Alisa M. Levin & Levin Law, Ltd. v. Abramson, Case No. 18 C 1723

• Decision Date: 27 December 2018
• Docket Number: Case No. 18 C 1723
• Parties: ALISA M. LEVIN and LEVIN LAW, LTD., Plaintiffs, v. PAUL ABRAMSON, Defendant.
• Court: U.S. District Court — Northern District of Illinois

ALISA M. LEVIN and LEVIN LAW, LTD., Plaintiffs, v. PAUL ABRAMSON, Defendant.

Case No. 18 C 1723

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

December 27, 2018

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Alisa Levin and her law firm Levin Law, Ltd. (collectively Levin) have sued Paul Abramson for defamation.Abramson has moved to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief may be granted.For the reasons stated below, the Court denies Abramson's motion.

Facts

For purposes of the present motion, the Court takes the facts from the allegations in Levin's complaint.

Levin is a lawyer licensed in Illinois and based in Chicago.She concentrates her practice in commercial litigation and appellate work.Abramson resides in California.In October 2015, he contacted Levin seeking legal representation in a lawsuit pending in Illinois.He had another lawyer and was dissatisfied with her work, specifically in defending against a motion for summary judgment.Abramson hired Levin to do the necessary legal research and draft a brief that would be submitted under his existing lawyer's name with her consent.Levin quoted Abramson an hourly rate of $315—to which he agreed—and an initial retainer of $4,000 against which fees and expenses would be charged, to which Abramson also agreed.

In late October 2015, Levin sent Abramson, by e-mail, a fee agreement that stated he would pay Levin on an hourly basis for all services rendered; he would pay her an initial retainer of $4,000 against which fees and expenses would be charged; and once the retainer was exhausted, Levin would issue invoices and would charge his credit card for amounts due, or would request replenishment of the retainer.Abramson paid the retainer and provided Levin with credit card information and authorization to charge his card accordingly.

Levin immediately began work on Abramson's case, specifically getting up to speed and performing legal research.As of November 1, 2015, Levin alleges, Abramson was aware that about $2,000 remained of the initial retainer and that the bulk of the primary work for which he had hired Levin remained to be done.Levin says that in early November, Abramson expanded the scope of her work to include additional motions.Levin performed all of this work and submitted her work product to Abramson and the attorney of record for their review.Abramson approved all of it before it was filed and told Levin that an attorney friend of his in California had also reviewed and approved the work she had done.

Levin billed Abramson for a total of 37.5 hours of her time for November 2015, and as a result Abramson owed Levin $9,167 over and above the initial retainer.Levin alleges that she charged Abramson's credit card for this amount, as provided in the fee agreement.In early December 2015, however, Abramson terminated Levin's services,and she stopped working on the case.

Levin alleges that Abramson then "commenced a campaign against Levin . . . wherein he claimed erroneously that the firm's charges were fraudulent."Am. Compl. ¶ 47.He filed a complaint against her with the Chicago Bar Association(CBA) in December 2015.He then began calling Levin and hanging up on her, leaving "foul and obscene and upsetting voice-mail messages and telling others, including [the attorney representing him in the Illinois lawsuit], that he had been 'defrauded.'"Id.¶ 48.Levin responded to the complaint, and the CBA ultimately declined to take action.Abramson then contacted the Illinois Attorney Registration and Disciplinary Commission and submitted a complaint against Levin and began calling the ARDC's investigator on a weekly basis to disparage her.Levin hired counsel and prepared multiple responses that she submitted to the ARDC.In the spring of 2016, Levin alleges, Abramson disputed the credit card charge with his bank and claimed it was fraudulent.As a result, Levin's credit card issuer debited the disputed funds from her account.There ensued a dispute resolution process, which Levin says was resolved in her favor, resulting in her receipt of the funds.

Levin alleges that in October 2016, the ARDC required her to submit to a deposition regarding Abramson's complaint.The next month, the ARDC concluded its investigation without taking action and closed its file.In the spring of 2017, Levin alleges, Abramson began "billing" her for $4,000 and sending invoices periodically through PayPal.When Levin ignored these, Abramson hired collection agencies, including one called Receivables Management Services, to attempt to collect the false invoices.

