Lozier v. Quincy University Corporation et al

Filing 63

OPINION entered by Magistrate Judge Tom Schanzle-Haskins on 3/15/2021. Cindy Lozier's Motion to Intervene to Modify Protective Order, d/e 61 is ALLOWED. (SEE WRITTEN OPINION) (MAS)

3:18-cv-03077-SEM-TSH # 63

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E-FILED

Tuesday, 16 March, 2021 12:09:57 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
DANIEL R. LOZIER, II,
Plaintiff,
v.
QUINCY UNIVERSITY
CORPORATION, and
BRIAN HOLZGRAFE,
Defendants.
BRIAN HOLZGRAFE,
Counter Plaintiff
v.
DANIEL R. LOZIER, II
Counter Defendant

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Case No. 18-cv-3077

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on third party Cynthia Lozier
a/k/a Cindy Lozier’s (Cindy Lozier) Motion to Intervene to Modify Protective
Order (d/e 61) (Motion). Cindy Lozier is Daniel Lozier’s mother. For the
reasons set forth below, the Motion is ALLOWED.

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BACKGROUND
Plaintiff Daniel Lozier alleges claims against Defendants Quincy
University Corporation (Quincy University) and Brian Holzgrafe under Title
IX of the Education Amendments of 1972, 20 U.S.C. § 1681. Daniel Lozier
alleges that he was a freshman at Quincy University and a scholarship
athlete on the Quincy University tennis team. Holzgrafe was the coach.
He alleges that persons other that Plaintiff made allegations that Holzgrafe
had inappropriate sexual relations with a woman student on the women’s
tennis team. Quincy University conducted an investigation and
investigators interviewed Daniel Lozier during the course of the
investigation. Daniel Lozier told the investigators what he knew.
Thereafter, Holzgrafe verbally attacked Daniel Lozier for cooperating with
the investigation and kicked Daniel Lozier off the tennis team. Daniel
Lozier alleges that he was ultimately kicked off campus in retaliation for his
cooperation with Quincy University’s sexual harassment investigation.
Daniel Lozier alleges claims under Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681, for retaliation and a hostile
educational environment and state law claims for intentional infliction of
emotional distress; negligent infliction of emotional distress; breach of
contract; estoppel and detrimental reliance; defamation; invasion of privacy
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claims of public disclosure of private facts, false light, and intrusion upon
seclusion; negligent supervision; and negligent retention. See Complaint
(d/e 1). The District Court dismissed the claims against Quincy University
and Holzgrafe for negligent infliction of emotional distress and invasion of
privacy by intrusion upon seclusion. See Opinion entered January 31,
2020 (d/e 31), at 39-40.1
On April 10, 2020, this Court entered the parties’ Stipulated
Protective Order (d/e 38) (Protective Order). The Protective Order limited
the disclosure of confidential materials produced in discovery. Discovery
materials designated as “Confidential” by one party (Confidential
Information) may only be disclosed to certain persons and only for certain
purposes related to this matter, as authorized under the Protective Order.
On May 3, 2020, Holzgrafe sought leave of Court to file a
counterclaim (Counterclaim) against Daniel Lozier and a third-party
complaint against Cindy Lozier for defamation and false light invasion of
privacy. Defendant Brian Holzgrafe’s Motion for Leave to File
Counterclaims against Plaintiff and to File Third-Party Complaint Against
Cindy Lozier (d/e 45). Holzgrafe alleges that Daniel Lozier intentionally

1

The District Court also dismissed all claims against other named individual defendants. Opinion entered
July 31, 2020 (d/e 31), at 39.

