SUE E. MYERSCOUGH, District Judge.
This cause is before the Court on Defendant Ryan Buehnerkemper's Motion for Summary Judgment (d/e 59), Defendant Kathy Weiss' Motion for Summary Judgment (d/e 66), and Defendant Weiss' Motion for Sanctions Under Rule 11 and 28 U.S.C. § 1927 (d/e 55). For the reasons that follow, Defendants are awarded summary judgment on Plaintiff Susan Stevens' § 1983 claims for false arrest and false imprisonment (Counts I and II). Further, the Court declines to exercise supplemental jurisdiction over Plaintiff's state law malicious prosecution claim (Count III). Finally, Defendant Weiss' Motion for Sanctions (d/e 55) and Plaintiff's request for sanctions made in her response to Defendant Weiss' Motion for Sanctions are both DENIED.
On March 23, 2007, Plaintiff Susan Stevens was terminated from her employment as deputy clerk and bookkeeper in the DeWitt County Circuit Clerk's office. On May 13, 2009, Plaintiff was arrested for theft over $100,000 and official misconduct. On May 15, 2009 and May 19, 2009, charges of theft and official misconduct were filed against Plaintiff. On August 17, 2010, all charges against Plaintiff were dismissed with prejudice.
On May 16, 2011, Plaintiff filed suit against Defendant Weiss, who was the DeWitt County Circuit Clerk until November 30, 2008; Defendant Buehnerkemper, the Illinois State Trooper who investigated the case; Defendant Andrew Killian, a DeWitt County Assistant State's Attorney from February 2003 to July 3, 2008; Defendant Richard Koritz, the DeWitt County State's Attorney beginning December 1, 2008; and DeWitt County. This Court has already dismissed the claims against Killian, Koritz, and DeWitt County.
The remaining claims in this lawsuit are a § 1983 claim for false arrest, a § 1983 claim for false imprisonment, and a state law claim for malicious prosecution against Defendants Buehnerkemper and Weiss. Plaintiff alleges that shortly after she told fellow employees that she was considering a run for Circuit Clerk when Defendant Weiss retired, Defendant Weiss fired Plaintiff and started a false and malicious criminal prosecution against Plaintiff that led to her arrest, imprisonment, and prosecution. Plaintiff alleges Defendant Weiss' actions were made under color of state law when she was Circuit Clerk. After Weiss' retirement, Weiss' actions were taken in concert with other state actors, such as the prosecutors, Defendant Buehnerkemper, and the newly elected Circuit Clerk Lori Berger.
Plaintiff also alleges that Defendant Buehnerkemper arrested her without probable cause. According to Plaintiff, Defendant Buehnerkemper accumulated no credible evidence that any money was missing or that Plaintiff had committed any crime.
In March 2013, Defendants Weiss and Buehnerkemper filed separate motions for summary judgment. Defendant Weiss also filed a Motion for Sanctions. On July 29 and July 30, 2012, the Court heard oral argument on the motions for summary judgment. Plaintiff requested oral argument on the Motion for Sanctions. That request is denied.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Moreover, facts must be viewed in the light most favorable to the non-moving party, and all reasonable inferences must be drawn for the non-movant.
Plaintiff began working in the DeWitt County Circuit Clerk's office in August 1983. She was terminated on March 23, 2007. At the time of her termination, Plaintiff was a deputy clerk and the bookkeeper. She made bank deposits, kept track of the daily ledger, kept the general ledger, and made the payouts at the end of the month.
Plaintiff testified that, every day she was at work, she was responsible for making the deposits into the bank. However, other employees, including Defendant Weiss, sometimes made the deposits. The office did not have a rule that required that deposits be made the next business day.
All of the employees in the Clerk's office had access to the checks, the Judicial Information Management System (JIMS), and the vault. Plaintiff testified that other employees in the office had access to the manual ledger because it was kept at her desk and was not "locked up or hidden." However, Plaintiff did not know if anyone ever accessed it to modify it in any way.
