Xydakis v. Zvunca

Filing 61

ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 8/1/2017:Mailed notice(wp, )

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

TIBERIU KLEIN, Individually;
TIBERIU KLEIN, as CoAdministrator of the Estate
of Claudia Zvunca; and
JOHN XYDAKIS,
Plaintiffs,
v.
DANIEL E. O’BRIEN; WINTERS
SALZETTA O’BRIEN & RICHARDSON,
LLC;
ADAM
POWERS;
STEVEN
LADUZINSKY; LADUZINSKY
& ASSOCS. PC.; GREYHOUND
LINES, INC.; FIRST GROUP PLC
LAIDLAW CORP.; PAUL BOZYCH;
CLAUSEN MILLER, LLP; WILSON
ELSER MOSKOWITZ EDELMAN &
DICKER LLP; NIELSON ZEHE &
ANTAS PC; MICHAEL VRANICAR;
MOTOR COACH IND. INC.; MOTOR
COACH IND. INT’L INC.; PATTON
& RYAN LLC; and CRISTINA
ZVUNCA,

Case No. 16 C 11008
Judge Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
I.

BACKGROUND

This case arises out of a tragic accident that occurred in
January 2002 in Colorado.
a Greyhound Bus.
was

eight

Claudia’s

years
heirs

Claudia Zvunca was struck and killed by

Her daughter, Cristina Zvunca (“Cristina”), who
old
were

at
her

the

time,

husband,

witnessed

Tiberiu

the

Klein

accident.

(“Klein”

or

“Plaintiff”), and Cristina.

Cristina, who was a step-daughter,

had no blood relationship with Klein.
Jay Tatum (“Tatum”).
by

Motor

Coach

The bus driver was Wesley

The bus had been designed and manufactured

Industries,

Inc.,

and

Motor

Coach

Industries

International, Inc. (collectively, “MCI”).
One would think that such a straightforward wrongful death
case would be uncomplicated.
truth.

Nothing could be further from the

Unbelievably, this case has spawned at least 15 or more

separate lawsuits in both state and federal court, and a multitude
of appeals numbering at least 25.

Three Illinois Appellate Court

opinions, Cushing v. Greyhound Lines, Inc., et al., 965 N.E.2d
1215

(Ill.

App.

1st.

Dist.

2012)

(“Cushing

I”),

Cushing

v.

Greyhound Lines, Inc., et al., 991 N.E.2d 28 (Ill. App. 1st Dist.
2013) (“Cushing II”), and Klein v. Motor Coach Industries, Inc.,
et al., 2017 IL App. (1st) 153617-U (Ill. App. 1st Dist. June 28,
2017)

(“Klein

I”)

have

attempted

to

describe

the

convoluted

history of this litigation, which this Court once described as “a
convoluted attorney-created procedural labyrinth.” MB Financial,
N.A. v. Stevens, No. 11 C 798, 2011 WL 5514059, at *1 (N.D. Ill.
July 5, 2011).

So as not to extend this opinion needlessly and

confuse the reader, the Court will not attempt to describe the
procedural background except as pertinent to the instant case.

- 2 -

A.

Procedural History

On May 3, 2002, Klein, purportedly as Executor of his late
wife’s estate, filed a suit in the Circuit Court of Cook County
pursuant

to

the

Illinois

against

Greyhound

federal

court

and

and,

Wrongful

Tatum.

on

a

Death

Act,

Defendants

forum

non

740

removed

conveniens

transferred to the District of Colorado.

ILCS
the

180/1,
case

basis,

it

to
was

In 2003, at the same

time that his Colorado suit was pending, Klein opened a probate
estate

for

Claudia

in

Cook

County

Probate

Court

and

had

Greg

Marshall, a paralegal from the law firm representing him at the
time, appointed administrator.

In 2004, Marshall filed a wrongful

death case against MCI, Number 04 L 3391 in the Circuit Court of
Cook County.

Later Greyhound and Tate were added to the case as

additional defendants.

In 2007, this case, apparently at Klein’s

behest, was voluntarily dismissed and refiled as Case No. 07 L
3391 (the “2007 suit”) - likewise against Greyhound, Tate, and MCI
-

asserting

wrongful

death,

survival

claims,

and

a

negligent

infliction of emotional distress claim on Cristina’s behalf.
The

next

guardians,

and

seven

years

saw

administrators,

numerous

changes

substitutions

and

in

attorneys,

recusals

of

judges, and numerous appeals, including Cushing I and Cushing II.
By 2014,

Cristina

had

attained

her

majority

and

was

appointed

Supervised Administrator of her mother’s estate by the Probate
- 3 -

Court.

