Balsamo v. Bodhi Counseling, LLC et al

Filing 71

ORDER. Plaintiff/Counter-Defendant's Motion Dismiss 64 is granted in part as set forth above. Defendant/Counter-Plaintiff is granted leave to file an amended counterclaim within fourteen (14) days. Status hearing set for 10/6/2022 at 10: 20 a.m. Signed by the Honorable Charles P. Kocoras on 9/15/2022. For the telephonic status hearing, parties are to use the following call-in number: [phone], conference code 8819984. Counsel of record will receive an email the morning of the telephonic hearing with instructions to join the call. COUNSEL MUST TYPE IN THEIR NAME WHEN JOINING THE CALL. Throughout the telephonic hearing, each speaker will be expected to identify themselves for the record before speaking. Mailed notice(vcf, )

Case: 1:21-cv-06672 Document #: 71 Filed: 09/15/22 Page 1 of 11 PageID #:384

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIA MARIE BALSAMO,

)
)
Plaintiff,
)
)
v.
)
)
ERIN M. SCHICHT and BODHI
)
COUNSELING, LLC,
)
)
Defendant.
)
)
)
)
ERIN M. SCHICHT,
)
Counter-Plaintiff, )
)
)
v.
)
)
TIA MARIE BALSAMO,
)
Counter-Defendant. )

21 C 6672
Judge Charles P. Kocoras

ORDER
Plaintiff/Counter-Defendant Tia Marie Balsamo’s Motion to Dismiss
Defendant/Counter-Plaintiff Erin M. Schicht’s Counterclaim under Federal Rule of
Civil Procedure 12(b)(6) is granted in part. See Statement for details.
STATEMENT
The following facts are taken from the Counterclaim and are assumed true for
purposes of this motion. Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir.

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2013). All reasonable inferences are drawn in Schicht’s favor. League of Women
Voters of Chi. v. City of Chi., 757 F.3d 722, 724 (7th Cir. 2014).
Schicht is an Illinois Licensed Clinical Professional Counselor who provides
psychotherapy services to patients in Illinois.

Schicht’s former patient, Heather

Williams Balsamo (“Williams”), is Balsamo’s wife. Schicht provided three counseling
sessions to Williams on December 17, 2020, December 22, 2020, and December 29,
2020. On or about December 30, 2020, Schicht terminated the psychotherapist-patient
relationship with Williams and referred her to other licensed therapists. No sexual
relationship existed between Schicht and Williams at any time before or during
December 2020, including the time period within which Williams was Schicht’s patient.
Schicht never provided psychotherapy to Balsamo, nor has she ever met or
communicated with Balsamo.
On or about March 2021, Balsamo initiated a complaint with the Illinois
Department of Financial & Professional Regulation (“IDFPR”) alleging Schicht had
sexual relations with Williams while she was Schicht’s patient. From March 2021
through April 2021, Balsamo allegedly forced Williams to falsify allegations of sexual
and professional misconduct against Schicht. On or about April 21, 2021, Williams,
fearing for her safety and wellbeing, fled from Balsamo and withdrew the IDFPR
complaint, stating she was forced to provide false allegations against Schicht under
duress by Balsamo.

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Williams filed for divorce on May 3, 2021, citing irreconcilable differences as
the grounds for causing the irretrievable and irreversible breakdown of the marriage.
On numerous occasions between April 2021 and May 2021, Balsamo told Williams that
she intended to cause Schicht emotional distress and that she would institute whatever
action necessary, legal or otherwise, to drain Schicht of financial resources and ruin her
professional career.
Between March 2021 and December 2021, Balsamo stated to Williams and
others that she hired a private investigator to follow both Williams and Schicht, thereby
collecting pictures and/or videos of Schicht’s private life. Balsamo also told Williams
on numerous occasions between March 2021 and May 2022 that the hiring of the private
investigator was for the purpose of causing Schicht severe emotional distress.
Based on the above, Schicht filed a three-count Counterclaim against Balsamo,
alleging intentional infliction of emotional distress (“IIED”), defamation per se, and
intrusion upon seclusion. Balsamo moves to dismiss the Counterclaim under Rule
12(b)(6) for failure to state a claim.
A motion to dismiss under Rule 12(b)(6) “tests the sufficiency of the complaint,
not the merits of the case.” McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th
Cir. 2012). The Court accepts as true well-pled facts in the complaint and draws all
reasonable inferences in favor of the plaintiff. AnchorBank, FSB v. Hofer, 649 F.3d
610, 614 (7th Cir. 2011). The allegations in the complaint must set forth a “short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2).
A plaintiff need not provide detailed factual allegations, but it must provide
enough factual support to “raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The claim must be described “in
sufficient detail to give the defendant ‘fair notice of what the . . . claim is and the
grounds upon which it rests.’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773,
776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” are
insufficient to withstand a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim is facially plausible if the complaint contains sufficient
alleged facts that allow the court “to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id.
Balsamo moves to dismiss the Counterclaim in its entirety. We address each
count in turn.
I.

