Engel v. Buchan et al
Filing
149
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 5/25/2011:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY ENGEL,
Plaintiff,
v.
ROBERT BUCHAN, et al.,
Defendants.
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No. 10 C 3288
MEMORANDUM OPINION AND ORDER
Counsel for codefendants Robert Buchan (“Buchan,” a former
FBI agent) and the United States have moved to dismiss the statelaw tort claims advanced by plaintiff Gary Engel (“Engel”)
against the latter.
While Engel’s original Complaint included
claims of intentional infliction of emotional distress, malicious
prosecution and civil conspiracy, he did not name the United
States as a party until he added it as a defendant via the
Federal Torts Claims Act1 in his November 2010 Amended Complaint.
In late February 2011 the United States filed its current
motion, which is now fully briefed.
For the reasons stated
hereafter, the motion to dismiss is granted in part and denied in
part.2
1
Under the Federal Tort Claims Act the United States is
liable “in the same manner and to the same extent as a private
individual under the circumstances,” except for prejudgment
interest and punitive damages (28 U.S.C. §2674).
2
This Court’s March 4, 2011 memorandum opinion and order
recited in detail the facts underlying Engel’s claims. Given
that recent exposition, there is no need to reinvent the wheel
here. Those so inclined are referred to that opinion (2011 WL
833622, not yet reported in F.Supp.2d).
Standard of Review
Under Rule 12(b)(6) a party may seek dismissal of a
complaint for “failure to state a claim upon which relief can be
granted.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) did
away with the formulation first announced in Conley v. Gibson,
355 U.S. 41, 45–46 (1957) “that a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
As Twombly, 550 U.S. at 562–63 put it:
Conley’s “no set of facts” language has been
questioned, criticized, and explained away long enough.
To be fair to the Conley Court, the passage should be
understood in light of the opinion’s preceding summary
of the complaint’s concrete allegations, which the
Court quite reasonably understood as amply stating a
claim for relief. But the passage so often quoted
fails to mention this understanding on the part of the
Court, and after puzzling the profession for 50 years,
this famous observation has earned its retirement.
Twombly, id. at 570 held instead that a complaint must provide
“only enough facts to state a claim to relief that is plausible
on its face.”
Or put otherwise, “[f]actual allegations must be
enough to raise a right to relief above the speculative level”
(id. at 555).
But almost immediately thereafter the Supreme Court issued
another opinion that seemed to cabin Twombly somewhat.
Airborne
Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667
(7th Cir. 2007) has explained that further development:
2
Two weeks later the Court clarified that Twombly did
not signal a switch to fact-pleading in the federal
courts. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007). To the contrary,
Erickson reaffirmed that under Rule 8 “[s]pecific facts
are not necessary; the statement need only ‘give the
defendant fair notice of what the...claim is and the
grounds upon which it rests.’” 127 S.Ct. at 2200,
quoting Twombly, 127 S.Ct. at 1964. Taking Erickson
and Twombly together, we understand the Court to be
saying only that at some point the factual detail in a
complaint may be so sketchy that the complaint does not
provide the type of notice of the claim to which the
defendant is entitled under Rule 8.
And since then Iqbal v. Ashcroft, 129 S.Ct. 1937 (2009) has both
(1) further explicated and (2) universalized Twombly’s teaching.
It is thus the Twombly-Iqbal canon that has since controlled
the treatment of complaints and does so here.
Here is Adkins v.
VIM Recycling, Inc., No. 10 C 2237, 2011 WL 1642860, at *7 (7th
Cir. May 3), the most recent statement of the Rule 12(b)(6)
standard by our Court of Appeals, employing long-familiar
language without the overgenerous gloss that had been provided by
Conley v. Gibson:
We construe the complaint in the light most favorable
to the plaintiffs, accepting as true all well-pled
facts alleged, taking judicial notice of matters within
the public record, and drawing all reasonable
inferences in the plaintiffs’ favor.
