Alexander J. Vavrinek vs. Roseann Vavrinek, et al
Filing
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Enter Memorandum Opinion and Order. Signed by Honorable Edmond E. Chang. For the reasons stated in the opinion, the motions to dismiss [26, 28, 37] are granted. Case dismissed. Civil case terminated. Maild notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Alexander Joseph Vavrinek,
Plaintiff,
v.
Roseann Vavrinek; The Catholic Bishop of
Chicago, as a corporation; Cardinal
Francis George; Reverend Monsignor
Patrick J. Pollard; United States
Department of State; Hillary Rodham
Clinton, Secretary of State; United States
Department of Homeland Security; and
Janet Napolitano, Secretary of Homeland
Security;
Defendants.
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No. 12-CV-02916
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Alexander Joseph Vavrinek filed this declaratory judgment action,
pursuant to 28 U.S.C. §§ 2201, 2202, against Roseann Vavrinek; The Catholic Bishop
of Chicago, Cardinal Francis George, and Reverend Monsignor Patrick J. Pollard
(collectively, the Archdiocesan Defendants); and the United States Department of
State, Secretary of State Hillary Rodham Clinton, the United States Department of
Homeland Security, and Secretary of Homeland Security Janet Napolitano
(collectively, the Federal Defendants) [R. 1]. In his Amended Complaint [R. 6],
Alexander Vavrinek, who is a citizen of Nigeria, alleges that Roseann Vavrinek and the
Archdiocesan Defendants have refused to allow him to disinter the remains of Joseph
Vavrinek—whom Alexander Vavrinek alleges is his father—so that he can test the
remains for DNA to support his bid for United States citizenship. He asks this Court
to: (1) order Roseann Vavrinek and the Archdiocesan Defendants to disinter the
remains (at Plaintiff’s expense), (2) order the Federal Defendants to issue him a United
States passport if and when DNA evidence proves that he is the son of Joseph
Vavrinek, and (3) award him $100,000 for the alleged emotional distress he has
suffered as a result of Defendants’ actions. Roseann Vavrinek moves for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c) [R. 26]. Both the
Archdiocesan Defendants [R. 27] and the Federal Defendants [R. 37] move to dismiss
pursuant to Federal Rules of Civil Procedures 12(b)(1) and 12(b)(6). For the reasons
below, all of the motions are granted.
I. Background
In evaluating a motion to dismiss, the Court must accept as true the complaint’s
factual allegations and draw reasonable inferences in the plaintiff’s favor. Capitol
Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir. 1993) (citation
omitted). In 1944, Alexander Vavrinek was born in Nigeria to Joseph Vavrinek and
Edna Atkinson Khanji. R. 6, Am. Compl. ¶ 11. When Alexander was born, Joseph
Vavrinek was an officer in the United States Army and was stationed in Lagos, Nigeria
during World War II. Id. ¶ 13. Joseph was then transferred to Liberia, where he lost
contact with Edna and Alexander, other than sending them gifts and writing them
letters from time to time. Id. ¶¶ 14, 15. In these letters, including a Christmas card,
Joseph acknowledged Alexander as his son and promised to visit with him and Edna
as soon as Joseph settled back down in the United States. Id. ¶ 14; R. 40, Pl.’s Exh. 6.
2
In 1963, Alexander went to the American Embassy in Nigeria for help in making
contact with his father, including a request (apparently) for an American passport. See
Am. Compl. ¶ 18. The Embassy asked him to submit the Christmas card, a photograph
of Joseph, and processing fees for an American passport. Id.; R. 41, Pl.’s Exh 8.
Ultimately, the Embassy did not issue a passport to Alexander, but did issue him an
Alien Registration Card and a Social Security Card. Am. Compl. ¶ 20. In 1967,
Alexander was asked to register with the Selective Service System, but he did not.
Id. ¶ 21; R. 41, Pl.’s Exh. 10.
Over the years, Alexander kept trying to find his father. In 1988, he
unsuccessfully sought information from the United States Ambassador to Nigeria.
Id. ¶ 21; R. 41, Pl.’s Exh. 11A. In 1992, he wrote the Salvation Army’s Missing Persons
Service for information. Am. Compl. ¶ 22. Later that year, the Salvation Army
informed him that Joseph Vavrinek had died but had left behind a daughter, Roseann.
Id. ¶ 23; R. 41, Pl.’s Exh. 12. Alexander and Roseann corresponded in several letters.
See Am. Compl. ¶ 25; R. 42, Pl.’s Exhs. 14A-15B. Roseann also wrote the United States
Embassy in Nigeria, including in January 2009, requesting that Alexander be allowed
to visit the United States. Am. Compl. ¶¶ 26-27; R. 42, Pl.’s Exh. 16; R. 43, Pl.’s Exh.
17.
