                                  Illinois Official Reports

                                          Appellate Court



                    Johnson v. Johnson & Bell, Ltd., 2014 IL App (1st) 122677




Appellate Court              MERDELIN JOHNSON, Plaintiff-Appellant, v. JOHNSON AND
Caption                      BELL, LTD., and TARGET CORPORATION, ROBERT BURKE,
                             and JENNIFER ROSE, Defendants-Appellees.


District & No.               First District, First Division
                             Docket No. 1-12-2677


Filed                        February 24, 2014


Held                         The trial court properly dismissed plaintiff’s complaint against
(Note: This syllabus         defendant retailer and its counsel alleging invasion of privacy,
constitutes no part of the   negligence, negligent infliction of emotional distress, and breach of
opinion of the court but     oral and written contracts arising from defendants’ failure to seal and
has been prepared by the     redact plaintiff’s personal information in the final pretrial order
Reporter of Decisions        entered in the underlying personal injury action plaintiff filed against
for the convenience of       defendant retailer, notwithstanding plaintiff’s contention that the
the reader.)                 absolute litigation privilege did not apply, since the absolute litigation
                             privilege applied to the invasion of privacy claim and the remaining
                             claims in plaintiff’s suit, and furthermore, plaintiff’s claims in
                             connection with defendants’ alleged misconduct in failing to seal and
                             redact the information were heard before the federal court in which the
                             personal injury action was tried, and the failure of that court to impose
                             any sanctions did not provide a basis for plaintiff’s instant civil action
                             in state court.


Decision Under               Appeal from the Circuit Court of Cook County, No. 11-L-8493; the
Review                       Hon. Jeffrey Lawrence, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Merdelin Johnson, of Evanston, appellant pro se.
     Appeal
                               Michael Resis and Michael J. McGowan, both of SmithAmundsen
                               LLC, of Chicago, for appellee Target Corporation.

                               David M. Macksey, Garrett L. Boehm, Jr., and Anne E. Zipfel, all of
                               Johnson & Bell, Ltd., of Chicago, for other appellees.



     Panel                     PRESIDING JUSTICE CONNORS delivered the judgment of the
                               court, with opinion.
                               Justices Cunningham and Delort concurred in the judgment and
                               opinion.


                                                 OPINION

¶1         Plaintiff Merdelin Johnson (plaintiff) filed suit against defendants Johnson & Bell, Ltd.
       (Johnson & Bell), Target Corporation (Target), Robert Burke, and Jennifer Rose (collectively,
       defendants) alleging invasion of privacy, negligence, negligent infliction of emotional distress,
       and breach of contract. Defendants filed a motion pursuant to section 2-619 of the Code of
       Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)) to dismiss, contending that plaintiff’s
       claims were barred by the absolute litigation privilege, res judicata, and collateral estoppel.
       The trial court granted defendants’ motion to dismiss, and plaintiff now appeals.

