JOHN J. THARP, JR., District Judge.
Plaintiff Jane Doe is a woman who, according to the allegations in the complaint, was sexually abused as a young girl by her paternal grandfather, Defendant Howard Cotterman. In 2014, Cotterman was convicted in federal court of producing, possessing, and transporting child pornography, some of which allegedly depicted Doe. Now that Cotterman's criminal proceedings have concluded, Doe brings a civil action for damages against him under federal and state law to recover for injuries she suffered as a result of his abuse. Two motions currently are before the Court. In the first motion, Cotterman seeks to dismiss the complaint on personal jurisdiction and statute of limitations grounds or, in the alternative, to transfer this case to Oregon, where he is currently incarcerated. The second motion, filed by Doe, seeks to streamline litigation on the federal claims through the use of collateral estoppel. Having reviewed the parties' submissions, the Court denies Cotterman's motion to dismiss, and grants in part and denies in part Doe's motion for collateral estoppel.
The allegations in this case are straightforward but disturbing.
Several years later, in June 2007, Cotterman was charged with a host of offenses related to child pornography. (Id. ¶ 13.) The pornography was found on Cotterman's laptop after it was seized during a search at a United States-Mexico border crossing site in Arizona.
Following Cotterman's unsuccessful appeal, Doe filed suit in this Court asserting four causes of action. The first two counts assert civil remedies under federal statutes that provide redress to persons who were sexually exploited as children. Doe seeks recovery under those statues as result of being featured in the pornography for which Cotterman was convicted. (Id. ¶¶ 27-33.) Doe also asserts state law claims for battery and intentional infliction of emotional distress (IIED) stemming from Cotterman's alleged sexual abuse of her in Illinois. (Id. ¶¶ 34-46.)
In June 2017, Cotterman moved to dismiss the complaint, arguing that the Court lacks personal jurisdiction over Doe's two federal claims and that the two state law claims are barred under Illinois' sexual abuse statute of limitations. (Def. Mot. to Dismiss ¶¶ 7-10, ECF No. 22.) The motion also seeks to transfer this litigation to the United States District Court for the District Oregon under the doctrine of forum non conveniens, if the Court declines to dismiss Doe's claims. (Id. ¶¶ 11-12.) While that motion was pending, Doe filed a motion for collateral estoppel in August 2017, arguing that Cotterman's pornography convictions conclusively resolve the issue of his liability on both of her federal claims. (Pl. Mem. in Supp. of Mot. for Collateral Estoppel 1, ECF No. 26.) The Court turns first to Cotterman's motion to dismiss and in particular, the threshold issue of personal jurisdiction.
"A complaint need not include facts alleging personal jurisdiction. However, once the defendant moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating the existence of jurisdiction." Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003) (citations and alterations omitted). Where, as here, the parties rely solely on written materials, the plaintiff needs to establish only a prima facie case for personal jurisdiction. N. Grain Mktg., LLC v. Greving, 743 F.3d 487, 491 (7th Cir. 2014). Moreover, in resolving a Rule 12(b)(2) motion, the Court must "read the complaint liberally with every inference drawn in favor of plaintiff." GCIU-Emp'r Ret. Fund v. Goldfarb Corp., 565 F.3d 1018, 1020 n.1 (7th Cir. 2009) (citations omitted); see also Berger v. PIKR, Ltd., No. 14 C 8543, 2015 WL 2208200, at *2 (N.D. Ill. May 8, 2015).
Because no federal statute authorizes nationwide service of process in this suit, the Court may exercise personal jurisdiction over Cotterman, an out-of-state defendant, only to the extent that an Illinois court may do so. See Fed. R. Civ. P. 4(k)(1)(A).