In 2011, Alexander sought what he calls “administrative review” of his case from
the United States Attorney General. Am. Compl. ¶ 29. The Department of Justice
responded, advising him to contact the Department of Homeland Security. Id.; R. 43,
Pl.’s Exh. 20. After he petitioned the Department of Homeland Security’s Office of the
3
Executive Secretariat, he received a reply from the United States Citizenship and
Immigration Services instructing him to apply for a United States passport. Am.
Compl. ¶ 30; R. 43, Pl.’s Exhs. 21, 21A. The letter also referred him to accredited
parentage testing laboratories to discuss how to obtain proof of parentage, which was
required because Joseph had not registered Alexander’s birth at the United States
Embassy in Nigeria before passing. Am. Compl. ¶ 30; R. 43, Pl.’s Exhs. 21, 21A. These
labs in turn allegedly advised Alexander that the only way to prove parentage would
be to obtain Joseph’s DNA through a limited disinterment of Joseph’s remains. Am.
Compl. ¶ 31. Meanwhile, the Department of State rejected Alexander’s passport
application because he lacked proof of parentage by DNA testing. Id.
To resuscitate his passport application, Alexander asked Roseann (Joseph’s only
known heir) to authorize a limited disinterment of Joseph’s remains for DNA testing.
Id. ¶¶ 32, 33. She refused. Id. ¶ 33. Alexander then requested that the Archdiocesan
Defendants—who own and manage the cemetery where Joseph’s remains are
interred—provide Alexander with information about their policies and procedures for
disinterment. Id. ¶¶ 32, 34. The Archdiocesan Defendants advised him that
disinterment required Roseann’s authorization. Id. ¶ 34.
In filing this lawsuit, Alexander asks this Court to order Roseann and the
Archdiocesan Defendants to disinter Joseph’s remains for DNA testing. Id. at 11. He
also wants to compel the Federal Defendants to issue him a United States passport
“and other official recognition of United States citizenship” when he has DNA evidence
confirming that Joseph is Alexander’s father. Id. at 11. Lastly, because Alexander has
4
suffered “severe mental stress, emotional distress, anguish and pain” caused by
“defendant’s unreasonable refusal to allow said DNA testing,” id. ¶ 36, he seeks
damages of $100,000. Id. at 11.
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(1) provides the procedural vehicle by which
a defendant may move to dismiss a claim or suit on the ground that the court lacks
jurisdiction. Fed. R. Civ. P. 12(b)(1); Apex Digital, Inc. v. Sears, Roebuck & Co., 572
F.3d 440, 444 (7th Cir. 2009). Federal courts have jurisdiction, known as federalquestion jurisdiction, over “all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. A case arises under the laws of the
United States within the meaning of § 1331 only when the claim for relief depends in
some way on federal law as stated in a well-pleaded complaint, “unaided by anything
alleged in anticipation or avoidance of defenses which it is thought the defendant may
interpose.” Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 402 (7th Cir. 2001) (quoting
Taylor v. Anderson, 234 U.S. 74, 75-76 (1914)) (internal quotation marks omitted). The
plaintiff bears the burden of proving that the federal courts have subject matter
jurisdiction over the action. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942,
946 (7th Cir. 2003), overruled on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683
F.3d 845 (7th Cir. 2012).
If the case gets past the jurisdictional question, then the complaint must also
adequately state a legal claim that would entitle the plaintiff to relief. Under Federal
Rule of Civil Procedure 8(a)(2), a complaint generally need only include “a short and
5
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). This short and plain statement must “give the defendant fair notice of what
the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation and citation omitted). The Seventh Circuit has
explained that this rule “reflects a liberal notice pleading regime, which is intended to
‘focus litigation on the merits of a claim’ rather than on technicalities that might keep
plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state
a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police
Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). These allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the assumption
of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S.
at 678-79.
The Rule 12(b)(6) standard also governs a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). Hayes v. City of Chicago, 670 F.3d
810, 813 (7th Cir. 2012) (citation omitted). Taking all well-pled allegations as true and
drawing all reasonable inferences in the nonmovant’s favor, the Court will grant a Rule
12(c) motion “only if it appears beyond doubt that the plaintiff cannot prove any facts
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that would support his claim for relief.” Thomas v. Guardsmark, Inc., 381 F.3d 701,
704 (7th Cir. 2004) (citation omitted).
III. Analysis
The Defendants separately assert several arguments to dismiss Vavrinek’s
Amended Complaint. They contend that this Court lacks subject matter jurisdiction
because (1) Vavrinek’s supposed claims under 8 U.S.C. § 1401 and 8 U.S.C. § 1503 do
not raise a federal question, and (2) without federal-question jurisdiction, Vavrinek’s
claim for severe emotional distress cannot meet the amount-in-controversy required
for diversity jurisdiction, which is the only other possible basis for jurisdiction. They
alternatively contend that his complaint should be dismissed for failure to state a claim
upon which relief can be granted because he does not plausibly plead a tort claim for
severe emotional distress. The Court will address each argument in turn.