Defendant

O’Brien

and

his

firm

were

granted

substitute in as Cristina’s attorneys for the 2007 suit.

leave

to

It was

also at this time that the case was reassigned to Judge John P.
Kirby.
Also

in

2014,

Klein’s

Colorado

suit

was

involuntarily

dismissed under FED. R. CIV. P. 12(b)(1), because Klein had “no
legal authority to pursue [the] wrongful death action and that
lack of capacity [had] not been cured.”

As it turned out, Klein

had not sought nor received an appointment as executor from the
Probate Court.
Klein, acting pro se, refiled his suit in Cook County Circuit
Court on August 12, 2014, and was given Case No. 14 L 8478 (the
“2014

suit”).

Callahan.

The

2014

suit

was

assigned

to

Judge

John

P.

It added a claim under the Colorado Wrongful Death Act

and added defendants - MCI and Laidlaw and First Group PLC, the
owners of Greyhound.

On March 17, 2014, Cristina and Klein were

appointed Co-Administrators of Claudia’s estate by the Cook County
Probate Court.

Klein had previously been appointed administrator.

On May 15, 2014, the Probate Court revoked Klein’s letters in
favor of making Cristina Supervised Administrator of her mother’s
estate.
Klein next moved to consolidate his 2014 suit with the 2007
suit over which Cristina was now the supervised administrator.
- 4 -

Judge Callahan denied his motion on August 13, 2015.

On January

21, 2016, Judge Callahan dismissed Klein’s suit (the 2014 suit)
with

prejudice,

reason

for

clearly

pursuant

dismissal

describes

a

to

that

735
“the

single

ILCS

5/2-619,

Illinois

action

stating

[Wrongful

brought

by

as

the

Death]

Act

the

personal

representative on behalf of the surviving spouse and next of kin.”
The opinion went on to state that Klein could not proceed because
Cristina was the “duly appointed representative of her mother’s
estate. . . .
to

allow

To allow such a secondary suit to proceed would be

improper

claim

splitting.”

On

February 22,

2016,

Attorney John Xydakis (“Xydakis”), on behalf of Klein, filed a
notice of appeal with the Appellate Court of the First District.
In addition to the dismissal of his suit with prejudice, Klein and
Xadakis named nine other orders which they sought to appeal.

All

of these matters, including the dismissal of the 2014 case, were
resolved by the Appeals Court on June 28, 2017 in Klein I.
In April 2016, Cristina, through her lawyers, negotiated a
settlement in principle in the 2007 case for a total of $4.95
million.

She filed motions to have the settlement approved and

for a dependency hearing on April 20, 2016.

The court ordered

that Klein be served with the motions to allocate the settlement
and for a dependency determination.

After Klein was served with

the motion, he removed the 2007 case to federal court as Case
- 5 -

No. 16 CV 5304 and attempted to mount a collateral attack on the
settlement.

The federal judge immediately remanded the case back

to the Cook County Circuit Court because Klein was not a party to
the 2007 case.
service

of

After remand, Klein filed motions seeking to quash

process

on

him,

for

dismissal

of

the

allocation

petition, to substitute out Judge Kirby, for a change of venue,
and filed a document he called a “Standing Objection to Court
Jurisdiction, Authority and to Motion or Proceeding for Dependency
and Allocation.”
On August 25, 2016, Judge Kirby handed down a decision on
dependency and allocation.
terms of this decision.

The Complaint does not disclose the
On October 14, 2016, Judge Riley, a

Probate Judge, entered an order in Claudia’s estate approving the
wrongful death portion of the settlement.

On October 21, 2016,

Judge Kirby ruled that all of the orders he had issued were final
and appealable.

Klein filed a notice of appeal as to all of Judge

Kirby’s orders, but at the same time sought reconsideration of
Kirby’s

various

orders

and

Judge

Callahan’s

consolidation of the 2014 case with the 2007 case.
2017,

Judge

Kirby

ruled

that

he

lacked

order

On March 21,

jurisdiction

Klein’s motions because of the pending appeal.

to

hear

This appeal of

Klein’s remains pending in the Illinois Appellate Court.

- 6 -

denying

Plaintiffs in this case are Klein, both in his individual
capacity and as Co-Administrator of Claudia’s estate (despite the
fact that his letters of administration have been revoked), and
his

current

attorney,

Xydakis.