This opinion adheres to that dictate.
Issue Preclusion and Judicial Estoppel
Choice of law should be at the top of every legal analyst’s
checklist (even when the answer to the question seems obvious),
and here the United States’ memorandum begins not with a
3
discussion of the merits of Engel’s tort claims, but rather with
its assertion that Missouri law (and not that of Illinois)
governs them.
But with Illinois law having provided the rule of
decision for the closely related tort claims brought by Steve
Manning in Manning v. United States, No. 02 C 372, 2006 WL
3240112 (N.D. Ill. Sept. 28)--and more importantly, with the
United States having been successful in defending against those
claims by invoking Illinois law--it is unsurprising that Engel
challenges the United States’ change of course by now arguing for
Missouri law.
Thus Engel takes issue with that reversal, asserting that
the use of Illinois law in the Manning litigation precludes the
United States from plumping for Missouri law in this action.
If
Engel had been a party to the previous action, issue preclusion
principles might have been called directly into play.
But Engel
was not such a party (Manning was), so that the question is one
that is usually labeled nonmutual offensive collateral estoppel.3
And the Supreme Court has squarely prohibited that type of
estoppel against the government in United States v. Mendoza, 464
U.S. 154, 163 (1984).4
3
Despite this Court’s preference for the more precise term
“issue preclusion,” the usage in the text is so prevalent that
this opinion employs it.
4
Although Engel makes no mention of Mendoza, he manages to
cite its companion case decided the same day, United States v.
Stauffer Chem. Co., 464 U.S. 165 (1984), for the asserted
4
Moreover, even if collateral estoppel were available, the
choice of law issue was not actually decided in the previous
litigation so as to permit application of the doctrine here.
Judge Kennelly never spoke to that issue when he employed
Illinois law to rule on the tort claims--instead he wrote “[i]n
this case, both sides appear to assume that Illinois law governs”
(Manning v. Dye, No. 02 C 372, 2004 WL 2496456, at *13 (N.D. Ill.
Nov. 5), and he then proceeded on the same assumption.5
Engel argues in the alternative that the United States is
judicially estopped from arguing for the use of Missouri law.
Judicial estoppel, while it does not require mutuality, is a
discretionary, flexible remedy designed to “prevent the
perversion of the judicial process” by litigants who switch legal
positions for their own advantage (New Hampshire v. Maine, 532
U.S. 742, 749-51 (2001)(internal quotation marks omitted)).
On that score this Court finds that the very fact that
choice of law was not affirmatively litigated in the previous
litigation demonstrates that the United States has not
intentionally misled this Court (or Judge Kennelly, for that
proposition that collateral estoppel against the government is
appropriate in this case. But Stauffer by its terms applied only
to instances of mutual collateral estoppel (id. at 169).
5
It goes without saying that Engel’s case also differs
from that of Manning in one key respect: Manning, in addition to
being prosecuted in Missouri for kidnapping, was also prosecuted
for murder in Illinois.
5
matter) on the issue.
Hence the United States’ current argument
for the use of Missouri law does not constitute an “improper use
of judicial machinery” or otherwise endanger the “essential
integrity of the judicial process” (New Hampshire, 532 U.S. at
750)(internal quotation marks omitted).
In sum, neither issue preclusion nor judicial estoppel
prevents the United States from broaching the issue of choice of
law.
This opinion turns to that subject.
Choice of Law
It is obvious, of course, that if Illinois and Missouri
substantive law pose no real conflict, there is no need to embark
on a choice of law analysis (In re Air Crash Disaster near
Chicago, 644 F.2d 594, 605 n.2 (7th Cir. 1981)).
Here the United
States has identified no differences between the two states’
treatment of two of Engel’s three claims (malicious prosecution
and civil conspiracy), so it concentrates on the different manner
in which Missouri courts treat claims of intentional infliction
of emotional distress.