Count I: Intentional Infliction of Emotional Distress
Under Illinois law, a plaintiff may recover damages for intentional infliction of

emotional distress only if she establishes that (1) the defendant’s conduct was truly
extreme and outrageous; (2) the defendant intended to inflict severe emotional distress
(or knew that there was at least a high probability that its conduct would cause severe

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emotional distress); and (3) the defendant’s conduct did in fact cause severe emotional
distress. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 269 (2003).
In defining the first element, the Illinois Supreme Court has held that “to qualify
as outrageous, the nature of the defendant’s conduct must be so extreme as to go beyond
all possible bounds of decency and be regarded as intolerable in a civilized society.”
Id. at 274. “To avoid imposing liability for the rough and tumble of unpleasant—but
not law-breaking—behavior, the case law instructs that mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities do not amount to extreme
and outrageous conduct, nor does conduct characterized by malice or a degree of
aggravation which would entitle the plaintiff to punitive damages for another tort.”
Richards v. U.S. Steel, 869 F.3d 557, 566–67 (7th Cir. 2017) (cleaned up). “And to
avoid imposing liability for idiosyncratic and individualized reactions, ‘[w]hether
conduct is extreme and outrageous is judged on an objective standard based on all the
facts and circumstances of a particular case.’” Id. (quoting Franciski v. Univ. of Chi.
Hosps., 338 F.3d 765, 769 (7th Cir. 2003)).
From the Counterclaim, it appears the IIED claim is based on (1) Balsamo
forcing Williams to file the IDFPR complaint containing false allegations of sexual and
professional misconduct; (2) Balsamo’s statements to Williams that she intended to
cause Schicht emotional distress and that she would institute whatever action necessary
to drain Schicht of financial resources and ruin Schicht’s professional career; and (3)
the hiring of a private investigator to follow Schicht.
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The statements, while troubling, are not conduct. And the statements were made
to Williams, not Schicht. Schicht and Balsamo have never met or communicated. The
statements made in the IDFPR complaint are privileged (as explained below), and the
complaint was ultimately withdrawn. There are no allegations that indicate Schicht was
aware of the IDFPR complaint, Balsamo’s statements to Williams, or the fact that
Balsamo hired a private investigator. Furthermore, the Court cannot conclude that the
hiring of a private investigator during a period of marital discord is conduct that is “so
extreme as to go beyond all possible bounds of decency” such that it is regarded as
“intolerable in a civilized society.” Feltmeier, 207 Ill. 2d at 274. Of course, such an
action should be considered in context with Schicht’s other allegations pertaining to
Balsamo’s conduct. Even so, the Court finds that Schicht’s IIED claim against Balsamo
fails because the conduct alleged does not clear the high bar of “extreme and outrageous
conduct.” Count I is dismissed, without prejudice and with leave to amend.
II.

Count II: Defamation per se
To state a claim for defamation per se under Illinois law, a plaintiff must allege

“facts showing that [the] defendant made a false statement about the plaintiff, that the
defendant made an unprivileged publication of that statement to a third party, and that
this publication caused damages.” Green v. Rogers, 234 Ill. 2d 478, 491 (2009). “A
defamatory statement is a statement that harms a person’s reputation to the extent it
lowers the person in the eyes of the community or deters the community from
associating with him.” Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill. 2d 558, 579
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(2006). A statement is defamatory per se “if its harm is obvious and apparent on its
face” such that damages are assumed. Id.
In Illinois, there are five categories of statements that are considered defamatory
per se: (1) words that impute a person has committed a crime; (2) words that impute a
person is infected with a loathsome communicable disease; (3) words that impute a
person is unable to perform or lacks integrity in performing her or his employment
duties; (4) words that impute a person lacks ability or otherwise prejudices that person
in her or his profession; and (5) words that impute a person has engaged in adultery or
fornication. Van Horne v. Muller, 185 Ill. 2d 299, 307 (1998) (citing Bryson v. News
Am. Publ’ns, Inc., 174 Ill. 2d 77, 88–89 (1996)). Allegations of defamation fall within
the Rule 8 pleading standards, which do not require plaintiffs to “recite verbatim the
allegedly defamatory statement.” Rivera v. Allstate Ins. Co., 140 F. Supp. 3d 722, 728
(N.D. Ill. 2015) (collecting cases).
Balsamo argues Schicht’s defamation per se claim fails because the alleged
defamatory statements are privileged for two reasons. First, Balsamo says any
statements made in connection with the filing of the complaint with the IDFPR are
absolutely privileged given that the IDFPR is a quasi-judicial body. Second, Balsamo
argues the alleged statements are protected by spousal privilege.
Schicht concedes that the IDFPR is a quasi-judicial body and that statements
made to it are absolutely privileged. Schicht, however, claims absolute privilege does
not apply under these circumstances, where Williams only filed the IDFPR complaint
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at Balsamo’s behest, and knew the allegations contained therein were false. But when
absolute privilege attaches, “no cause of action for defamation lies against the person
making the statement even if it is made with malice.” Mauvais-Jarvis v. Wong, 2013
IL App (1st) 120070, ¶ 70 (citing Starnes v. Int’l Harvester Co., 141 Ill. App. 3d 652,
653 (1986)). Accordingly, any defamation per se claim based on statements made to
the IDFPR is dismissed with prejudice.
We need not analyze Balsamo’s attempt to invoke spousal privilege to thwart
any remaining defamation per se claim, because the Counterclaim alleges that
“Balsamo published defamatory statements, per se, on a myriad of occasions including
to Schicht’s professional licensing authority, Heather Williams Balsamo, and others.”
ECF No. 46, ¶ 37 (emphasis added). While the Court finds that the Counterclaim
adequately apprises Balsamo of the general substance of the allegedly defamatory
statements, it does not put Balsamo on notice as to who “others” are or when such
statements were purportedly made. In this regard, Balsamo moves for a more definite
statement under Rule 12(e). To simplify matters, however, and in light of the fact that
Schicht has been granted leave to amend Count I, the Court denies Balsamo’s motion
for a more definite statement and instead dismisses Count II without prejudice. Schicht
may amend her claim so her allegations are contained in only one document rather than
two: the amended counterclaim and the more definite statement. See Hamilton v.
Oswego Cmty. Unit Sch. Dis. 308, 2021 WL 767619, at *6 (N.D. Ill. 2021)

