovery and an evidentiary hearing on its Rule 25(a) motion. For the reasons stated below, the motion to substitute is denied, and the motion for discovery and an evidentiary hearing is granted in part.


The history of this case is more fully recounted in prior opinions of both this court and the Seventh Circuit. See Tamburo v. Dworkin, 601 F.3d 693 (7th Cir. 2010); Tamburo v. Dworkin, No. 04 C 3317, 2010 WL 5476780 (N.D. Ill. Dec. 29, 2010); Tamburo v. Dworkin, No. 04 C 3317, 2007 WL 3046216 (N.D. Ill. Oct. 9, 2007). Relevant here, Dworkin, who operated a website containing Keeshond dog pedigree data, allegedly retaliated against Versity and its owner, Richard Tamburo, by generating defamatory web-postings and emails that accused Versity and Tamburo of stealing publicly available information from his website and selling the material for commercial gain; the same web-postings and emails allegedly urged people to boycott Versity's commercial website, which charges a fee to access its database.

While the case had originally contained both federal antitrust and state common law claims, the Seventh Circuit affirmed the dismissal of the antitrust claims, Tamburo, 601 F.3d at 699-700, and this court dismissed a declaratory judgment claim that was grounded in both federal and state law. Tamburo, 2010 WL 5476780, at *2-3. This court also dismissed other common law claims that were pleaded solely on behalf of Tamburo, as well as a claim alleging trade libel and civil conspiracy. Id. at *2, *8-9. Thus, the only counts that remain in the Plaintiffs' Seventh Amended Complaint at this point include two common law intentional tort claims on behalf of Versity alleging tortious interference with a contractual relationship and with prospective economic advantage, and two state law defamation claims on behalf of Tamburo. (See Order, Sept. 21, 2011, ECF No. 477.) The only remaining basis for jurisdiction is diversity. See 18 U.S.C. § 1332.

Steven Dworkin died intestate on September 23, 2008. There was no will to probate, and the Dworkin Children disposed of his assets, which they argue were de minimis at the time of his death. Versity argues that Dworkin had several assets when he died, including his Keeshond dog pedigree database, research papers, and valuable show dogs. Versity filed a suggestion of death with this court on February 9, 2011. Versity filed its motion to substitute the Dworkin Children as parties defendant in Steven Dworkin's place on March 24, 2011.


Rule 25(a) of the Federal Rules of Civil Procedure states that this court "may order substitution of the proper party" in the event that "a party dies and [a] claim is not extinguished." Fed. R. Civ. P. 25(a)(1). "If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed." Id. There is no dispute over whether or not Versity filed its motion within 90 days after filing its suggestion of death. This court must first ask, therefore, whether the Plaintiffs' remaining claims against Dworkin survive his death. See Atkins v. City of Chi., 547 F.3d 869, 870 (7th Cir. 2008) (noting that Rule 25(a) requires that a "claim on which the suit is based" survive the death of the party to allow substitution). Second, assuming that at least some of the remaining claims do survive Dworkin's death, the court must ask whether the Dworkin Children-or perhaps someone else-are "proper parties" who may be substituted in Dworkin's stead.


A. Surviving Claims

To assess which of the remaining state law claims against Dworkin survive, the Illinois courts apply the Illinois Survival Act, 755 ILCS 5/27-6. See People ex rel. Fahner v. Testa, 445 N.E.2d 1249, 1253-54 (Ill. App. Ct. 1983) (applying the Illinois Survival Act to determine whether various causes of action survived upon a defendant's death). The act states:

In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 6-21 of "An Act relating to alcoholic liquors." 755 ILCS 5/27-6.

The quoted text indicates that Illinois exempts claims of defamation-slander and libel- from the Survival Act. Accordingly, Counts VIII and IX, which are claims of defamation per se and defamation per quod, do not survive as to defendant Dworkin, since he has died. See Tunnell v. Edwardsville Intelligencer, Inc., 252 N.E.2d 538, 540 (Ill. 1969) (noting that, at common law, "pending defamation action[s] w[ere] held to abate upon the death of either party" and stating that this common law rule applies to defamation actions in Illinois (emphasis added)). Thus, no one may be substituted as a party to defend Dworkin's estate as to these claims.

The two remaining claims against Dworkin's estate seek reimbursement for Versity's economic losses under the theory of tortious interference with (1) Versity's prospective economic advantage and (2) its existing contracts. While these claims are not explicitly referenced in the Illinois Survival Act, the Illinois Supreme Court held in McDaniel that actions to recover damages for injuries to "personal property" are to be given a broad construction "with reference to the conditions of present-day life," see McDaniel v. Bullard, 216 N.E.2d 140, 143 (Ill. 1966), and following McDaniel, an Illinois appellate court held that tortious interference claims affecting contractual relations are the sorts of actions involving injuries to personal property that survive the death of a party. See Williams v. Palmer, 532 N.E.2d 1061, 1064 (Ill. App. Ct. 1988). Given that the Illinois Survival Act is "liberally construed to prevent abatement" of actions, Bryant v. Kroger Co., 570 ...

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