Defendants

include

Klein’s

stepdaughter, Cristina; her current attorneys and their law firms;
Greyhound,
corporate

Laidlaw
owners

Corp,

of

and

First

Group

Greyhound)

along

with

PLC
their

(the

current

attorneys

and

their law firms; and MCI, its attorneys, and their law firms.
B.
The

First

The First Amended Complaint

Amended

Complaint

(the

“FAC”)

gives

a

rather

disjointed and incomplete procedural and substantive history of
the 2007 and 2014 cases, and includes quotes from some of the
pleadings filed by certain of the Defendants, along with quoted
passages from the rulings of both the Colorado federal court and
the various Cook County judges.

The FAC alleges that Klein’s

filing of the original case in Illinois Circuit Court, which was
later
proper

removed
because

and
an

transferred
Illinois

to

Colorado

Administrator

federal

was

not

court,
necessary

was
in

light of the fact that Klein, as a surviving spouse, was the real
party in interest (FAC ¶¶ 10-11); that in 2004, Cristina filed a
wrongful death suit in Illinois, and Defendants Greyhound and MCI
sought dismissal of her suit due to Klein’s prior Colorado case,
which motion the Cook County Court denied (id. ¶¶ 13-15); that the
- 7 -

Illinois Appellate Court in 2004 denied a motion for a stay of
Cristina’s case that was based on the alleged duplicative actions
(id. ¶ 16); and that a year later, MCI unsuccessfully appealed a
denial

of

duplicative

a

motion

cases

to

dismiss,

constituted

forum

arguing
non

that

maintaining

conveniens

and

forum

shopping (id. ¶ 17).
Several other judicial actions are referred to in the FAC.
In 2010, a Cook County Judge, Judge Haddad, who was then presiding
over Cristina’s case, was asked if he was trying to settle Klein’s
case, to which he responded “no.”

However, a few days later he

entered a settlement order, supposedly settling Klein’s case for
$52,735.00.

This

settlement

was

overturned

by

the

Illinois

Appellate Court. (FAC ¶¶ 18-20.) In 2014, Klein’s Colorado case
was dismissed for lack of subject matter jurisdiction. Several
months later, Klein “refiled” this case in the Circuit Court of
Cook

County.

(Id.

¶ 22.)

The

Probate

Court

of

Cook

County

appointed Cristina as Supervised Administrator for her mother’s
estate to pursue the 2007 case.

The FAC cites to an order of the

Probate Division providing that Klein and Cristina were “ordered”
to maintain each’s separate suits and not pursue claims for the
other,

that

Cristina

–

claim, and

two
by

separate

serving

also

for

as

her

suits

could

be

“administrator
own

negligent
- 8 -

maintained,
of

her

and

wrongful

infliction

of

that
death

emotional

distress claim” – had a conflict of interest prohibiting her from
representing Klein’s interest as well as her own.

(Id. ¶¶ 23-24.)

The case was then reassigned to another judge who recused himself
because Cristina’s attorney, Daniel O’Brien (“O’Brien”), donated
thousands of dollars for the judge’s reelection.
case was then reassigned to Judge Kirby.
he

had

connections

judges.”
Klein

was

“with

(Id. ¶ 26.)
not

Kirby

and

(Id. ¶ 26.)

The

O’Brien told Klein that

several

other

Cook

County

O’Brian “repeatedly” assured Klein that

involved

in

Cristina’s

Complaint to disclaim Klein’s interest.

case

and

(Id. ¶ 27.)

amended

the

All parties

objected to Klein’s Motion to Consolidate the 2014 case with the
2007 case.

The judge denied the Motion and said that “Klein

should be thrown in jail.”

In 2015, Kirby denied Klein’s Motion

to

was

Intervene

because

Klein

not

a

Cristina’s case and thus lacked standing.

dependent

beneficiary

in

(Id. ¶ 28.)

The FAC further alleges that neither Greyhound nor MCI would
settle Cristina’s case as long as Klein’s case was alive, so it
was necessary for the Defendant lawyers and Kirby to “try to find
a way around this.”

(FAC ¶ 31.)

trial

2017

date

for

the

case

Kirby vacated the January 2016
and

“[t]hen

on

information

and

belief, Kirby, O’Brien, Vranicar and Bozych get Klein’s judge to
dismiss Klein’s case with prejudice.
the same law clerk.