A. Subject Matter Jurisdiction
1. Declaratory Judgment
In his Amended Complaint, Vavrinek pleads that “this action involves a federal
question pursuant to 28 U.S.C. § 1331, 8 U.S.C. § 1401, and 8 U.S.C. § 1503.” Am.
Compl. at 2. He also asserts that he “seeks declarations pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.” Id. Of course, merely saying
that this action “involves a federal question pursuant to 28 U.S.C. § 1331” does not
make it so; Vavrinek must explain how the complaint meets the requirements of
subject matter jurisdiction. Kontos v. United States Dep’t of Labor, 826 F.2d 573, 576
(7th Cir. 1987). Pleading that this action is brought pursuant to the Declaratory
7
Judgment Act also falls short: the Act is a procedural mechanism and does not
independently supply subject matter jurisdiction. DeBartolo v. Healthsouth Corp., 569
F.3d 736, 741 (7th Cir. 2009).Thus, federal-question jurisdiction over Vavrinek’s claims
is proper only if conferred by the other two statutes that he cites, namely, 8 U.S.C.
§ 1401 or 8 U.S.C. § 1503.
a. 8 U.S.C. § 1401
Roseann argues 8 U.S.C. § 1401 does not provide Vavrinek with federal-question
jurisdiction because he is not a United States citizen as the statute defines it.1 See R.
26, Roseann’s Mot. Dismiss ¶¶ 18-19. She then asserts that the facts contained in his
Amended Complaint do not plausibly meet the requirements of § 1401(g). Id. ¶¶ 18-19.
This argument appears to assess the underlying merits of Vavrinek’s claim under
§ 1401(g)—a Rule 12(b)(6) undertaking—rather than whether § 1401(g) supplies a
basis for subject matter jurisdiction over the case, perhaps by creating a federal cause
of action. Cf. Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (“A
suit arises under the law that creates the cause of action.”).
But even under the proper analysis, the Court concludes that Vavrinek does not
have federal-question jurisdiction under § 1401(g). That statute defines the classes of
people who are United States citizens by birth; as a definitional statute, it does not
create an independent cause of action by which a plaintiff may ask a court to determine
1
Section 1401 sets out eight classes of people who “shall be nationals and citizens of the
United States at birth.” 8 U.S.C. § 1401. Roseann contends that Vavrinek attempts to plead
that he is a United States citizen under § 1401(g). See Roseann’s Mot. Dismiss ¶ 18. Vavrinek
does not dispute this contention.
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his citizenship status. Hassan v. Holder, 793 F. Supp.2d 440, 447 (D.D.C. 2011); cf.
United States v. Gomez-Orozco, 188 F.3d 422, 425-26 (7th Cir. 1999) (evaluating
whether plaintiff was a United States citizen under § 1401 to determine whether he
should have pled guilty to violating 8 U.S.C. § 1326(a)). Accordingly, the Court does not
have subject matter jurisdiction to declare Vavrinek a United States citizen under 8
U.S.C. § 1401.
b. 8 U.S.C. § 1503
Next, the Federal Defendants argue that the Court does not have federalquestion jurisdiction over Vavrinek’s § 1503 claim because Vavrinek has not exhausted
his administrative remedies (but a failure to exhaust is not typically a jurisdictional
problem, as discussed below). See R. 37, Federal Defs.’ Mot. Dismiss at 6. Remember
that Vavrinek seeks from the Federal Defendants “a United States passport and other
official recognition of United States citizenship.” Am. Compl. at 11. Section 1503 of
Title 8 provides the jurisdictional basis by which a person “not within the United
States” may challenge the denial of “a right or privilege as a national of the United
States . . . by any department or independent agency.” 8 U.S.C. § 1503(b). But § 1503(b)
limits this relief to two and only two categories of applicants:
The provisions of this subsection shall be applicable only to a person who at
some time prior to his application for the certificate of identity has been
physically present in the United States, or to a person under sixteen years of age
who was born abroad of a United States citizen parent.
8 U.S.C. § 1503(b). Neither of the two categories cover Vavrinek. Vavrinek does not
allege that he has ever been physically present in the United States. And he was born
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in 1944, so of course he is currently older than 16. See Am. Compl. ¶ 11. Thus, he is not
eligible for relief under the plain terms of § 1503(b).