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made false statements that Holzgrafe had a history of sexual misconduct
with women tennis players, had sexual relations with a woman student on
the Quincy University woman’s tennis team, and made inappropriate
advances to another woman player who left the program because of
Holzgrafe’s conduct. Daniel Lozier allegedly made these false statements
to several people including his mother Cindy Lozier. Holzgrafe alleges that
Cindy Lozier intentionally repeated those false statements to parents of
Quincy University student tennis players and other tennis players, and
Cindy Lozier stated to those individuals that Holzgrafe would be out as
Head Tennis Coach within two weeks. Defendant Brian Holzgrafe’s Motion
for Leave to File Counterclaims Against Plaintiff and to File Third-Party
Complaint Against Cindy Lozier (d/e 45) (Motion for Leave), Exhibit A,
Proposed Counterclaim, and Exhibit B, Proposed Third-Party Complaint.
The District Court allowed Holzgrafe’s motion to file the Counterclaim but
denied the request to file a third-party complaint against Cindy Lozier. The
Court determined that Holzgrafe’s claims against Cindy Lozier were not
proper third-party claims allowed under Federal Rule of Civil Procedure 14.
Opinion entered June 27, 2020 (d/e 52) (Opinion 52), at 10-12.
On November 3, 2020, Holzgrafe filed an action in Adams County,
Illinois, Circuit Court against Cindy Lozier for defamation and false light
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invasion of privacy. Defendant/Counter-Plaintiff Brian Holzgrafe’s
Response in Opposition to Cindy Lozier’s Motion to Intervene to Modify
Protective Order (d/e 62) (Response), Exhibit A, Docket Sheet for
Holzgrafe v. Lozier, Adams Co. Cir. Ct. Case No. 2020 L 59 (State Court
Action).2 The State Court Action complaint alleged the same claims
against Cindy Lozier that Holzgrafe alleged in his proposed third-party
complaint against Cindy Lozier. See Motion for Leave, Exhibit B, Proposed
Third Party Complaint; Motion, attached State Court Action Complaint.
On November 23, 2020, Daniel Lozier’s counsel in this action
informed Holzgrafe’s counsel that Cindy Lozier retained counsel for the
State Court Action. Daniel Lozier’s counsel inquired whether there was any
objection to providing Cindy Lozier’s counsel with a copy of the discovery
materials in this case. On December 15, 2020, Holzgrafe’s counsel asked
Cindy Lozier’s counsel whether Cindy Lozier would execute a waiver of
service in the State Court Action. Cindy Lozier refused to waive service.
Because Cindy Lozier refused to waive service, Holzgrafe objected to
providing discovery materials subject to the Protective Order to Cindy
Lozier or her attorney. Motion, Exhibit B, Email dated December 15, 2020.

2

The District Court commented in Opinion 52 that Holzgrafe could have sought to join Cindy Lozier as a
co-defendant in the Counterclaim if Holzgrafe could have established that joinder was appropriate.
Opinion 52, at 11-12 (citing Fed. R. Civ. P. 13(h), 19, and 20). Holzgrafe decided to file the State Court
Action rather than seek to join Cindy Lozier as a defendant in the Counterclaim.

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On or about January 20, 2021, Holzgrafe served Cindy Lozier in
Florida in the State Court Action. Response, at 4. Holzgrafe incurred $195
in costs to serve Cindy Lozier. Holzgrafe offered to agree to grant Cindy
Lozier access to discovery materials in this case if Cindy Lozier reimbursed
Holzgrafe the $195 in service costs. Cindy Lozier refused and filed this
Motion. See Motion, at 1-3, and Exhibit B, Emails dated February 11,
2021; Response, at 3-5, and Exhibit D, Emails Between Counsel for
Holzgrafe and Cindy Lozier.
Cindy Lozier also has asked for an extension of time in the State
Court Action to respond to the complaint in that action so that she can
review the discovery materials in this case before filing her response.
Cindy Lozier indicated that she planned to raise jurisdictional defenses and
other defenses to the State Court Action. Response, Exhibit B, State Court
Action Motion for Extension of Time to File an Answer or Other Responsive
Pleading (Motion for Extension of Time).
ANALYSIS
This Court may permit a party to intervene who has a claim or
defense that shares with this case a common question of law or fact. Fed.
R. Civ. P. 24(b)(1)(B). Whether to allow permissive intervention is within
the Court’s discretion. Planned Parenthood of Wisconsin, Inc. v. Kaul, 942
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F.3d 793, 803 (7th Cir. 2019). This Court must consider whether the
intervention will unduly delay or prejudice the adjudication of the original
parties’ rights. Fed. R. Civ. P. 24(b)(3). The Rule “otherwise does not
cabin the district court’s discretion.” Kaul, 942 F.3d at 803. The scope of
the Court’s discretion to allow permissive joinder is broad enough to allow
intervention to seek modification of a protective order See Bond v. Utreras,
585 F.3d 1061, 1070 (7th Cir. 2009).3
Holzgrafe’s claims against Cindy Lozier and Daniel Lozier share
common questions of law and fact. Both claims are based on Illinois law of
defamation and invasion of privacy. Both claims concern what Daniel
Lozier allegedly stated about Holzgrafe and what Cindy Lozier repeated.
Cindy Lozier’s repetition of Daniel Lozier’s statements forms the basis of
Holzgrafe’s claim in the State Court Action and is part of the damages in
the Counterclaim.
Allowing the intervention should not unduly delay or prejudice the
original parties’ rights. Cindy Lozier only seeks copies of discovery. She
will not file claims or assert defenses in this action. The parties, other than
Holzgrafe, did not object to providing her with discovery. Holzgrafe only