On March 22, 2007, Kayte Goodin, a computer software trainer, went to the Circuit Clerk's office at Defendant Weiss' request to transfer the county books from the manual bookkeeping system to JIMS. Goodin is not an accountant.
At the end of the day, Goodin went to Defendant Weiss and asked her for the December bank statements. Goodin was concerned about inaccurate information Plaintiff had given Goodin regarding the December checks and about Plaintiff's behavior.
The next day, March 23, 2007, Goodin spoke with Defendant Weiss and prepared a letter outlining what Goodin found. In the letter, Goodin stated:
That same day, Defendant Weiss and Goodin went to speak to Assistant State's Attorney (ASA) Andrew Killian. Before doing so, Defendant Weiss did not look at any records, did not speak to Plaintiff, and did not contact Larry Allison of Allison & Associates, who had audited the office books for decades. Weiss asked ASA Killian to conduct an investigation on her behalf. She also told ASA Killian that she believed money was missing from the Circuit Clerk's office and that Plaintiff was responsible for the missing funds.
Weiss also terminated Plaintiff's employment. The Sheriff's office secured the books and Plaintiff's work area.
On March 27, 2007, ASA Killian contacted the Illinois State Police to request assistance concerning potential embezzlement by Plaintiff. Defendant Buehnerkemper was assigned to investigate the matter.
Defendant Buehnerkemper testified that his supervisor told him they were not going to take the case unless a "forensic audit" was done. Defendant Buehnerkemper testified he did not know the definition of a forensic audit.
The DeWitt County Board hired Kent Kull, an accountant with Mose, Yockey, Brown & Kull, to conduct an "Agreed Upon Procedures" of the books. (Kull testified that an Agreed Upon Procedures is a lower level of service than an audit.)
On June 1, 2007, Kull submitted a report (the Kull Report) based on the Agreed Upon Procedures he conducted. In the Kull Report, Kull compared daily voucher report totals per JIMS (which would have recorded money received by Circuit Clerk personnel) to bank deposits for the time period of January 1, 2004 to March 22, 2007. Kull also compared the date per the daily voucher report to the date a deposit cleared the bank. Of the 810 deposits made between January 1, 2004 through March 22, 2007, 101 of those were not made within one week of the business date. One deposit was not made until 61 days later.
Kull also found 272 deposit discrepancies totaling $83,518.20 and five missing deposits totaling $31,202.83. The Kull Report provided:
The Report also contains the language that:
Kull testified that in his Report, he assumed the JIMS receipts were accurate. He admitted that whether money was missing depended on the accuracy of JIMS. Plaintiff asserts the records were kept manually and not on JIMS and JIMS was not integrated with the manual system.
Defendant Buehnerkemper testified that while he was sure he read the Kull Report during his investigation, he did not read it "word for word," he never made an extensive review of the document, and he did not go through each line of the report looking for key words (which was his definition of "skimming" a document).
In June 2007, after receiving the Kull Report, ASA Killian turned the matter over to the Illinois State Police. Killian did not hear back from the Illinois State Police until 2008. Killian testified the reason for the delay was that Defendant Buehnerkemper had been assigned other duties and the case was shelved.
In February or March of 2008, Defendant Buehnerkemper indicated he needed financial records to move forward with the investigation.
On March 27, 2008, Defendant Buehnerkemper testified before the grand jury seeking subpoenas to obtain Plaintiff's financial records. During the leading examination by ASA Killian, Defendant Buehnerkemper answered yes when asked: (1) whether Weiss told him she believed there was an $80,000 discrepancy; (2) that Plaintiff was the only one with access to the manual ledger; (3) that a forensic audit is a more detailed audit of income and expenses that attempts to track not only where the money comes from but where it goes; (4) that a forensic audit was conducted; and (5) the forensic audit determined there was approximately $83,000 missing and approximately $31,000 unaccounted for or never deposited. Plaintiff alleges that all of this information was false.
