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Dawaji v. Kohlhoss

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

September 30, 2014

NAJAH DAWAJI, Plaintiff,


GARY FEINERMAN, District Judge.

Najah Dawaji brought this suit against her ex-husband, Morad Askar, and Askar's divorce lawyer, Sunney Kohlhoss, under 42 U.S.C. § 1983 and Illinois law for conspiring to bring and actually bringing criminal contempt charges against her to force her to capitulate on financial and other issues in the couple's state court divorce case. Doc. 1. Askar and Kohlhoss moved to dismiss this suit under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Docs. 35, 39. After the motions were fully briefed, the suit was reassigned to the undersigned judge. Doc. 50. Defendants' motions are granted. Because the Rooker-Feldman doctrine deprives this court of subject matter jurisdiction, dismissal is appropriate under Rule 12(b)(1). And if Rooker-Feldman did not apply, the court would dismiss Dawaji's federal claims under Rule 12(b)(6) and her state law claims under 28 U.S.C. § 1367(c).


Because Defendants' Rule 12(b)(1) motion accepts as true the facts alleged in the complaint and relies on materials subject to judicial notice, Doc. 44 at 8-10, 12-14, their jurisdictional challenge is facial, not factual. See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009). On a facial challenge to subject matter jurisdiction, as on a Rule 12(b)(6) motion, the court must accept the complaint's well-pleaded factual allegations, with all reasonable inferences drawn in the plaintiff's favor, but not the complaint's legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012); Apex Digital, 572 F.3d at 443-44; Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004). The court must also consider "documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice, " along with additional facts set forth in Dawaji's brief opposing dismissal, so long as those facts "are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The facts are set forth as favorably to Dawaji as these materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).

In February 2011, an Illinois court dissolved Askar's and Dawaji's marriage. Doc. 1 at ¶ 12. The court gave Dawaji and Askar joint custody of their two minor children, with Dawaji designated the residential parent, but left for later resolution various financial issues, including child support, maintenance, and distribution of property. Id. at ¶¶ 12-13. Shortly thereafter, Dawaji moved the court for permission to relocate to Iowa or to Moline, Illinois, prompting Askar to seek additional custody and other rights. In April 2012, the parties entered into a Joint Parent Agreement and Custody Judgment covering these matters. Id. at ¶¶ 16-17.

Later that year, Askar retained Kohlhoss as his attorney. Id. at ¶ 18. The pair allegedly agreed that they would accuse Dawaji, falsely, of violating the Joint Parent Agreement; by doing so, they hoped to convince the court to hold Dawaji in contempt and thereby gain an advantage as to the unresolved issues in the divorce case. Id. at ¶ 19. In November 2012, Kohlhoss filed a civil contempt petition against Dawaji but withdrew it the following month. Id. at ¶ 20. Kohlhoss then filed a petition seeking to give Askar sole custody of the couple's two children, again relying on the false allegations. A few months later, Kohlhoss sought and was granted leave to file an indirect criminal contempt petition against Dawaji. Id. at ¶¶ 21-24.

As requested by the court, Kohlhoss gave notice of the petition to the county prosecutor. The prosecutor informed the court that it did not wish to prosecute the matter. Kohlhoss then asked the court to appoint her to prosecute the contempt charges, and the court agreed. Id. at ¶¶ 25-27. In this capacity, Kohlhoss-who identified herself for these purposes as "special prosecutor"-arraigned Dawaji and held a bond hearing. Id. at ¶ 28.

The prospect of criminal charges terrified Dawaji, who soon assented to what she now characterizes as an "extraordinarily one[-]sided civil divorce settlement." Id. at ¶ 31. Dawaji agreed to give up her rights to any marital property, to waive back claims for child support and maintenance, to accept a small monthly payment for future support and maintenance, to return to Chicago from Moline, and to share physical custody of the children with Askar. Kohlhoss, in turn, agreed to dismiss the criminal contempt charges. Id. at ¶ 30. The state court was informed of the agreement and approved it in an order dated August 6, 2013, and Kohlhoss dismissed the contempt charges, as promised, on August 21. Docs. 44-11, 44-12, 44-13.

