Motykie et al v. Motykie, et al

Filing 73

ORDER. For the reasons stated in this order, the defendants' motions to dismiss [ 56 , 58 , 62 ] are granted. The Rooker-Feldman doctrine bars this Court from exercising subject matter jurisdiction over the plaintiffs' federal claims. Th e Court declines to exercise supplemental jurisdiction over the plaintiffs' state law claims. The defendants' motion for leave to file supplemental authority 71 is granted. Signed by the Honorable Jeremy C. Daniel on 8/28/2024. Civil case terminated. Mailed notice. (vcf, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN D. MOTYKIE, et al.,
Plaintiffs

No. 23 CV 1779

v.

Judge Jeremy C. Daniel

GARY MOTYKIE, M.D., et al.,
Defendants
ORDER

For the reasons stated in this order, the defendants’ motions to dismiss [56, 58, 62]
are granted. The Rooker-Feldman doctrine bars this Court from exercising subject
matter jurisdiction over the plaintiffs’ federal claims. The Court declines to exercise
supplemental jurisdiction over the plaintiffs’ state law claims. The defendants’
motion for leave to file supplemental authority [71] is granted. Civil case terminated.
STATEMENT
“Litigants who call on the resources of a federal court must establish that the tribunal
has jurisdiction . . .” Guar. Nat. Title Co. v. J.E.G. Assocs., 101 F.3d 57, 59 (7th Cir.
1996). “[W]hen after multiple opportunities they do not demonstrate that jurisdiction
is present, the appropriate response is clear”—the case must be dismissed. Id.
This is the plaintiffs’ second attempt to assert federal claims based on their removal
from a residential property owned by their brother, Gary Motykie, located at 1120
Glencrest Drive in the Village of Inverness. (See R. 53 (“FAC”) ¶ 14.) On December
23, 2021, the Circuit Court of Cook County issued an emergency order of protection
granting exclusive possession of the Glencrest Drive property to Gary and providing
that the order was to be “police enforced.” (R. 58-2.) 1 On January 8, 2022, Gary,
assisted by the Village of Inverness’s police department, entered the property and
removed the plaintiffs. (FAC ¶ 27.) On September 14, 2022, at the conclusion of the
state court proceedings, the court entered a settlement agreement that vacated the

In evaluating a motion to dismiss for lack of subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), the Court may consider evidence beyond the pleadings to make
the necessary factual determinations to resolve the motion. Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). State court documents are also subject to
judicial notice. Fosnight v. Jones, 41 F.4th 916, 922 (7th Cir. 2022).
1

order of protection and granted exclusive possession of the Glencrest Drive property
to Gary. (R. 64-1.)
The plaintiffs filed this action against Gary, his lawyer, Joseph G. Howard, the
Village of Inverness, and several of its police officers pursuant to 42 U.S.C. § 1983,
alleging that the defendants violated the Fourth and Fourteenth Amendments by
unlawfully seizing and removing the plaintiffs and their property. The complaint also
asserted a variety of state law claims. The Court dismissed the plaintiffs’ federal
claims due to lack of subject matter jurisdiction under the Rooker-Feldman doctrine
and declined to exercise supplemental jurisdiction over the state law claims. See
Motykie v. Motykie, No. 23 C 1779, 2024 WL 1579064, at *3 (N.D. Ill. Apr. 11, 2024).
The plaintiffs have now amended their complaint. The allegations in the first
amended complaint are largely the same as those in the initial complaint, save for
new allegations of an “ex parte agreement . . . between the state court trial judge . . .,
Joseph G. Howard[,] and [ ] Gary Motykie, M.D., to enter an order of possession” in
Gary’s favor “by skipping the inquiries required by 750 ILCS 60-214(b)(2)(A-B).”
(FAC ¶ 18.) The plaintiffs allege that Howard and Gary “fraudulently informed the
state court” that Gary ha[d] a right to occupy the premises, and the court “failed to
inquire as to any hardships that would be suffered by” the plaintiffs. (Id. ¶ 21.) “As
part of the conspiracy, the state court and Defendants, Joseph G. Howard and Gary
Motykie, M.D.,” allegedly “engaged in unlawful fraud and intentionally denied
Plaintiffs[’] procedural due process rights of Fourteenth Amendment . . .” (Id. ¶ 22.)
Because the plaintiffs’ allegations of conspiracy rest upon “averments of fraud,” they
are subject to the heightened pleading requirements of Federal Rule of Civil
Procedure 9(b). Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir.
2007). Rule 9(b) requires plaintiffs alleging fraud to describe the “who, what, when,
where, and how” of the fraud—“the first paragraph of any newspaper story.” Pirelli
Armstrong Tire Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 441–
42 (7th Cir. 2011). As a general matter, allegations made “on information and belief”
will not do. Id. at 442 (citing Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677,
683 (7th Cir. 1992)).
The plaintiffs’ allegations are built upon the shaky foundation of information and
belief. (See, e.g., FAC ¶ 18 (“It is believed that there was an ex parte agreement
reached . . .”), ¶ 23 (“It is believed that . . . the state court agreed to rule in favor of
Defendants.”) (emphases added).) The plaintiffs provide little detail to substantiate
their suspicions other than the fact that the state court proceedings did not go their
way. There is no explanation of why Gary and Howard’s representations to the state
court concerning Gary’s ownership of the property were fraudulent, for example, or
how the state court judge was interested in the outcome of the case such that he was
induced to issue a fraudulent order. Compare Dennis v. Sparks, 449 U.S. 24, 28 (1980)