In particular the United States
highlights three aspects in which Missouri and Illinois law
purportedly conflict, asserting that in the Show-me State
(1) such a claim cannot exist alongside the tort of malicious
prosecution, (2) a defendant’s sole intention must be to cause
emotional distress and (3) the claim must include a showing of
bodily harm.
6
For reasons explained below, the first and second suggested
conflicts (which are conceptually related) would not produce a
different result at this stage of the proceedings.
But it is
quite another matter as to Missouri’s additional element of
bodily harm, for no such requirement exists in Illinois (see,
e.g., Feltmeier v. Feltmeier, 207 Ill. 2d 263, 269, 798 N.E.2d
75, 80 (2003)).
In light of that difference, a brief choice of
law analysis is in order.
Wherever as here a federal court is called upon to address
state law claims, Erie v. Tompkins mandates that it do so under
state law (not federal law) doctrines--doctrines that a state
court in the forum state would apply.
And the forum state’s
(here Illinois’) choice of law doctrines are just as much a part
of its substantive law as its principles that govern substantive
claims.
As Rockwell Automation, Inc. v. Nat’l Union Fire Ins.
Co., 544 F.3d 752, 759 (7th Cir. 2008) has put the matter in the
context of diversity jurisdiction:6
In a suit, like this one, where subject matter
jurisdiction is based on diversity, the forum state’s
choice of law rules determine the applicable
substantive law.
It follows then that the first question to be answered in
the choice of law inquiry is what law an Illinois court would
apply to Engel’s state law claims.
6
And because Illinois courts
As n.1 indicates, Federal Tort Claims Act claims parallel
diversity-based claims in that regard.
7
adhere to the Restatement (Second) of Conflict of Laws
(“Restatement”--see, e.g., Safeco Ins. Co. v. Jelen, 381
Ill.App.3d 576, 580, 886 N.E.2d 555, 558 (3d Dist. 2008))--this
opinion will look to the Restatement’s principles as well as to
Illinois caselaw.
As a conceptual matter, the United States urges the
application of Missouri substantive law on the ground that
Engel’s conviction and the emotional distress occasioned by that
conviction occurred in Missouri.
For his part, Engel concedes
(as he must) that he was prosecuted in Missouri.
But because the
investigation leading up to his prosecution was initiated in
Illinois and because the law enforcement officers were based in
Illinois, Engel believes that Illinois has a greater stake in the
resolution of his claims--and thus, in the parlance of
Restatement §146, a “more significant relationship” to the
dispute.
Hence Engel frames the issue as one in which the
interest of Illinois in preserving the integrity of its law
enforcement trumps that of Missouri in policing the use of its
courts.
Engel’s contention, while not wholly lacking in force, is
ultimately unpersuasive.
Both parties agree that because the
tortious injury occurred in Missouri, there is a rebuttable
presumption that Missouri law applies (Restatement §§146, 155).
Both as to malicious prosecution and as to intentional torts such
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as infliction of emotional distress, Restatement §146 cmt. f
teaches that the place of injury is of “particular importance.”
As Safeco, 181 Ill.App.3d at 580, 886 N.E.2d at 558 (citations,
including one to the Restatement, omitted) has said:
If the claim raised is a tort, the most significant
relationship test is used. Under the most significant
relationship, the law of the state where place of the
injury controls unless another state has a more
significant relationship to the occurrence.
And because Engel was prosecuted and incarcerated in Missouri,
this is not a case in which the place of injury was merely
“fortuitous” or “bears little relation to the occurrence”
(Restatement §145, cmt. e).
Engel endeavors to counter by pointing out that the
investigation that led to his prosecution originated in Illinois,
where the law enforcement officers were based.
But it was the
defendant officers’ conduct in convicting him at trial that
caused his distress, and that conduct clearly occurred in
Missouri.
And for claims that turn on whether certain conduct
was tortious, the state in which the injury occurred will
“usually” provide the applicable law (Restatement §156).
