Wolinsky v. Senior Health Insurance Company of Pennsylvania
Filing
72
MEMORANDUM Opinion and Order. Signed by the Honorable Arlander Keys on 1/31/2013. Mailed notice(ac, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEANETTE WOLINSKY,
Plaintiff,
v.
SENIOR HEALTH INSURANCE
COMPANY OF PENNSYLVANIA,
f/k/a CONSECO SENIOR HEALTH
INSURANCE COMPANY, f/k/a
AMERICAN TRAVELERS LIFE
INSURANCE COMPANY,
Defendant.
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No. 11 C 4615
Magistrate Judge Arlander Keys
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s motion to dismiss (ECF No.
64) and Plaintiff's motion that the Court reconsider its denial
of her motion for appointment of counsel (ECF No. 69).
For the
reasons set forth below, Plaintiff’s motion for reconsideration
is denied and the motion to dismiss is granted.
I.
Background & Procedural History
Plaintiff, Jeanette Wolinsky, is a 92 year old woman.
On
July 8, 2011, she filed a complaint against the Senior Health
Insurance Company of Pennsylvania (“SHIP”).
The complaint
relates to long-term care insurance policy number 373934 (the
“Policy”).
In the Complaint, Plaintiff seeks a declaratory
judgment that the Policy had not terminated, was in-force, that
her benefits be restored under a restoration of benefits
provision in the Policy, and alleges breach of contract.
Due to
Plaintiff Jeanette Wolinsky’s age and health, Plaintiff’s former
counsel’s communications regarding the prosecution and settlement
of this case were transmitted and conducted through Plaintiff’s
adult daughter, Debra Wolinsky, pursuant to a broad power of
attorney.
Prior to the filing of this action in 2009, Debra
Wolinsky hired The Gleason Law Group, PC to represent her mother.
The parties conducted an unsuccessful settlement conference
on December 21, 2011.
Defendant claims that it “became clear at
the December 21, 2011 conference that Debra Wolinsky was driving
the litigation against SHIP, not Plaintiff.”
p. 1.
Mot. to Dismiss at
After the settlement conference, the parties conducted
discovery.
During the Spring of 2012, Defendant filed multiple
motions to compel against Plaintiff and the Court ordered nonparty Debra Wolinsky to comply with subpoenas for production. ECF
No. 38.
On August 1, 2012, Nancy Richter of the Gleason Law Group,
PC, who had represented Plaintiff since the inception of this
case, filed a motion to withdraw as Plaintiff’s counsel. ECF No.
42.
In that motion, Plaintiff’s counsel stated that
“irreconcilable differences between Plaintiff’s counsel and her
client’s daughter [Debra Wolinsky] have arisen regarding both the
prosecution and settlement of the case.”
ECF No. 42. Plaintiff’s
counsel was not present at the August 1, 2012 status hearing.
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However, Debra Wolinsky appeared in person and informed the Court
that she had fired Ms. Richter and that she intended to proceed
pro se.
The Court set a hearing date for the motion to withdraw
for August 15, 2012.
On August 15, 2012, the Court held a hearing on the motion
to withdraw.
Both Plaintiff’s counsel, Nancy Richter, and Debra
Wolinsky were present at the hearing.
Ms. Richter stated on the
record that she could not represent Jeanette Wolinsky “in a
diligent fashion” “given [her] relationship with Ms. Debra
Wolinsky.”
Transcript of Oral Argument 8/15/12 at 5.
Debra
Wolinsky was adamant that she wanted the record to reflect that
she had fired Ms. Richter.
Id. at 6.
The Court granted
Plaintiff’s counsel’s motion to withdraw and instructed Debra
Wolinsky to hire new counsel for the Plaintiff by October 1,
2012.
Also on that date, the Court set a status hearing for
October 15, 2012 at 9:00 a.m.
Id. at 13-14.
Debra Wolinsky failed to hire a new attorney.
Instead, on
September 28, 2012, Debra Wolinsky requested that the Court
appoint counsel by filing a motion for the appointment of counsel
and supporting in forma pauperis application and financial
affidavit.