Kirby and that judge share

The dismissal order states Klein’s interests
- 9 -

must be pursued in Cristina’s case in front of Kirby.” (Id. ¶ 32).
Paragraph 33 reads as follows:

“O’Brien tells Klein that he must

also disclaim any interest in Cristina’s case to ensure his rights
cannot

be

adjudicated

there.

Klein

provides

him

with

one.

O’Brien then ensures Klein and others cannot contact Cristina.”
The next paragraph alleges that O’Brien arranged for an apartment
for Cristina when she visited Chicago but refused to disclose her
address,

that

O’Brien

communicating

with

then

got

Cristina,

an

and

order
that,

barring
when

Klein
notice

a

from
for

Cristina’s deposition was issued (presumably by Klein), “Powers
and

Laduzinsky

sanctions.”
allegedly

(presumably

(Id. ¶ 34.)

held

ex

at

O’Brien’s

request)

threatened

From February through April 2016, Kirby

parte

discussions

Vranicar to settle Cristina’s case.

with

O’Brien,

Bozych,

and

“When they see Klein or his

agents in the courtroom, they close the conference room door so
that

they

cannot

approximately
‘settle’

hear

June

Cristina’s

what

is

2016,

Kirby,

case

going

without

on.”

O’Brien,
prior

(Id.

Bozych,

notice

to

¶ 35).
and

“In

Vranicar

Klein.

The

settlement allocates 60% of the proceeds to wrongful death, and
40%

to

claim.”
Cristina

Cristina’s
(Id.
from

Laduzinsky

to

¶ 36.)

negligent
To

pursuing
represent

infliction

avoid
Klein’s

the

Probate

case,

Cristina
- 10 -

of

in

emotional
Court

O’Brien
the

order

hired

distress
barring

Powers

“dependency

and

hearing”

phase;
¶ 37.)
the

O’Brien,

however,

controlled

them

and

paid

them.

(Id.

Powers and Laduzinsky presented the petition to approve

settlement

even

though

attorneys. (Id. ¶ 38.)

they

were

not

the

wrongful

death

Klein filed a Motion to Substitute Judge

Kirby, which Judge Kirby denied without briefing on the grounds
that Klein lacked standing as a non-party. (Id. ¶ 39.)
25,

2016,

Judge

Kirby

held

a

hearing

Laduzinsky, Bozych, and Vranicar present.

with

On August

O’Brien,

Powers,

Powers and Laduzinsky

argued that Cristina deserved the whole settlement.

Judge Kirby

ruled that Klein should not receive anything because he disclaimed
his interest.

(Id. ¶ 40.)

According to Plaintiffs, Judge Kirby,

O’Brien, Bozych, Vranicar, Powers, and Adams intended to injure
Klein and deprive him of his rights, and acted jointly, knowingly,
maliciously, and ratified each other’s conduct (Id. ¶ 43.)
Finally, in paragraph 44, Klein lists 15 acts on the part of
Kirby that he contends violated his constitutional rights:
44. Other
actions
reveal
O’Brien,
Bozych,
Vranicar, Powers, and Adams participation, aid, and/or
complicity with Kirby to violate Klein’s due process,
equal protection, and other rights including, without
limitation:
a. Sua sponte, Kirby raises Klein’s “disclaimer;”
b. No briefing was ever done on any “disclaimer”
issue.
Instead, they wait until after Cristina’s case
settles to argue that the “disclaimer” bars Klein from
recovering.
However,
after
Klein
learns
the
“disclaimer” is used by O’Brien, Adams, Powers, and
Kirby to allege Klein had an interest in Cristina’s case
- 11 -

and it was “disclaimed,” Klein revoked the “disclaimer.”
In addition, Klein then produced a “disclaimer” signed
by Cristina that O’Brien claimed to revoke.
Despite
this, Kirby held Klein’s “disclaimer” was effective;
c. Sua sponte, Kirby orders O’Brien, Bozych
Vranicar to provide him with any transcripts for
proceedings in Klein’s case, presumably so Kirby
decide issues based on his own private investigation
knowledge;