2

(plaintiffs plausibly alleged that state court judge accepted bribe in exchange for
issuing an injunction). 2
The plaintiffs’ suggestion that the reviewing judge failed to adequately inquire into
“hardship” under Illinois law amounts to a collateral attack on the order itself. But
this Court lacks jurisdiction to review state court orders, see Andrade v. City of
Hammond, Indiana, 9 F.4th 947, 950 (7th Cir. 2021), and plaintiffs cannot transform
an attack on a state court judgment into a federal lawsuit through allegations of
“shadowy ex parte communications” and “vaguely described conspiracies.” See, e.g.,
Simpson v. Robb, No. 13 C 1263, 2014 WL 4817491, at *7 (C.D. Ill. Sept. 29, 2014)
(holding that the Rooker-Feldman doctrine barred the plaintiff’s claims
notwithstanding boilerplate allegations of conspiracy implicating state court judges).
Not only are the plaintiffs’ allegations of fraud and conspiracy deficient under
Rule 9(b), they fail even to satisfy the threshold Twombly/Iqbal plausibility
standard. See Cooney v. Casady, 735 F.3d 514, 519 (7th Cir. 2013) (citing Fries v.
Helsper, 146 F.3d 452, 458 (7th Cir. 1998)) (“[V]ague and conclusory allegations of the
existence of a conspiracy are not enough . . . to survive a motion to dismiss. . . .”). 3
With the allegations of fraud and conspiracy out of the way, the Rooker-Feldman
doctrine still prevents the Court from exercising jurisdiction over the plaintiffs’
federal claims. As before, these claims are “inextricably intertwined with state court
proceedings.” Hadzi-Tanovic v. Johnson, 62 F.4th 394, 399 (7th Cir. 2023). The
plaintiffs allege that the defendants violated the Fourth and Fourteenth
Amendments by unlawfully seizing and removing them from the Glencrest Drive
property. But the order of protection granted Gary Motykie exclusive possession of
this property, gave Gary the authority to remove the plaintiffs from the property, and
provided that the order was to be “police enforced.” (R. 62-1 at 2); see also, e.g., GrantHall v. Cavalry Portfolio Servs., LLC, 856 F. Supp. 2d 929, 934 (N.D. Ill. 2012) (citing
Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007)) (“To the extent
an exhibit or a judicially noticed court document contradicts the amended complaint’s
The amended complaint equivocates as to whether the state court judge was a party to the
alleged conspiracy or whether he simply relied on the defendants’ fraudulent representations
in entering the order of protection. (Compare FAC ¶¶ 18, 22, with id. ¶ 21.) If it is the latter,
the Court straightforwardly lacks jurisdiction—a federal court cannot entertain claims of
fraud on state courts under Rooker-Feldman. See Taylor v. Federal Nat. Mortg. Ass’n, 374
F.3d 529, 532–33 (7th Cir. 2004).
2

As to defendant Howard, the plaintiffs’ allegations of fraud and conspiracy fail for an
additional reason: they are barred by Illinois’ absolute attorney litigation privilege. “This
privilege ‘affords an attorney complete immunity with respect to the communications he
makes . . . . regardless of the attorney’s motives in making that communication and
irrespective of the attorney’s knowledge of the falsity of it or the unreasonableness of his
conduct.’” Creation Supply, Inc. v. Hahn, 608 F. Supp. 3d 668, 697 (N.D. Ill. 2022), aff’d sub
nom. Creation Supply, Inc. v. Cherrie, 61 F.4th 511 (7th Cir. 2023) (quoting Scarpelli v.
McDermott Will & Emery LLP, 117 N.E.3d 238, 245 (Ill. App Ct. 2018)).
3

