Denison v. Larkin

64 F.Supp.3d 1127

Joanne M. Denison, Plaintiff

v.Jerome Larkin, Melissa Smart, Sharon Opryszek, Leah Black, Nextpoint, Inc and the Illinois Attorney Registration and Discipline Commission, Defendants.

No. 1:14–cv–01470

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

Signed August 13, 2014

Kenneth K. Ditkowsky, Law Office of Kenneth Ditkowsky, Joanne Marie Denison, Denison & Assocs, P.C., Niles, IL, for Plaintiff.

James Scott Renfroe, Susan Frederick Rhodes, Wendy J. Muchman, Illinois Attorney Registration & Disciplinary Commission, Christopher Ross McElwain, Daliah Saper, Saper Law Offices, LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Plaintiff JoAnne M. Denison (“Plaintiff”) brings this action against Defendants Jerome Larkin, Sharon Opryszek, Melissa Smart, Leah Black, and Nextpoint (collectively, “Defendants”) alleging copyright infringement, vicarious copyright infringement and contributory copyright infringement in violation of 17 U.S.C. § 101 et seq. Defendants move to dismiss Plaintiff's Complaint in its entirety. Jerome Larkin, Sharon Opryszek, Melissa Smart, and Leah Black (collectively, the “IARDC Defendants”) move to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)¹ . Nextpoint also moves to dismiss for failure to state a claim pursuant to Rule 12(b)(6). For the following reasons, the Court grants Defendants' motions to dismiss.

BACKGROUND²

This case arises out of an Illinois Attorney Registration and Disciplinary Commission (“IARDC”) disciplinary proceeding. Plaintiff, a licensed attorney in the state of Illinois, is suing the IARDC and Nextpoint for using portions of her copyrighted Blog (“Blog”) as evidence against her in an attorney disciplinary proceeding. The IARDC has alleged that Plaintiff made false statements about judges and other lawyers on her Blog, which addresses the guardianship proceeding of Mary Sykes. (R. 1–4, Pl. Exhibit C ¶ 6.)³

I. Mary Sykes

Mary Sykes was a 90–year–old woman who was put into guardianship in December of 2009. (R. 1, Compl. ¶ 6.) Plaintiff investigated Ms. Sykes' case and allegedly found “a large number of irregularities” in the case. (Id. ) Plaintiff believes that Ms. Sykes was a victim of courtroom corruption. (Id. )

In late 2011, Plaintiff created the Blog to, in her words, “provide a forum for the friends and relatives of Mary Sykes, a probate victim, to speak out against corruption in the courtroom.” (R.1, Compl. ¶ 6.) Plaintiff applied for and received a copyright registration for the Blog on January 26, 2013. (R 1–4, Pl. Exhibit A.) Plaintiff posted her own writings as well as the writings of others on the Blog. The writings included allegations of corruption in the Probate Court of Cook County, that Sykes was the victim of elder abuse, and that the guardians ad litem and the court had physically or mentally harmed Sykes. (R. 1–4, Pl. Exhibit C ¶ 6.) This guardianship proceeding has generated several state and federal proceedings involving Plaintiff and her associate, Kenneth Ditkowsky.⁴

II. IARDC Action Against Plaintiff

The Illinois Supreme Court has the power to discipline attorneys who have been admitted to practice in the state of Illinois. In re Thomas, 356 Ill.Dec. 769, 791, 962 N.E.2d 454 (2012) (citing In re Mitan, 75 Ill.2d 118, 123, 25 Ill.Dec. 622, 387 N.E.2d 278 (1979), cert. denied, 444 U.S. 916, 100 S.Ct. 231, 62 L.Ed.2d 171 (1979) ). The Illinois Supreme Court enacted rules governing the discipline of attorneys and created the IARDC to enforce those rules. Ill. S.Ct. Rules 751 –80. The IARDC's responsibilities include conducting disciplinary proceedings affecting members of the Illinois bar. Ill. S.Ct. R. 751(a). Investigations conducted by the IARDC remain private and confidential. Ill. S.Ct. R. 766(a)(1).

The Administrator in this case, Defendant Jerome Larkin, concluded that sufficient evidence existed to establish misconduct by Plaintiff and brought the matter to the Inquiry Board, which determines whether to file a complaint with the Hearing Board, pursuant to Ill. S.Ct. R. 753(a)(2). If the Inquiry Board decides to file a complaint based on the misconduct, the Administrator files the complaint with the Hearing Board. Ill. S.Ct. R. 753(b). Defendants Melissa Smart, Sharon Opryszek and Lea Black are IARDC attorneys who represent Mr. Larkin before the Hearing Board. The Hearing Board can recommend discipline, dismissal of the complaint or petition, or nondisciplinary disposition. Ill. S.Ct. R. 753(c)(3). Disciplinary actions include disbarment, suspension, censure, and reprimand. Ill. S.Ct. R. 770.

