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Simon v. Northwestern University

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

January 3, 2017

ALSTORY SIMON, Plaintiff/Counter-Defendant,
v.
NORTHWESTERN UNIVERSITY, DAVID PROTESS, JACK P. RIMLAND, and Defendants, PAUL J. CIOLINO, Defendant/Counter-Plaintiff,
v.
ANITA ALVAREZ, ANDREW M. HALE, TERRY A. EKL, JAMES G. SOTOS, JAMES DELORTO, JOHN MAZZOLA, MARTIN PREIB, WILLIAM B. CRAWFORD, and WHOLE TRUTH FILMS, LLC Counter-Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Plaintiff Alstory Simon filed suit against Defendants Northwestern University, David Protess, Paul J. Ciolino, and Jack Rimland alleging that Defendants' unethical journalistic and investigative practices led to his wrongful conviction and 15-year incarceration for a double murder that he did not commit. [See 1.] More specifically, Simon alleges that Defendants knowingly falsified evidence and disseminated that evidence to the prosecuting authorities to frame Simon for the murders. Ciolino filed a counterclaim against Simon, Anita Alvarez, Andrew M. Hale, Terry A. Ekl, James G. Sotos, James Delorto, John Mazzola, Martin Preib, William B. Crawford, and Whole Truth, LLC (collectively, “Counter-Defendants”). Before the Court are Simon's motion to dismiss the counterclaim for lack of jurisdiction [119], Alvarez's motion to dismiss [134], and the remaining Counter-Defendants' motion to strike [122]. For the reasons set forth below, the Court grants Simon's motion to dismiss the counterclaim [119] and strikes motions [134], [122], and [142] as moot.

         I. Background

         A. Simon's Lawsuit [[1]]

         In February 2015, Simon filed a civil lawsuit against Protess, Ciolino, Rimland, and Northwestern University, seeking damages for their roles in his wrongful conviction and 15-year imprisonment. Simon alleges that Protess, a faculty member of Northwestern University's Medill School of Journalism, and Ciolino, a private investigator, fabricated evidence to exonerate Anthony Porter and to frame Simon for the murder of Jerry Hillard and Marilyn Green. Simon was allegedly coerced by Defendants to confess to the double murder, and he was sentenced to 52 years in prison. In 2001, Simon filed a pro se post-conviction petition arguing that he had been coerced into pleading guilty and that evidence of Porter's guilt had been hidden from him. Simon's post-conviction motion was denied, but it set in motion a years-long investigation that eventually led to his exoneration. In late 2005/early 2006, two witnesses recanted their statements, explaining that they provided false testimony based on promises made by Protess. In October 2013, the State's Attorney's Office announced that it would re-investigate the Hillard and Green murders. The investigation took one year and involved interviews of over 100 witnesses. On October 30, 2014, State's Attorney's Office moved to abandon the charges against Simon via a nolle prosequi. The Circuit Court granted the motion, vacated all charges against Simon, and released him from custody. Later that day, Cook County State's Attorney Anita Alvarez gave a press conferencing discussing her office's decision to abandon the charges against Simon.

         On February 17, 2015, Simon filed a civil lawsuit against Protess, Ciolino, Rimland, and Northwestern University, seeking damages for their roles in his wrongful conviction and 15-year imprisonment. On April 16, 2016, the Court granted in part and denied in part Defendants' motions to dismiss. [72.] The Court dismissed Rimland as a Defendant in the case without prejudice and dismissed Counts IV through VIII of Simon's complaint without prejudice. The Court permitted Simon to proceed against Protess and Ciolino on Count I (malicious prosecution) and Count IX (conspiracy) and against Northwestern University on his vicarious liability theories, as articulated in Counts I, II, and III of Simon's complaint.

         B. Ciolino's Counterclaim

         On September 9, 2016, Ciolino filed his second amended counter-complaint [162] against Counter-Defendants Simon, Alvarez, Hale, Ekl, Sotos, Delorto, Mazzola, Preib, Crawford, and Whole Truth, LLC, bringing state law claims of defamation (Counts I-III), false light (Count IV), intentional infliction of emotional distress (Count V), and civil conspiracy (Count VI). According to Ciolino, 2015 marked the Chicago premier of a “self-proclaimed documentary” entitled “Murder in the Park, ” produced and funded by Counter-Defendant Hale and his production company Counter-Defendant Whole Truth Films, LLC. [162, at ¶ 2.] Ciolino alleges that the documentary, featuring Counter-Defendants Hale, Ekl, Sotos, Delorto, Mazzola, Crawford, and Alvarez, “advances an outrageous and demonstrably false claim that with the blessing of Northwestern University, David Protess and Paul Ciolino framed [Simon] so that death row inmate Anthony Porter could become a ‘poster boy' for the bid to end execution in Illinois.” [Id.] The documentary is based largely on a book allegedly “chock full of false and defamatory statements, ” entitled Justice Perverted: How the Innocence Project at Northwestern University's Medill School of Journalism Sent an Innocent Man to Prison, written by Counter-Defendant Crawford and funded by Counter-Defendant Hale. [Id. at ¶ 3.] According to the counter-complaint, the book was published on June 9, 2015. [Id. at¶ 126.] Ciolino alleges that Counter-Defendant Preib, a former Chicago Police Officer and author of the blog “Crooked City: The Blog About The Wrongful Conviction Movement, ” has “celebrated, promoted, and expanded upon” the “false narrative” advanced by the documentary and book. [Id. at ¶ 4.]