Dawaji filed this federal suit about two weeks later. Doc. 1. The complaint alleges that Askar and Kohlhoss conspired to manufacture the criminal contempt charges against Dawaji in order to force her to accept unfavorable settlement terms in the divorce proceeding. Id. at ¶¶ 1-5. Had she not been coerced into the settlement, Dawaji alleges, she would have "ma[d]e a record which would entitle her [to] well over three quarters of a million dollars... in marital assets, as well as child support and maintenance in an amount in excess of $5000.00 per month." Id. at ¶ 32.

Count I of the complaint alleges that Defendants conspired to and did deny Dawaji access to the courts in violation of the First Amendment. Counts II-IV allege that Defendants deprived Dawaji of due process, committed abuse of process, and brought a criminal complaint to gain advantage in a civil case, all in violation of the Fifth and Fourteenth Amendments. Count V alleges that Defendants deprived Dawaji of her right to child support under Title IV-D of the Social Security Act, 42 U.S.C.§ 651 et seq. Count VI alleges malicious prosecution under both federal and Illinois law. And Counts VII-VIII allege intentional and negligent infliction of emotional distress under Illinois law.


Defendants seek dismissal for lack of subject matter jurisdiction under the Rooker-Feldman doctrine; in the alternative, they seek dismissal on the merits. Jurisdiction must be considered first. See Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 645 (7th Cir. 2011).

Rooker-Feldman provides that a federal district court has no power to hear "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Dawaji does not dispute that the divorce court's agreed order is a state court judgment for Rooker-Feldman purposes, see Johnson v. Orr, 551 F.3d 564, 568-69 (7th Cir. 2008), and she claims not to seek review or rejection of that judgment. As Dawaji sees it, her quarrel is not with the divorce court's agreed order, but with Defendants' conduct-their conspiring to bring false criminal contempt charges-that led her to agree to the order in the first place. She styles her lawsuit a "typical wrongful prosecution case brought under § 1983, " and she says that "[t]he divorce proceedings are only relevant as to the amount of damages Plaintiff seeks in this new and independent federal claim." Doc. 45 at 2.

The fact that Dawaji does not claim that the divorce court's agreed order itself is invalid does not, on its own, bring this case outside Rooker-Feldman 's scope. See Johnson, 551 F.3d at 568 ("It is of no consequence that Mr. Johnson's complaint does not challenge specifically the agreed order."). The Seventh Circuit has long and repeatedly held, both before and after the Supreme Court's recapitulation of the doctrine in Saudi Basic Industries, that even where a federal plaintiff's claims "do not on their face require review of a state court's decision, " the doctrine applies if those claims are "inextricably intertwined" with a state court judgment and if the plaintiff "had a reasonable opportunity to raise the issue in state court proceedings." Brown v. Bowman, 668 F.3d 437, 442 (7th Cir. 2012); see also Kansas City S. Ry. Co. v. Koeller, 653 F.3d 496, 503 (7th Cir. 2011); Crawford, 647 F.3d at 647; Johnson, 551 F.3d at 568; Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 603 (7th Cir. 2008); Dye v. Ameriquest Mortg. Co., 289 F.Appx. 941, 943 (7th Cir. 2008); Hemmer v. Ind. State Bd. of Animal Health, 532 F.3d 610, 613-14 (7th Cir. 2008); Beth-El All Nations Church v. City of Chicago, 486 F.3d 286, 292 (7th Cir. 2007); Manley v. City of Chicago, 236 F.3d 392, 396 (7th Cir. 2001); Ritter v. Ross, 992 F.2d 750, 753-55 (7th Cir. 1993).[*] To determine whether a given federal claim and a prior state court judgment are inextricably intertwined, the court asks ...

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