and
any
can
and

d. Kirby also orders O’Brien to provide him with
documents in Klein’s case and attend Klein’s proceedings
in front of another judge. O’Brien then repeatedly
appears and interferes in Klein’s proceedings claiming
he is there as a “friend of the court” and argues
against Klein’s interests;
e. When Klein’s attorney files motions in Kirby’s
case or when motions were filed addressing Klein’s
attorney, Kirby refuses to allow the requisite time to
respond mandated by the Cook County Local Rules. Kirby
would often “reset” the motion date Klein’s attorney
spindled and then strike the motion if Klein’s attorney
failed to appear;
f. Kirby, O’Brien and Bozych allow Greyhound’s
motion to dismiss Cristina’s case based on claim
splitting to pend for over a year and Kirby never rules
on it;
g. Kirby awards O’Brien 1/3 of the total settlement
even though O’Brien did little work on the case and was
unprepared for trial.
Kirby then slashes the other
attorney’s fees to a fraction of what they seek and
holds several more ex-parte discussions regarding fee
issues without attorneys present;
h. Kirby repeatedly allows “emergency motions” by
O’Brien, Powers and Laduzinsky.
For example, from
January 2016, Kirby allows roughly a dozen non-emergency
motions to be heard as “emergencies.”
The motions are
invariably filed late in the day and Kirby hears them
outside normal courtroom hours the next day in the early
morning;

- 12 -

i. Kirby’s [sic] repeatedly enters “nunc pro tunc”
orders for O’Brien, Adams, Powers, and Bozych, not to
correct clerical errors, but to add judicial actions.
Many are entered on “oral motions” or apparently done
sua sponte;
j.
Kirby allows O'Brien’s costs for reimbursement
of over $25,000 to house and feed Cristina and her
grandparents in Chicago for two years, claiming it is a
litigation
expense,
even
the
Illinois
Rules
of
Professional Conduct prohibit an attorney from loaning
or giving money to a client;
k. Kirby, O’Brien, Bozych, Vranicar, Powers and
Laduzinsky violate the Probate Order barring Cristina’s
[sic] from seeking relief for Klein;
l.
Kirby, O’Brien, Bozych, Vranicar, Powers and
Laduzinsky claim Klein is a dependent beneficiary even
though when denying Klein’s petition for intervention
and withdrawal of his attorney, Kirby entered an order
stating Klein is not a “dependent beneficiary;”
m. O’Brien obtains an ex-parte injunction without
even a motion seeking injunctive relief barring Klein
from contacting Cristina;
n. Kirby, O’Brien, Bozych, Vranicar, Powers and
Laduzinsky claim Klein is a dependent beneficiary, even
though the operative Complaint in Cristina’s case
specifically disclaims seeking any relief on behalf of
Klein.
Instead, they wait until after Cristina’s case
“settle” [sic] to claim Klein has an interest; and/or
o. Kirby allows O’Brien to represent Cristina as
administrator and in her own individual claims, and
allegedly to represent Klein’s interests before the
dependency phase, even though attorneys have been
disciplined for such actions.
II.
Plaintiffs’
Complaint

is

theory

that

the

as

DISCUSSION
set

defendant

forth
lawyers

in

the

First

conspired

with

Amended
a

Cook

County Circuit Judge, John Kirby, to violate Klein’s Fourteenth
- 13 -

Amendment due process and equal protection guarantees, as well as
to

commit

fraud

and

intentionally

interfere

with

expectancy in pursuing his own claim for damages.

Klein’s

In Count I, he

brings a Section 1983 claim that his rights to due process were
denied by a conspiracy consisting of all Defendants, including the
lawyers, their law firms, the parties, and Judge Kirby, to deny
him the right to recover for the loss of his wife.
Klein

brings

a

Section

against the same group.

1983

denial

of

equal

In Count II,

protection

claim

Count III, a state law claim against the

same Defendants, is based on common law fraud.

Count IV claims

that the same Defendants intentionally interfered with “Klein’s
expectancy in pursuing his own case for damages.”

In Count V,

Xydakis sues Cristina for what appears to be a portion of her
settlement on a quantum meruit theory for the work he performed as
her

attorney.

In

all

of

the

counts,

damages, costs, and attorney’s fees.

Klein

is

seeking

money

In addition to seeking money

damages in Counts I and II, Klein asks for a declaration that he
“may seek relief for his damages relating to the death of his wife
in a separate proceeding and his rights were not adjudicated with
Kirby’s case.”
Defendants have moved to dismiss based on this Court’s lack
of jurisdiction to hear the case under the familiar Rooker-Feldman
doctrine.

See, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);
- 14 -

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983).

This

doctrine

forbids

lower

federal

courts

from

exercising jurisdiction over cases brought by state court losers
challenging state court judgments rendered before commencement of
the district court proceedings.

The rationale for the doctrine is

that no matter how wrong a state court judgment may be under
federal

law,

only

the

Supreme

jurisdiction to review it.
(7th Cir. 2012).

