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Brunswick Corp. v. McNabola

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

July 14, 2017

Brunswick Corporation, Plaintiff,
Mark McNabola, The McNabola Law Group, P.C., Tatiana Agee, and Cook County, Defendants.


          Manish S. Shah United States District Judge.

         During the jury deliberation phase of a multi-million dollar personal injury lawsuit, a lawyer and a Circuit Court of Cook County clerk allegedly induced Brunswick Corporation to settle the case before Brunswick learned of a jury question suggesting a favorable verdict for the company. Complications and recriminations ensued, and Brunswick brings federal civil rights and state-law tort claims against the lawyer (and his firm) and the clerk (and her employer, Cook County). Defendants move to dismiss all claims against them. For the following reasons, the motions to dismiss are granted.

         I. Legal Standards

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain factual allegations that plausibly suggest a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The court must accept all factual allegations as true and draw all reasonable inferences in the plaintiff's favor, but the court need not accept legal conclusions or conclusory allegations. Id. at 678-79.

         II. Background

         The complaint alleges that in 2009, Scot Vandenberg became a quadriplegic after falling from a yacht manufactured by Brunswick Corporation and owned by RQM LLC, who had modified the yacht since its manufacture. Vandenberg and his wife retained Mark McNabola, of The McNabola Law Group, P.C., to sue Brunswick and RQM. In May 2015, the case proceeded to a jury trial in the Law Division of the Circuit Court of Cook County, Illinois, before Judge Budzinski. By the time of trial, RQM had settled with the Vandenbergs, and Brunswick was the remaining defendant. Part of Brunswick's defense was attributing fault to RQM under admiralty law.

         The jury began deliberating around 2:30 p.m. on June 9, 2015. Shortly thereafter, Brunswick's insurer's claims adjuster made a $25 million settlement offer to McNabola, who did not accept it at that time. At 3:50 p.m., the jury sent a question to the judge asking whether it could “find fault with RQM without finding fault with Brunswick?” Judge Budzinski instructed her court clerk, Tatiana Agee, to call both sides, inform them there was a jury question, and ask them to come to court to address it.

         At 3:52 p.m., Agee called McNabola and told him the contents of the jury question. McNabola told her the answer was “no” and told her to “hold off” on doing anything because he was going to settle the case. McNabola then called Brunswick's counsel at 3:55 p.m. and left a message stating that the jury was still out. McNabola did not mention the jury question. McNabola called Agee again at 4:01 p.m. At 4:02 p.m., McNabola spoke with Brunswick's counsel, who inquired about McNabola's message and asked if McNabola knew whether it was still his understanding that the jury was deliberating. McNabola confirmed that the jury was deliberating and did not mention the jury question or its contents, or that he had told Agee to “hold off.” McNabola asked to speak to the claims adjuster, and they spoke around 4:03 p.m. McNabola made settlement demands for $30 million and $27.5 million, which the adjuster rejected. McNabola then offered to settle for $25 million, and the adjuster accepted. McNabola did not tell him about the pending jury question either. Around 4:15 p.m., McNabola called Judge Budzinski to advise her that the parties had settled, stating that neither he nor Brunswick's counsel were interested in the jury question or anything more to do with the trial, and that he was sending his associate to the courthouse to put the settlement on the record. McNabola then spoke with Brunswick's counsel around 4:18 p.m., but did not say anything about a pending jury question or that he knew the contents of the jury's note. The court clerk, Agee, called Brunswick's counsel a minute later to inform him that there was a pending jury question, but she did not tell him what the question was.

         At 4:40 p.m., McNabola's associate and a different lawyer for Brunswick met in Judge Budzinski's chambers. The judge asked why it took everyone so long to return after the jury presented its question. Brunswick's lawyer said that his team returned as soon as it learned about the jury question, but McNabola's associate- who knew that McNabola had learned the contents of the jury note an hour earlier-did not say anything. Judge Budzinski then revealed the jury question to everyone and put the settlement on the record. At that time, the judge and Brunswick did not know that McNabola had learned the contents of the jury note from Agee and had told her to “hold off.” After putting the settlement on the record, Judge Budzinski answered the jury's question by referring them to the jury instructions and she allowed the jury to continue deliberating. Within ten minutes, the jury reached a defense verdict in favor of Brunswick. The jury was not aware of the settlement before it reached the verdict.