The grand jury issued the subpoenas for Plaintiff's financial records. Defendant Buehnerkemper testified that none of the information received in response to the subpoenas led him to believe that Plaintiff had stolen money from the clerk's office. The financial information received showed that Plaintiff had 170 overdrafts on her personal checking account between August 13, 2004 and October 16, 2007 and cash deposits of $8,904. Plaintiff and her husband filed for bankruptcy in March 2007. However, Plaintiff testified that this was not because of their personal financial situation but because their business, Bud Liquors, had failed.
Defendant Buehnerkemper conducted numerous interviews, including interviews of Kent Kull, Larry Allison, and Defendant Weiss.
Plaintiff claims, and the Court accepts as true, that Defendant Weiss made false statements to Defendant Buehnerkemper during the interviews. For example, Defendant Weiss told Defendant Buehnerkemper that Plaintiff was the only one with access to the money in the Circuit Clerk's office when, in fact, all of the employees had access to the money and the vault. Defendant Weiss also told Defendant Buehnerkemper that Weiss had only made deposits at the bank a couple of times when she had actually done so much more frequently. In addition, Defendant Weiss falsely told Defendant Buehnerkemper that Goodin had found $80,000 missing when Goodin made no such finding.
On August 1, 2008, Defendant Buehnerkemper interviewed Kull. Kull told Defendant Buehnerkemper that Kull was not a forensic auditor and that he had not conducted a forensic audit. (In fact, Kull testified he was not aware of the definition of a forensic audit.) Therefore, Defendant Buehnerkemper knew as of August 1, 2008 that a forensic audit had not been performed.
During an August 1, 2008 interview, Kull told Defendant Buehnerkemper that: (1) there were discrepancies between the transactions recorded in JIMS and the amounts deposited into the bank; (2) Plaintiff made the cash deposits unless she was absent from work; and (3) on the days Plaintiff was absent, the deposits were accurate and timely. Defendant Buehnerkemper also interviewed Kull on April 9, 2009. During that interview, Kull provided Defendant Buehnerkemper with a summary of his findings of an audit of the Circuit Clerk's office records for the year after Plaintiff's termination (March 2007 through March 2008). Kull found the office was $3 short during that time period.
In December 2008, Defendant Buehnerkemper spoke to Larry Allison of Allison & Associates, the firm that performed the Circuit Clerk's yearly audits. Allison had never found a discrepancy in the books. Allison believed that $100,000 was a substantial amount of money and that he would have caught it. Allison also pointed out that if a person were taking a small amount of money before November 2005, it was possible he did not catch it because the firm randomly selected transactions to trace. If by chance the firm did not select the transaction the person took money from, the firm would not have discovered it.
Allison also told Defendant Buehnerkemper that he had not had access to most of the records he needed to conduct his audit in 2006 and 2007. This caused him to issue two negative assurance reports. Allison told Defendant Buehnerkemper that for the months he tested in 2006 and 2007, he found discrepancies of $100 to $300 in the totals listed on the daily deposit slips and the amounts deposited into the bank statements. Allison could not determine the source of the discrepancies. On some days, there were no discrepancies. Allison later told Koritz that the discrepancies could have been from inaccurate records or from the newly installed software.
On May 13, 2009, Defendant Buehnerkemper interviewed Plaintiff. That interview is recorded. Exhibit 10 (d/e 60).
During the interview, Plaintiff stated that in the months before she was terminated, the office had been short-handed and Plaintiff had fallen behind in her work. Plaintiff stated that each clerk was responsible for her own drawer. At the end of the day, Plaintiff received the money and deposited it. However, Defendant Weiss would deposit the money when Plaintiff was on vacation—she had four weeks of vacation a year—or when Plaintiff was otherwise absent. Plaintiff denied taking any money from the clerk's office. At the conclusion of the interview, Defendant Buehnerkemper arrested Plaintiff.
