Angelo v. Moriarty, Case No. 15 C 8065

DEAN ANGELO, JR., et al., Plaintiffs, v. JAMES MORIARTY, Defendant.

Case No. 15 C 8065

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

February 18, 2016

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

On September 14, 2015, Plaintiffs Dean Angelo, Jr., Fernando Flores, Allen Jaglowski, Rick King, Timothy Murphy, Daniel Shields, Danny Stover, and Michael Underwood filed a five-count Complaint against Defendant James Moriarty alleging violations of the Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq. ("Wiretap Act" or "Title III") pursuant to the Court's original jurisdiction. See 28 U.S.C. § 1331. Plaintiffs also bring claims based on the Illinois Eavesdropping Statute, 720 ILCS 5/14-1, et seq., and a common law claim of intrusion upon seclusion pursuant to the Court's supplemental jurisdiction. See 28 U.S.C. § 1367(a). Before the Court is Defendant's motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants Defendant's motion to dismiss. Due to the circumstances surrounding this lawsuit, along with Plaintiffs' admissions in their Complaint, any attempt to re-allege the present claims would be futile, and thus the Court dismisses this lawsuit in its entirety. See O'Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015) ("A complainant can plead himself out of court by including factual allegations that establish that the plaintiff is not entitled to relief as a matter of law."); see also Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015).

LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citation omitted). Under the federal notice pleading standards, a plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level." Id. Put differently, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In determining the sufficiently of a complaint under the plausibility standard, courts "accept the complaint's well-pleaded facts as true and construe the allegations in the light most favorable to the plaintiff." Thulin v. Shopko Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir. 2014). That being said, a plaintiff can "plead himself out of court by including factual allegations that establish that the plaintiff is not entitled to relief as a matter of law." O'Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015).

BACKGROUND

Plaintiffs allege that during the month of September 2013, they and Defendant Moriarty served on the Board of Directors for the Fraternal Order of Police, Chicago Lodge No. 7 ("FOP #7"). (R. 1, Compl. ¶ 5.) On September 23, 2013, the Executive Assistant to then-President of FOP #7, Michael Shields, sent a special Board of Directors meeting notice informing the Board that a special meeting was scheduled for September 26, 2013. (Id. ¶ 6.) According to Plaintiffs, on September 23, 2013, Executive Assistant Doreen Plachta ("Plachta") sent a subsequent email to every Board member stating: "Board Members, Sidney Davis, the Recording Secretary, has asked me to send the Board of Directors the agenda for the special Board Meeting scheduled for Thursday, September 26, 2013. Please keep this information completely confidential." (Id. ¶ 7.) Attached to Plachta's email were charges brought by an FOP #7 Member, Carlos Cortes ("Cortes"), against Shields alleging violations of the FOP #7's Constitution and By-Laws. (Id. ¶ 8.) In Cortes' charges, he requested that First Vice-President of FOP #7 assign a committee to conduct a hearing and stated that if the committee found Shields violated the Constitution and By-Laws, the Board should remove him from office. (Id. ¶ 9.)

Furthermore, Plaintiffs allege that on September 26, 2013, the following members of the FOP #7 Board of Directors met during a special meeting to discuss charges brought against Shields, namely, Rich Aguilar, William Burns, Mark Donahue, Fernando Flores, Anna Hanley, John Lipka, Timothy Murphy, Ron Shogren, Michael Underwood, Dean Angelo, Jr., John Capparelli, Frank DiMaria, Bill Dougherty, Danny Gorman, Allen Jaglowski, James Moriarty, Daniel Shields, Danny Stover, Terry Collins, Denis Doherty, Kevin Graham, Rick King, Timothy Moriarty, Michael Shields, and Danny Trevino. (Id. ¶ 10.) They held the specialmeeting in a board room in the FOP #7 office and only members of the Board of Directors, plus Cortes attended. (Id. ¶ 11.) The sole purpose of the special meeting was to reach a decision on how to proceed with Cortes' charges against Shields. (Id. ¶ 12.) Plaintiffs further assert that, upon information and belief, Defendant intentionally, willfully, and surreptitiously recorded the Board's meeting on September 26, 2013 with a recording device. (Id. ¶ 13.) Moreover, Plaintiffs allege that they did not consent to having their conversation recorded during the course of the special meeting. (Id. ¶ 14.)