Upon the filing of the recommendation of the Hearing Board, either party may appeal to the Review Board. Ill. S.Ct. R. 753(d). The Review Board presides over an appellate review of the Hearing Board's determination. Ill. S.Ct. R. 753(d)(1). The Review Board may approve, reject or modify the recommendation of the Hearing Board. Ill. S.Ct. R. 753(d)(3). Additionally, the Review Board may make additional findings or may remand for further action. Id. Either party may appeal the report and recommendation of the Review Board to the Illinois Supreme Court. Ill. S.Ct. R. 753(e).

Defendant Black filed a disciplinary complaint on behalf of Defendant Larkin against Plaintiff alleging professional misconduct in making false statements on her Blog. (R 1–4, Pl. Exhibit C ¶ 10.) The IARDC complaint alleged that Plaintiff wrote in her Blog that the judges, guardians ad litem, and other attorneys involved in the guardianship proceedings engaged in improprieties including theft and embezzlement from the estate of the Ms. Sykes. (Id. ¶¶ 4–8.) The IARDC alleged that these claims were false and brought an action against Plaintiff for:

a) making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, in violation of Rule 8.2 of the Illinois Rules of Professional Conduct ;

b) conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct ;

c) conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct ;

d) presenting, participating in presenting, or threatening to present criminal charges to obtain an advantage in a civil matter, in violation of Rule 8.4(g) of the Illinois Rules of Professional Conduct ; and

e) conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

(Id. ¶ 12.)

III. Copyright Action Against IARDC and Nextpoint

Plaintiff brought this suit alleging that the IARDC infringed on her copyright by using “15 paragraphs of text from the Mary Sykes Blog” in its disciplinary complaint which the IARDC posted on its website. (R.1, Compl. at ¶ 10.) In addition, the ARDC copied “hundreds of pages from her blog” and maintained them in her case file. (Id. ¶ 13.) Plaintiff alleges the IARDC copied over 1,000 pages of the Blog and “then incorporated [it] into even further exhibits.” (Id. ¶¶ 21, 23.) Plaintiff claims the amount copied was “far in excess of what the IARDC needed for its investigation and trial.” (Id. ¶ 27.) Moreover, Plaintiff alleges that she sent the IARDC a cease and desist letter and objected to its use of her copyrighted materials. (Id. ¶¶ 11, 14.) The IARDC, according to Plaintiff, continued to copy and use portions of her blog for the disciplinary hearing, including for trial exhibits.

Additionally, Plaintiff alleges that Nextpoint, which produces webpage software data, also infringed on her copyright by allowing the IARDC to use Nextpoint's software to capture her Blog. (Id. ¶ 24.) Plaintiff claims that the copies exceeded the amount necessary for the IARDC proceeding. (Id. ¶ 34.) In Count I, Plaintiff alleges that the Defendants committed direct copyright infringement. (Id. ¶ 26.) In Counts II and III, Plaintiff alleges that Defendant Larkin committed contributory copyright infringement and vicarious copyright infringement. (Id. ¶¶ 29; 37.)

Plaintiff seeks (1) statutory damages for willful infringement against each and all Defendants as jointly and severally liable; (2) a preliminary and permanent injunction against copying portions of Plaintiff's Blog; (3) an order that Defendants deliver up for destruction by the United States Marshal all exhibit pages not used at trial and that Defendants pay the cost of such destruction; (4) an order directing the IARDC to remove the 15 paragraphs of her Blog used to publish the January 8, 2013 complaint on the IARDC's website and to mark the omitted portions “copyrighted material omitted;” and (5) her reasonable attorney's fees, costs, and other relief under United States copyright law. (Id . p. 16.)

LEGAL STANDARD

“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.2012). 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 plaintiffs “factual allegations must be enough to raise a right to relief above the speculative level.” Id. Put differently, a complaint must contain sufficient factual content “to allow the court ‘to draw a reasonable inference that the defendant is liable for the misconduct alleged.’ ” Charleston v. Board of Trs. of Univ. of Ill. at Chicago, 741 F.3d 769, 772 (7th Cir.2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, ...