Defendant Buehnerkemper completed a "Declaration and Determination Probable Cause for Arrest Without Warrant" Form. On that Form, he listed the following facts in support of his belief that a crime had been committed:
On May 15, 2009, Plaintiff was charged by Information with Theft (Count 1) (720 ILCS 5/16-1(a)(1)(A)) and Official Misconduct (Count 2) (720 ILCS 5/33-3(b)). On May 19, 2009, she was charged by Information with Theft (Count 3) (720 ILCS 5/16-1(a)(1)(A)), Official Misconduct (Count 4) (720 ILCS 5/33-3(b)), and Official Misconduct (Count 5) (720 ILCS 5/33-3(b)). On May 29, 2009, Counts 1 and 2 were dismissed.
Defendant Weiss was present at Plaintiff's arraignment. On May 29, 2009, Plaintiff appeared in court and waived her right to a preliminary hearing. She also posted bail on May 29, 2009 and was released.
In August 2010, Koritz moved to dismiss the charges against Plaintiff with prejudice. When asked during his deposition why the charges were dismissed, Koritz mentioned a number of things.
Koritz testified that a forensic audit had not been done and it would cost $45,000 to $55,000 for such an audit. Koritz also stated that Allison, one of the auditors who had conducted audits of the Circuit Clerk's books during Plaintiff's employment, stated that the amounts alleged to be stolen were in excess of anything his firm's audits would support. Koritz testified this conversation occurred after charges were filed.
Koritz further testified that he had received information a few weeks before the charges were dismissed that bore on the credibility of the new Circuit Clerk, Lori Berger. This included "some issues ongoing with some bonds" and documentation suggesting that Berger used a deceased judge's signature stamp on a document. Berger's credibility affected the case because she was one of the people who had access to the financials. Koritz passed the information about the use of the judge's stamp to a special prosecutor, as well as information about other issues as well.
The other issues included complaints by two former employees of the Circuit Clerk's office, Brenda Clark and Lisa Richards, that documents were being shredded in the Clerk's office by Weiss and Berger. The shredding allegedly occurred in 2009 and 2010.
Clark also told Koritz that Clark did not believe the books were always straight and there were discrepancies. Clark's affidavit indicates she worked at the Circuit Clerk's office from August 2008 to August 2010 and then again beginning December 2012.
Koritz claims everything that changed the posture of the case occurred after charges were filed. The record shows that Defendant Buehnerkemper did not speak to Berger until June 9, 2009 and did not speak to Brenda Clark until June 22, 2009 — after Plaintiff's arrest.
The parties treat the false arrest and false imprisonment claims together, so the Court will as well. "The existence of probable cause to arrest is an absolute defense to any § 1983 claim for false arrest or false imprisonment."
"Probable cause requires only that a probability or a substantial chance of criminal activity exist."
The existence of probable cause depends on the elements of the criminal offense for which Plaintiff was arrested.
In this case, Plaintiff was arrested for theft over $100,000 (720 ILCS 5/16-1(a)(1)(A) (West 2008)) and official misconduct (720 ILCS 5/33-3(b)). A public employee commits official misconduct when, in her official capacity, she knowingly performs an act she knows she is forbidden by law to perform. 720 ILCS 5/33-3(b). In this case, the act Plaintiff allegedly knew she was forbidden by law to perform was theft.
The version of the theft statute in effect when Plaintiff was arrested provided that a person commits theft when she knowingly obtains or exerts unauthorized control over property of the owner and intends to deprive the owner permanently of the use or benefit of the property. 720 ILCS 5/16-1(a)(1)(A) (West 2008). In order to sustain a conviction for theft under section 16-1(a)(1), the State must establish that "(1) the defendant obtained or exerted control over another's property, and (2) the control was unauthorized."