More importantly, he has not exhausted § 1503’s administrative prerequisites
to filing suit. The Federal Defendants insist that this failure to exhaust is
jurisdictional. See, e.g., Federal Defs.’ Mot. Dismiss at 6. It is not always accurate to
characterize a failure-to-exhaust as a jurisdictional defect. There are two prerequisites
to subject matter jurisdiction over a claim seeking benefits from an administrative
agency: (1) a nonwaivable requirement that “a claim for benefits shall have been
presented to the Secretary,” and (2) a waivable requirement of administrative
exhaustion. Mathews v. Eldridge, 424 U.S. 319, 328 (1976) (discussing Weinberger v.
Salfi, 422 U.S. 749, 766-67 (1975)). So if it is true that the government can waive the
exhaustion requirement to authorize a court to hear the merits of a claim, then the
failure to exhaust is not a matter of lack of subject matter jurisdiction. See Korsunskiy
v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006) (“Exhaustion is a condition to success in
court but not a limit on the set of cases that the judiciary has been assigned to
resolve.”); Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005) (“We cannot
imagine any reason why an agency should be forbidden, on jurisdictional grounds, to
excuse an alien’s failure to exhaust a particular issue.”). Nevertheless, this does not
help Vavrinek here because the Federal Defendants do not waive the exhaustion
requirement; quite the opposite, they insist on its enforcement. Compare Korsunskiy,
461 F.3d at 849 (no waiver when the agency asserts a failure to exhaust), with
Abdelqadar, 413 F.3d at 670 (waiver when the agency briefed the issue on the merits
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without arguing exhaustion). See generally Federal Defs.’ Mot. Dismiss at 6-9
(asserting that this Court lacks jurisdiction because Vavrinek did not exhaust his
administrative remedies).
So, in order for the Court to get to the merits of his complaint, Vavrinek still
must satisfy the requirement that he exhaust administrative remedies. He has failed
to do so. To exhaust, Vavrinek must first affirmatively seek proof of citizenship by
filing a Form N-600 Application for Citizenship with the United States Citizenship and
Immigration Services (USCIS), under 8 U.S.C. § 1452(a). See Ortega v. Holder, 592
F.3d 738, 740 (7th Cir. 2010); Rios-Valenzuela v. Dep’t of Homeland Sec., 506 F.3d 393,
397 (5th Cir. 2007). If the application is denied, he must appeal to the USCIS’s
Administrative Appeals Unit. See 8 C.F.R. §§ 322.5(b), 103.3(a)(1)(iv); see also
Henriquez v. Ashcroft, 269 F. Supp.2d 106, 108 (E.D.N.Y. 2003). Only after the
Administrative Appeals Unit affirms the denial of the application does § 1503(b) come
into play: Vavrinek must then apply for a Certificate of Identity from a U.S. consular
official authorizing him to travel to a port of entry into the United States and apply for
admission. 8 U.S.C. § 1503(b); see also Bensky v. Powell, 391 F.3d 894, 896 (7th Cir.
2004); Benjamin v. Bureau of Customs, 401 F. Supp.2d 184, 186 (D. Conn. 2005);
McKenzie v. INS, 2005 WL 452371, at *5 n.5 (E.D. Pa. Feb. 23, 2005). If the U.S.
consular official denies the application for a certificate of identity, Vavrinek must take
the last step of submitting “a written appeal to the Secretary, stating the pertinent
facts, the grounds upon which U.S. nationality is claimed and his reasons for
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considering that the denial was not justified.” 22 C.F.R. § 50.11(b). Vavrinek has not
followed these steps, so he has failed to exhaust under § 1503(b).
Although not cited in the jurisdictional paragraph of the amended complaint,
Am. Compl. ¶ 2 (citing only § 1503(b)), perhaps Vavrinek also wanted to invoke 8
U.S.C. § 1503(a), which allows anyone “within the United States” who is denied “a
right or privilege as a national of the United States” to sue “the head of such
department or independent agency for a judgment declaring him to be a national of the
United States.” 8 U.S.C. § 1503(a). Even though Vavrinek is not “within the United
States,” in the physical sense of location, the Supreme Court has held that even United
States nationals who are located outside the United States may seek a declaratory
judgment under this provision. Rusk v. Cort, 369 U.S. 367, 379 (1962), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Although § 1503(a) provides
an alternative means to § 1503(b) by which an applicant may challenge the denial of
his application for citizenship, it still requires a complete administrative process
beginning with a Form N-600 application and culminating in (in the words of § 1503(a))
a “final administrative denial of such right or privilege.” 8 U.S.C. § 1503(a); Ortega, 592
F.3d at 743. Only after the USCIS’ Administrative Appeals Unit affirms the denial of
an application for citizenship may the applicant seek a judicial declaration of
citizenship under § 1503(a). Rios-Valenzuela, 506 F.3d at 397. Because Vavrinek has
not followed these steps, he has also failed to exhaust under § 1503(a).