On March 22, 2017, Levin alleges, Abramson posted a review of Levin on the Yelp website under Levin's account page that she alleges was "false and malicious."Id.¶ 62.Here is what the review says (Levin quotes it in her complaint):

Craig's list legal predator - not your legal advocate

Alissa Levin represents herself as a legal ghost writer expert on Craig's list.That should have been my first red flag.She is nothing more than a con artist who prays on people in legal trouble like yours truly.She was supposed to draft and file my motion for summary judgement as well as final reply brief for a budget of $4000.Instead she blew through the budget then quit when I refused to pay her supplemental bill of $9167 which she illegally charged to my credit card that later was recovered by my credit card company due to a fraudulent transaction.Her pleadings were also stricken by the court which made them worthless and she was not even aware of how to draft an affidavit that does not require a notarized signature.The ARDC later advised me never to hire an attorney off Craig's list and now I know why as those prowling it like Ms. Levin are only looking to take advantage of those already victimized by the legal system.You have been warned.

Id.¶ 63.Levin posted an online response stating that the review had been written by a disgruntled former client whose ARDC complaint had been closed without any action being taken.Abramson responded by again complaining to the ARDC, this time accusing Levin of posting prohibited material about the representation on the Internet.She again hired counsel and responded, and ultimately the ARDC again closed its file.

In July 2017, Levin alleges, Abramson made changes to his Yelp review and republished it, which had the effect of driving it to the top of the list of reviews on Yelp, so that anyone looking up Levin's firm on Yelp would see Abramson's review.He also continued to send invoices to Levin, demanding payment of $4,000.Finally, in November 2017, Abramson caused a complaint to be made against Levin via the Better Business Bureau, e-mailing Levin to advise her of this.

Levin asserts claims against Abramson for defamation per se and for false lightinvasion of privacy.As indicated earlier, Abramson has moved to dismiss for lack of subject matter jurisdiction, for lack of personal jurisdiction, and for failure to state a claim.

Discussion

The Court will begin with the question of whether Levin's complaint states a claim upon which relief may be granted, as the appropriate understanding of the complaint is relevant to whether the Court has subject matter jurisdiction over the case.

1.Rule 12(b)(6) motion

Abramson argues that the complaint is time-barred because Levin alleges she was first damaged in December 2015, when he filed the ARDC complaint, but she did not file suit until March 8, 2018, outside the one-year limitations period that governs defamation and invasion of privacy claims in Illinois.See735 ILCS 5/13-201.He also contends that any claim based on the ARDC complaint is barred by the immunity established by Illinois Supreme Court rule for persons making complaints to the ARDC.SeeIll.S. Ct. R. 775.He argues that his submission of his dispute to the CBA for fee dispute resolution is likewise privileged conduct for which he cannot be sued.And he contends that the Yelp complaint, specifically his use of the term "con artist," is non-actionable opinion.

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must state a claim to relief that is plausible on its face.Ashcroft v. Iqbal, 556 U.S. 662, 678(2009)."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."Sloan v. Am. Brain Tumor Ass'n, 901 F.3d 891,894(7th Cir.2018)(quotingIqbal, 556 U.S. at 678).

In response to Abramson's second and third arguments, Levin says that she is not alleging that the ARDC and CBA complaints constitute actionable defamation but instead includes these matters in her complaint to explain background and context.She says that she"base[s] the tort claims on the Yelp reviews."Pls.'Resp. to Def.'s Mot. to Dismissat 5;see alsoid. at 2("The Complaint does not detail the specific language of [Abramson's] communications to the ARDC and the CBA because those contacts are not the basis of the instant Complaint . . . .").Thus the Court need not address Abramson's immunity/privilege defenses regarding the ARDC and CBA complaints.

With regard to Abramson's limitations defense, because Levin is basing her claims on the Yelp reviews, which were first published on March 22, 2017, there is no question that the claims are timely and not barred by the statute of limitations.Illinois follows the so-called "single publication rule," under which the statute of limitations for defamation or any tort related to a single publication begins to run when the material is first published (and not anew when it is republished), but this applies only to copies of "any one presentation to an audience."See740 ILCS 165/1.Each new presentation of defamatory material to a different audience triggers...