There are two types of contacts that may give rise to personal jurisdiction: general and specific. Daimler AG v. Bauman, 134 S.Ct. 746, 751 (2014). The Court need not address general jurisdiction, as Doe contends only that the Court has specific jurisdiction over her claims. (Pl. Resp. 3, ECF No. 23 ("Although personal jurisdiction can be general or specific, plaintiff claims only that this Court has specific jurisdiction over defendant.").) For a court to exercise specific jurisdiction, the litigation must "arise out of or relate to the defendant's contacts with the forum." Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S.Ct. 1773, 1780 (2017) (internal quotation marks and alterations omitted) (citing Daimler, 134 S. Ct. at 754);
The Court easily concludes that there is a sufficient connection between Cotterman, Illinois, and this litigation to give rise to personal jurisdiction over the entire complaint. As an initial matter, Cotterman does not contest jurisdiction over Doe's battery and IIED claims. And for good reason: those claims are based on the allegation that Cotterman sexually abused Doe numerous times over a span of four years
The Court agrees with Doe that her injury on the federal claims arises out of the alleged abuse in Illinois. There is some debate about whether a defendant's contacts with the forum state must be an actual cause, a proximate cause, or both, to satisfy this prong. See Felland v. Clifton, 682 F.3d 665, 676 (7th Cir. 2012) (citing Tamburo v. Dworkin, 601 F.3d 693, 708-09 (7th Cir. 2010)). The Court need not resolve the dispute here as Cotterman's contacts with Illinois are "sufficient even under the strictest understanding of the `arising out of' requirement." Id. at 677. Two allegations in the complaint are important for understanding why that is so. The first is that while Cotterman abused Doe in Illinois, he "further exploited" her "by photographing and videotaping the sexual abuse." (Compl. ¶ 11.) The second is that Cotterman's convictions were based in part on child pornography that featured Doe. (Id. ¶ 18.) Construing the complaint in a light most favorable to Doe, as it must at this stage, see GCIU, 565 F.3d at 1020 n.1, the complaint fairly alleges that the images and videos that Cotterman took of Doe while he abused her in Illinois were among those that formed the basis of his convictions. In other words, the Court must infer that without the Illinois-based abuse and recording of that abuse, Cotterman would not have been able to produce, possess, or transport some of the images he was caught with at the Arizona border. That is enough to establish a prima facie case that the Illinois-based abuse was not only an actual but also the legal cause of Doe's exploitation-related injury. See Felland, 682 F.3d at 674-77- (holding that although initial fraud occurred in Mexico, defendant's subsequent communications to forum state reassuring plaintiff about project were "central to the fraudulent course of conduct" at issue and thus sufficient to meet "strictest understanding" of arising under requirement); Quarra Stone Co., LLC v. Yale Univ., No. 13-CV-790-SLC, 2014 WL 320059, at *7-10 (W.D. Wis. Jan. 29, 2014) (finding that even though alleged tortious interference may have been completed in another state, defendant's actions in forum state "constituted key component of" that tort and thus satisfied "the strictest application" of arising under standard); see also Hyatt Int'l Corp., 302 F.3d at 716-17 (holding that defendant could not parse long course of business dealings into "two purportedly unrelated events" in determining that his initial communications and visit with company in Illinois were related to claim that he was owed broker fee for hotel development in Italy).
From this point, the Court's conclusion that it may exercise specific jurisdiction quickly follows. Because Doe's federal claims sound in intentional tort, the Court looks to the Calder effects test to assess purposeful direction. Tamburo, 601 F.3d at 702. Under that test, the plaintiff must show "(1) intentional conduct (or `intentionally and allegedly tortious' conduct); (2) expressly aimed at the forum state; (3) with the defendant's knowledge that the effects would be felt—that is, the plaintiff would be injured—in the forum state." Id. at 703 (citing Calder v. Jones, 465 U.S. 783, 789-90 (1984)). All three of those elements are met.
Exercising personal jurisdiction in Illinois also comports with traditional notices of fair play and substantial justice. The following factors are relevant to this determination: "the burden on the defendant, the forum State's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies." Id. at 677 (quoting Burger King, 471 U.S. at 477.) Given that Doe's state law claims will proceed in this Court regardless, there is little added burden to Cotterman in litigating his federal claims in this forum. Moreover, "Illinois has a strong interest in providing a forum for its residents . . . to seek redress for torts suffered within the state and inflicted by out-of-state actors." Tamburo, 601 F.3d at 709. It is also far more convenient for Doe to seek redress in her home state and more efficient for a single forum to adjudicate this entire dispute. See id. at 710; Felland, 682 F.3d at 677. Although Doe in theory could bring her claims in other states—she alleges that Cotterman also abused her in California and Indiana—that another forum may also have personal jurisdiction over Cotterman relating to his course of conduct does not, of course, deprive Illinois courts of their own jurisdiction to hold Cotterman to answer Doe's claims. It is more reasonable in any event to conclude that Cotterman should anticipate being haled into court in Doe's home state rather than in California or Indiana, where none of the parties is currently located. See Tamburo, 601 F.3d at 709-10. Thus, the Court finds it may exercise personal jurisdiction over Cotterman with respect to Doe's federal claims.
