Orozco v. Orozco

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JOSEPH OROZCO, Plaintiff, v. DANIEL OROZCO, JR., Defendant.

No. 22 CV 3122

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

April 11, 2023

MEMORANDUM OPINION AND ORDER

MANISH S. SHAH U.S. DISTRICT JUDGE

Defendant Daniel Orozco, Jr., initiated police investigations into his brother, plaintiff Joseph Orozco, over the management of a property in Mexico. Daniel wrote threatening emails to plaintiff, told the police lies about his brother's property management, asked Mexican authorities to arrest Joseph, and prompted police to speak with Joseph's wife and customers. Plaintiff brings three state-law claims for abuse of process, false light, and defamation.^[1]Under Rule 12(b)(6), defendant moves to dismiss the lawsuit. For the reasons discussed below, the motion is granted.

I. Legal Standards

A complaint must contain a short and plain statement that suggests a plausible right to relief. Fed.R.Civ.P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 67778 (2009). To survive a Rule 12(b)(6) motion, a plaintiff must allege facts that “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). I accept well-pleaded factual allegations as true, and draw all reasonable inferences in plaintiff's favor. Landmark Am. Ins. Co. v. Deerfield Constr., Inc., 933 F.3d 806, 809 (7th Cir. 2019) (citations omitted); Iqbal, 556 U.S. at 678. But conclusory allegations are not entitled to the presumption of truth. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).

II. Background

Joseph and Daniel's parents owned a recreational vehicle park in Sonora, Mexico. [1] ¶¶ 10-12.^[2] After their father died, the property passed to Joseph, Daniel, and their siblings. See id. ¶ 20. Joseph took over management of the RV park, id. ¶¶ 24-25, and received only a modest salary for himself while running the family business. See id. ¶¶ 26, 28. Between 2001 and 2020, Joseph distributed the profits from the RV park to his siblings and his mother. Id. ¶¶ 29, 35-37, 41. But Joseph didn't make any distributions in 2021 when the business took a downtown during the pandemic. See id. ¶ 42.

In 2014, Daniel emailed his brother and other family members demanding that Joseph send profits from the family business and threatening to travel to Mexico to make Joseph pay. See [1] ¶¶ 49-50; [1-1] at 2.^[3]Four months later, Daniel (through his attorney) asked Mexican police to investigate Joseph for fraud and breach of trust related to the management of the RV park. See [1] ¶ 51. In an attempt to gain financially for himself and his mother, Daniel falsely told Mexican authorities that Joseph had underreported the business's profits, prevented access to financial records, and reorganized the business so that Joseph was the sole owner and beneficiary. See id. ¶¶ 52-53, 66.

Daniel's complaints about his brother resulted in a four-year investigation. [1] ¶¶ 48, 54. In 2017, Daniel asked Mexican police to arrest Joseph. See id. ¶ 59. Mexican police issued an order of arrest, and Joseph was forced to stay in his home to avoid imprisonment. See id. ¶¶ 60-61. In 2017, a Mexican court acquitted Joseph for lack of evidence, and that ruling was affirmed by a second court a year later. See id. ¶ 62.

Sometime before February 2022, Daniel (through his attorney) asked Mexican authorities to investigate his brother a second time. See [1] ¶¶ 72, 76, 79-80. In February 2022, police showed a related subpoena to Joseph's wife. See id. ¶¶ 72-76. The subpoena said that Joseph was under investigation for fraud and breach of trust, crimes alleged to have affected Daniel. See id. ¶ 76. As part of their second investigation, police served two long-time customers of the RV park with subpoenas, and spoke to four rental customers. See id. ¶¶ 78, 81.

Daniel had ulterior motives for causing police to begin a second investigation, including deep-seated personal animus, anger at his brother for not making certain profits distributions, and an intent to harass the RV park's customers, extort payments or a buyout of Daniel's interest, and cause a false imprisonment. See [1] ¶¶ 87-89. As a result of the second investigation, Joseph incurred legal expenses and suffered harm to his reputation, emotional distress, and other damages. See Id. ¶¶ 94-96, 102-104, 110-112.

III. Analysis

A. Abuse of Process

To state a claim for abuse of process, Joseph must allege that Daniel had an ulterior motive and took an action in the use of process that was improper in the regular course of the proceedings. See Withall v. Cap. Fed. Sav. of America, 155 Ill.App.3d 537, 544 (1st Dist. 1987) (citing Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 966 (1st Dist. 1972)); Evans v. West, 935 F.2d 922, 923 (7th Cir. 1991) (citations omitted). Plaintiff alleges that after re-initiating the investigation in 2022, Daniel caused police to secure subpoenas, requiring Joseph and two of his customers to submit to interviews. See [1] ¶¶ 72-76, 78-81.