¶2                                              I. BACKGROUND
¶3          Prior to this lawsuit, plaintiff filed a personal injury lawsuit against Target, alleging that
       she suffered injuries when she slipped and fell in one of Target’s stores. Plaintiff originally
       filed her complaint in the circuit court of Cook County, but Target removed the case to the
       United States District Court for the Northern District of Illinois (hereinafter, District Court).
       Attorneys Robert Burke and Jennifer Rose of Johnson & Bell represented Target in the lawsuit.
¶4          Prior to trial in that suit, a joint final pretrial order was prepared and signed by all parties,
       including plaintiff. The final pretrial order had appendices containing all exhibits and
       deposition transcripts the parties planned to use at trial. The final pretrial order was entered
       into the Northern District’s electronic filing system on August 16, 2010. The case proceeded to
       trial on August 30, 2010, and a jury verdict was entered in favor of Target and against plaintiff
       on August 31, 2010. On September 29, 2010, plaintiff appealed to the United States Court of
       Appeals for the Seventh Circuit, which affirmed the trial court in Johnson v. Target Corp., 487
       F. App’x 298 (7th Cir. 2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1735 (2013).
¶5          During the pendency of that appeal, plaintiff purportedly discovered that unbeknownst to
       her, certain documents were attached to the final pretrial order that included her social security
       number, date of birth, financial information, medical information, and references to “G.J.,” a
       minor. She filed a motion in the District Court, pursuant to Federal Rules of Civil Procedure
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       5.2 and 37 (Fed. R. Civ. P. 5.2, 37), requesting that the court seal and redact certain documents,
       and for sanctions against Target for violating the court’s redaction rules and failing to protect
       plaintiff’s right to privacy. Plaintiff claimed that on August 12, 2010, she met with Target’s
       counsel and told them to redact her personal information from certain documents, pursuant to
       Rule 5.2(a) (Fed. R. Civ. P. 5.2(a)). Plaintiff argued that the failure to redact was extreme bad
       faith on the part of Target and that Target was negligent in failing to redact and seal. Plaintiff
       alleged that her identity could have been stolen and that the information had been in the system
       for “almost four months.”
¶6          The District Court stated that “for the reasons stated in open court” plaintiff’s motion was
       granted in part and denied in part. Her motion for sanctions was denied, but her motion to seal
       and redact certain documents was granted.
¶7          On November 24, 2010, plaintiff filed a motion in the Seventh Circuit to seal certain
       documents attached to the final pretrial order and for sanctions. Plaintiff’s motion was
       substantially similar to that she filed in the District Court. She noted that her District Court
       motion was granted.
¶8          On December 1, 2010, the Seventh Circuit stated that the motion was granted:
                “to the extent that the clerk of this court shall place combined documents nos. 135 and
                138 under seal. The clerk of the district court shall retransmit document nos. 135-138
                as separate PDFs. The clerk of this court shall then place and maintain document no.
                138 under seal.”
¶9          On August 15, 2011, plaintiff filed a complaint in the instant action. In her complaint,
       plaintiff alleged invasion of privacy, negligence, and negligent infliction of emotional distress
       stemming from the failure to redact certain personal information from documents that were
       attached to the final pretrial order. Plaintiff argued that while both the District Court and the
       Seventh Circuit granted her motions to redact her personal information, as well as seal the
       documents in question, plaintiff’s private information “had been in the Court’s public record
       filing system for over four months, well enough time for the records to be copied and
       transmitted to any number of individuals.”
¶ 10        Johnson & Bell, Burke, and Rose filed a motion to dismiss plaintiff’s complaint pursuant to
       section 2-619 of the Code because plaintiff’s claims were barred by the absolute litigation
       doctrine and because plaintiff’s complaint constituted an improper collateral attack on the
       Northern District of Illinois’s order sealing the documents in question. Target joined in this
       motion to dismiss, and additionally alleged that the sole basis of plaintiff’s complaint was an
       alleged violation of Federal Rule of Civil Procedure 5.2, and that a failure to comply with the
       federal rules cannot create a private right of action.
¶ 11        Plaintiff moved for, and was granted, leave to file an amended complaint. On February 2,
       2012, plaintiff filed an amended complaint which again alleged invasion of privacy,
       negligence, and negligent infliction of emotional distress against all defendants, but added
       both a breach of written contract claim and a breach of oral contract claim against Target and
       Johnson & Bell.
¶ 12        In response to plaintiff’s amended complaint, defendants Johnson & Bell, Burke, and Rose
       stood on the arguments raised in their prior section 2-619 motion to dismiss. Target filed a new
       motion to dismiss pursuant to section 2-619(a)(9) of the Code alleging again that a violation of
       the federal court rules does not create a private cause of action. Target also alleged that the

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       absolute litigation privilege applied. On July 31, 2012, the circuit court dismissed with
       prejudice plaintiff’s amended complaint, finding that the absolute litigation privilege,
       res judicata, and collateral estoppel applied to bar the claims. Plaintiff now appeals.

