United States District Court, N.D. Illinois, Eastern Division
JERRY W. DILLON, Plaintiff,
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
B. GOTTSCHALL UNITED STATES DISTRICT JUDGE.
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.
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”),  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.)
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.
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.
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.
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).
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.
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).
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 ...