Even if the Court had determined that it lacked personal jurisdiction over the federal claims under the above analysis, it still would have allowed those claims to proceed on the basis of pendant personal jurisdiction. "Under the doctrine of pendent personal jurisdiction, a court may exercise its discretion to hear claims as to which personal jurisdiction may otherwise be lacking if those claims arise out of a common nucleus of facts with claims as to which personal jurisdiction exists." Jackson v. N'Genuity Enters., Co., No. 09 C 6010, 2010 WL 3025015, at *6 (N.D. Ill. Aug. 2, 2010) (citation omitted); see also 4A Charles Alan Wright et al., Federal Practice and Procedure § 1069.7 (4th ed.). Essentially, "once a district court has personal jurisdiction over a defendant for one claim, it may `piggyback' onto that claim other claims over which it lacks independent personal jurisdiction, provided that all the claims arise from the same facts as the claim over which it has proper personal jurisdiction." United States v. Botefuhr, 309 F.3d 1263, 1272 (10th Cir. 2002) (citation omitted). The Seventh Circuit, like many of its sister circuits, has embraced the use of pendant party jurisdiction. Robinson Eng'g Co., Ltd. Pension Plan & Trust v. George, 223 F.3d 445, 449-50 (7th Cir. 2000); Aviva Life & Annuity Co. v. Davis, 20 F.Supp.3d 694, 703 & n.7 (S.D. Iowa 2014) (noting that the Second, Third, Ninth, Tenth, Federal, and D.C. Circuits also have accepted use of pendant party jurisdiction).
To be sure, this case does not present the typical application of the doctrine.
The federal claims in this case clearly arise out of the same nucleus of operative fact as the state law claims. As discussed above, all four claims stem directly from Cotterman's alleged abuse of Doe in Illinois. It is therefore appropriate for the Court to exercise pendant personal jurisdiction over the federal causes of action. The Court's ruling does not add any additional burden on Cotterman, who is otherwise properly subject to the Court's jurisdiction on the state-law claims. Moreover, exercising pendant personal jurisdiction will eliminate the need for Doe to file a second suit in another state, thereby promoting judicial economy and the efficient use of resources by the parties. The Court thus finds that it has personal jurisdiction over the entire complaint and Cotterman's motion to dismiss pursuant to Rule 12(b)(2) is denied.
Cotterman also raises a question in his motion about the timeliness of the battery and IIED claims. Although Cotterman's motion invokes only Rule 12(b)(2), his statute of limitations argument falls under Rule 12(b)(6). To overcome a Rule 12(b)(6) motion, "a complaint must `state a claim to relief that is plausible on its face.'" Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). This Court "must accept as true all factual allegations in the . . . complaint and draw all permissible inferences" in Doe's favor. Id. (quoting Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015) (internal quotation marks omitted)).
The parties agree that the timeliness of the battery and IIED claims is governed by 735 ILCS 5/13-202.2(b), the Illinois statute of limitations that applies to any "action for damages for personal injury based on childhood sexual abuse." They disagree, however, on what version of the statute controls. Cotterman contends, by citing Doe v. Carlson, 2017 IL App (1st) 160536, ¶¶ 14-19, 71 N.E.3d 806, 809-10, that the version of the statute that was in effect between 1994 and 2003 applies (the "1994 version"). (Def. Mot. ¶ 10, ECF No. 22.) In relevant part, that version provides that a victim of childhood sexual abuse has two years from the time she turns 18 years old to commence an action for damages. 735 ILCS 5/13-202.2(b), (d) (amended 2003). Doe urges the Court to apply the current version of the statute, (Pl. Resp. 8-9, ECF No. 23), under which, she has 20 years from her eighteen birthday to assert her claims, 735 ILCS 5/13-202.2 (b), (d) (2018). Because Doe filed this suit shortly after she turned 20 years old, (Compl. ¶¶ 1, 7), her claims are timely under the current version of the statute, but untimely under the 1994 version.
