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Dillon v. Alan H. Shifrin and Associates, LLC

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

June 8, 2017

JERRY W. DILLON, Plaintiff,
v.
ALAN H. SHIFRIN AND ASSOCIATES, LLC, ALAN H. SHIFRIN, personally, STEPHEN FRANKLIN, personally, JOHN C. STURGEON, personally, TERRY SHAW, personally, and FLORENCE THICKLIN, personally Defendants.

          MEMORANDUM AND ORDER

          JOAN B. GOTTSCHALL UNITED STATES DISTRICT JUDGE.

         Before the court is Jerry W. Dillon's second amended complaint. This marks Dillon's third effort to invoke this court's jurisdiction and his third completely different set of legal theories. This time he brings claims under the civil Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1961 et seq. Because Dillon's claims fall within the ambit of the domestic-relations exception to federal question jurisdiction, the court dismisses this action.

         I. BACKGROUND

         No matter the legal garb in which Dillon has clothed his claims, the same essential theme has run through them all. The defendants are Florence Thicklin a.k.a. Florence Mason (“Thicklin”), [1] who brought an action to determine parentage against Dillon in state court in 2000, three attorneys representing her, and their law firm. It is alleged that they have wrongfully and fraudulently sought to collect in Dillon's bankruptcy and in state court (and possibly in state administrative proceedings), unpaid child support and attorney's fees Dillon allegedly owes. See Pet. for Rule to Show Cause, Mason v. Dillon, No. 00D650020 (Cook County Cir. Ct. filed Apr. 29, 2016), available in this record at ECF No. 19-1; see also Orig. Compl. ¶ 8, ECF No. 1. In a new twist, Dillon accuses Thicklin-for the first time in his second amended complaint-of perjury (for misstating the age of a minor) in what he terms a “directly related” administrative proceeding before the Illinois Department of Healthcare and Family Services. (2d Am. Compl. ¶ 59.)

         Dillon pleaded state-law defamation and civil claims under 42 U.S.C. § 1983 in his original complaint. Defendants moved to dismiss Dillon's original complaint for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Dillon amended his complaint before his deadline to respond to that motion. (See Mot. for Leave to Am. Compl., ECF No. 12; Order granting, ECF No. 14.) Dillon dropped his § 1983 and defamation claims in his amended complaint. Instead, he pleaded two claims under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1392 et seq.

         Defendants again moved to dismiss, and the court granted their motion in part on April 28, 2017. This court dismissed Dillon's first amended complaint for lack of subject matter jurisdiction because his child support obligations do not meet the FDCPA's definition of a debt. The court gave Dillon leave to amend his complaint, which he has now done.

         Dillon brings ten separately numbered counts in his second amended complaint. He precedes them with what he terms general allegations and the statement: “Plaintiff seeks to invoke the authority of the RICO statutes for damages associated with the unconscionable act, schemes and artifice committed by the hand of Alan H. Shifrin and Associates, LLC, et al.” (2d Am. Compl. ¶ 27 (internal citation omitted).) Read in context with Dillon's general allegations, Dillon claims that the Shifrin defendants violated a potpourri of federal criminal statutes by filing a baseless proof of claim (the same one at issue all along in this case) in bankruptcy court on October 28, 2014. (See 2d Am. Compl. ¶¶ 20, 29.) The following remaining counts then enumerate ten alleged violations of federal criminal law ranging from perjury in Counts Two and Six; attempting or conspiring to commit mail fraud in violation of 18 U.S.C. § 1349 in Counts Three and Eight; attempted obstruction of justice in Counts Four and Five; wire fraud in violation of 18 U.S.C. § 1341 in Count Seven; conspiracy to extort financial property in violation 18 U.S.C. § 875(b) and (d) in Count Nine; and an FDCPA violation in Count 9A.[2]

         II. LEGAL STANDARD

         This court has an independent obligation to raise questions of its subject matter jurisdiction on its own initiative. See, e.g., United States v. Tittjung, 235 F.3d 330, 335 (7th Cir. 2000) (“[I]f the parties neglect the subject, a court must raise the jurisdictional question on its own.” (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988))). As the party invoking federal jurisdiction, the plaintiff must establish that the court has subject matter jurisdiction. Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 691 (7th Cir. 2015). When determining if subject matter jurisdiction is proper, “the district court must accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff's favor, unless [jurisdiction] is challenged as a factual matter.” Id. (quoting Reid L. v. Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir. 2004)). If a defendant factually challenges the basis for federal jurisdiction, however, “[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (alteration in original).

         III. ANALYSIS

         The court first considers the ten counts of Dillon's complaint, which, with one exception, invoke criminal statutes, on their own terms. Also, Dillon's complaint can be construed as attempting to plead a RICO claim. The domestic-relations exception to federal jurisdiction bars that claim, however.

         A. Criminal Claims

         On their own terms, nine of Dillon's ten counts fail because they invoke federal criminal statutes. If there were any doubt about what Dillon seeks, he asks the court to “take Judicial notice to [sic] an indictment of criminal perjury, obstruction, and false claims” in his general allegations. (2d Am. Compl. ¶ 18.) He specifically asks the court to incarcerate defendants for 24 months in at least some of his counts. (See Id. ¶ 20.) But “criminal provisions do not create private rights of action, ” so Dillon's claims fail to the extent he is trying to act as a private attorney general by making freestanding allegations that defendants violated federal criminal law. El v. Redmon's Towing, No. 13-cv-00300, 2014 WL 2510552, at *2 (N.D. Ill. June 2, 2014) (citing Amin v. Int'l Servs., Inc., No. 13 C 7889, 2013 WL 6050154, at *2 (N.D. Ill. Nov. 14, 2013)) (holding plaintiff could not bring a private claim under 18 U.S.C. §§ 112 and 970).

         Dillon also pleads an FDCPA claim as his last count. In its order dismissing his first amended complaint, the court held that Dillon's FDCPA claims were too insubstantial to invoke this court's federal-question jurisdiction because a child support obligation does not meet the FDCPA's definition of a “debt.” Slip Op. at 7-8, ECF No. 49 (citing Okoro v. Garner, 21 F. App'x 486 (7th Cir. 2001) and Battye v. Child Support Servs., Inc., 873 F.Supp. 103, 105-06 (N.D. Ill. 1994)). The FDCPA claim pleaded in Dillon's second amended complaint adds ...


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