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Neil v. Nesbit

United States District Court, N.D. Illinois, Eastern Division

September 27, 2014

MARTHA E. NEIL, Plaintiff,
KOVITZ SHIRFRIN NESBIT, an Illinois law firm, Defendant.


ANDREA R. WOOD, District Judge.

Plaintiff Martha Neil has sued Defendant Kovitz Shirfrin Nesbit ("KSN"), a law firm that performs debt collection work for its clients, for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. In addition to her federal claim under the FDCPA, Neil's complaint also asserts a number of claims under Illinois common law. Now before the Court is KSN's motion to dismiss several of those state law claims (the "Motion"). (Dkt. No. 23.) For the reasons stated below, the Court grants in part and denies in part KSN's Motion.


The following facts are taken from the first amended complaint ("Complaint") and accepted as true for the purposes of the Motion.[1] Since 1998, Neil has owned two apartments at the Lunt Court Condominium Association ("LCCA"). (First Am. Compl. ¶ 5, Dkt. No. 19.) She uses one of the apartments as her personal residence, which she shares with roommates, and rents the other apartment to an African-American Section 8 tenant. ( Id. ¶¶ 5, 31.) Neil filed an administrative fair housing complaint against LCCA in late 2010. ( Id. ¶ 29.) Shortly thereafter, LCCA retained KSN to pursue debt collection litigation against Neil, and KSN filed lawsuits against Neil in late 2012. ( Id. ¶¶ 29, 31.) Although the ostensible purpose of the lawsuits was to collect assessments and fines that Neil owed, in fact LCCA and KSN's true intention was to "annihilate [Neil] personally and professionally" and ultimately to force Neil, her roommates, and her Section 8 tenant to leave their units in LCCA's building. ( Id. ¶¶ 12, 46.) Neil alleges that this scheme was motivated by the personal animus and racism of certain LCCA members, and was also intended as retaliation against Neil for filing her administrative fair housing complaint. ( Id. ¶¶ 19, 21, 25.)

Neil claims that KSN's collection activities on behalf of LCCA included numerous instances of harassment. For example, she alleges that KSN sent debt collection demand notices with little or no legitimate basis to her workplace, and that at least one of these notices was opened by a fellow employee and shared with her supervisors. ( Id. ¶ 40.) Neil also complains that KSN sent collection demands that were styled as court pleadings when, in fact, they were not; and it sent various debt collection notices and letters threatening legal action to Neil's roommates and tenant. ( Id. ¶¶ 40, 95-96.) KSN also filed two debt collection lawsuits in Illinois state court based on condominium assessments owed to LCCA by Neil despite the fact that Neil had offered to pay the assessments. ( Id. ¶ 41.) And through that state court proceeding, KSN obtained a wage garnishment order against Neil by misrepresenting facts to a judge. ( Id. ¶ 91.)

Based on these allegations, Neil's Complaint asserts eight causes of action: violation of the FDCPA (Count I); invasion of privacy (private facts) (Count II); false light invasion of privacy (Count III); invasion of privacy by intrusion upon seclusion (Count IV); breach of the duty of good faith and fair dealing (Count V); tortious interference with actual and prospective economic advantage (Count VI); abuse of process (Count VII); and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq. (Count VIII). The Motion seeks dismissal of Counts III, IV, V, VII, and VIII for failure to state a claim.


The basic pleading requirement is set forth in Federal Rule of Civil Procedure 8(a)(2), which requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the short and plain statement must contain sufficient factual allegations "to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). "In evaluating the sufficiency of the complaint, [courts] view it in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from the allegations in the plaintiff's favor." AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011).

I. Count III - Invasion of Privacy (False Light)

Under Illinois law, the tort of invasion of privacy can occur when one person publicly places another in a false light. See Lovgren v. Citizens First Nat'l Bank of Princeton, 534 N.E.2d 987, 989-90 (Ill. 1989). To sustain a cause of action for false light invasion of privacy, a plaintiff must demonstrate that: "(1) he or she was placed in a false light before the public as a result of the defendant's actions; (2) the false light in which the plaintiff[ ] was placed would be highly offensive to a reasonable person; and (3) the defendant[ ] acted with actual malice, that is, with knowledge that the statements were false or with reckless disregard for whether the statements were true or false.'" Kurczaba v. Pollock, 742 N.E.2d 425, 434-35 (Ill.App.Ct. 1st Dist. 2000) (quoting Kirchner v. Greene, 691 N.E.2d 107, 115-16 (Ill. 1998)).

KSN argues that Neil fails to allege sufficiently that she was placed in a false light "before the public." According to KSN, Neil has only alleged that KSN placed her in a false light to her employer and her tenant, and it is not an invasion of the right of privacy to communicate facts concerning Neil's private life to such a limited number of persons. (Def.'s Mot. at 2, Dkt. No. 23).

KSN reads Illinois law too narrowly. United Laboratories, Inc. v. Savaiano, No. 06-cv-1442, 2007 WL 4557095 (N.D. Ill.Dec. 21, 2007), the primary case cited by KSN, acknowledges that "even where the public to which the defendant disseminated the materials was not sufficiently large, ' the existence of a special relationship between the plaintiff and the recipients of the information can be enough to satisfy the public disclosure requirement." Id. at *10 (quoting Kurczaba, 742 N.E.2d at 436-37); see also Poulos v. Lutheran Soc. Servs. of Ill., Inc., 728 N.E.2d 547, 555-56 (Ill.App.Ct. 1st Dist. 2000) ("[T]he element of before the public' in an action for false light may be satisfied by establishing that false and highly offensive information was disclosed to a person or persons with whom a plaintiff has a special relationship."). Here, Neil alleges that KSN's actions resulted in disclosure of baseless debt collection demand notices to a fellow employee, as well as to Neil's work supervisors. (First Am. Compl. ¶ 40.) Under Illinois law, a plaintiff's co-workers and employers may constitute a class to which the special relationship exception applies. See Kurczaba, 742 N.E.2d at 437 (citing Johnson v. K mart Corp., 723 N.E.2d 1192, 1197 (Ill.App. 1st Dist. 2000)).[2] Accordingly, Neil has stated a claim for false light invasion of privacy and KSN's Motion is denied with respect to Count III.

II. Count IV - Invasion of Privacy (Intrusion upon Seclusion)

To state a cause of action for invasion of privacy based on intrusion upon seclusion under Illinois law, [3] a plaintiff must plead (1) an unauthorized intrusion into her seclusion; (2) that is offensive or objectionable to a reasonable person; (3) regarding a private matter; and (4) that causes anguish and suffering. Harman v. Gist, No. 02-cv-6112, 2003 WL 22053591, at *7 (N.D. Ill. Sept. 2, 2003) (citing Johnson, 723 N.E.2d at 1196). With the tort of intrusion upon seclusion, "the injury stems from the intrusion itself and not from any publication." Id. (citing Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir. 1993)). "Examples of actionable intrusion upon seclusion would include invading someone's home, illegally searching someone's shopping bag in a store, ...

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