ECF Nos. 53, 54.
Next, on October 1, 2012, the Court sent out an order
reminding the parties of the status hearing set for October 15,
2012 and instructed “plaintiff to appear in person or through new
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counsel.”
ECF No. 52.
15, 2012 hearing.
No one for Plaintiff attended the October
The Court noted, at that time, that Debra
Wolinsky had filed a motion for appointment of counsel on behalf
of her mother with a supporting affidavit containing her (Debra
Wolinsky’s) financial condition.
ECF No. 57.
The Court pointed
out that it would consider the financial condition of the
Plaintiff Jeanette Wolinsky, not Debra Wolinsky, in ruling on the
request and advised Plaintiff to file a fully executed affidavit
of the financial condition of Jeanette Wolinsky.
Id.
The status
hearing was continued to October 22, 2012.
On October 22, 2012, the Plaintiff's representative Debra
Wolinsky appeared for the status hearing and was granted an
extension of time, to November 5, 2012, to file a fully executed
affidavit concerning the financial condition of Jeanette Wolinsky
in order for the Court to consider the motion for appointment of
counsel.
ECF No. 58.
Debra Wolinsky filed a new in forma
pauperis application and financial affidavit (the “Second
Affidavit”) that same day.
ECF No. 60.
In addition, on October
22, 2012, she filed an appearance form for pro se litigants with
the Court. ECF No. 59.
On October 30, 2012, the Court entered the following order:
Upon review of Plaintiff's financial affidavit which she
submitted in support of her Motion for Appointment of
Counsel, the Court notes that Debra Wolinks[y], who has
power of attorney over Plaintiff's affairs and who completed
the affidavit, failed to properly complete items 4(a)
through (f), which require yes or no answers, followed by
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certain explanations. In addition, items 4(g), 5, 6, 7 and 9
are incomplete. From a review of the affidavit, it would
appear that Plaintiff has household income of $ 1,520.00 per
month from social security benefits plus an amount from
other sources, to which Debra Wolinsk[y], who has full power
of attorney, has limited knowledge or access. This
information is insufficient for the Court to determine
whether Plaintiff can afford to retain counsel. Therefore,
the Motion for Appointment of Counsel is denied without
prejudice at this time. ECF No. 63.
After the Court entered this order, Plaintiff did not file
an amended or corrected financial affidavit.
On November 21,
2012, Defendant filed its Motion to Dismiss, or in the
alternative seeking the removal of Debra Wolinsky from this
action.
ECF No. 64.
On December 3, 2012, Debra Wolinsky, on
behalf of Plaintiff, filed a response to the Motion to Dismiss
(totaling 217 pages).
ECF No. 68.
On December 5, 2012, she
filed a motion to reconsider the Court’s ruling regarding the
appointment of counsel.
ECF No. 69.
On December 5, 2012, the Court heard extensive oral
arguments on both pending motions.
At that time, the Court
granted the portion of Defendant’s motion seeking the removal of
Debra Wolinsky, a non-attorney, from further participation in
this case as representative of Jeanette Wolinsky.
Tr. 12/5/12 at
3-4, 41. The Court found that, pursuant to Illinois law, Debra
Wolinsky, as a non-attorney, cannot “prosecute a case on behalf
of her mother” despite the broad terms of the power of attorney.
Id.
The Court took the motion to dismiss and motion for
reconsideration under advisement.
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The Court again advised Debra
Wolinsky that she should retain counsel for her mother in this
matter.
ECF No. 70.
Neither party has filed anything since that
date and no appearance on behalf of an attorney for Plaintiff has
been filed.
II.
Discussion
A.
Motion for Reconsideration
In Plaintiff’s motion for reconsideration, non-party Debra
Wolinsky states that “it is clear that my 92 year old mother
needs representation immediately.”
Court agrees.
Mot. To Recon. at p. 2.
The
However, Plaintiff provides no legal support and
no factual basis is given to persuade the Court that counsel
should be appointed by the Court to represent Plaintiff in this
matter.
