United States District Court, N.D. Illinois, Eastern Division
S. SHAH, UNITED STATES DISTRICT JUDGE
motion to dismiss, , is granted. The first amended
complaint is dismissed with prejudice. Enter judgment and
terminate civil case.
2009, Jonathan Arnold filed a frivolous lawsuit against
Leticia Villarreal. See Arnold v. Villarreal, No.
09-cv-7399 (N.D. Ill.). Villarreal now brings this case against
Arnold for malicious prosecution. Arnold moves to dismiss
this case on the basis of res judicata and for failure to
plead “special injury” as required by Illinois
she filed this case, Villarreal filed an action against
Arnold for abuse of process, which I dismissed with
prejudice. See Villarreal v. Arnold, No. 16-cv-0603
(N.D. Ill.), Dkt. Entry 55. Villarreal's claim for
malicious prosecution had not accrued at the time of that
dismissal. That case was dismissed in February 2017, and
Villarreal prevailed in the appeal of Arnold's suit
against her in April 2017. Villarreal could not have brought
a malicious-prosecution case until she received a favorable
termination of Arnold's suit. See Ferguson v. City of
Chicago, 213 Ill.2d 94, 99 (2004); Cult Awareness
Network v. Church of Scientology Int'l, 177 Ill.2d
267, 272 (1997). Res judicata acts as a barrier to claims
that could have been brought as part of an earlier case.
Rein v. David A. Noyes & Co., 172 Ill.2d 325,
339 (1996); see Semtek Int'l Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 508 (2001) (federal court sitting
in diversity applies claim-preclusion rules of the state in
which it sits). This malicious-prosecution claim is not such
a claim, and so claim preclusion does not bar this suit.
actions are disfavored in Illinois. Thomas v.
Hileman, 333 Ill.App.3d 132, 136 (2002). On one hand,
there is a general principle that courts should remain open
for litigants to settle their rights without fearing that
they will be prosecuted for that choice. Indep. Plus,
Inc. v. Walter, 367 Ill.Dec. 710, 716 (Ill.App. 1st
Dist., 2012). On the other hand, there is a societal interest
in preventing harassment through lawsuits. Id. In an
effort to balance the general principle with the societal
interest, courts have decided that a malicious-prosecution
claim survives a motion to dismiss only when the plaintiff
shows: (1) the defendant brought the underlying suit
maliciously; (2) the defendant did not have probable cause to
bring the underlying suit; (3) the underlying suit was
terminated in the plaintiff's favor; and (4) the
plaintiff suffered a “special injury.” Cult
Awareness, 177 Ill.2d at 272. Villarreal's complaint
easily meets the first three elements. See 
¶¶ 14-16. The question is whether it satisfies the
special injury requirement.
injury is defined as something greater than the injury that
necessarily results from any lawsuit, it is a “special
damage beyond the usual expense, time, or annoyance in
defending a lawsuit.” Harmon v. Gordon, 712
F.3d 1044, 1056 (7th Cir. 2013) (quotation omitted). For
example, damages in the form of anxiety, lost time, or a
damaged reputation do not qualify; those injuries are viewed
as “an unfortunate incident of many (if not most)
lawsuits.” Doyle v. Shlensky, 120 Ill.App.3d
807, 817 (1983) (quoting Lyddon v. Shaw, 56
Ill.App.3d 815, 818 (1978)). In practice, almost all cases
where an Illinois court held that the plaintiff satisfied the
special injury element, the injury that the underlying action
caused was quantifiable. Thomas, 333 Ill.App.3d at
138; see also Bank of Lyons v. Schultz, 78 Ill.2d
235 (1980) (injunction restraining distribution of life
insurance proceeds for over nine years sufficiently
interfered with property to constitute special injury).
Typically, damages in the form of an arrest, a seizure of
property, a constructive taking, or an interference with the
person or property qualify as special injury. Levin v.
King, 271 Ill.App.3d 728, 730-31 (1995) (citing
Schwartz v. Schwartz, 366 Ill. 247, 250-51 (1937)).
