Ollins v. Karl

2022 IL App (1st) 220150

216 N.E.3d 1117

466 Ill.Dec. 284

Larry OLLINS, Omar Muhammad, Calvin Ollins, and Marcellia Bradford, Plaintiffs-Appellants,

v.Peter KARL; Amazon.com, Inc.; and Telemachus Press, LLC, Defendants,

(Peter Karl, Defendant-Appellee).

No. 1-22-0150

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed August 25, 2022

Ilia Usharovich, of Wheeling, for appellants.

Samuel Fifer, Taaj M. Reaves, and Gregory R. Naron, of Dentons US LLP, of Chicago, for appellee.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Larry Ollins, Omar Muhammad, Calvin Ollins, and Marcellia Bradford, brought a five-count complaint against defendants, Peter Karl, Amazon.com, Inc. (Amazon), and Telemachus Press, LLC, alleging defamation, false light invasion of privacy, public disclosure of private facts, appropriation of another's name or likeness, and intrusion upon seclusion. The circuit court granted defendant-appellee (defendant) Karl's motion to dismiss the complaint against him with prejudice pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007) for plaintiffs’ failure to exercise reasonable diligence to obtain service of process. The court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason for delaying either enforcement or appeal of the dismissal order.

¶ 2 On appeal, plaintiffs argue that the circuit court abused its discretion in finding that they failed to exercise reasonable diligence in serving defendant under Rule 103(b). Plaintiffs further argue that, under Rule 103(b), the complaint could be dismissed "with prejudice" only if the circuit court found that their failure to exercise reasonable diligence in serving defendant occurred after the expiration of the applicable statute of limitations and prejudiced him; however, the circuit court here made inconsistent findings regarding when the limitations period had expired and whether plaintiffs’ failure to exercise reasonable diligence in serving defendant occurred before or after the expiration of the limitations period. The circuit court made no finding that defendant was prejudiced by plaintiffs’ failure to exercise reasonable diligence in serving him. We affirm the circuit court's finding that plaintiffs failed to exercise reasonable diligence under Rule 103(b) in serving defendant. We reverse the dismissal order and remand for the court to clarify its findings regarding whether plaintiffs’ failure to exercise reasonable diligence in serving defendant occurred before or after the expiration of the limitations period and whether defendant was prejudiced thereby.

¶ 3 Plaintiffs filed their complaint on March 27, 2020. In count I for defamation, plaintiffs alleged that they were convicted and sentenced for the murder and rape of Lori Roscetti, which occurred on October 18, 1997. Subsequent to their conviction, plaintiffs hired a new attorney to prove their innocence. Multiple DNA tests were conducted establishing that the two DNA profiles found on Roscetti did not belong to plaintiffs and instead matched two different individuals, Duane Roach and Eddie Harris. Roach and Harris were arrested, and they each pleaded guilty to the rape and murder of Roscetti. Plaintiffs’ convictions were vacated in 2001, and they were released from prison. Governor Ryan pardoned plaintiffs in 2002. Plaintiffs filed a civil rights action based on the wrongful conviction, which was settled for several million dollars.

¶ 4 Defendant subsequently wrote a book titled "On the Night of a Blood Moon: A Peter Michaels Thriller" that was published on March 29, 2019, in the form of an audiobook, paper book, and digital book and sold on Amazon. In the book, defendant wrote that while Roach and Harris raped, robbed, and injured Roscetti, plaintiffs actually killed her. The book further contained plaintiffs’ juvenile criminal histories, adjudications, and sentences, all of which were private and confidential under the Juvenile Court Act of 1987 ( 705 ILCS 405/1-7 (West 2020) ).

¶ 5 Plaintiffs alleged in count I that the book is defamatory, as they did not kill Roscetti. Plaintiffs requested an award of compensatory damages and that the distribution of the book be stopped.

¶ 6 In count II for false light invasion of privacy, plaintiffs alleged that while acting with actual malice, defendant placed them in a false light by falsely accusing them of murdering Roscetti. The false light in which plaintiffs were placed would be highly offensive to a reasonable person.

¶ 7 In count III for public disclosure of private facts, plaintiffs alleged that defendant gave publicity to plaintiffs’ private facts when he published their juvenile criminal histories, sentences, and adjudications.

¶ 8 In count IV for appropriation of another's name or likeness, plaintiffs alleged that defendant appropriated their name and likeness within his book without their consent and for the commercial benefit of selling his book.