Instead, in Debra Wolinsky’s motion to reconsider, she
discusses other litigation that she is or has been involved in
and cites her inability to obtain funds to pay an attorney in
this matter due to Plaintiff’s money being controlled by the
Trustee of her trust (the “Trust”) and the Trustee’s decision not
to release funds for this litigation.
The Court has reviewed the voluminous letters exchanged
between Debra Wolinsky and the Trustee between March, 2012 and
August, 2012, which she submitted in response to the motion to
dismiss, and most of which have nothing to do with this
litigation. It is clear from these letters that there is an ongoing, adversarial relationship between them and differences of
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opinion regarding the Trustee’s administration of the Plaintiff’s
Trust and his decisions related thereto. In summary, the Trustee
has implied that Debra Wolinsky has engaged in lavish spending on
herself and others, for which she has sought reimbursement from
the Trust, while Debra Wolinsky has accused the Trustee of
thievery, fraud and self-dealing in his administration of the
Trust.
To be clear, the Court has no opinion as to the validity
of either of these accusations or implications.
The bottom line
is that the Trustee has declined to approve the expenditure of
funds from Plaintiff’s very sizeable Trust for this litigation
and Debra Wolinsky has informed the Trustee that any award in
this case will not become part of the Trust.(See letter dated
6/8/2012).
When a person files a petition to proceed in forma pauperis,
the Court reviews the materials to satisfy two factors: first,
that the plaintiff's claim of poverty is true and, second, that
the proposed action is not frivolous or malicious. See § 1915(d);
Aiello v. Kingston, 947 F.2d 834, 836 (7th Cir. 1991).
Here, the
Court discovered that the claim of indigence is not true.
The
evidence gathered in this case shows Plaintiff’s financial
ability to obtain an attorney.
Plaintiff’s deceased husband set
up the Trust containing funds to be distributed for his wife’s
financial obligations after his death.
The Trust is paying
approximately $4,000 a month for Plaintiff’s rent in Chicago and
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$182 a day for her caregiver.
TR 12/5/12 pp. 7, 25.
In
addition, it appears that Plaintiff owns some 5,000 acres of
property in Brazil and a condo in Buffalo Grove, Illinois.
12/5/12 pp. 18, 19.
TR.
Plaintiff’s daughter testified that there is
approximately $1.6 million in the Trust, $400,000 in a Merrill
Lynch account, and possibly additional monthly income from a
family business, Chantilly, Inc.
TR 12/5/12 pp. 20-21, 25.
In
addition, Plaintiff’s original attorney in this action was paid
$2,000.00 by Debra Wolinski. TR. 12/5/12 p. 13.
Therefore, the
Court cannot find that Plaintiff is indigent and cannot afford to
retain counsel.
The Court’s decision to deny Plaintiff’s request
for appointment of counsel was correct.
Federal Rule of Civil Procedure 59(e) allows a party to file
a motion to alter or amend a prior ruling.
To be successful, the
moving party must either present newly discovered evidence or
establish a manifest error of law or fact.
Co., 91 F.3d 872, 876 (7th Cir. 1996).
Moro v. Shell Oil
Plaintiff did not present
any relevant newly discovered evidence or establish a manifest
error of law or fact in her motion.
In the motion to reconsider,
Debra Wolinsky states that “my mother has no money to pursue
SHIP...” Motion for Recon. at p. 1.
not an accurate statement.
The Court knows that this is
The evidence shows that Plaintiff has
money, but that the Trust, and not Plaintiff’s daughter, controls
Plaintiff’s money and property.
This is not a factor that the
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Court will consider in appointing counsel in forma pauperis.
affiant must show that he or she genuinely is impoverished.
U.S.C.A §1915.
The
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Plaintiff cannot do that in this case and
Plaintiff presents no new evidence or error made by the Court in
coming to its decision to deny appointment of counsel.
Therefore, Plaintiff’s motion for reconsideration is denied.
The
Court’s October 30, 2012 ruling denying Plaintiff’s motion for
appointment of counsel stands.
B.