         Brunswick's counsel returned to the courthouse around this time and learned that the jury had reached a verdict for Brunswick and that the jury question had been presented a half hour before Agee called him. He informed Judge Budzinksi that the settlement had occurred without him knowing there was a pending jury question, and he showed the judge his cell phone, which indicated that he received his first call from her chambers at 4:19 p.m. McNabola's associate, who was still present, did not advise anyone that McNabola had received Agee's call before initiating settlement and had told her to “hold off.” Around 5:15 p.m., Brunswick's counsel learned from Judge Budzinksi that McNabola spoke with Agee about the jury question before the case had been settled. Judge Budzinski refused to enter an order to reflect that the jury returned a verdict for the defense.

         The next day, Brunswick's counsel emailed Judge Budzinski. He told her that McNabola had tried to negotiate a settlement at 3:55 p.m. and that Brunswick had not been notified of the jury question until 4:19 p.m., after the settlement had been reached. Brunswick also filed a motion for an evidentiary hearing to obtain Agee's and McNabola's testimony about the previous day. A few days later, Brunswick also filed a motion to vacate the settlement agreement and to enter judgment on the jury verdict. Shortly thereafter, Judge Budzinski entered a Memorandum of the Court disclosing: that McNabola had told her that since the case had settled, neither counsel were interested in the jury note or anything to do with trial; that Agee told the judge that she had not shared the contents of the jury note with McNabola but that he had asked her to “hold off;” that Agee said she called McNabola and Brunswick's counsel at the same time; and that the judge's extern overheard Agee reveal the jury note to McNabola, who suggested to Agee that the answer to the question was “no.” Judge Budzinksi entered a protective order precluding any of the parties from speaking with court staff, including Agee, the extern, or the sheriff's deputy assigned to the judge's courtroom. McNabola's firm opposed the motion to vacate and motion for evidentiary hearing, acknowledging that Agee called McNabola around 3:50 p.m. but not that Agee disclosed the note's contents or that McNabola had told her to “hold off.”

         Judge Budzinksi recused herself from the case, which was transferred to Judge Lynch. Judge Lynch granted Brunswick's motion for an evidentiary hearing and to subpoena certain phone records. Judge Lynch denied Brunswick's motion to lift the protective order, and it could not interview court employees before the hearing. New counsel appeared on behalf of the Vandenbergs to serve as co-counsel with McNabola.

         Judge Lynch conducted a four-day evidentiary hearing. McNabola admitted that Agee told him the substance of the jury question and that he told Agee to delay a conference on the question. McNabola also testified that he did not tell Brunswick's counsel or its claims adjuster that he spoke with Agee, and that neither indicated they knew about the jury question. Agee denied that she told McNabola the contents of the jury question and said that she delayed calling Brunswick's counsel because she assisted a docket clerk with a filing. That docket clerk testified that the filing with Agee took five to ten minutes and that he had returned to his office (from the courthouse-a ten minute walk) by 4:07 p.m. McNabola and Agee both testified that in the weeks after the incident, McNabola called Agee and they spoke about what had occurred. Brunswick's claims adjuster and its counsel testified that the company would not have agreed to the settlement if it had known of the jury question, its contents, McNabola's knowledge of the jury question or its contents, or McNabola's request that Agee “hold off.”

         In January 2016, Judge Lynch granted Brunswick's request to vacate the settlement agreement, on the basis of fraud in the inducement and unilateral mistake. Judge Lynch found that Agee and McNabola had engaged in improper ex parte communications and that Brunswick was unaware of the note's existence or contents (on a material question) when it settled the case. The judge also ruled that McNabola should have disclosed his knowledge of the jury question and its contents, finding that McNabola and Agee engaged in parallel conduct but did not have an agreement. At that time, Judge Lynch did not rule on Brunswick's request for entry of judgment on the verdict. In chambers after the ruling, the judge apprised counsel for Brunswick and for the Vandenbergs ...

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