The penalty for theft depends on the amount of money taken. Theft of property not from the person and (1) not exceeding $300 is a Class A misdemeanor; (2) exceeding $300 and not exceeding $10,000 is a Class 3 felony unless the theft was of governmental property, in which case the offense is a Class 2 felony; (3) exceeding $10,000 but not exceeding $100,000 is a Class 2 felony unless the theft was of governmental property, in which case the offense is a Class 1 felony; and (4) exceeding $100,000 but not exceeding $500,000 is a Class 1 felony, unless the theft was of governmental property, in which case the offense is a Class X felony. 720 ILCS 5/16-1(b)(1), (b)(4), (b)(4.1), (b)(5), (b)(5.1), (b)(6), (b)(6.1).
In this case, Kull noted discrepancies between JIMS and the bank records totaling over $80,000 and missing deposits of over $30,000. The record is unclear whether those missing deposits of $30,000 were ever accounted for or whether anyone even looked to see if the deposits were eventually reflected in the bank statements.
However, as the penalty structure shows, this lack of clarity as to the amount of the discrepancy is immaterial for purposes of probable cause. Therefore, the Court will determine whether the undisputed facts and facts taken in the light most favorable to Plaintiff demonstrate as a matter of law that probable cause existed to arrest her for theft of any amount.
The parties refer to evidence obtained before and after the arrest in support of their respective arguments. However, the Court must focus on what the officer knew at the time.
Plaintiff argues that the fact that Defendant Buehnerkemper made false statements under oath—at the grand jury proceeding and in his affidavit in support of the warrantless arrest—raises fact issues as to whether his affirmation under oath for the warrantless arrest was so untruthful or so lacking in indicia of probable cause that no reasonable competent officer would have concluded that Plaintiff should have been arrested.
In particular, Defendant Buehnerkemper represented in the Declaration and Determination Probable Cause for Arrest Without Warrant Form that a forensic audit had been performed when that was not true. The only analysis conducted by an accountant was the Agreed Upon Procedures performed by Kull, which resulted in the Kull Report. Plaintiff also asserts that Defendant Buehnerkemper failed to correct the key information that no forensic audit had been conducted. As for Defendant Weiss', Plaintiff asserts that Weiss gave false information to Defendant Buehnerkemper.
If a finding of probable cause is based on a defendant's intentional misrepresentation or concealment of material facts, a plaintiff may be able to proceed on a Fourth Amendment claim challenging the arrest.
Moreover, an officer's subjective motives are immaterial to determining probable cause for an arrest.
Therefore, this Court must determine whether probable cause existed independent of Defendant Buehnerkemper's misrepresentation that a forensic audit was conducted.
Kull testified that, while he did not know the definition of a forensic audit, an Agreed Upon Procedures is a lower level of service than a regular audit. With an audit, the accountant issues an opinion that the records are fairly stated in all material respects. With an Agreed Upon Procedures, the user of the report draws his or her own conclusions.
However, the evidence supporting probable cause need not be admissible evidence or evidence sufficient to support a conviction.
The issue, then, is whether the Agreed Upon Procedures, which resulted in the Kull Report, would have caused a reasonable person to conclude that a crime was committed. The Kull Report, which was prepared by an accountant, showed a substantial discrepancy between the amount of money recorded as received on JIMS and the money that was actually deposited in the bank account and recorded in the manual ledger. Kull compared the money collected in the Clerk's Office, as reflected in the JIMS daily voucher report, to the amount of money deposited in the bank. Kull found that the bank deposit amount was generally less than the money reflected on the daily voucher report.
Although Defendant Buehnerkemper admitted he did not read the report "word for word" or go through each line of the report looking for key words (his definition of skimming the report), he also interviewed Kull about his report. Kull told Defendant Buehnerkemper during the interview that (1) there were discrepancies between the transactions recorded in JIMS and the amounts deposited into the bank; (2) Plaintiff made the cash deposits unless she was absent from work; and (3) on the days Plaintiff was absent, the deposits were accurate and timely.