The steps that Vavrinek has taken are insufficient to exhaust administrative
remedies under either § 1503(a) or § 1503(b). Vavrinek alleges that he “approached the
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Nigerian Embassy in Nigeria in 1963” to obtain a passport. Am. Compl. ¶ 18. He also
alleges that, in 2011, he petitioned the Attorney General, “seeking administrative
review of his case,” as well as the Office of the Executive Secretariat of the Department
of Homeland Security, who advised him that he needed to apply for a United States
passport. Am. Compl. ¶¶ 29, 30. Finally, he alleges that he did apply for a United
States passport from the Department of State, but was turned down. Id. ¶ 31. The
Federal Defendants concede that applying for a passport may be equivalent to applying
for a certificate of identity. See R. 46, Federal Defs.’ Reply at 3. It may even be
equivalent to applying for Form N-600 citizenship. Even still, applying for a passport
is not the end of the administrative-remedies road: Vavrinek failed to appeal the
denials of a passport to the USCIS’s Administrative Appeals Unit and to the Secretary
of State, as sections 1503(a) and (b) respectively require.
Vavrinek believes that a formal appeal was not necessary, citing Mathews v.
Eldridge, 424 U.S. 319 (1976). See R. 47, Pl.’s Surreply at 6-7. In Mathews, the Social
Security Administration denied disability benefits sought by an applicant. The
Supreme Court held that the applicant had exhausted his administrative remedies by
informally appealing via the submission of a letter to the state agency charged with
monitoring the plaintiff’s medical condition. 424 U.S. at 324, 329. When the state
agency denied his claim, the Social Security Administration accepted this decision; his
claim for benefits was thus fairly presented to the then-Secretary of Health, Education,
and Welfare. Id. at 329. Vavrinek contends that, supposedly like the benefits applicant
in Mathews, he did exhaust by sending letters to these different agencies and
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contacting their accredited DNA testing labs. Pl.’s Sur-reply at 7. This argument
misses the point. Even if Vavrinek’s letter-sending campaign fulfilled the first-step
administrative requirement to present an application for a passport or for citizenship,2
what he has not done is follow through on the administrative process and appeal the
initial denials and obtain a final administrative decision. Vavrinek himself
acknowledges that the Federal Defendants can waive exhaustion—but does not argue
that they did. See Pl.’s Sur-reply at 7-8. Because Vavrinek did not exhaust his
administrative remedies before bringing this lawsuit, as 8 U.S.C. § 1503 requires him
to do, and the Federal Defendants have not waived this requirement, the complaint
must be dismissed for failure to exhaust administrative remedies. 3
2. Diversity Jurisdiction
With the federal-law claims and federal-question jurisdiction out of the picture,
the next question is whether Vavrinek can rely on diversity jurisdiction for his statelaw claim of severe emotional distress. The parties agree that there is complete
diversity of citizenship, which 28 U.S.C. § 1332(a)(2) requires. But Roseann disputes
that Vavrinek has met the $75,000 amount-in-controversy threshold. See Roseann’s
2
The Federal Defendants do not agree that Vavrinek presented his claim for benefits
to the Secretary of State. In fact, they assert that they have no record that Vavrinek ever
applied for a certificate of identity or a United States passport with a consular officer. See
Federal Defs.’ Reply at 3.
3
The Court additionally notes that according to the Federal Defendants, nothing bars
Vavrinek from applying for a certificate of identity or United States passport right now, and
then (if unsuccessful) exhausting his administrative remedies as statutorily required. Federal
Defs.’ Reply at 3. Given this concession, perhaps it would be wise for Vavrinek to begin this
process at the United States Embassy in Nigeria.
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Mot. Dismiss ¶ 8. In his Amended Complaint, Vavrinek alleges that he “has been
subjected to severe mental stress, emotional distress, anguish and pain as a result of
defendant’s unreasonable refusal to allow said DNA testing.” Am. Compl. ¶ 36. He
seeks $100,000 in damages for this emotional distress. Id. ¶ 37. Roseann contends that
there is a “legal certainty” that Vavrinek’s claim is really for less than the
jurisdictional amount. Roseann’s Mot. Dismiss. ¶ 8 (quoting St. Paul Mercury Indem.
Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (internal quotation mark omitted)). Thus,
she argues that his claim must be dismissed because Vavrinek cannot meet the
jurisdictional minimum.
Roseann correctly identifies the legal test: “It must appear to a legal certainty
that the claim is really for less than the jurisdictional amount to justify dismissal.” St.
Paul, 303 U.S. at 289. As the Seventh Circuit has emphasized, “to a legal certainty” is
a much different standard from others that had slipped into the case law; an allegation
of the amount-in-controversy will fall short only where the law (statutory, case, or
otherwise) dictates that the amount cannot be met. See Meridian Sec. Ins. Co. v.