Motion to Dismiss
In the motion to dismiss, Defendant argues that the case
should be dismissed with prejudice for two reasons.
First,
Defendant argues that the mandatory sanction of dismissal should
be applied here, because there was a false representation of
indigence when attempting to proceed in forma pauperis.
Second,
Debra Wolinsky’s dilatory conduct and undue delay is grounds to
dismiss this case for failure to prosecute under Federal Rule of
Civil Procedure 41(b).
1.
False Representation
According to 28 U.S.C.A. § 1915(e)(2)(A), the Court shall
dismiss the case at any time if the Court determines that the
allegation of poverty is untrue.
In Heath v. Walters, the
Seventh Circuit found that dismissing a case for filing a false
affidavit of poverty is the appropriate sanction for
intentionally misleading the Court.
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Heath v. Walters, 151 F.3d
1032 (7th Cir. 1998).
As noted above, Debra Wolinsky completed
the first financial affidavit that she filed with her own
financial information, which is not proper as she is not the
Plaintiff in this matter.
The Court gave the Plaintiff a second
chance to request appointment of counsel by inviting her to
correct the affidavit with the plaintiff’s financial information.
Plaintiff did not file a corrected affidavit and on October 22,
2012, the Court allowed Plaintiff an extension of time to file
the corrected affidavit.
The Second Affidavit, filed on October 22, 2012, was filled
out by Debra Wolinsky on behalf of Jeanette Wolinsky pursuant to
the power of attorney.
ECF No. 60.
In support of the request to
proceed without full payment of fees and for appointment of
counsel, Plaintiff states that she receives approximately $1,520
in social security benefits a month.
Id. at p. 2.
Beyond that
information, the Second Affidavit is mostly incomplete,
containing nineteen answers of “don’t know,” “Trustee?” or “?”
where true and accurate financial information was required.
Defendant argues that Plaintiff, while actually having
significant financial resources, claimed indigence “by omitting
true information about the Plaintiff’s finances from the Second
Motion and Second Affidavit” and therefore, requests that the
Court sanction Plaintiff with dismissal of this case.
Mot. to Dismiss at p. 5.
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In response to Defendant’s Motion to Dismiss, Plaintiff
filed 217 pages of documents,many of which chronicle the disputes
between Debra Wolinsky and the Trustee.
ECF No. 68.
These
papers include Plaintiff’s power of attorney for healthcare and
property appointing Debra Wolinsky, correspondence between Debra
Wolinsky and the Trustee of Plaintiff’s Trust, cancelled checks,
the Trust Agreement, and lien documents.
ECF No. 68.
Instead of
arguing that Plaintiff is indigent, Debra Wolinsky, through the
documents, shows the Court Plaintiff’s financial situation and
argues instead that “she has no access to her monies and has been
refused by her thieving Trustee for any money beyond 6 items.
has specifically denied attorney costs for SHIP.”
He
Id.
The Court recognizes that the Second Affidavit, by the
omissions, was misleading.
However, the Court found that this
document was incomplete and denied the motion for appointment of
counsel on that grounds.
It became apparent through the
documents produced by Debra Wolinsky and at the hearing before
the Court on December 5, 2012, that Debra Wolinsky was much more
familiar with her mother’s financial situation and had knowledge
of her money and property when she answered with “I don’t know”
and question marks on the Second Affidavit.
While the Court is
concerned by Debra Wolinsky’s lack of candor in the Second
Affidavit, the Court does not find that the acts merit dismissing
the case as it does not appear that Debra Wolinsky, on behalf of
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Plaintiff, intentionally misled the Court.
See Jones v. Wexford
Health Sources, 2011 WL 2036445(7th Cir. 2011)(reversing
dismissal of complaint where plaintiff’s actions were not
deliberate).
When questioned about the omissions on the Second
Affidavit at the December 5, 2012 hearing, Debra Wolinsky
willingly discussed at great length the financial situation of
her mother, the situation of the Trust and her tumultuous
relationship with the Trustee, the fact that the Trustee will not
approve payment for an attorney for this litigation, going so far
as to enlighten the Court of her own financial situation in
depth, even discussing the costs of remodeling her own kitchen.