The Court rejects Cotterman's arguments for two reasons. The first is that he utterly fails to explain why the 1994 version of the statute applies in this case. See Massuda v. Panda Exp., Inc., 759 F.3d 779, 783-84 (7th Cir. 2014) (stating that "perfunctory and undeveloped arguments. . . are waived"). Cotterman points to Carlson for an explanation, but that case is inapposite; it dealt with a victim who was sexually abused between 1996 and 1999 (when she was between the ages of 17 to 20) and who brought suit in 2013—at age 34. 2017 IL App (1st) 160536, ¶¶ 3-10, 71 N.E.3d at 807-08. Stated differently, the case involved a situation where the plaintiff's claim had run under the 1994 version of the statute; thus, the victim could not rely on later amendments to restore her claim. See Doe A. v. Diocese of Dallas, 234 Ill.2d 393, 410-11, 917 N.E.2d 475, 485-86 (2009) (finding that 2003 amendment to statute of limitations could not apply retroactively to revive plaintiff's claims, which was already time-barred under prior version of statute); M.E.H. v. L.H., 177 Ill.2d 207, 218-19, 685 N.E.2d 335, 340-41 (1997) (finding that earlier repeal of 12-year repose period under statute could not, consistent with due process, operate to revive claims of childhood sexual abuse, if claims were time-barred under older version of statute). Here, however, Doe had not yet turned eighteen when the 1994 version was in effect, so neither Carlson nor that version of the statute has any bearing on this litigation.
That brings the Court to its second point: the current statute expressly provides that Doe may take refuge under the 20-year limitations period. In relevant part, the statute states:
735 ILCS 5/13-202.2(e). The "amendatory Act of the 96th General Assembly" refers to Public Act 96-1093, through which, the Illinois Legislature increased the limitations period from 10 to 20 years. 2010 Ill. Legis. Serv. P.A. 96-1093 (H.B. 6124) (West). The effective date of that amendment was January 1, 2011. Id. Because Doe had not yet turned 18 years old when the 2011 version of the law came in effect (and thus her childhood sexual abuse claims were not time-barred at that point), her claims are therefore governed by the current 20-year limit. As a result, the battery and IIED claims were timely filed and the Court denies Cotterman's motion to dismiss those claims.
In a last-ditch effort, Cotterman argues that if dismissal is not warranted, the Court should transfer the case to the United States District Court for the District of Oregon under the doctrine of forum non conveniens. (Def. Mot. ¶¶ 11-12, ECF No. 22.) Cotterman contends that his current incarceration "renders it impossible for him to adequately defend this case in Illinois" and that a transfer is necessary to accommodate his custodial limitations. (Id. ¶ 11.) This argument, too, is baseless. Save for a few rare exceptions that are inapplicable here, the modern version of the forum non conveniens doctrine applies "only in cases where the alternative forum is abroad." Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430 (2007) (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 449 n.2 (1994)).
But section 1404(a) is of no help to Cotterman either. The statute provides that a district court may transfer a suit to another district only if venue is proper in both districts and the transfer serves the convenience of the parties and witnesses as well as the interests of justice. 28 U.S.C. § 1404(a); Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) ("Section 1404(a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice."). Cotterman has not, and cannot, show that venue is proper in Oregon. See Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986) (stating that moving party bears the burden of establishing transfer).
The only plausible basis for venue in Oregon is that Cotterman currently is incarcerated there. (Def. Mot. ¶ 11, ECF No. 22.) While it is true that venue is proper in "a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located," 28 U.S.C. § 1391(b), Cotterman is not an Oregon resident. In the context of venue, a natural person is a resident of "the judicial district in which that person is domiciled." Id. § 1391(c). In turn, "establishing domicile in a particular state requires physical presence while intending to remain there." Sheneman v. Jones, 682 F. App'x 498, 499 (7th Cir. 2017) (citations omitted). Because domicile is a "voluntary status," however, "a forcible change in a person's state of residence does not alter his domicile; hence the domicile of [a] prisoner before he was imprisoned is presumed to remain his domicile while he is in prison." Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir. 1996) (quoting Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991)). Cotterman represents that he was domiciled in California before he was incarcerated. (Def. Mot. ¶¶ 9, 12(c), ECF No. 22.) And rather than rebut the presumption that he remains domiciled in California while in prison, Cotterman confirms as much. See id. ¶ 12(c) ("Defendant's domicile is Truckee, California where he resided for at least a score of years prior to 2007.") Accordingly, because Cotterman cannot show he is domiciled in Oregon, he cannot establish that venue is proper in the District of Oregon under section 1404(a). His request for a transfer is thus denied.
Having dispatched Cotterman's motion to dismiss, the Court turns to Doe's motion for collateral estoppel. Collateral estoppel, which is more commonly known now as issue preclusion, dictates that "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Carter v. C.I.R., 746 F.3d 318, 321 (7th Cir. 2014) (quoting Montano v. United States, 440 U.S. 147, 153 (1979)). By preventing parties "from contesting matters that they have had a full and fair opportunity to litigate," the doctrine "protects their adversaries from the expense and vexation attending multiple lawsuits, converses judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana, 440 U.S. at 153-54.