Finally, the special injury must emanate directly from the
alleged malicious prosecution. Serfecz v. Jewel Food
Stores, 67 F.3d 591, 603 (7th Cir. 1995).
says that Arnold knew that Villarreal's financial
circumstances were “dire” and that the investment
properties she owned in California were “a significant
financial asset and source of income.” 
¶¶ 25-26. Capitalizing on the financial disparity
between the two, Arnold filed the 2009 lawsuit in an attempt
to “paralyze Villarreal financially” so that she
would be unable to defend her interests in separate child
custody proceedings occurring before a California
court. Id. ¶¶ 20, 24. To that
end, in the 2009 action, Arnold moved the court to freeze
Villarreal's assets, including one of her investment
properties. Id. ¶ 28; see also Villarreal
v. Arnold, No. 09-cv-7399 (N.D. Ill.), Dkt. Entry 9. As
a result of Arnold's actions, Villarreal says she lost
her source of income through the foreclosures of her
investment properties; her relationship with her daughter was
damaged; and she suffered severe emotional distress, mental
anguish, and loss of enjoyment of life. Id. ¶
allegation that Arnold filed the underlying action with the
intention of bankrupting Villarreal, without more, does not
state a claim for malicious prosecution. See Bank of
Lyons, 78 Ill.2d at 240 (“While the institution of
an ordinary civil action [. . .], no matter how unfounded,
vexatious, or malicious it may be, does not give rise to an
action for malicious prosecution, ” unless,
“there has been some interference with the person or
property of the defendant in connection with the bringing [.
. .] of the civil action.”) (citation omitted). Perhaps
if Arnold had succeeded in persuading the court in the
underlying action to freeze her assets, the result would be
different because Villarreal's right to freely use her
property would have been suspended during the pendency of the
litigation. See Equity Assocs., Inc. v. Vill. of
Northbrook, 171 Ill.App.3d 115, 119-20 (1988). But, the
loss of Villarreal's investment properties to foreclosure
equates to the loss of income, and such financial
consequences of defending litigation are not special
injuries. See Harmon, 712 F.3d at 1057.
with child custody or the child-parent relationship does not
have the quantifiable characteristic that Illinois courts
look for in special injuries. Villarreal does not cite any
authority to the contrary. Moreover, the complaint appears to
allege that these unquantifiable injuries directly emanate
from the custody dispute itself, and not from the underlying
litigation here. There is no support for the inference that
the nature of the 2009 lawsuit visited the injury onto
Villarreal. Id. at 1056.
argument that her complaint satisfies the special injury
element under the successive harassing suits theory is
unsuccessful. See  at 8 (citing Shedd v.
Patterson, 302 Ill. 355, 360-62 (1922)). Although
several federal judges criticized Arnold's pursuit of the
underlying action and appeal, ultimately, he only filed one
action, which makes this case distinguishable from the types
of cases in which Illinois courts have found that the
onslaught of litigation constituted a special injury. See
Cult Awareness, 177 Ill.2d 267 (large organization
induced members to engage in national campaign of litigation,
comprising twenty-one actions);
Shedd, 302 Ill. at 361-62 (defendant brought
successive lawsuits even though r the h subst a ntive The
complaint is dismissed for failure to plead special injury.
Villarreal has attempted to plead a malicious-prosecution
claim once before, and she filed an amended complaint to one
motion to dismiss. Another amendment would be futile, so the
dismissal is with prejudice.
 Judge Grady granted Villarreal's
motion for summary judgment in that action. Arnold v.
Villarreal, No. 09-cv-7399, 2014 WL 2922810 (N.D. Ill.
June 27, 2014). Arnold moved to vacate or remand that
judgment, but Judge St. Eve denied his motion. Arnold v.
Villarreal, No. 09-cv-7399, 2014 WL 4434580 (N.D. Ill.
Sept. 9, 2014), aff'd, 853 F.3d 384 (7th Cir.
2017). Arnold appealed that decision, ...