         Ciolino contends that each of the Counter-Defendants has “published to the public, either by spoken word or in the written form, false and defamatory statements accusing Ciolino of conspiring to frame Simon by coercing a false confession from him.” [Id. at ¶ 5.] The counter-complaint sets forth the specific statements made by the Counter-Defendants in the documentary, the book, and the blog. [Id. at ¶¶ 116, 129, 140.] Ciolino further alleges that each Counter-Defendant possessed a high degree of awareness that the statements they advanced in the documentary, the book, or in Counter-Defendant Preib's blog were “probably false” and that Simon is actually guilty of the murders to which he pled guilty. [Id. at ¶ 8.] Ciolino alleges that the Counter-Defendants conspired to discredit, defame, and defeat Protess, Ciolino, and Northwestern University, “all as ‘pay back' for their efforts and success at revealing the injustices in the Illinois criminal justice system and their work toward abolition of the death penalty. [Id. at ¶ 9.] He contends that the “false and defamatory statements have caused irreparable harm to [his] reputation and destroyed his career.” [Id. at 29.] Ciolino accuses Counter-Defendants of acting “not only with reckless disregard for the truth but also with actual malice.” [Id.]

         The counter-complaint offers the following descriptions of the Counter-Defendants: Hale, Ekl, and Sotos are Simon's attorneys in this litigation; Hale was an executive producer and participant in the documentary and funded Crawford's book Justice Perverted; Ekl and Sotos were participants in the documentary; Delorto and Mazzola are private investigators and were participants in the documentary; Preib is a retired Police Officer and blogger; Crawford is the author of the book Justice Perverted and a public relations consultant who co-founded a media strategy and crisis management firm; and Whole Truth Films, LLC produced the documentary, and Ciolino alleges on information and belief that the company is owned and operated by Hale. [Id. at ¶¶ 3, 15-22.] Alvarez was, at all relevant times, the Cook County State's Attorney. Ciolino alleges that Alvarez made false and defamatory statements about Ciolino at the press conference following the dismissal of the charges against Simon. [Id. at 14, 103-106.]

         Ciolino alleges that his counterclaim is a compulsory counterclaim pursuant to Federal Rule of Civil Procedure 13(a) “as it arises out of the transaction or occurrence that is the subject matter of” Simon's claims against Ciolino. [Id. at 10.] He argues that even if it is not a compulsory counterclaim, the Court has jurisdiction over the counterclaim because “there are identical factual and evidentiary issues between Simon's claim and Ciolino's counterclaim.” Simon moved to dismiss Ciolino's counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Ciolino's filing is a permissive counterclaim under Rule 13(b) over which the Court should decline to exercise supplemental jurisdiction, not a compulsory counterclaim under Rule 13(a). [119.] Alvarez moved to dismiss Ciolino's counterclaim pursuant to Rule 12(b)(6), arguing that absolute immunity bars his claims. [134.] The remaining Counter-Defendants moved to strike Ciolino's counterclaim pursuant to Rule 14(a)(4). [122.] The Court will focus on Simon's motion [119], which is dispositive.

         II. Legal Standard

         A Rule 12(b)(1) motion seeks dismissal of an action for lack of subject matter jurisdiction. The party asserting jurisdiction bears the burden of establishing that jurisdiction is satisfied. Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 913 (7th Cir. 2009). Federal Rule of Civil Procedure 13(a)[2] defines a compulsory counterclaim as one that “arises out of the transaction or occurrence that is the subject matter of the opposing party's claim.” Fed.R.Civ.P. 13(a); see also Pace v. Timmerman's Ranch and Saddle Shop Inc., 795 F.3d 748, 752 (7th Cir. 2015). Such counterclaims are compulsory in the sense that they are lost if not presented. See Channell v. Citicorp Nat. Servs., Inc., 89 F.3d 379, 385 (7th Cir. 1996). No independent basis of federal jurisdiction is needed for a compulsory counterclaim, as long as the court has jurisdiction over the plaintiff's original claim. See, e.g., Moore v. New York Cotton Exchange, 270 U.S. 593, 609 (1926); 3 Moore's Federal Practice P 13.15(1) (2d ed. 1974).

         A counterclaim that arises from a separate transaction or occurrence is permissive and governed by Rule 13(b).[3]Gilldorn Sav. Ass'n v. Commerce Sav. Ass'n, 804 F.2d 390, 396 (7th Cir. 1986). A permissive counterclaim requires an independent basis of federal jurisdiction, as it is outside a court's supplemental jurisdiction. Oak Park Trust & Sav. Bank v. Therkildsen, 209 F.3d 648, 651 (7th Cir. 2000) (noting that 28 U.S.C. § 1367(a) covers only “claims that are so related to claims in the action ...


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