Gagen v. Illinois Bell Telephone Company et al

Filing 9

MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 4/11/2011(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NANCY J. GAGEN,
Plaintiff,
vs.
ILLINOIS BELL TELEPHONE CO. and
NEW CINGULAR WIRELESS PCS, LLC,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 11 C 2024

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Nancy Gagen has filed a pro se lawsuit against Illinois Bell Telephone Co. and
New Cingular Wireless PCS, LLC. Ms. Gagen alleges that the defendants
surreptitiously monitored and recorded calls made via cellular phone by AfricanAmerican persons to Gagen’s land-line phone, in violation of the Electronic
Communications Privacy Act (ECPA) and a parallel Illinois statute.
In her complaint, Ms. Gagen refers to the fact that she obtained certain records
via subpoena. This indicated to the Court that Ms. Gagen had a prior lawsuit of some
sort, so the Court searched the docketing system and Westlaw. This turned up a prior
suit against a different defendant in which Ms. Gagen made similar allegations. See
Grey v. Kirkland & Ellis, LLP, Nos. 07 C 975, 07 C 978 & 07 C 979, 2010 WL 3526478
(N.D. Ill. Sept. 2, 2010), aff’d sub nom. Bowden v. Kirkland & Ellis LLP, Nos. 10-3290
&10-3304, 2011 WL 1211155 (7th Cir. Apr. 1, 2011).
The Court has reviewed Ms. Gagen’s complaint in this case to determine

whether her claims are legally viable and whether they are subject to a defense based
on her prior litigation. Ms. Gagen has paid the filing fee, but “district courts are
permitted to screen every complaint, regardless of a plaintiff’s fee status.” Griffin v.
Milwaukee County, 369 Fed. Appx. 741, 743 (7th Cir. 2010).
In her earlier lawsuit, Ms. Gagen sued her former employer, the law firm Kirkland
& Ellis LLP (K&E). Ms. Gagen worked in K&E’s document services department. She
engaged in phone conversations with Tammi Bowden, then a legal secretary at K&E,
and Faye Grey, an unsuccessful applicant for employment with K&E, concerning “their
shared grievances against [K&E] and the pendency of a discrimination charge that
Bowden filed against the firm” with the EEOC. Grey, 2010 WL 3526478, at *1. She
sued K&E under the ECPA and the parallel Illinois statue, alleging that it had
intercepted calls made to her. Ms. Bowden and Ms. Grey also sued K&E, making
similar allegations.
In the earlier suits, Ms. Bowden said that at some point in 2005, she suspected
that K&E was monitoring land-line phone calls that she made from the workplace, so
she began to conduct personal calls via her cellular phone when possible. Ms. Bowden
claimed, however, that between October 2005 and June 2006, K&E intercepted and
monitored cell phone calls that she made while at work, basing this allegation on
perceived discrepancies in her phone bills. Id. at *1-2. The calls she claimed K&E had
intercepted included calls she made to Ms. Gagen and Ms. Grey. Id. at *2.
In the earlier suits, the plaintiffs made the following contention, which is virtually
identical to the contention that forms the basis for Ms. Gagen’s current suit:
Plaintiffs also assert that [K&E] separately intercepted calls terminating at
2

a land-line telephone in Gagen’s home by apparently colluding with
Gagen’s telephone service provider, AT&T. According to Plaintiffs,
AT&T’s records reveal that the company routed specific calls to Gagen “in
an indirect suspicious manner that was different from the way other similar
calls had been routed during that same time. These incoming calls were
only from African-American employees and an African-American job
applicant of [K&E].”
Id. at *4 (quoting Bowden Decl. ¶ 29). The plaintiffs submitted a report from a
telecommunications engineer they had retained as an expert who said that records
obtained from AT&T appeared to show discrepancies in the routing of particular calls to
Ms. Gagen’s land line as compared with other seemingly similar calls. Id. The plaintiffs
interpreted this “as evidence that AT&T, [K&E], or both somehow diverted specific calls
to or from Gagen’s home.” Id.
The district judge in the earlier suit found that the plaintiffs had shown at most a
“theoretical possibility of interception,” which was insufficient to raise a genuine issue
concerning whether K&E had actually intercepted the plaintiffs’ calls. Id. at *8. The
judge thus granted summary judgment against all three of the plaintiffs.
Ms. Gagen and Ms. Bowden appealed from the district court’s judgment. The
Seventh Circuit affirmed the grant of summary judgment against them, finding that
“Bowden and Gagen failed to produce any evidence that anyone intercepted their
phone calls.” Bowden, 2011 WL 1211155, at *4. The Seventh Circuit stated that the
evidence of purported discrepancies in phone records that Ms. Gagen and Ms. Bowden
had offered “rests largely on speculation and conjecture . . . .” Id.
Ms. Gagen’s current lawsuit is against AT&T and New Cingular (a cellular phone
service provider), not against K&E. But her current suit is grounded on the same

3

contentions that the district judge and the Seventh Circuit found to be lacking in her
earlier suit. Ms. Gagen alleges in her complaint in the present case that the alleged
diversion of calls by the defendants “allowed [a] third party to surreptitiously monitor and
recorded” the calls. Compl. ¶ 2. It is patently obvious that the “third party” to which Ms.
Gagen makes reference is K&E. Indeed, Ms. Gagen removes any doubt on this score
by alleging in her complaint that “Illinois Bell acted at the bequest [sic] of agents or
employees of Kirkland & Ellis LLP to intercept the African American cellular callers’
private calls intended exclusively for plaintiff.” Id. ¶ 69. The “African American cellular
callers” to whom Ms. Gagen refers are “Kirkland & Ellis employees,” one of whom had a
discrimination claim against K&E. Id. ¶ 13.
In short, Ms. Gagen’s current suit is premised upon the same allegations of
phone call interception that was the basis of her prior suit. In the earlier case, however,
the district court and court of appeals found, after full discovery and an opportunity for
briefing, that Ms. Gagen had no evidence from which a reasonable finder of fact could
find that her calls had been intercepted in violation of the ECPA and the parallel Illinois
statute.
The doctrine of issue preclusion, or collateral estoppel, precludes a party from
relitigating issues that were litigated and determined against her in earlier litigation. As
the Seventh Circuit has stated,
[i]ssue preclusion bars successive litigation of an issue of fact or law
actually litigated and resolved in a valid court determination essential to
the prior judgment, even if the issue recurs in the context of a different
claim. Preclusion applies if (1) the issue sought to be precluded is the
same as that involved in the prior action; (2) the issue was actually
litigated; (3) the determination of the issue was essential to the final
judgment; and (4) the party against whom estoppel is invoked was fully
4

represented in the prior action.
Dexia Crédit Local v. Rogan, 631 F.3d 612, 628 (7th Cir. 2010) (internal citations
omitted).
It appears to the Court that issue preclusion applies here and that it bars Ms.
Gagen’s current suit. The Court will, however, give Ms. Gagen an opportunity to
address this issue in writing before making a final determination.1
Conclusion
For the reasons stated above, the Court directs plaintiff to show cause in writing,
by no later than April 25, 2011, why judgment should not be entered against her on the
ground that her claims are barred by the doctrine of issue preclusion.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: April 11, 2011

1

There is also a distinct possibility that Ms. Gagen’s current claims are timebarred, but the Court will defer consideration of that issue pending determination of the
applicability of issue preclusion.
5