¶ 13                                            II. ANALYSIS
¶ 14        On appeal, plaintiff contends that her amended complaint for invasion of privacy,
       negligence, negligent infliction of emotional distress, and breach of oral and written contracts
       should not have been dismissed pursuant to section 2-619 of the Code because the absolute
       litigation privilege, res judicata, and the doctrine of collateral estoppel do not bar her claims.
       Subsection 2-619(a)(9) of the Code provides for dismissal of a complaint if “the claim asserted
       against defendant is barred by other affirmative matter avoiding the legal effect of or defeating
       the claim.” 735 ILCS 5/2-619(a)(9) (West 2010). Thus, under this subsection, the moving
       party admits the legal sufficiency of the complaint but asserts an affirmative defense or other
       matter that avoids or defeats the claim. Thompson v. Frank, 313 Ill. App. 3d 661, 663 (2000).
       The “motion to dismiss should be granted only when it raises affirmative matter which negates
       the plaintiff’s cause of action completely or refutes critical conclusions of law or conclusions
       of material, but unsupported, fact.” Employers Mutual Cos. v. Skilling, 256 Ill. App. 3d 567,
       569 (1994). On appeal, we review a section 2-619 dismissal de novo. Moran v. Gust K.
       Newberg/Dugan & Meyers, 268 Ill. App. 3d 999, 1004-05 (1994).
¶ 15        Plaintiff’s first argument on appeal is that the absolute litigation privilege does not bar the
       claims set forth in her amended complaint. The issue of absolute privilege is treated as an
       affirmative defense that may be raised and determined in a section 2-619 motion. Thompson,
       313 Ill. App. 3d at 663. An attorney is absolutely privileged to publish defamatory matter
       concerning another in communications preliminary to a proposed judicial proceeding, or in the
       institution of, or during the course and as a part of, a judicial proceeding in which he
       participates as counsel, if he has some relation to the proceeding. Restatement (Second) of
       Torts § 586 (1977). A private litigant enjoys the same privilege concerning a proceeding to
       which he is a party. Restatement (Second) of Torts § 587 (1977). An absolute privilege
       provides a complete bar to a claim for defamation, regardless of the defendant’s motive or the
       unreasonableness of his conduct. Thompson, 313 Ill. App. 3d at 664.
¶ 16        In Illinois, the “rules on absolute privileges to publish defamatory matter stated in §§ 583
       to 592A apply to the publication of any matter that is an invasion of privacy.” Restatement
       (Second) of Torts § 652F (1977); McGrew v. Heinold Commodities, Inc., 147 Ill. App. 3d 104,
       114 (1986) (“[T]he rules on absolute privilege in defamation actions apply to invasion of
       privacy suits as well.”). Accordingly, we find the absolute litigation privilege applies to
       plaintiff’s invasion of privacy claim.
¶ 17        We further find that the trial court did not err in finding that plaintiff’s remaining claims in
       her amended complaint were also barred by the absolute litigation privilege. Illinois courts
       have not specifically discussed whether absolute immunity extends to claims for negligent
       infliction of emotional distress or breach of contract. However, a number of other courts have
       held that the absolute litigation privilege can apply in such cases because “[t]he absolute
       privilege would be meaningless if a simple recasting of the cause of action *** could void its
       effect.” Barker v. Huang, 610 A.2d 1341, 1349 (Del. 1992); see also Laffer v. Levinson, Miller,
       Jacobs & Phillips, 40 Cal. Rptr. 2d 233, 237 (Cal. Ct. App. 1995); Franson v. Radich, 735 P.2d
       632, 635 (Or. Ct. App. 1987); Petyan v. Ellis, 510 A.2d 1337, 1343 (Conn. 1986); see also
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       McNall v. Frus, 336 Ill. App. 3d 904, 907 (2002) (defendant immune from suit of negligence
       by absolute litigation privilege).
¶ 18       In contending that the litigation privilege does not extend to all of her claims, plaintiff
       relies on the following three cases. In Zdeb v. Baxter International, Inc., 297 Ill. App. 3d 622,
       628-29 (1998), this court found that Illinois courts have not extended the absolute privilege to
       claims for intentional interference with prospective economic advantage. In Thompson v.
       Frank, 313 Ill. App. 3d 661 (2000), this court found that the absolute privilege did not extend
       to a libel action based on an allegedly defamatory communication between one party’s
       attorney and the spouse of the opposing party to pending litigation. In Kurczaba v. Pollock,
       318 Ill. App. 3d 686 (2000), this court found that the absolute privilege did not apply to a
       defendant’s out-of-court dissemination of a complaint to third parties not involved in the
       action. These cases are unpersuasive, as none of them deal with the recasting of a defamation
       claim in order to avoid the absolute litigation privilege, and none of them deal with the
       remaining claims in her suit.
¶ 19       Morever, we note that “[t]here is no civil cause of action for misconduct which occurred in
       prior litigation.” Harris Trust & Savings Bank v. Phillips, 154 Ill. App. 3d 574, 585 (1987).
       “Petitions to redress injuries resulting from misconduct in judicial proceedings should be
       brought in the same litigation.” Id. Here, plaintiff complains of the alleged misconduct on the
       part of Target and its attorneys in a prior federal lawsuit in which they failed to redact certain
       personal information. Plaintiff brought the mistake to the attention of both the District Court
       and the Seventh Circuit. Both courts ordered the documents to be sealed and redacted, and
       neither court chose to assess sanctions against Target or its counsel for failing to redact the
       documents prior to filing the pretrial order. Plaintiff’s arguments regarding Target’s counsel’s
       alleged misconduct were heard in federal court, which was the proper venue. Plaintiff received
       the result she asked for in federal court, which was to have the documents redacted. The fact
       that neither court chose to assess sanctions against Target or its counsel does not provide an
       adequate basis for a civil action in state court based on the same conduct. Harris, 154 Ill. App.
       3d at 585 (public policy precludes a second lawsuit because otherwise there would never be an
       end to litigation and it is improper for a trial court to review previous litigation that has gone on
       before another judge).
¶ 20       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 21       Affirmed.




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