Court

of

the

United

States

has

Brown v. Bowman, 668 F.3d 437, 442

Defendants point out that the cases have been

proceeding in state court for more than 15 years and have finally
have

been

brought

to

a

conclusion

with

a

state-court-approved

settlement and with the First District appellate decision in Klein
I handed down on June 28, 2017, which affirmed the state trial
court’s dismissal of Klein’s case with prejudice.
Klein however contends that he is not trying to undue the
state court judgment.

Instead, he says that he is relying on an

exception to Rooker-Feldman announced in Nesses v. Shepard, 68
F.3d 1003 (7th Cir. 1995).

In that case, Judge Posner described a

hypothetical case that was not covered by Rooker-Feldman.

If a

plaintiff were to complain that the defendants had corrupted the
state

judicial

favorable

process

judgment,

by

such

a

which
claim

they

were

would

not

able
be

to

obtain

foreclosed

a
by

Rooker-Feldman so that he would be able to attempt to vindicate
- 15 -

his rights in federal court despite the fact that he lost in state
court.
A.

Count I - Due Process

In attempting to parse Klein’s Complaint here, it does appear
that

he

is

complaining

of

being

dealt

conspiracy of lawyers and Judge Kirby.

a

losing

hand

by

a

Of course, it is necessary

that he include Judge Kirby, who has absolute immunity, in order
to have a state actor; otherwise there would be no basis for a
Section 1983 claim for damages.

According to the Complaint, Judge

Kirby was assigned the case in August 2014, which was about the
time that Cristina’s current attorneys entered appearances in the
wrongful death case.

Therefore, the “conspiracy” would not have

commenced prior to August 2014.
made

in

orders,

the

Complaint

legal

-

positions,

Thus, the historical allegations

consisting
and

of

statements

Klein’s

objections

to

and

by

taken

made

Defendants and their lawyers along with rulings and statements
made

by

judges

other

than

Judge

Kirby,

including

a

so-called

settlement that was allegedly forced upon Klein in 2010 (which
involved none of the lawyer Defendants) and was invalidated by the
Illinois Appellate Court in Cushing II - would not be a part of
the conspiracy.
This

leaves

as

acts

of

the

conspiracy

allegations

that

Cristina’s attorneys failed to prepare adequately for trial, took
- 16 -

litigation positions and made statements that Klein believes are
incorrect, and kept Klein away from Cristina.

Also, the acts of

conspiracy

Kirby

include

allegations

that

Judge

and

Judge

Callahan, who dismissed Klein’s case (the 2014 suit), “share[d]
the same law

clerk;” that Kirby held “ex-parte discussions” with

the defendant lawyers in an attempt to settle the case from which
“Klein or his agents” were excluded; that in June 2017 the parties
settled the case without prior notice to Klein, allocating 60% to
the

wrongful

death

claim

and

40%

to

Cristina’s

negligent

infliction of emotional distress claim; that Judge Kirby denied
Klein’s

motion

to

intervene;

that

Cristina

as

supervised

administrator had a conflict of interest; that Defendant O’Brien
hired

lawyer

Cristina
changed

at

Defendants
the

Powers

dependency

positions

from

and

phase;

contending

Luduzinsky

that
that

the
Klein

to

represent

Defendant
did

not

lawyers
have

an

interest in the dependency phase to contending that he did; that
Judge Kirby raised the disclaimer issue; that Judge Kirby ordered
Defendant O’Brien to attend hearings in the 2014 case; that Judge
Kirby

set

Klein’s

motions

without

adequate

time

for

him

to

“respond,” in violation of local rules; that Judge Kirby failed to
rule on a Greyhound motion to dismiss the 2007 case; and that
Judge Kirby allowed multiple non-emergency motions to be heard as
emergencies

and

used

nunc

pro

tunc

- 17 -

orders

for

non-clerical

corrections.
either

Klein

have

been

makes

a

number

specifically

of

ruled

on

other
in

“objections”

the

June

that

28,

2017

Appellate Court ruling or were not relevant to the status of 2007
suit presided over by Judge Kirby.
The

question

is

whether

these

so-called

orders,

actions,

statements, and rulings - taken as true for the purposes of this
motion to dismiss - rise to the point where it can be said that
Klein’s

due

process

rights

were

violated.

While

Defendants’

Motion to Dismiss is based on lack of jurisdiction and is brought
pursuant

to

FED. R. CIV. P.

12(b)(1),

nevertheless

even

if

a

plaintiff can get by the jurisdictional bar of Rooker-Feldman and
issue preclusion, he still must state a claim on the merits; in
other words, he must state a claim upon which relief could be
granted.