The complaint sufficiently alleges that Daniel's reports to Mexican authorities were motivated by things other than preventing or punishing criminal behavior. See [1] ¶¶ 87-89; [9] at 8-10. But the pleading fails at the second element of the claim. Making a complaint to the police isn't abuse of process. See Kirchner v. Greene, 294 Ill.App.3d 672, 683-84 (1st Dist. 1998) (noting that process by a court is central to the claim); Holiday Magic, Inc., 4 Ill.App.3d at 968 (finding that process is “any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property.”). Because the subpoena said that Joseph was under investigation for crimes affecting Daniel, the complaint concludes that Daniel caused the subpoenas to issue. See [1] ¶ 79. But the complaint alleges that Mexican police subpoenaed Joseph and two of his customers, see id. ¶¶ 72, 75-76, 78, and (setting aside the complaint's legal conclusion) it's not reasonable to infer that Daniel is responsible for that process or that a police subpoena is court process. The subpoena attached to the complaint does not invoke the jurisdiction or power of a tribunal. See [1-1] at 7, 9.

Even if the issuance of the subpoenas was caused by Daniel, and assuming they were court process, the complaint doesn't allege that this process was used to achieve anything beyond the normal scope. See Evans, 935 F.2d at 923 (quoting McGrew v. Heinhold Commodities, Inc., 147 Ill.App.3d 104, 111-12 (1st Dist. 1986)); Neurosurgery & Spine Surgery, SC v. Goldman, 339 Ill.App.3d 177, 183 (2d Dist. 2003). Daniel allegedly re-started the investigation with an ulterior motive, but improper motivation for a process that follows the usual course isn't abuse of process. There's no allegation that the subpoenas were used for anything other than their intended purpose-to obtain information related to allegations of fraud and breach of trust-and without that, plaintiff's claim fails.

Count One is dismissed.

B. Defamation and False Light

Plaintiff alleges that Daniel defamed him and placed him in a false light by sending a threatening email in April 2014, requesting that Mexican police investigate in August 2014, and initiating a second investigation in 2022. See [13] at 11-12; [1] ¶¶ 49-53, 72, 78-81. Because the Illinois statute of limitations for false light and defamation claims is one year, however, see 735 ILCS 5/13-201; Ciolino v. Simon, 2020 Il App (1st) 190181 ¶ 42 (citations omitted), plaintiff's claims cannot be based on Daniel's alleged conduct in 2014. At issue, then, is what Daniel said to Mexican authorities that caused them to reopen their investigation. See [1] ¶ 80.

A defamation claim requires allegations that (1) the defendant made a false statement about the plaintiff, (2) the defendant made an unprivileged publication to a third party, and (3) the publication caused damages. Hadley v. Doe, 2015 IL 118000 ¶ 30 (citing Green v. Rogers, 234 Ill.2d 478, 491 (2009)). A statement is defamatory if it “tends to harm a person's reputation.” Muzikowski v. Paramount Pictures Corp., 477 F.3d 899, 903-04 (7th Cir. 2007) (quoting Tuite v. Corbitt, 224 Ill.2d 490, 501 (2006)). A statement is defamatory per se if its “defamatory character is obvious,” such as a statement that someone committed a crime. Id. at 904.

Plaintiff hasn't alleged that Daniel made a false statement about him. The complaint says that Daniel “requested a re-opening of the previously adjourned 20142018 investigation” by contacting Mexican authorities (presumably police or prosecutors). [1] ¶¶ 80-81. But that allegation is vague and conclusory: without more detail about what Daniel said, the complaint hasn't cleared the plausibility bar as to this claim. See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 698 (7th Cir. 2006) (citing Wynne v. Loyola Univ. Chicago, 318 Ill.App.3d 443, 452 (1st Dist. 2000)) (noting that “vague, unprovable statements and statements of opinion do not give rise to a defamation claim”); United Laboratories, Inc. v. Savaiano, No. 06 C 1442, 2007 WL 4557095, at *11 (N.D. Ill.Dec. 21, 2007) (gathering cases) (“To satisfy the requirements of notice pleading, a plaintiff in federal court must set forth the alleged defamatory words ‘with some specificity.'”).^[4]

A claim for false light requires allegations that (1) plaintiff was placed in a false light before the public as a result of defendant's actions, (2) the false light in which plaintiff was placed would be highly offensive to a reasonable person, and (3) defendant acted with actual malice, meaning that he either knew or acted with reckless disregard for whether the statements were false. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 17-18 (1992) (citing Lovgren v. Citizens First...