Sadowski, 441 F.3d 536, 543 (7th Cir. 2006) (“‘Reasonable probability that jurisdiction
exists,’ a phrase with no provenance and no following outside this circuit, is banished
from our lexicon.”). If the amount in controversy is contested, the plaintiff must prove
the jurisdictional facts by a preponderance of the evidence. McMillian v. Sheraton
Chicago Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (citation omitted). But once
jurisdictional facts have been established, “uncertainty about whether the plaintiff can
prove its substantive claim, and whether damages (if the plaintiff prevails on the
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merits) will exceed the threshold, does not justify dismissal.” Meridian, 441 F.3d at
543.
Illinois does recognize a tort for intentional infliction of emotional distress when
remains are disinterred against a family’s wishes.4 Although the tort is recognized,
complaints of disinterment, as macabre as they may be, encounter skepticism in
Illinois courts. Hough v. Weber, 560 N.E.2d 5, 8, 15, 18 (Ill. App. Ct. 1990) (affirming
preliminary injunction against disinterment, but noting that “it is unclear whether
plaintiff’s injury could be monetarily compensated under the tort of intentional
infliction of emotional distress” and that “plaintiff’s damages are difficult to quantify”);
Hearon v. City of Chicago, 510 N.E.2d 1192, 1193, 1195 (Ill. App. Ct. 1987) (widow who
sued city medical officials for disinterring her husband’s body and showing her the
remains did not state a claim for intentional infliction of emotional distress); cf.
Courtney v. St. Joseph Hosp., 500 N.E.2d 703, 707 (Ill. App. Ct. 1986) (“[W]e hold that
Illinois does not recognize a cause of action for emotional distress arising from the
negligent mishandling of a corpse.”) (emphasis added).
But Vavrinek is asking for the opposite of preventing disinterment; he wants
Joseph’s body to be disinterred in order to conduct the DNA test. According to
4
Although Vavrinek’s Amended Complaint only states that he has suffered “severe
emotional distress,” see, e.g., Am. Compl. ¶ 37, his briefs indicate that his claim is for
intentional infliction of emotional distress. See R. 36, Pl.’s Resp. at 15; R. 44, Pl.’s Resp. at 4.
Additionally, the Amended Complaint inconsistently alternates between alleging that only
Roseann committed this tort and alleging that all Defendants are responsible. Am. Compl. ¶ 36
(“[A]s a result of defendant’s unreasonable refusal . . . .” (emphasis added)); id. ¶ 37 (“As a
direct and proximate result of defendants’ actions . . . .” (emphasis added)). To cover all the
bases, the Court assumes that Vavrinek sought to state a claim against all of the defendants.
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Vavrinek, Roseann acted as if she acknowledged and accepted that Vavrinek was
Joseph’s son, and yet Roseann now refuses to allow Vavrinek to establish this fact
through DNA testing. For Vavrinek, this refusal prevents him from obtaining United
States citizenship and from confirming a basic fact of his life, that Joseph was his
father. Given the stakes, Roseann has not shown, through Illinois statutory or case
law, that Vavrinek can never recover damages in excess of $75,000. Because the Court
concludes that it is not a legal certainty that Vavrinek’s tort claim of severe emotional
distress is really for less than the jurisdictional amount, the amount-in-controversy has
been sufficiently alleged, and there is diversity jurisdiction over this claim.
B. Failure to State a Claim
Successfully showing that diversity jurisdiction applies is one thing, but stating
a claim is quite another. As discussed below, the intentional infliction of emotional
distress claim has not been adequately pled as to each set of defendants.
1. Roseann
First, Roseann argues that Vavrinek’s Amended Complaint fails to state a claim
against her for intentional infliction of emotional distress. Roseann’s Mot. Dismiss
¶ 22. The Court agrees. To state a claim for intentional infliction of emotional distress
in Illinois, a plaintiff must allege that (1) the conduct involved was truly extreme and
outrageous; (2) the actor either intended to inflict severe emotional distress, or
disregarded at least a high probability that his conduct would cause severe emotional
distress; and (3) the conduct in fact caused severe emotional distress. McGrath v.
Fahey, 533 N.E.2d 806, 809 (Ill. 1988). The conduct must be “so outrageous in character
17
and so extreme in nature as to go beyond all possible bounds of decency,” and “the
emotional distress from which plaintiff suffers [must be] so severe that no reasonable
person could be expected to endure it.” Hough, 560 N.E.2d at 15. “[T]he tort of
intentional infliction of emotional distress has been construed very narrowly, and it is
a very difficult tort to prove.” Tobias v. Winkler, 509 N.E.2d 1050, 1057 (Ill. App. Ct.
1987).