Defendant Buehnerkemper also had probable cause to believe that Plaintiff was the one responsible for the discrepancies and the money believed to be missing. Plaintiff does not dispute that when money came into the Circuit Clerk's office, other employees would issue a receipt from the JIMS and, at the end of the day, those employees would have to balance their drawer and give money and a printout of receipts to Plaintiff. Pl. Resp., p. 6 (d/e 71). Plaintiff also does not dispute that part of her job was to check that the money the employees gave her in relation to the receipts printout and determine when mistakes had been made by other employees and on several days was tasked with making a deposit in the bank. Pl. Resp. p. 6.
In addition, during Plaintiff's interview, Plaintiff told Defendant Buehnerkemper that each of the clerks was responsible for her own drawer. At the end of the day, Plaintiff received the money and deposited it, although sometimes Defendant Weiss did so when Plaintiff was not there.
Plaintiff argues that JIMS would not match the money deposited in the bank account because the accounting was done manually. Plaintiff also argues that errors were made when money was received by the Clerk's office employees and this could explain the discrepancies between JIMS and the money deposited in the bank and recorded in the manual ledger. Plaintiff also claims that all the employees in the office had access to the money in the office, JIMS, the manual ledger, and the safe.
However, probable cause does not require certainty or even that it is more likely than not that a crime has been committed.
The evidence known to Defendant Buehnerkemper supported a probability or substantial chance that money was missing from the Circuit Clerk's office and that Plaintiff, as the bookkeeper and the person responsible for the manual ledger, was the person responsible.
Because the Court finds probable cause existed for Plaintiff's arrest, the Court need not address whether Defendant Weiss acted under color of law following her retirement, whether Defendant Weiss caused or participated in the alleged constitutional deprivation, whether Defendant Weiss, as a private party, conspired with state actors, whether Plaintiff is collaterally estopped from denying the existence of probable cause because she waived her preliminary hearing, or whether Defendant Buehnerkemper is entitled to qualified immunity.
In Count III, Plaintiff brought a state law claim for malicious prosecution. Because the federal claim has been dismissed, the Court must determine whether to maintain supplemental jurisdiction over Plaintiff's state law claim.
A district court should relinquish jurisdiction over pendent state-law claims unless: "(1) the state law claims may not be re-filed because a statute of limitations has expired, (2) substantial judicial resources have been expended on the state law claims, or (3) it is clearly apparent how the state law claims are to be decided."
First, the running of the statute of limitations would not bar Plaintiff from filing her suit in state court because 735 ILCS 5/13-217 gives plaintiffs one year to file their claim in state court after dismissal by the federal court. Second, this Court dismissed the federal claims on summary judgment. While judicial resources have been expended on the state law claims,
On March 21, 2013, Defendant Weiss filed a Motion for Sanctions Under Rule 11 and 28 U.S.C. § 1927.
Defendant Weiss asserts that Plaintiff's counsel violated both the "frivolous clause" and the "improper purpose clause" of Rule 11 when he added the factual allegations to support a weak conspiracy theory against Defendant Weiss without making a reasonable inquiry into the facts or conduct a sufficient pre-filing investigation of the facts. Defendant Weiss further asserts that § 1927 imposes a continuing duty on attorneys to dismiss claims that are no longer viable.
On February 27, 2013, Defendant Weiss served the motion, memorandum of law, and a letter on Plaintiff's counsel. Plaintiff had until March 21, 2013 to withdraw her Amended Complaint but did not do so. Defendant Weiss asks this Court to order Plaintiff and/or her attorney to reimburse Defendant Weiss for the costs and attorneys' fees incurred in bringing the motion and in continuing the litigation, order Plaintiff and/or her attorney to pay a monetary penalty designed to deter future improper behavior, and for any further relief that the Court deems just.
Plaintiff responds that each of the statements contested by Defendant Weiss is supported in full by the record. Plaintiff's counsel reviewed thousands of pages of documents from Plaintiff's former criminal defense attorney, interviewed material witnesses, and conducted further investigation prior to filing the original Complaint.