3

Cindy Lozier relies on Wilks v. American Medical Ass’n, 635 F.2d 1295, 1299 (7th Cir. 1980), for
determining whether to allow intervention to modify a protective order. The Wilks decision, however, has
been superseded by the 2000 amendments to Rule 5(d). Fed. Civ. P. 5(d); Bond, 585 F.3d at 1068 n.4.

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objected to providing discovery materials to Cindy Lozier because she
would not waive service in the State Court Action and would not pay the
$195.00 in service costs. Under Illinois law, defendants who decline to
waive service are not required to reimburse plaintiffs for the costs of
service. 735 ILCS 5/2-313; Ill. Sup. Ct. R. 101(f).4 Should Holzgrafe
prevail in the State Court Action, he may seek recovery of the $195.00 as
part of his costs. See 735 ILCS 5/5-108. Furthermore, Cindy Lozier’s
possible liability for service fees is an issue for the State Court Action. Her
refusal to pay those fees will not prejudice or delay adjudication of the
original parties’ rights in this case.
Holzgrafe now argues that Cindy Lozier’s motion is premature
because she has indicated that she intends to challenge the state court’s
jurisdiction over her in the State Court Action. Cindy Lozier indicated in her
Motion for Extension of Time that she wanted to review the discovery
materials from this case to respond to the State Court Action Complaint.
Illinois allows defendants to file motions to dismiss based on matters
outside the pleadings. 735 ILCS 5/2-619. Cindy Lozier’s request,
therefore, is timely to enable her to determine whether she may seek

4

The Federal Rules require defendants who decline to waive service to reimburse plaintiffs for service
costs. Fed. R. Civ. P. 4(d)(2). Illinois has no such requirement.

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dismissal of the State Court Action under § 2-619 based on materials
produced in discovery. The Court, therefore, will allow Cindy Lozier to
intervene.
As a party, Cindy Lozier is allowed to receive all discovery materials
in this case, including Confidential Information protected by the Protective
Order. Protective Order ¶ 4.a. As a party to this action, Cindy Lozier is
bound by the Protective Order. Cindy Lozier further agrees to be bound by
the terms of the Protective Order. Motion, at 7.
THEREFORE, IT IS ORDERED that Intervenor Cynthia Lozier a/k/a
Cindy Lozier’s Motion to Intervene to Modify Protective Order is (d/e 61) is
ALLOWED. Intervenor Cynthia Lozier a/k/a Cindy Lozier is allowed to
intervene as a party to this action for the purposes of receiving copies of
materials produced in discovery in this action. As a party, Intervenor
Cynthia Lozier a/k/a Cindy Lozier is a person entitled to receive discovery
materials including Confidential Information subject to the Protective Order.
Intervenor Cynthia Lozier a/k/a Cindy Lozier is also subject the Protective
Order as a party to this action.
ENTER: March 15, 2021
s/ Tom Schanzle-Haskins
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE
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