Nor does Engel fare better by attempting to call upon the
factors enunciated in Restatement §6.
What he cannot escape is
that the conduct about which he complains had its impact in a
Missouri conviction and that its ensuing effect--his long-term
commitment, during which he suffered the claimed emotional
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distress--also took place in Missouri.
Those factors plainly
satisfy the “most significant relationship” test, so that Engel’s
charges of malicious prosecution and of the intentional
infliction of emotional distress arising out of those events must
be governed by Missouri law.
Intentional Infliction of Emotional Distress
Under Missouri law a plaintiff bringing a claim of
intentional infliction of emotional distress “must plead extreme
and outrageous conduct by a defendant who intentionally or
recklessly causes severe emotional distress that results in
bodily harm” (Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. 1997)).
Engel Mem. 18 somehow contends that bodily harm is not a required
element of the claim under Missouri law, pointing to the preGibson decision in Bass v. Nooney Co., 646 S.W.2d 765, 772 (Mo.
1983).
Not so--Bass dealt with the negligent infliction of
emotional distress, leaving the later-reconfirmed bodily harm
requirement of the intentional version of that tort intact.
No quarrel is voiced by the United States as to the adequacy
of Engel’s allegation that the conduct at issue was outrageous
and was intentionally or recklessly caused.
Instead the United
States urges Engel’s failure to allege bodily harm.
That is
hardly surprising, given Engel’s reliance on Illinois law, which
has no bodily harm requirement (note the silence in Complaint
¶¶49 and 52 on that score).
Indeed, Engel does not even take the
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opportunity in his responsive memorandum to argue that he did in
fact suffer bodily harm, for he devotes that section of his
memorandum to his mistaken belief that no such requirement exists
under Missouri law (E. Mem. 19).
That deficiency is enough to
warrant the dismissal of Engel’s claim.
That conclusion renders it unnecessary to rule upon the
strength (or lack of strength) of the other two figurative
strings that the United States contends would also enable its
equally figurative bow to launch the arrow of dismissal at
Engel’s claim of intentional infliction of emotional distress.
This Court, having reviewed those added assertions and the
parties’ submissions, will say only that it found those
contentions dubious at best--the United States is fortunate to
have prevailed on its first argument for dismissal.
Malicious Prosecution
This Court’s March 4 opinion (see n.2) has already denied
codefendant Richard Quid’s motion to dismiss Engel’s state law
malicious prosecution claim on the basis of Illinois law.
Even
in the face of that denial, the United States insists that
Engel’s similar claim against it must be dismissed under either
Missouri or Illinois law, which are virtually identical for
purposes of that claim (compare State ex rel. Police Retirement
Sys. v. Mummert, 875 S.W.2d 553, 555 (Mo. 1994) with Hurlbert v.
Charles, 238 Ill.2d 248, 255, 938 N.E.2d 507, 512 (2010)).
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To that end the United States asserts that Engel has failed
to allege sufficiently that the underlying proceedings terminated
in his favor and that the defendants had lacked probable cause.
But that position betrays a fundamental misunderstanding of the
federal system’s notice-pleading (rather than fact-pleading)
regime, under which Engel must simply provide adequate notice of
his claims.
As for the favorable-termination element, Engel has
submitted that after the Missouri Supreme Court granted his
habeas corpus petition and vacated his conviction, the state
authorities declined to retry him--they issued a nolle prosequi.
This Court finds no merit in the United States’ position that by
failing to “explain the basis for Missouri’s decision not to
retry him,” Engel has somehow failed to plead successfully that
the proceedings were terminated in his favor, which some
authorities construe as connoting a manner indicative of his
innocence (U.S. Mem. 14).7
Apart from the somewhat (though not
entirely) counterintuitive nature of the contention that Engel’s
outright release from prison after serving 19 years was not
reasonably indicative of his innocence, it is totally
unpersuasive to suggest that the facts outlined in the
7
It bears mention that Quid’s motion to dismiss the
malicious prosecution claim had made the same argument about the
requirement that the prior proceedings be terminated in a manner
indicative of innocence.