"Rule 11 authorizes a district court to impose sanctions on lawyers or parties (or both) for submissions that are filed for an improper purpose or without a reasonable investigation of the facts and law necessary to support their claims."
Sanctions may be awarded under 28 U.S.C. § 1927 where an attorney has multiplied the proceedings in a vexatious and unreasonable manner. 28 U.S.C. § 1927;
Defendant Weiss argues that Plaintiff's counsel violated Rule 11 when he filed an Amended Complaint containing allegations he knew or should have known lacked evidentiary support.
Defendant Weiss also argues that Plaintiff's counsel violated the "improper purposes" prong of Rule 11 because he did not make a reasonable inquiry into the facts or conduct a sufficient pre-filing investigation of the facts before filing the Amended Complaint.
"The focus in Rule 11 sanctions is on what counsel knew at the time the complaint was filed, not what subsequently was revealed in discovery."
Plaintiff's theory against Defendant Weiss for the period after Weiss' retirement was that Weiss acted together with other state actors to deprive Plaintiff of her constitutional rights. A private party is liable under § 1983 when she conspires or is jointly engaged with state actors to deprive a person of her constitutional rights.
Proving a conspiracy is difficult.
Plaintiff made the following allegations in the Amended Complaint regarding Defendant Weiss' motives:
Amd. Compl. ¶¶ 10, 42 (d/e 30). Defendant Weiss asserts that Plaintiff contradicted these allegations when she testified at her deposition that she never told Defendant Weiss or Plaintiff's coworkers in the Circuit Clerk's office about her intention to run for Circuit Clerk.
At her deposition, Plaintiff was asked about her allegation in the Amended Complaint that she told fellow employees about her intention to run for Circuit Clerk. Plaintiff testified that she believed she told Mindy Sears or Ruth Lowers at the courthouse and that she might have mentioned it to Betty Runyon in the Clerk's office. Stevens Dep., p. 84-86. As the deposition transcript shows, Plaintiff did not contradict her allegation in paragraph 10 that she told fellow employees she had an interest in running for Circuit Clerk
Moreover, Plaintiff points to evidence—which appears to have been known to Plaintiff prior to filing suit—that supported her theory of Defendant Weiss' motivation for her actions as alleged in paragraph 42: the timing of Defendant Weiss' announcement of her retirement coincided with Plaintiff's termination; Defendant Weiss' friendship with and support for the candidacy of Lori Berger; and Defendant Weiss continuing to work in the Circuit Clerk's office after her retirement. Therefore, the Court finds Plaintiff's counsel did not violate Rule 11 when he filed these allegations in the Amended Complaint.
Defendant Weiss next claims that Plaintiff's counsel violated Rule 11 when he added the following allegations to Amended Complaint without making a reasonable inquiry into the facts or conducting a sufficient pre-filing investigation of the facts:
At her deposition, Plaintiff was asked what involvement Defendant Weiss maintained in the investigation. Plaintiff testified that she: (1) did not know the extent of Defendant Weiss' involvement in the investigation other than being interviewed three times by the Illinois State Police; (2) thought it was fair to assume Defendant Weiss maintained contact with Killian because the Circuit Clerk's office worked closely with the State's Attorney's Office; (3) assumed Defendant Weiss knew the investigation was being done, that Weiss would have been told that Plaintiff was arrested, and that Weiss would have had personal knowledge of Plaintiff's arrest because the Circuit Clerk's office would have received the documentation and Weiss volunteered her time in the Circuit Clerk's office almost daily; (4) did not have any knowledge whether Weiss was involved in the prosecution of Plaintiff' case; (5) was not aware of any involvement by Weiss in Plaintiff's arrest; (6) had no knowledge that Weiss was working with the other Defendants to have Plaintiff arrested; (7) knew Defendant Weiss did not have the authority to arrest Plaintiff, lock her up in the jail, or file criminal charges against Plaintiff. Stevens Dep. pp. p. 92-94, 103-104, 106-107, 109, 116-117.