¶ 9 In count V for intrusion upon seclusion, plaintiffs alleged that, without authorization, defendant intruded upon and gained access to their private juvenile criminal records and published them. Such an intrusion was highly offensive to a reasonable person and caused plaintiffs anguish and suffering.

¶ 10 Subsequent to the filing of the complaint, plaintiffs requested on August 27, 2020, that the circuit court clerk issue summons to defendant at his address in Marco Island, Florida. The clerk issued the summons, leaving the date of service blank, to be filled in when the officer served defendant. However, plaintiffs did not effectuate service of the summons on defendant.

¶ 11 Instead, on August 31, 2020, plaintiffs prepared a request for waiver of service (the waiver request) pursuant to section 2-213(a) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-213(a) (West 2020)) and delivered it to defendant by three-day priority mail.¹ Section 2-213(a) provides that a plaintiff may notify a defendant of the commencement of an action and request that he waive service of a summons. The notice and waiver request shall be addressed and "dispatched" to the defendant "through first class U.S. mail or other equally reliable means"; contain a copy of the complaint; inform the defendant of the consequences of compliance and noncompliance with the request to waive service; allow the defendant "a reasonable time to return the waiver, which shall be at least *** 30 days from the date on which the request is sent"; and provide the defendant with an extra copy of the notice and request and prepaid means of compliance in writing. Id. Section 2-213(e) provides that if the defendant does not timely return the waiver of service, "plaintiff must serve summons on that defendant as otherwise provided by this Code and Supreme Court rules." Id. § 2-213(e).

¶ 12 Defendant here did not complete and return the waiver within 30 days.

¶ 13 On February 23, 2021, plaintiffs obtained an alias summons and engaged a private detective who served the complaint on defendant at his Marco Island, Florida, address on March 2, 2021. Defendant's counsel entered an appearance on March 26, 2021, and sought a 45-day extension of time to file his responsive pleading to plaintiffs’ complaint. The circuit court granted the extension request.

¶ 14 On May 17, 2021, defendant filed two motions. First, at 3:29 p.m. he filed a motion to dismiss pursuant to section 2-619(a)(5) of the Code (id. § 2-619(a)(5)). Seven minutes later, at 3:36 p.m., he filed a motion to dismiss pursuant to Rule 103(b).

¶ 15 In his section 2-619(a)(5) motion, defendant argued that the statute of limitations for a claim of defamation and/or publication of matters violating the right of privacy is one year. See id. § 13-201; Ciolino v. Simon , 2020 IL App (1st) 190181, ¶ 42, 446 Ill.Dec. 466, 170 N.E.3d 992 ; Webb v. CBS Broadcasting, Inc. , No. 08 C 6241, 2009 WL 1285836, at *3 (N.D. Ill. May 7, 2009). Generally, in defamation cases, "the cause of action accrues, and the statute of limitation begins to run, on the date the allegedly defamatory statement is published." Ciolino , 2020 IL App (1st) 190181, ¶ 42, 446 Ill.Dec. 466, 170 N.E.3d 992. Defendant argued that his book was published on March 20, 2019, meaning that the limitations period expired on March 20, 2020. Plaintiffs’ complaint was not filed until March 27, 2020, one week after the limitations period had expired.

¶ 16 Defendant argued that the Uniform Single Publication Act ( 740 ILCS 165/1 (West 2020) ) applies here. The Uniform Single Publication Act states the rule that "[n]o person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine." Id. Pursuant to this rule:

"defamation and privacy actions are ‘complete at the time of the first publication , and any subsequent appearances or distributions of copies of the original publication are of no consequence to the creation or existence of a cause of action, but are only relevant in computing damages.’ *** [Citation.] The subsequent distribution of existing copies of an original publication neither creates a new cause of action nor tolls the applicable statute of limitations." (Emphasis in original.) Blair v. Nevada Landing Partnership, RBG, LP , 369 Ill. App. 3d 318, 324-25, 307 Ill.Dec. 511, 859 N.E.2d 1188 (2006).

¶ 17 However, a republication can constitute a new cause of action if the publication is altered to reach a new audience or promote a different product. Id. at 325, 307 Ill.Dec. 511, 859 N.E.2d 1188.

¶ 18 Defendant argued that the publication of his book in various mediums, such as hard cover, soft cover, digital, and audiobook, was not a republication that avoided the single-publication rule and retriggered the one-year statute of limitations but merely constituted...