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(“Sharpening the complaint and bringing the claims into tighter focus will help
everyone.”).
III.

Count III: Intrusion Upon Seclusion

The elements of an intrusion upon seclusion claim are: “(1) the defendant
committed an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) the
intrusion would be highly offensive or objectionable to a reasonable person; (3) the
matter intruded on was private; and (4) the intrusion caused the plaintiff anguish and
suffering.” Busse v. Motorola, Inc., 351 Ill. App. 3d 67, 71 (2004). The element of
private facts is a predicate for the other three elements of the tort. Id. at 72. “Without
private facts, the other three elements of the tort need not be reached. Because the
analysis begins with the predicate, private facts, it also ends there if no private facts are
involved.” Id.
In other words, “it is not sufficient if the behavior complained of only intrudes
into personal, rather than private, matters.” Vega v. Chi. Park Dist., 958 F. Supp. 2d
943, 959 (N.D. Ill. 2013) (emphasis added). In this context, private matters have been
described as being those “which are facially embarrassing and highly offensive if
disclosed.” Cooney v. Chi. Pub. Schs., 407 Ill. App. 3d 358, 367 (2010). “Examples
of private facts include family problems, romantic interests, sex lives, health problems,
future work plans and criticism of an employer. Other examples of prying into private
matters are opening a person’s mail, searching a person’s safe or wallet, and reviewing
a person’s banking information.” Vega, 958 F. Supp. 2d at 959 (cleaned up).
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Schicht alleges Balsamo stated to Williams “and others” that she hired a private
investigator to follow both Williams and Schicht, “thereby collecting pictures and or
videos of Schicht’s private life.” Dkt. # 46, ¶ 24. Whether the pictures and/or videos
allegedly collected by the private investigator are actually private is a matter of fact
which cannot be determined at this stage. See Steinbach v. Forest Park, 2009 WL
2605283, at *4 (N.D. Ill. 2009). Again, the bar to survive a motion to dismiss is not
high. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010). Schicht’s intrusion
upon seclusion claim may proceed for now, and further details can be developed in
discovery.
IV.

Fifth Amendment Privilege

One final note. Balsamo expends much effort arguing that Schicht is attempting
to use the Fifth Amendment privilege as a sword and a shield, thus providing an
independent basis for dismissal of the Counterclaim with prejudice. While the Court
agrees with the general principle that a plaintiff may not use the Fifth Amendment
privilege as both a sword and a shield in prosecuting a civil case, we do not believe
Schicht is improperly doing so here. Schicht explicitly denied the allegation that she
had sexual relations with Williams while Williams was still her patient as well as in the
few months following the termination of the psychotherapist-patient relationship. Her
invocation of the Fifth Amendment privilege relates only to allegations of adultery
allegedly occurring from March 1, 2021 through the present.

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As Schicht is no doubt aware, because this is a civil case, the Fifth Amendment
does not shield her from adverse inferences that may be drawn against her based on her
refusal to answer certain interrogatories or depositions questions asked of her. See
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). Schicht’s invocation of her Fifth
Amendment privilege is a discovery or evidentiary issue more appropriately addressed
at the summary judgment stage or at trial; it does not provide a basis for dismissing the
Counterclaim.
CONCLUSION
For the foregoing reasons, Plaintiff/Counter-Defendant’s Motion Dismiss [64] is
granted in part as set forth above. Defendant/Counter-Plaintiff is granted leave to file
an amended counterclaim within fourteen (14) days. Status hearing set for 10/6/2022
at 10:20 a.m.
It is so ordered.
Dated:September 15, 2022

________________________________
Charles P. Kocoras
United States District Judge

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