Roseann argues that the conduct Vavrinek complains of was not extreme or
outrageous, and any resulting distress was not unreasonably severe. See Roseann’s
Mot. Dismiss ¶ 22. Examples of extreme or outrageous conduct resulting in severe
emotional distress include broadcasting statements implying that a radio guest’s wife
was “so hideous that no one would marry her except under duress” and that his wife
and child “had deformed heads” after being told that the wife and child suffered from
a serious neurological disorder “commonly known as Elephant Man disease.” Kolegas
v. Heftel Broadcasting Corp., 607 N.E.2d 201, 204, 205, 212 (Ill. 1992). They also
include a pattern of spousal abuse “combin[ing] more than a decade of verbal insults
and humiliations with episodes where freedom of movement was deprived and where
physical injury was often inflicted,” causing the spouse to suffer depression and PostTraumatic Stress Disorder. Feltmeier v. Feltmeier, 798 N.E.2d 75, 83-84 (Ill. 2003)
(citation omitted). They do not include requesting that a widow view her husband’s
exhumed remains for identification purposes. Hearon, 510 N.E.2d at 1195.
This case is much closer to Hearon than it is to Kolegas or Feltmeier. Here,
Vavrinek alleges that Roseann “unreasonabl[y] refus[ed] to allow . . . DNA testing.”
18
Am. Compl. ¶ 36. For two reasons, that alleged behavior does not adequately state a
claim. First, even if Roseann had acted unreasonably in refusing to allow the
disinterment, Vavrinek has alleged no facts that meet the high bar for alleging that
someone acted outrageously, as defined by Illinois courts. He does not even allege that
she insulted, taunted, or humiliated him, as in Kolegas and Feltmeier. Second,
Vavrinek does not plead that Roseann intended him to suffer severe emotional distress,
or even disregarded a high probability that severe emotional distress would follow.
Although Vavrinek filed two letters from Roseann as exhibits, the two letters do not
hint that Roseann had any awareness about his mental state. See Pl.’s Exhs. 14A-15B.5
Thus, he has not plausibly pled that Roseann had the same level of mental culpability
as had the defendants in Kolegas, who were actually told that the plaintiff’s wife and
child suffered from a disfiguring neurological disorder but mocked them anyways.
Accordingly, the Court grants Roseann’s motion to dismiss the intentional infliction of
emotional distress tort claim.
2. Archdiocesan Defendants
For the same reasons that Vavrinek has not stated a claim for intentional
infliction of emotional distress against Roseann, Vavrinek has not stated a claim for
5
In considering a motion to dismiss, a court may review exhibits attached to the
complaint without converting the motion to one for summary judgment. Tierney v. Vahle, 304
F.3d 734, 738 (7th Cir. 2002). Although Vavrinek filed his exhibits about five months after
filing his Amended Complaint (so they were not, strictly speaking, attached to the Amended
Complaint), see R. 40-43, his Amended Complaint does refer to the documents contained in the
exhibits. And Defendants do not object to Vavrinek’s use of the exhibits in responding to their
motions to dismiss. Accordingly, the Court need not convert Defendants’ motions to dismiss
into motions for summary judgment.
19
the same tort against the Archdiocesan Defendants. The only action that Vavrinek
alleges they committed is advising him that “disinterment can only be done if
authorized by Roseann” after he asked for their “policies and procedures.” Am. Compl.
¶ 34. This policy does not come close to being so outrageous in character and so
extreme in nature as to go beyond all possible bounds of decency. Nor has he alleged
that they advised him of their policies and procedures with any intent to cause him
severe emotional distress. And because Vavrinek has not pled that Cardinal George
and Monsignor Pollard were personally involved, they could not have committed a
tortious act against him. Accordingly, the Court dismisses Vavrinek’s intentional
infliction of emotional distress claim against the Archdiocesan Defendants.
3. Federal Defendants
Finally, Vavrinek cannot obtain relief against the Federal Defendants for this
tort claim. “Absent a waiver, sovereign immunity shields the Federal Government and
its agencies from suit,” FDIC v. Meyer, 510 U.S. 471, 475 (1994), and the Federal
Defendants contend that they have not waived sovereign immunity. Federal Defs.’ Mot.