Plaintiff's testimony is not contrary to most of those allegations. Plaintiff testified as to having some knowledge about Defendant Weiss maintaining involvement in the investigation, including being interviewed, having contact with the State's Attorney's office, and having knowledge of the paperwork coming into the office because she worked there after her retirement. Moreover, the fact that Plaintiff testified that Defendant Weiss did not have the authority to arrest Plaintiff, lock her up in jail, or file criminal charges against her does not necessarily mean Defendant Weiss could not be liable under a conspiracy theory.
The Court finds that Plaintiff's counsel did not file these allegations when he knew, or should have known, they lacked evidentiary support. Although Plaintiff may not have had personal knowledge of some of the allegations, her counsel reviewed thousands of documents before filing suit. Moreover, counsel was able to, through discovery, uncover some evidence that could have supported her claims, which suggests that it was not unreasonable for counsel to file a complaint to obtain the right to conduct discovery.
Defendant Weiss also argues that Plaintiff's counsel violated 28 U.S.C. § 1927 and Rule 11 when he filed an Amended Complaint for improper purposes and continued to litigate the case.
Plaintiff's counsel deposed seven additional witnesses after Plaintiff was deposed. Defendant Weiss argues that, by doing so, Plaintiff's counsel prolonged the proceedings and increased the costs of litigation. According to Defendant Weiss, Plaintiff's counsel's actions were objectively unreasonable because Plaintiff herself testified to the lack of a factual basis for her suit against Defendant Weiss.
As noted above, Plaintiff's theory of the case against Defendant Weiss was that she conspired with the other state actors to deprive Plaintiff of her constitutional rights. While Plaintiff herself had little knowledge of the facts to support such a theory, that does not mean that she brought and continued the litigation for an improper purpose. Evidence to support such a theory existed from other sources, and additional information was uncovered through discovery. The Court, however, did not reach the conspiracy issue on the Motions for Summary Judgment and expresses no opinion on the sufficiency of Plaintiff's evidence. Nonetheless, sanctions are not warranted here for the reasons stated above. The Court finds no evidence that Plaintiff's counsel brought the claim for an improper purpose or unreasonably continued to litigate the case.
In her response to Defendant Weiss' Motion for Sanctions, Plaintiff sought sanctions against Defendant Weiss. Plaintiff asserts that a frivolous motion for sanctions is sanctionable. Plaintiff sent a letter to Defendant Weiss' counsel on March 21, 2013, disputing the allegations in the Motion and stating that Plaintiff would request sanctions against Defendant for her frivolous motion. Pl. Response, p. 30 (d/e 81).
To the extent Plaintiff brings her "motion" under Rule 11, the "motion" does not comply with Rule 11(c)(2)'s requirement that the motion for sanctions be made separate from any other motion. Fed.R.Civ.P. 11(c)(2);
If Plaintiff is bringing the motion under § 1927, the Court finds that Defendant Weiss' counsel did not multiply the proceedings in a vexatious and unreasonable manner or bring the Motion for an improper purpose. Although Defendant Weiss was unsuccessful on her motion for sanctions, the Court finds no evidence of subjective or objective bad faith.
For the reasons stated, the Motions for Summary Judgment filed by Defendant Ryan Buehnerkemper (d/e 59) and Defendant Kathy Weiss (d/e 66) are GRANTED IN PART. Defendants are entitled to summary judgment on Plaintiff's claims for false arrest and false imprisonment (Counts I and II). The Court declines to exercise supplemental jurisdiction over Plaintiff's state law malicious prosecution claim (Count III). Count III is DISMISSED WITHOUT PREJUDICE. Defendant Weiss' Motion for Sanctions (d/e 55) and Plaintiff's request for sanctions made in her response to Defendant Weiss' Motion for Sanctions are both DENIED. CASE CLOSED.