See, Mains v. Citibank, N.A., 852 F.3d 669, 677 (7th

Cir. 2017) (“In short, even if aspects of the TILA claim fall
outside

the

scope

of

Rooker-Feldman,

it

survives

the

jurisdictional bar only to be dismissed on the merits.”)
It

is

clear

that

all

of

Klein’s

grievances

when

added

together, including the ones that are obviously subject to claim
preclusion,

fall

far

rights to due process.

short

of

establishing

a

violation

of

his

Many of his complaints have already been

decided by the Appellate Court’s June 28, 2017 opinion in Klein I,
including

the

dismissal

of

the
- 18 -

2014

suit,

the

denial

of

consolidation, and denial of his loss of consortium claim.
claims

are

either

constitutionally

irrelevant

-

the

Other
alleged

improper use of nunc pro tunc orders, the alleged violation of
Cook County Local Rules, the use of emergency motions, and the
entry of an injunction to prevent Klein from contacting Cristina –
or are contrary to the requirements of the Illinois wrongful death
statute (740 ILCS 180-2) and the holding in Klein I.

For example,

he claims that where the administrator of a wrongful death case is
one

of

the

appointed.

beneficiaries,

a

special

administrator

must

be

He fails to cite to any provision of the Act or any

court decisions that might support such a position.

Specifically,

the statute says that the wrongful death action “shall be brought
by

and

in

the

names

of

deceased person. . . .”
divests

the

beneficiary,

personal
of

her

the

personal

representatives

of

such

There is no provision in the statute that

representative,
office.

who

Johnson

v.

also

happens

Provena

St.

to

be

a

Therese

Medical Center, 778 N.E.2d 298 (Ill. App. 2nd Dist. 2002), holds
that it is the duty of the trial court to protect the interest of
the beneficiaries, exercise of which is subject to the abuse of
discretion standard.

See also, In re Estate of Williams, 585

N.E.2d 235, 238 (Ill. App. 5th Dist. 1992).

If the beneficiaries

are dissatisfied and think the exercise of discretion was abused,
they

have

the

right

to

appeal
- 19 -

the

trial

court

dependency

determination.
Dist.

Mortensen v. Sullivan, 278 N.E.2d 6 (Ill. App. 2nd

1972).

Klein

also

states

that

a

beneficiary

has

“an

absolute right to present [his] damages before any settlement or
trial, not just at a dependency hearing. . . .”

However, all the

statute says is that “[t]he amount recovered in any such action
shall be distributed by the court in which the cause is heard, or,
in

the

case

of

an

agreed

settlement,

by

the

circuit

court,

. . . in the proportion, as determined by the court. . . .”

There

is no requirement that a beneficiary be allowed to participate in
the

settlement

talks,

particularly

where,

as

here,

there

is

animosity between the beneficiaries, and Klein cites no authority
stating otherwise.

Here the Probate Court approved the settlement

amount, and the Circuit Court held a hearing to determine the
percentage of dependency of the two beneficiaries.
the law requires.

That is all

If a beneficiary is unhappy with his allocation

he has the right to take an appeal to the Appellate Court.
generally, Mortensen.
hold

a

dependency

unsuccessfully

See

The Cook County Circuit Court sought to
hearing.

seeking

Klein

tried

reconsideration

of

consolidate the 2014 case with the 2007 case.

to

thwart

his

it

motion

by
to

Poignantly, Klein

does not allege that he was denied the right to a dependency
hearing.

It would be difficult for him to do so since he sought

to stop the dependency phase by removing the 2007 case to federal
- 20 -

court where he attempted to launch a collateral attack against the
settlement.

The district judge promptly remanded the case back to

the Cook County Court, noting that Klein was not a party to the
case.

Remarkably,

Klein

fails

to

disclose

what

occurred

after

remand in the Circuit Court with respect to a dependency hearing
or whether he took an appeal after such a hearing.

He also does

not allege whether he appealed the decision of the Probate Court
to approve the settlement of the wrongful death claim.
Klein appears to be contending that the apportionment of the
settlement

between

the

wrongful

death

count

and

Cristina’s

negligent infliction of emotional distress claim was unfair to
him.

He certainly was within his rights to object to the decision

of the Probate Court judge, and he would be within his rights to
appeal the approval.

As previously noted, the Complaint does not

state whether he filed such an appeal.

