United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
E. COX, U.S. MAGISTRATE JUDGE.
have filed a Motion for Leave to File a Counterclaim [Dkt.
76] pursuant to the Illinois Eavesdropping Act. The motion
should be denied for lack of subject matter jurisdiction.
complaint alleges employment discrimination (age, national
origin, and race) and retaliation, breach of contract (based
on Plaintiff's employee handbook), tortious interference
with contract, and tortious interference with prospective
economic advantage. Defendants claim that they recently
discovered that Plaintiff had surreptitiously recorded a
meeting between Plaintiff, Defendant Dr. Michael Kremer, and
another hospital administrator on November 19, 2013.
Defendants believe that this recording violated the Illinois
Eavesdropping Act, and seek leave to file a counterclaim
pursuant to that statute.
Rule of Civil Procedure 13 governs counterclaims.
Counterclaims may be compulsory or permissive. Compulsory
counterclaims arise “out of the transaction or
occurrence that is the subject matter of the opposing
party's claim . . . [and] do not require adding another
party over whom the court cannot acquire jurisdiction.”
Fed.R.Civ.P. 13(a)(1)(A)-(B). Although, the Seventh Circuit
has construed the phrase “transaction or
occurrence” liberally, “the factual allegations
underlying each claim must be carefully examined to determine
if the claims are logically related.” K&K Iron
Works, Inc. v. Am. Railing Sys., Inc., No. 07 C 1832,
2008 WL 597607, at *3 (N.D. Ill. Feb. 28, 2008) (citing
Burlington Northern R.R. Co. v. Strong, 907 F.2d
707, 711 (7th Cir. 1990)). “A court must
consider if the ‘totality of the claims, including the
nature of the claims, the legal basis for recovery, the law
involved, and the respective factual backgrounds' suggest
the claims are logically related.” Id.
counterclaims are defined as “any claim that is not
compulsory.” Fed.R.Civ.P. 13(b). A permissive
counterclaim must have an independent basis for federal
jurisdiction. K&K Iron Works, 2008 WL 597607, at
*5. Supplemental jurisdiction cannot provide the basis for
federal jurisdiction. Id. (citing Oak Park Trust
and Savings Bank v. Therkildsen, 209 F.3d 648, 651
(7th Cir. 2000)). As the party wishing to assert
jurisdiction, Defendants bear the burden of proving that a
jurisdictional basis exists. Id, at *2 (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)).
Defendants have not definitively stated whether their
proposed counterclaim is compulsory or permissive. However,
the motion implies that it is a permissive counterclaim,
stating “Kremer was not able to bring this Counterclaim
during the time set by this Court for permissive
counterclaims because Marcial concealed the existence off the
recording of the November 19, 2013 meeting until she
testified about its existence during her deposition testimony
on February 28, 2018.” (Dkt. 76 at ¶ 13.) The
proposed counterclaim states that the basis for the
Court's jurisdiction over the counterclaim is
supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
(Dkt. 76-1 at ¶ 7.) As a permissive counterclaim, the
Court would need an independent basis for federal
jurisdiction, and supplemental jurisdiction will not suffice.
As such, the Court lacks subject matter jurisdiction over the
proposed counterclaim as it is currently pleaded, and the
motion should be denied.
extent that Defendants may argue that the counterclaim is
compulsory, that argument is unavailing because the proposed
counterclaim does not arise from the same transaction or
occurrence as Plaintiffs claims. A counterclaim brought under
the Illinois Eavesdropping Act and Plaintiffs claims for
violations of various federal employment discrimination
statutes and Illinois state law torts are very different in
nature, require development of different factual backgrounds,
and would require proof of distinct elements. Even applying
the liberal definition espoused by the Seventh Circuit, an
Illinois Eavesdropping Act claim does not arise from the same
transaction or occurrence as a complaint that primarily
alleges employment discrimination and retaliation. As such,
the Court denies Defendants' Motion for Leave to File a
 The decision would be no different
even if the Court followed the line of cases suggesting that
“supplemental jurisdiction may be exercised over a
permissive counterclaim that does not have an independent
basis of jurisdiction as long as the counterclaim otherwise
satisfies the requirements for exercising supplemental
jurisdiction.” Spaulding Moving and Storage, Inc.
v. National Forwarding Co., Inc., No. 07 C 4095, 2008 WL
781929, at *2 (N.D. Ill. Mar. 20, 2008) (collecting cases).
Federal courts have the power to hear both state and federal
claims “where the federal claim has sufficient
substance to confer subject matter jurisdiction on the court,
and the state and federal claims derive from a common nucleus
of operative facts.” Ammerman v. Sween, 54
F.3d 423, 424 (7th Cir. 1995). The proposed
counterclaim and the Plaintiffs claims do not share a common
nucleus of operative facts. The evidence that would need to
be adduced to prove a violation of the Illinois Eavesdropping
Act is almost entirely distinct from the evidence that