Doe seeks to preclude in this suit issues litigated in Cotterman's criminal case. Before the Court can analyze whether issue preclusion applies, it must first determine what body of law governs the doctrine's application. Doe believes that Illinois law dictates the preclusive effect of Cotterman's convictions, (Pl. Mem. 4, ECF No. 26 (citing Am. Family Mut. Ins. Co. v. Savickas, 193 Ill.2d 378, 388-89, 739 N.E.2d 445, 451 (2000)), while Cotterman relies on federal common law, (Def. Resp. to Mot. for Collateral Estoppel 4, ECF No. 29) (citing Shacket v. Philko Aviation, Inc., 590 F.Supp. 664, 667 (N.D. Ill. 1984)). Although neither party explains how they reached their respective conclusions, Cotterman is correct. The prior criminal proceeding was federal—Cotterman was convicted following a bench trial in the District of Arizona—so this Court must apply federal preclusion law. See Taylor v. Sturgell, 553 U.S. 880, 891 (2008) ("The preclusive effect of a federal-court judgment is determined by federal common law."); Scherer v. Balkema, 840 F.2d 437, 442-43 (7th Cir. 1988) (applying federal common law to determine preclusive effect of prior federal proceedings in federal question case); United States v. Saurez, No. 07-CV-6431, 2010 WL 3418281, at *3 (N.D. Ill. Aug. 27, 2010) (determining preclusive effect of prior criminal conviction in federal question suit under federal common law).
Under federal common law, issue preclusion applies when four requirements are met: (1) the issue sought to be precluded is the same as an issue in the prior litigation; (2) the issue was actually litigated in the prior litigation; (3) the determination of the issue was essential to the final judgment; and (4) the party against whom estoppel is invoked had a full and fair opportunity to litigate the issue in the prior litigation.
Doe believes that Cotterman's convictions establish his liability on both Count I and Count II. Count I is brought under a federal statute, 18 U.S.C. § 2255, commonly known as Masha's law, that affords a civil remedy for personal injuries caused by the sexual exploitation of children. In relevant part, the statute provides that a plaintiff may recover damages and reasonable attorney's fees if, "while a minor," she "was a victim of a violation of [18 U.S.C. §§ 2251 or 2252] and "suffer[ed] personal injury as a result of such violation[s]." 18 U.S.C. § 2255.
The Court agrees with Doe, but only half way. There is no question that Cotterman is precluded from relitigating his convictions. His violation of sections 2251 and 2252 was actually litigated in his criminal case and formed the basis of the judgement entered against him in the District of Arizona. (See Criminal Trial Minutes, United States v. Cotterman, No. 07-CR-1207-RCC-CRP (D. Ariz. June 10-11, 2014), ECF Nos. 126, 128; Amended Judgement in Criminal Case, United States v. Cotterman, No. 07-CR-1207-RCC-CRP (D. Ariz. Oct. 10, 2014), ECF No. 151.) Cotterman also had a full and fair opportunity to challenge those convictions; he not only appealed his judgment, Cotterman, 619 F. App'x at 655, but also vigorously challenged the admission of the pornographic materials that led to his conviction, Cotterman, 709 F.3d at 959.