After the special meeting concluded, Plachta sent another email to each of the Board members attaching revised charges from Cortes, and again, requesting that the Board members keep the charges confidential. (Id. ¶ 15.) Further, Plaintiffs allege that - upon information and belief - on September 30, 2013, Defendant Moriarty intentionally and willfully posted two videos (with audio) of the September 26, 2013 meeting on YouTube.com. (Id. ¶ 16.) Plaintiffs contend that Defendant posted the videos of Plaintiffs because of the vote to allow Shields the right to select the committee members to hear the charges brought against him. (Id. ¶ 17.) Plaintiffs further allege that this "publication was highly offensive or objectionable to a reasonable person due, in part, to the implication set forth in the YouTube videos that the Plaintiffs ratified or allowed then-President of FOP #7 Michael Shields to violate the FOP's Constitution and By-Laws." (Id. ¶ 18.)

ANALYSIS

I. Res Judicata

In his motion to dismiss, Defendant Moriarty first argues that the doctrine of res judicata bars Plaintiffs' claims based on the Circuit Court of Cook County's ruling regarding the FOP#7's petition for discovery in Fraternal Order of Police, Chicago Lodge #7 v. Google, Inc., Case No. 2014 L 000713. Because the earlier adjudication was in an Illinois state court, the Court applies Illinois' res judicata principles. See Bonnstetter v. City of Chicago, ___ F.3d ___, 2016 WL 403215, at *5 (7th Cir. Feb. 3, 2016); Adams v. Adams, 738 F.3d 861, 865 (7th Cir. 2013). Under Illinois law, "[r]es judicata applies if there is (1) a final judgment on the merits in an earlier action; (2) an identity of the causes of action; and (3) an identity of parties or their privies." Ennenga v. Starns, 677 F.3d 766, 776 (7th Cir. 2012) (citing River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 234 Ill.Dec. 783, 703 N.E.2d 883, 889 (1998)); see also Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723, 727 (7th Cir. 2014).

Under the circumstances, Defendant cannot fulfill the first requirement of res judicata under Illinois law because the Illinois Circuit Court's earlier discovery decision was not a final judgment on the merits. To clarify, the underlying Illinois decision was pursuant to Illinois Supreme Court Rule 224, which allows for limited discovery to "ascertain 'the identity of one who may be responsible in damages.'" Low Cost Movers, Inc. v. Craigslist, Inc., ___ N.E.3d ___, 2015 WL 8966925, at *4 (1st Dist. Dec. 15, 2015) (quoting Ill. S.Ct. R. 224(a)(1)). In other words, "Rule 224 allows someone who has been injured, but needs to identify who may be liable for damages, to file an independent action seeking a court order allowing limited discovery." Allen v. Peoria Park Dist., 968 N.E.2d 1199, 1202, 360 Ill.Dec. 446 (3d Dist. 2012). Illinois courts have repeatedly held that the purpose of a Rule 224 petition for discovery is "to identify a party that may be responsible—not to establish actual liability." Low Cost Movers, 2015 WL 8966925, at *5; see also Gaynor v. Burlington N. & Santa Fe Ry., 322 Ill. App. 3d 288, 291, 750 N.E.2d 307, 255 Ill. Dec. 726 (5th Dist. 2001) ("Rule 224 allow[s] a search for identity, notresponsibility"); Beale v. EdgeMark Fin. Corp., 279 Ill. App. 3d 242, 252, 664 N.E.2d 302, 215 Ill.Dec. 905 (1st Dist. 1996) ("[o]nly the name of the individual or entity bearing such connection may be ascertained," therefore, "petitioner may not seek further discovery of facts pertaining to any actual wrongdoing.").

Accordingly, Defendant's res judicata argument fails because he cannot establish that there was a final judgment on the merits in the earlier Illinois decision due to the nature of the earlier proceeding, namely, the Rule 224 discovery action - which is a procedural mechanism used by litigants in the Illinois courts for the sole purpose of identifying a responsible party for a future lawsuit. See Alemayehu v. Boeing Co., 10 C 3147, 2010 WL 3328278 (N.D. Ill. Aug....