Klein could certainly

argue during the dependency phase that, in exercising discretion
when

assessing

deciding

the

the

future

allocation

needs

between

of

the

two

beneficiaries

Cristina

and

Klein,

the

and

court

should take into consideration that Cristina will have $2 million
(less attorney’s fees) as an asset.
The answer to Klein’s effort to rescue his case lies with the
state courts.

Mains, 852 F.3d at 676 (“The state’s courts are

quite capable of protecting their own integrity.”)
- 21 -

The procedural

history of this case amply demonstrates that Illinois courts are
capable

of

insuring

justice

to

their

litigants.

The

Illinois

Appellate Courts on at least two occasions in this very case have
reversed

trial

including

the

court

rulings

2010

attempt

on
to

several
settle

important
Klein’s

matters,

case.

The

availability of appeals under Illinois law supplies all of the due
process Klein requires.

He has demonstrated that he is not afraid

of using the appeals process to attempt to vindicate his rights.
He has filed multiple appeals during the tortuous course of this
15 year procedural nightmare, both pro se and through counsel.
If the federal courts granted to state court litigants who
feel or believe that they have been treated unfairly by a state
court judge, the right to bring Section 1983 cases in lieu of
state court appeals, we would open the floodgates to a massive
amount of duplicate litigation.
as

federal

judges)

can

become

While state court judges (as well
aggravated

by

the

conduct

of

recalcitrant litigants whom they believe to be abusing trial and
appellate

procedures

by

needlessly

obfuscating

and

prolonging

lawsuits – and it is also a fact that aggravated judges can be
irritable and perhaps rude at times - irritability and rudeness do
not rise to violations of due process.

As stated earlier in this

Opinion, this case has been pending for more than 15 years, and
has engendered countless motions, lawsuits, and appeals as well as
- 22 -

apparent animosity between the attorneys and between Cristina and
Klein.

An

accident,

eight-year-old

and

she

has

girl

had

resolution of this case.

to

lost

wait

her

more

mother
than

15

in

a

years

tragic
for

a

Fifteen years is too long, and this

matter has to come to a resolution.

To conclude, this Court

believes that Klein has not been denied due process but instead
has received far more than is due.
B.

Count I is dismissed.

Count II - Equal Protection

In Count II Klein brings a Section 1983 constitutional tort
claim based on alleged denial of equal protection by Defendants,
conspiring with Judge Kirby.
analysis,

a

governmental

Under traditional equal protection

body

may

not

treat

classes

of

people

differently without the difference being rationally related to a
legitimate governmental interest.
Moreno, 413 U.S. 528 (1973).

U.S. Dept. of Agriculture v.

Klein does not allege that he is a

member of any specific group or class, such as race or religion,
that

has

been

discriminated

against.

While

there

are

cases

involving class of one equal protection claims, see, Del Marcelle
v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012), Klein does
not plead such a claim.

In fact, he merely relies upon the same

factual predicates underlying Count I.
attempted to do so, he would fail.
one

equal

protection

claim,
- 23 -

However, even if Klein

In order to bring a class of
there

must

be

underlying

discriminatory

treatment

alleged

that

is

different

from

what

others similarly situated receive and not rationally related to a
legitimate governmental interest.

Certainly the courts of Cook

County have a legitimate interest in running their court system
efficiently and bringing legal proceedings to a timely conclusion.
In order to insure fairness to litigants, the state provides a
complete

appellate

review

system.

As

we

have

seen

in

the

discussion of Count I, Klein has raised no set of facts that
demonstrate that he was treated unfairly or irrationally.

For

these reasons, Count II is dismissed.
Both Counts I and II also seek “a declaration that Klein may
seek relief for his damages relating to the death of his wife in a
separate proceeding and his rights were not adjudicated within
Kirby’s case.”

This of course flies in the face of the holding in

Klein I, where the Illinois Appellate Court specifically held that
Klein’s wrongful death action, the 2014 case, had been properly
dismissed because he had no authority to file such a case separate
from the personal representative of the estate.

Clearly, such a

declaration is foreclosed by claim preclusion (or possibly RookerFeldman).
Since the Court has dismissed the two federal claims, the
Court

will

exercise

its

discretion

and

claims prayed in Count III and Count IV.
- 24 -

dismiss

the

state

law

There is no Motion brought regarding Count V.
III.

CONCLUSION

For the reasons stated herein, Defendants’ Motion to Dismiss
[ECF

No.

39]

is

granted

and

Counts

I,

II,

III,

and

IV

dismissed.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: August 1, 2017

- 25 -

are