12
Complaint--facts that ascribe corrupt behavior to law enforcement
personnel--fail to raise his right to relief above a “speculative
level” (see Twombly, 550 U.S. at 555).
Besides thus ignoring federal pleading standards, the United
States also appears to misapprehend the substantive law on this
question.
As indicated by Restatement of Torts §659 and its
cmt. e, a prosecutor’s formal abandonment of proceedings via a
nolle prosequi is the usual means for terminating the prosecution
in the accused’s favor, implying his innocence.
And while
Section 660 of that Restatement gives four situations in which a
nolle prosequi will not indicate innocence, nothing in Engel’s
Complaint or the United States’ submissions implicates any of
those situations.
As to the probable cause element of Engel’s malicious
prosecution claim, the United States strikes out there as well.
Its three-page discussion of the issue is largely devoted to the
factual details of Engel’s conviction, as though its motion were
seeking summary judgment rather than a pleading ruling.8
8
For example, United States Mem. 15 makes the following
comment as to probable cause, without acknowledging that such a
factual inquiry would be inappropriate at this motion-to-dismiss
stage:
In making a probable cause determination, courts must
consider all of the circumstances surrounding the
prosecution, including hearsay evidence, concealed
exculpatory evidence, and statements from any and all
witnesses, even those that would be the most credible before
a jury.
13
“Probable cause” under both Illinois and Missouri law requires
circumstances that would lead a cautious and prudent person to
believe that the target is guilty of the offense (Freides v.
Sani-Mode Mfg. Co., 33 Ill.2d 291, 295-96, 211 N.E.2d 286, 288-89
(1965); Alexander v. Laclede Gas Co., 725 S.W.2d 129, 130 (Mo.
Ct. App. 1987)).
While a criminal indictment or conviction is
prima facie evidence of probable cause, it may be rebutted by
evidence that it was obtained fraudulently (Friedes, 33 Ill.2d at
296, 211 N.E.2d at 289; Mummert, 875 S.W.2d at 555).
Here Engel has alleged that the defendant officers lacked
probable cause--and contrary to what the United States claims,
Engel has no obligation at this stage of the litigation to put
forth evidence rather than adequate allegations on that issue.
Indeed, it smacks of the bizarre for the United States to attempt
to erect a threshold barrier of probable cause on a conviction
that was overturned based on a showing of fabrication of
testimony, witness tampering and withholding of exculpatory
evidence.
Put simply, whether the defendant officers had probable
cause is something that will be proved or disproved based on the
record to be developed in this case.9
9
For now Engel’s malicious
Apparently forgetting its earlier emphasis on the
inapplicability of Judge Kennelly’s rulings in the Manning
litigation to this case, the United States seeks to make much of
his findings of fact in connection with the malicious prosecution
claim in that action. Those findings are, of course, obviously
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prosecution claim will proceed to the merits--the United States’
motion to dismiss that claim is denied.
Civil Conspiracy
Lastly, the United States argues the impossibility of
maintaining a claim of civil conspiracy on the part of a
plaintiff who has failed to plead an underlying tort adequately.
Because Engel’s claim of malicious prosecution has survived
analysis, the motion to dismiss his civil conspiracy claim on
that ground is also denied.
Conclusion
Of the several United States’ efforts at dismissal, only
that challenging Engel’s claim of intentional infliction of
emotional distress is granted, while those relating to the claims
of malicious prosecution and civil conspiracy are denied.
All
parties are to continue taking discovery, and as stated orally at
the May 11, 2011 status hearing, a ruling dealing with Buchan’s
motion to stay proceedings pending his appeal will be turned to
shortly.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
May 25, 2011
not dispositive in this lawsuit.
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