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Drabik v. Drabik

United States District Court, Seventh Circuit

May 23, 2013

JAMES T. DRABIK, Plaintiff,


JEFFREY COLE, Magistrate Judge.

This case concerns a dispute between a brother on the one side and his sisters on the other over their mother's estate and their aunt's finances. The brother has filed suit against his sisters, charging them with defamation as a result of a series of letters they wrote to other family members in which they accused their brother of, among other things, elder abuse, embezzlement, and perjury. He adds a count of conspiracy among the sisters, alleging that they have combined to prosecute a series of frivolous lawsuits against them. The sisters have moved for judgment on the pleadings under Fed.R.Civ.P. 12(c), arguing that: (1) any statements made in the letters were true; (2) the letters were merely reports about what was going on in court proceedings and so are subject to the litigation privilege; (3) the letters were published only to family members and so were not published to third parties; (4) their brother's description of their "one lawful action" against him - taking him to court - is insufficient to plead a conspiracy.

A motion for judgment on the pleading under Fed.R.Civ.P. 12(c) assumes that all well-pleaded allegations of the complaint are true and all reasonable inferences must be drawn in favor of the non-moving party. Scherr v. Marriott Intern., Inc., ___ F.3d ___, ___, 2013 WL 57857, 3 (7th Cir. 2013); Fail-Safe, LLC v. A.O. Smith Corp., 674 F.3d 889, 892 (7th Cir.2012). The question is whether the complaint sets forth facts sufficient to support a cognizable legal theory. Scherr, 2013 WL 57857, 3; St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir.2007). The complaint in this case does, and for the following reasons, the sisters' motion for judgment on the pleading is denied. This is not a matter that can be resolved on the basis of the pleadings alone.


The sisters contend the statements they made in the letters were true and so cannot be the basis of an action for defamation. But, not surprisingly, the veracity of their accusations against their brother cannot be determined from their brother's complaint. That's a matter to be proved - or disproved - with evidence.


The litigation privilege is inapplicable here. The privilege is based upon "a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients." Restatement (Second) of Torts § 586 cmt. a (1977); August v. Hanlon, 975 N.E.2d 1234, 1247, 363 Ill.Dec. 925, 938 (2nd Dist.2012). Because the privilege provides complete immunity, its scope is necessarily narrow. Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill.App.3d 156, 165, 273 Ill.Dec. 149, 788 N.E.2d 740 (2003). Thus, the privilege is available only when the publication: (1) was made in a judicial proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objects of the litigation; and (4) involved litigants or other participants authorized by law. Malevitis v. Friedman, 323 Ill.App.3d 1129, 1131, 753 N.E.2d 404, 406-07, 257 Ill.Dec. 209, 211-212 (1st Dist. 2001) ; Kurczaba v. Pollock, 318 Ill.App.3d 686, 702, 252 Ill.Dec. 175, 742 N.E.2d 425 (2000). The letters at issue here were, obviously, not part of a judicial proceeding - nor were they made to achieve the objects of any litigation - so the privilege does not apply.

The sisters also seem to assert that the fair-report privilege covers their letters. This privilege protects publications that fairly and accurately report an official action or proceeding. Solaia Technology, LLC v. Specialty Pub. Co., 221 Ill.2d 558, 588, 852 N.E.2d 825, 843 (2006);; Republic Tobacco Co. v. North Atlantic Trading Co., Inc., 381 F.3d 717, 731 (7th Cir. 2004). To determine whether the privilege applies, the court must assess the accuracy of the report. Solaia Technology, 221 Ill.2d 558, 589-90, 852 N.E.2d 825, 84. Moreover, a reporter is not privileged to make additions of her own that would convey a defamatory impression or to indict expressly or by innuendo the veracity or integrity of any of the parties. Solaia Technology, 221 Ill.2d at 590, 304 Ill.Dec. 369, 852 N.E.2d 825. As with the sister's assertion of truth as a defense, the accuracy of the report in the sisters' letter cannot be determined from the complaint alone.[1]


The sisters are correct that defamation entails publication of the defamatory matter to a third party. Popko v. Continental Cas. Co., 355 Ill.App.3d 257, 264-65, 823 N.E.2d 184, 191 (1st Dist. 2005). But the sisters have no support for what seems to be their theory that there is a privilege for publishing defamatory statements to family members. A relative is a third party just the same as any other individual. Moreover, their brother's complaint alleges that they sent the letters to family members and others. ( Complaint, §§ 8, 9, 11, 20, 25, 31, 36, 42, 47).


Next, the sisters contend that their brother's conspiracy claims fails because it is conclusory. To state a claim for civil conspiracy, [the] plaintiff must allege facts establishing both (1) an agreement to accomplish such a goal and (2) a tortious act committed in furtherance of that agreement. Bober v. Illinois Workers' Compensation Com'n, 2012 WL 6950278, 9 (1st Dist. 2012); Farwell v. Senior Services Associates, Inc., 970 N.E.2d 49, 58, 361 Ill.Dec. 49, 58 (2nd Dist. 2012). Id. Here, the complaint details the goals of the conspiracy ( Complaint, § 6), the agreement and how it was reached ( Complaint, § 7), and the acts of defamation and the filing of frivolous lawsuits. ( Complaint, §§ 7-59). The complaint is a plausible account of a conspiracy and nothing more is required. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); Geinosky v. City of Chicago, 675 F.3d 743, 749 (7th Cir. 2012). The sisters mistakenly seek to hold their brother to a fact-pleading standard of Illinois ( Brief in Support of Defendants' Motion, at 11; Pro Se Defendants' Reply, at 4-7, 14), but it is they who chose to remove their brother's suit to federal court where a notice-pleading standard applies. Christensen v. County of Boone, IL, 483 F.3d 454, 466 (7th Cir. 2007). A case like Lykowski v. Bergman, 299 Ill.App.3d 155, 166 (1st Dist, 1988), upon which the sisters rely ( Pro Se Defendants' Reply, at 10), has no place in a brief attacking pleadings in federal court. Because the sisters have moved this matter to federal court, they cannot demand that their brother plead an elaborately detailed set of facts.


Finally, there is the sister's reply brief. It was due on January 30th. (Dkt. #75). On January 28th - the day before it was due - the sisters filed a motion for a two-day extension of time. (Dkt. #80). That would have made the new deadline February 1st. But the motion was never considered - and, of course, never granted - it was accompanied by a notice of what date it would be presented in court. See Local Rule 5.3(2)(b); (Dkt. #84). Also, the sisters failed to provide a courtesy copy as required by Local Rule 5.2(f). Ironically, the reason the sisters gave for needing an extension was "to ensure full compliance with all Federal and Local Rules." (Dkt. #83). After all that, the sisters did ...

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