3

allegations, the exhibit or court document takes precedence.”). The plaintiffs’
challenge to the constitutionality of the entry squarely implicates the validity of the
order of protection.
The plaintiffs contend that the Rooker-Feldman doctrine does not apply because the
state court vacated the order of protection when it entered a settlement agreement
on September 14, 2022, and, thus, “there is no state court judgment . . . .” (R. 64 at
10.) But “[f]or Rooker–Feldman purposes, a ‘state court approved settlement
agreement is a judgment or decision . . .’” Crestview Vill. Apartments v. U.S. Dep’t of
Hous. & Urb. Dev., 383 F.3d 552, 556 (7th Cir. 2004) (quoting 4901 Corp. v. Town of
Cicero, 220 F.3d 522, 528 n.5 (7th Cir. 2000)). The court-approved settlement
agreement, like the order of protection that preceded it, grants Gary exclusive
possession of the Glencrest Drive Property. (R. 64-1 ¶ 2(b)).
Moreover, as the defendants point out, the plaintiffs’ federal claims challenge actions
that were taken when the order of protection was still in effect, and “interlocutory
orders entered prior to the final disposition of state court lawsuits are not immune
from the jurisdiction-stripping powers of Rooker-Feldman.” Bauer v. Koester, 951 F.3d
863, 867 (7th Cir. 2020) (quoting Sykes v. Cook Cty. Circuit Court Prob. Div., 837 F.3d
736, 742 (7th Cir. 2016)). The plaintiffs rely on McNease v. Laldee, where a district
court denied a motion to dismiss Fourth Amendment claims against state officials
who entered the plaintiff’s residence pursuant to an order of possession that had been
vacated. No. 19 C 7280, 2021 WL 1057295, at *6 (N.D. Ill. Mar. 18, 2021). In McNease,
however, the order was vacated prior to the allegedly unlawful entry. See id. at *1–2.
Here, by contrast, the order of protection was still in effect when the defendants
entered the Glencrest Drive property on January 8, 2022.
Finally, the plaintiffs had the opportunity to raise the issues that they complain of in
the state court proceedings. Hadzi, 62 F.4th at 399. Once again, the plaintiffs fail to
identify any state law or procedures that prevented them from asserting
constitutional challenges to the order of protection. 4 As a general matter, parties can
raise due process and Fourth Amendment challenges to official actions in Illinois
state court. See, e.g., Am. Mgmt. Consultant, LLC v. Carter, 392 Ill. App. 3d 39, 59,
915 N.E.2d 411, 429 (Ill. App. Ct. 2009) (finding that failure to comply with forcible
entry and detainer statute violated due process rights); Redwood v. Lierman, 772
In response to Howard’s motion to dismiss, the plaintiffs reference a statement made by the
state court judge indicating that his jurisdiction was limited to issues pertaining to the order
of protection and directing the plaintiffs “to file another lawsuit to obtain the return of their
personal property.” (See R. 65 at 8.) The fact that the plaintiffs were directed to file another
lawsuit to recoup their personal property does not demonstrate that they could not have
raised constitutional challenges to the order of protection in the first instance; a postdeprivation claim for conversion or replevin is distinct from a Fourth Amendment or due
process claim challenging the deprivation itself. Cf. Tucker v. Williams, 682 F.3d 654, 661
(7th Cir. 2012).
4

4

N.E.2d 803, 809 (Ill. App. Ct. 2002) (addressing due process and Fourth Amendment
claims arising from allegedly unlawful seizure). And while the plaintiffs’ claim that
their allegations of fraud and conspiracy show that they were denied due process,
those allegations fail for the reasons already stated.
In sum, because the plaintiffs’ Fourth and Fourteenth Amendment claims rely on the
state court’s order of protection being void or incorrect, the Court’s exercise of subject
matter jurisdiction over these claims is barred under the Rooker-Feldman doctrine.
Swartz v. Heartland Equine Rescue, 940 F.3d 387, 391 (7th Cir. 2019). The Court
declines to exercise supplemental jurisdiction over the plaintiffs’ remaining state law
claims. 28 U.S.C. § 1367(c). Civil case terminated.
Date: August 28, 2024

JEREMY C. DANIEL
United States District Judge

5