Cotterman counters that his convictions are not subject to collateral estoppel for two reasons. He first argues that the convictions are not a final judgment, as required under the doctrine, because he has not yet exhausted his habeas remedies. (Def. Resp. 3, ECF No. 29.) But this argument falls flat. Cotterman's appeal, let alone his habeas petition, does not affect the finality of his criminal judgment for purposes of issue preclusion. See Bradley v. United States, 410 U.S. 605, 609 (1973) ("Final judgment in a criminal case means sentence. The sentence is the judgment.") (citation omitted); Ross ex rel. Ross v. Bd. of Educ. of Twp. High Sch. Dist. 211, 486 F.3d 279, 284 (7th Cir. 2007) (finding that "the fact that an appeal was lodged does not defeat the finality of the judgment" for purposes of preclusion) (citations omitted); Durham, 2017 WL 3581640, at *6-7 ("If a direct appeal is no bar to collateral estoppel, it logically follows that a § 2255 Motion is also not a bar to collateral estoppel."); Sec. and Exch. Comm'n v. Black, No. 04 C 7377, 2008 WL 4394891, at *1 n.1 (N.D. Ill. Sept. 24, 2008) ("Even if [the defendant] seeks certiorari and the Supreme Court grants it, the collateral estoppel effect of the criminal judgment is not affected by a pending appeal.") (citations omitted). Cotterman also contends that the doctrine is inapplicable because he did not testify at his criminal trial, (Def. Resp. 3, ECF No. 29), but this argument is no more convincing. What matters for purposes of collateral estoppel is that the non-moving party had the
Where the Court parts ways with Doe (at least for the time being), is her contention that the convictions conclusively show she was a victim of Cotterman's sexual exploitation. While the complaint alleges that Doe was a victim and was depicted in photos and videos found in Cotterman's possession when he was arrested, Doe offers no evidence, by way of an affidavit or otherwise, that she was featured in the pornography at issue in Cotterman's criminal trial. Rather, she directs the Court's attention to the Arizona district court's docket. While the Court may take notice of filings in that proceeding, see Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994) (permitting judicial notice of public court records in deciding Rule 12(b)(6) motions), the docket is unhelpful in resolving this issue. For starters, the names of the victims in the criminal docket are anonymized, as is Doe's name in this case, so the Court has no way to connect the two. Furthermore, the transcripts of Cotterman's bench trial are not publicly available and nothing in the pre-trial stipulations references Doe. (Agreements Between Gov't and Def., United States v. Cotterman, No. 07-CR-1207-RCC-CRP (D. Ariz. June 9, 2014), ECF No. 121.) The Court therefore has no basis to conclude, from the records publically available, that Doe was a "victim" under 18 U.S.C. § 2255. The Court will not preclude Doe from reasserting her issue preclusion argument by means of a summary judgment motion, but she will have to adduce evidence that shows that there is no material dispute of fact concerning her status as a victim of the conduct for which Cotterman was convicted.
Doe also seeks to preclude litigation of Cotterman's liability under Count II. This cause of action is brought under 18 U.S.C. § 2252A, which proscribes certain activities relating to child pornography. Akin to Masha's law, subsection (f) of the statute provides a civil remedy to "[a]ny person aggrieved by reason of the conduct prohibited under [18 U.S.C. § 2252A]," including damages and attorney's fees. 18 U.S.C. § 2252A(f). To begin with, Doe's preclusion claim as to Count II also fails because she has as yet made no evidentiary showing that she was a victim of Cotterman's conduct. But the application of collateral estoppel to this count faces another obstacle as well: Cotterman was not convicted under 2252A; there is no criminal conviction serving as evidence that Cotterman committed the conduct prohibited under that statute.
Doe seeks to overcome this hurdle by equating a conviction under section 2252 with a violation of 2252A. While there is significant overlap between the two provisions, see Christina M. Copsey, How Many Is "Any"?: Interpreting § 2252A's Unit of Prosecution for Child Pornography Possession, 62 Am. U. L. Rev. 1675, 1678 (2013) ("Section 2252A is almost a mirror image of an older statute that is still in effect and targets only actual [as opposed to virtual] child pornography: § 2252."), Doe makes no effort to show how Cotterman's convictions under 2252 line up with any of the myriad prohibitions in 2252A. By failing to do so, she has deprived Cotterman of the opportunity to contest whether there are any meaningful differences between the two. The Court declines to consider whether the provisions are equivalent for preclusion purposes until Doe identifies the relevant parts of 2252A and explains how they overlap with Cotterman's prior convictions. See Dal Pozzo v. Basic Mach. Co., Inc., 463 F.3d 609, 613 (7th Cir. 2006) ("An advocate's job is to make it easy for the court to rule in [her] client's favor [.]").
For the reason stated above, Cotterman's motion to dismiss is denied. The Court has personal jurisdiction over Cotterman on the basis of his suit-related conduct and there is no question that Doe's state law claims were timely filed. Cotterman's alternative request for a transfer to a district court in Oregon is also denied due to a lack of venue in that state. The Court grants in part and denies in part Doe's motion for collateral estoppel. Cotterman is precluded from relitigating whether he violated 18 U.S.C. §§ 2251 and 2252, which are predicate offense for purposes of Count I. However, Cotterman is not barred at this stage from litigating any other issues or statutory elements. To the extent that Doe's motion is denied, that denial is without prejudice. Doe may refile her motion for collateral estoppel at any time up to and including her deadline to file summary judgment, but should address the deficiencies discussed in this opinion if she elects to do so.
