Gallagher v. Pajevic

1

ROBERT GALLAGHER, Plaintiff, v. NADA PAJEVIC, Defendant.

Nos. 2:15-CV-325-JPK, 2:15-CV-410-JPK

United States District Court, N.D. Indiana, Hammond Division

January 31, 2024

OPINION AND ORDER

JOSHUA P. KOLAR, MAGISTRATE JUDGE

Plaintiff Robert Gallagher, acting without a lawyer, filed two complaints in this district against Defendant Nada Pajevic Cause No. 2:15-cv-325 (“the 325 Case” or “the Defamation Complaint”); and Cause No 2:15-cv-410 (“the 410 Case” or “the Tortious Infection Complaint”). Both cases are before this Court following an evidentiary hearing held to address whether there is federal court subject-matter jurisdiction over either complaint. The Court has jurisdiction to enter this opinion and order pursuant to 28 U.S.C. § 636(c).^[1]

The issue at the evidentiary hearing was whether Gallagher was domiciled in Indiana or Illinois at the time these lawsuits were filed. The Court received documents into evidence, heard sworn testimony, and entertained the parties' legal arguments. In Part I of this Opinion and Order, the Court finds based on the entire record of both cases, including the testimony and evidence introduced at the hearing, that Gallagher was domiciled in Illinois when he filed these lawsuits, which means that diversity of citizenship is lacking because Pajevic also was domiciled in Illinois at that time. Accordingly, neither suit is one over which this Court has subject-matter jurisdiction. While this conclusion means that both cases must be dismissed without prejudice the Court goes on in Part II of this Opinion and Order to consider whether to impose any restrictions against Gallagher regarding future complaints or legal actions he intends to initiate or file against Pajevic.

BACKGROUND^[2]

A. Plaintiff's Allegations

Gallagher filed the Defamation Complaint on August 31, 2015, and the Tortious Infection Complaint on November 5, 2015.^[3] Both complaints allege that Gallagher and Pajevic were “friend[s]” for approximately ten years and that Gallagher “at times stayed at [Pajevic's] house in Illinois.” [325 Case, DE 1 at 1; 410 Case, DE 4 at 1].

1. The 325 Case

The Defamation Complaint alleges that at some point Pajevic “decided to disallow” Gallagher from staying at her residence while he was in Illinois, and that, before and after that, she and her two adult sons exhibited “emotional instability” and “outbursts of rage.” [325 Case, DE 1 at 1]. Gallagher alleges that as a result of their conduct he decided “to completely estrange” himself from Pajevic, which led Pajevic and her sons “to make physical threats and threats of committing legal abuses” against him that were so “severe” he “had to call the police to make them stop.” [Id. at 2]. Pajevic allegedly “became further enraged” because of Gallagher's “complete estrangement,” and “attempted to file a petition for an order of protection” against him. [Id. at 3 (Count II, ¶ c)]. Based on these allegations, Gallagher pleads two counts of defamation and one count of intentional infliction of emotional distress.

The complaint fails to set forth the substance of the allegedly defamatory statements “with sufficient precision and particularity so as to permit initial judicial review of [their] defamatory content.” Green v. Rogers, 234 Ill.2d 478, 492, 917 N.E.2d 450, 459 (2009).^[4] As best the Court can tell from the complaint, the alleged defamation consists of two emails: (1) one in which Pajevic stated that Gallagher had stolen Pajevic's property [325 Case, DE 1 at 2 (a), (b)],^[5] and (2) the other in which Pajevic stated that she had a video of Gallagher damaging her car door [id. at 3(d), (e)]. Given the lack of clarity as to how these alleged emails were defamatory,^[6] the Court ordered Gallagher to supplement the record with the allegedly defamatory statements.^[7] Gallagher's two defamation counts are titled “Libel” and he specifically refers to emails, so the Court's order was for Gallagher to file a copy of the emails at issue.^[8] But Gallagher responded to the order by filing a statement that merely repeated the allegations in the complaint. See [id., DE 93]. Three months later, however, Gallagher sua sponte filed a copy of “the email from [Pajevic] as related to the issue of defamation.” [Id., DE 98 at 1]. In the email, Pajevic states that she has surveillance camera footage showing Gallagher “wrecking and damaging” her car door. [Id. at 2].^[9] Assuming Pajevic's statements in the email could be considered “defamatory,”^[10] the email shows that it was sent only to Gallagher, and there are no further allegations in the complaint to plausibly suggest it was ever published to a third party. See Kapotas, 2015 IL App (1st) 140534, ¶¶ 50-52, 30 N.E.3d at 590 (dismissing defamation complaint that “contain[ed] only a conclusory allegation that the defamatory statements were ‘published' without stating to whom, when, and how that publication occurred”).