TR. 12/5/12.
It became apparent by Debra Wolinsky’s immediate
willingness to inform the Court of these matters, that Debra
Wolinsky, on behalf of the Plaintiff, did not fill out the Second
Affidavit in bad faith or in an attempt to defraud the Court, but
in confusion as to the legal requirements of appointing counsel
in forma pauperis.
Therefore, the Court will not dismiss the
Complaint as a sanction for the way Debra Wolinsky filled out the
Second Affidavit.
2.
Want of Prosecution
Next, Defendant argues that this case should be dismissed
for want of prosecution.
Federal Rule of Civil Procedure 41(b)
provides that, “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to
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dismiss the action or any claim against it.”
Fed. R. Civ. P.
41(b).
Since that time,
This case was filed on July 8, 2011.
due to the disagreements between Plaintiff’s previous counsel and
Debra Wolinsky and the fact that Plaintiff has not been
represented by counsel since August 2012, the case has made
little progress.
While this case was filed by former counsel in the name of
Jeanette Wolinsky, it is clear that non-party Debra Wolinsky is
the driving force behind this litigation.
Indeed, the testimony
of Debra Wolinsky at the December 5, 2012 hearing indicates that
her mother has had no involvement in filing or prosecuting this
case and that she is incompetent to do so.
Also, in order to
receive discovery responses in this case, Defendant had to file
multiple motions to compel against Plaintiff and the Court
ordered non-party Debra Wolinsky to comply with subpoenas for
production.
ECF No. 38.
Then, due to the disputes between Plaintiff’s previous
counsel and Debra Wolinsky, Plaintiff’s counsel withdrew, after
being fired by Debra Wolinsky.
Since that time, through written
orders and in open court, the Court has given Debra Wolinsky
numerous opportunities and warnings that she should retain new
counsel to represent Plaintiff, advising her that she is required
to hire counsel for her mother and that she herself, a nonattorney, cannot represent her mother.
ECF Nos. 47, 52, 70.
Debra Wolinsky has informed this Court that she is unable to hire
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a new attorney to represent Plaintiff, as Plaintiff’s funds are
controlled by the Trust, and that the Trustee, through the
guidelines of the Trust Agreement, has determined that he will
not release any funds for this litigation.
TR. 12/5/12 p. 28.
Now, six months after Plaintiff’s counsel withdrew and even
longer since this case has been prosecuted, no attorney has filed
an appearance on behalf of Plaintiff.
The Court is sympathetic
to Debra Wolinski’s desire to prosecute this case on behalf of
her mother, notwithstanding the decision of the Trustee not to do
so.
The fact is, however, that Plaintiff does have sufficient
assets to afford to retain counsel and that she had done so until
prior counsel was fired.
Clearly, this case cannot continue
without counsel and the Court can find no basis for appointing
counsel to represent Plaintiff.
“Dismissal for failure to prosecute is appropriate where
there is ‘a clear record of delay or contumacious conduct.’”
Malone v. Foster Wheeler Constructors, Inc., 21 Fed.Appx 470, 472
(7th Cir. 2001)(citing Dunphy v. McKee, 134 F.3d 1297, 1299 (7th
Cir. 1998)).
The undue delay in this case, with no end in sight,
is prejudicial to Defendant.
The Court is not required to
continue a case indefinitely until a civil plaintiff can retain
counsel after discharging the initial counsel and with no
prospects of hiring new counsel.
Id. at 472-73.
Therefore,
Defendant’s motion to dismiss this case for want of prosecution
under Federal Rule of Civil Procedure 41(b) is granted.
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III. Conclusion
For the reasons set forth above, Plaintiff’s motion for
reconsideration is denied and Defendant’s motion to dismiss for
want of prosecution is granted.
Accordingly, it is hereby
ORDERED that this case be, and the same hereby is, DISMISSED with
prejudice.
Dated: January 31, 2013
ENTER:
___________________________
ARLANDER KEYS
United States Magistrate Judge
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