Dismiss at 12 n.4. But the Federal Tort Claims Act (FTCA) waives the sovereign
immunity of the United States, making it as liable in tort as a “private individual
under like circumstances.” 28 U.S.C. § 2674; Clark v. United States, 326 F.3d 911, 91213 (7th Cir. 2003). The FTCA would allow Vavrinek to sue the Federal Defendants for
an intentional tort. Duffy v. United States, 966 F.2d 307, 313 (7th Cir. 1992). But any
FTCA claim against the Federal Defendants for intentional infliction of emotional
distress fails for similar reasons discussed above. Any alleged denial of a United States
20
passport or citizenship, see, e.g., Am. Compl. ¶ 31, was not extreme or outrageous
conduct beyond the bounds of decency. Indeed, none of the correspondence from the
Federal Defendants that Vavrinek filed as exhibits contain extreme or outrageous
insults or statements. See Pl.’s Exhs. 8, 10, 20-22A. And Vavrinek has not pled that
they denied him a United States passport or citizenship intending to cause severe
emotional distress. The Court notes that this failure to state a claim under the FTCA
might require dismissal on jurisdictional grounds rather than for failure to state a
claim. See Collins v. United States, 564 F.3d 833, 837 (7th Cir. 2009) (“[T]he cases that
hold that defenses to the government’s liability under the Tort Claims Act are
jurisdictional . . . treat it as an automatic corollary of the Act’s constituting a waiver
of the federal government’s sovereign immunity from suit. We cannot see what that
has to do with jurisdiction.”). Either way, the Court dismisses the intentional infliction
of emotional distress claim against the Federal Defendants.
C. 8 U.S.C. § 1401
Finally, for the sake of completeness, the Court addresses whether, assuming
that there is a federal cause of action under 8 U.S.C. § 1401, Vavrinek had adequately
stated a claim under that statute. The current version of § 14016 provides that
6
The applicable law for transmitting citizenship to an individual born abroad when one
parent is a United States citizen is the statute that was in effect at the time of the child’s birth.
See, e.g., Gomez-Orozco, 188 F.3d at 426. The law in effect at the time of Vavrinek’s birth on
October 17, 1944 was section 201(g) of the Nationality Act of 1940, 54 Stat. 1138-39. The only
difference between that statute and the current § 1401(g) is that the individual’s citizen parent
must have had “ten years’ residence in the United States . . . at least five of which were after
attaining the age of sixteen years.” Rodriguez-Romero v. INS, 434 F.2d 1022, 1023 (9th Cir.
1970). This difference is immaterial to the Court’s analysis.
21
a person born outside the geographical limits of the United States . . . of parents
one of whom is an alien, and the other a citizen of the United States who, prior
to the birth of such person, was physically present in the United States . . . for
a period or periods totaling not less than five years, at least two of which were
after attaining the age of fourteen years
is a United States national and citizen at birth. 8 U.S.C. § 1401(g); see also Miller v.
Albright, 523 U.S. 420, 430 (1998).
Section 1401(g) applies only to individuals born outside the United States to
married parents, Tuan Anh Nguyen v. INS, 533 U.S. 53, 59 (2001), and Vavrinek has
not pled that Joseph and his mother were ever married. But under 8 U.S.C. § 1409,
§ 1401(g) applies to individuals born out of wedlock if:
(1) a blood relationship between the person and the father is established by clear
and convincing evidence,
(2) the father had the nationality of the United States at the time of the person’s
birth,
(3) the father (unless deceased) has agreed in writing to provide financial
support for the person until the person reaches the age of 18 years, and
(4) while the person is under the age of 18 years—
(A) the person is legitimated under the law of the person's residence or
domicile,
(B) the father acknowledges paternity of the person in writing under
oath, or
(C) the paternity of the person is established by adjudication of a
competent court.
8 U.S.C. § 1409(a). These requirements are strictly applied. See Tuan Anh Nguyen, 533
U.S. at 71.
22
Vavrinek has not plausibly pled that he satisfies the requirements of 8 U.S.C.
§ 1409. Although Vavrinek pled that Joseph “promised to visit with them as soon as
he settled down in the United States,” Am. Compl. ¶ 14, the complaint does not allege
that Joseph ever agreed in writing, before his death, to provide financial support for
Vavrinek until Vavrinek reached 18 years old. 8 U.S.C. § 1409(a)(3). Indeed, Vavrinek
and his mother “subsequently lost contact with Joseph” shortly after his birth. Am.
Compl. ¶ 15. And despite pleading that Joseph acknowledged paternity in letters to his
mother, Am. Compl. ¶ 14, Vavrinek has not pled that Joseph acknowledged paternity
in writing under oath. 8 U.S.C. § 1409(a)(4)(B). It is true that § 1409(b) applies
§ 1401(g) to children “born out of wedlock on or after January 13, 1941, and before
December 24, 1952, as of the date of birth, if the paternity of such child is established
at any time while such child is under the age of twenty-one years by legitimation,” 8
U.S.C. § 1409(b), and Vavrinek was born in that specified window of time. But even
then he has not pled that his paternity was established while he was younger than 21.
Thus, even if there is such a thing as a federal cause of action under 8 U.S.C. § 1401,
the Court dismisses it for failure to state a claim upon which relief can be granted.
23
IV. Conclusion
For the reasons discussed above, the Court grants Defendants’ motions to
dismiss [R. 26, 27, 37].
ENTERED:
___________________________
Honorable Edmond E. Chang
United States District Judge
DATE: February 21, 2013
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