2. 410 Case

In the Tortious Infection Complaint, Gallagher alleges that Pajevic falsely told him she had no sexually transmittable diseases, and that she “then knowingly transmitted the genital herpes disease along with genital warts” to him. [410 Case, DE 4 ¶ 3]. Gallagher alleges that, after he “became infected he discovered that [Pajevic] had previously seen a doctor and was prescribed a specially controlled prescription drug for the treatment of herpes.” [Id.]. Based on these alleged facts, Gallagher asserts claims for battery, negligence, fraudulent misrepresentation, and intentional infliction of emotional distress. [Id. (Counts I-IV)].

Although the Tortious Infection Complaint does not specifically allege that Gallagher was diagnosed with genital herpes, one might reasonably assume that he would not have brought suit for tortious infection with a sexually transmitted disease unless he had been. Unbeknownst to the Court until much later in the proceedings, however, Gallagher has never received a medical diagnosis of genital herpes.^[11] Moreover, Gallagher affirmatively asserts that he has no intention of ever seeking one,^[12] apparently on the theory that a diagnosis is “[un]necessary” because Pajevic supposedly “admitted that she's had [an] STD [sexually transmitted disease].”^[13] But even if Pajevic did admit to having an STD,^[14] that admission would not resolve the question of whether Gallagher suffers from the disease, an obvious prerequisite to his lawsuit. And while Gallagher testified he has suffered in the past from sores on his genitals, that testimony is not factual support for his assertion that he suffers from the disease of genital herpes because Gallagher is not competent to self-diagnose the medical cause of his genital sores. That somewhat self-evident proposition is also amply supported in the case law. See In re Testosterone Replacement Therapy

Have you ever been to a doctor who diagnosed you as having any type of an STD?” A. (Gallagher): No.”)]. Prod. Liab. Litig. Coordinated Pretrial Proceedings, No. 14 C 1748, 2018 WL 2095701, at *6 (N.D. Ill. May 5, 2018) (“[Plaintiff] is not a doctor and cannot appropriately provide self-diagnosis testimony.”); Smith v. Garcia, No. 15-CV-10105, 2018 WL 461230, at *8 (N.D. Ill. Jan. 18, 2018) (“Plaintiff will not be allowed to (1) provide a medical diagnosis of her injuries, or (2) testify that the alleged beating proximately caused her medical problems, because this goes beyond lay testimony based on Plaintiff's rational perceptions.”).^[15] As one court has said, “[t]he unfairness of subjecting defendants to … torts liability based on subjective self-diagnosis,” rather than “scientific or otherwise reliable validation[,] is readily apparent.” Gabbard v. Linn-Benton Hous. Auth., 219 F.Supp.2d 1130, 1141 (D. Or. 2002). In short, without a physician's diagnosis, Gallagher's tortious infection claim against Pajevic has “no more evidentiary support than the case against [jock itch].” Id.^[16]

B. Defendant's Allegations^[17]

Pajevic alleged in her Answer^[18] that Gallagher filed these two lawsuits in retaliation for Pajevic having ended her relationship with him in January 2015 and then evicting him from her home in Romeoville, Illinois. As proof of the eviction, Pajevic attached a copy of a “Forcible Entry and Detainer Order” entered by an Illinois state court. See [325 Case, DE 12 at 18-19].^[19] Pajevic also stated that an Illinois domestic court issued an order of protection against Gallagher, and she attached a copy of that order [id. at 4-16], showing that Gallagher and Pajevic were both represented by counsel [id. at 6] and that the Illinois domestic court found “a pattern of harassment” by Gallagher against Pajevic [id. at 13].^[20] Pajevic further stated in her Answer that, in retaliation for the Illinois eviction and protection order proceedings, Gallagher brought a petition in Indiana state court seeking a protection order against her. He then filed a federal lawsuit in Illinois naming as defendants both her and the Illinois state court judge who granted the protection order. Pajevic attached court documents to her Answer as proof of these proceedings as well. Those documents show that: (1) the Indiana domestic proceeding was dismissed on the finding of the Indiana state court that Gallagher had not submitted sufficient evidence to justify issuance of a protection order against Pajevic [id. at 2]; and (2) the Illinois federal lawsuit was dismissed sua sponte by the district pursuant to 8 U.S.C. § 1915(e)(2)(B) for failure to state a claim for relief. See [id. at 17; 410 Case, DE 41 at 15].^[21]

C. Procedural History Relating To Jurisdictional Issues

1. Gallagher's Jurisdictional Allegations

The Defamation Complaint and the Tortious Infection Complaint both allege federal court jurisdiction...