Gross v. Chapman

• Citation: 475 F.Supp.3d 858
• Decision Date: 31 July 2020
• Docket Number: Case No. 19-cv-02743
• Parties: Aliza GROSS, Randy Gross and Beth Gross, Plaintiffs, v. Howard CHAPMAN, Adam Chapman, and Dale Chapman, Defendants.
• Court: U.S. District Court — Northern District of Illinois

475 F.Supp.3d 858

Aliza GROSS, Randy Gross and Beth Gross, Plaintiffs,

v.Howard CHAPMAN, Adam Chapman, and Dale Chapman, Defendants.

Case No. 19-cv-02743

United States District Court, N.D. Illinois, Eastern Division.

Signed July 31, 2020

Cary E. Donham, Lawrence Charles Rubin, Taft Stettinius & Hollister LLP, Chicago, IL, for Plaintiffs Randy Gross, Beth Gross.

Lawrence Charles Rubin, Taft Stettinius & Hollister LLP, Chicago, IL, for Plaintiff Aliza Gross.

Paula K. Jacobi, Brandon Bernard Bridges, Paul T. Olszowka, Barnes & Thornburg LLP, Chicago, IL, for Defendants Howard Chapman, Adam Chapman.

Paula K. Jacobi, Barnes & Thornburg LLP, Chicago, IL, for Defendant Dale Chapman.

MEMORANDUM OPINION AND ORDER

Martha M. Pacold, Judge

Plaintiffs Aliza Gross, Randy Gross, and Beth Gross brought this eight-count action against Defendants Howard Chapman, Adam Chapman, and Dale Chapman. The Chapmans now move to dismiss Counts 7 and 8 of the Grosses’ First Consolidated Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons below, the court grants in part and denies in part the motion [30].

Background

The court accepts as true the following well-pleaded allegations from the Grosses’ complaint and attached exhibit. All possible inferences are drawn in the Grosses’ favor. Tamayo v. Blagojevich , 526 F.3d 1074, 1081 (7th Cir. 2008).

Randy Gross and Beth Gross are the parents of Aliza Gross. (Dkt. 29 ¶ 7.) Howard Chapman and Dale Chapman are the parents of Adam Chapman. (Id. ¶¶ 8-9.)

In 2018, Aliza and Adam were engaged to be married, with the wedding set for October 2018, and lived together in a home owned by Adam.¹ (Id. ¶ 11.)

Adam installed a video surveillance system in the home, told Aliza that the system was for security and insurance purposes, and did not tell Aliza that he could remotely monitor and record audio conversations. (Id. ¶ 16.) Howard helped Adam install the audio recording device. (Id. ¶¶ 17-18.)

On the morning of June 27, 2018, Adam (who worked at Howard's company) was at work with Howard and Aliza was alone at home. (Id. ¶¶ 8, 22.) Adam called Aliza and informed her that his sister Ashley had requested that the wedding, which "[t]hroughout the planning stage ... was designed as an adult only formal event, ... be changed to showcase her [Ashley's] infant daughter," that otherwise Ashley would not attend, and that Aliza "needed to persuade her parents to meet Ashley's demands to avoid irreparable harm with her future in-laws." (Id. ¶¶ 21-23.)

After getting off the phone with Adam, Aliza called her parents, Randy and Beth. Aliza, who was still alone at home, used speakerphone. (Id. ¶ 24.) Aliza and her parents talked "freely and openly ... regarding the wedding" for about half an hour "and expressed their frustrations and disappointment with the hostile and divisive environment created by the threats and coercive behavior exhibited by Adam, his parents Howard and Dale and his sister Ashley." (Id. ¶ 27.)

Later that day, Adam told Aliza that "while at work he had turned on the remote access to the audio recording device and overheard the conversation between her and her parents," that he and Howard had listened to the recorded conversation, and that "after listening more than once he transcribed certain portions of the conversation." (Id. ¶ 31.) "Adam threatened to end the engagement if Aliza's parents did not apologize to his family. When Aliza was unwilling to do so, Adam insisted Aliza pack a bag and leave their home immediately," and Aliza drove to her parents’ house. (Id. )

That evening, Aliza, Randy, and Beth met face-to-face with Adam, Howard, and Dale. During the meeting, Howard admitted that the conversation had been recorded and confirmed that the Chapmans had all listened to it. Dale separately admitted she had listened to it. (Id. ¶¶ 32-33.) Howard and Dale also threatened to reveal the recordings to others. (Id. ¶¶ 34-36.)

Later that week, Aliza requested that Adam remove the recording device. (Id. ¶¶ 37-38.) Adam broke off the engagement with Aliza and insisted that she leave immediately. (Id. ¶ 39.) The wedding was canceled and the Grosses were unable to recover more than $100,000 in deposits. (Id. ¶ 41-42.)

Since then, the Chapmans have allegedly disseminated the recorded conversation to others; the Grosses also believe that the Chapmans made and listened to numerous recordings of Aliza's other conversations. (Id. ¶¶ 43-44, 46.)

On July 3, Adam posted a photo on Instagram with a caption that read "Celebrating independence #gangsallhere #thisishowwedoit #pregnantbitchesupinhere #congratspopos." (Id. ¶ 45.)

Since these events, Aliza has had trouble sleeping, lost her appetite, and lost her desire to speak with friends. She has also begun meeting with a therapist. Beth has been prescribed anti-anxiety medicine to treat her post-traumatic stress disorder

. (Id. ¶¶ 47-48.) Randy has been affected by his daughter's and wife's depression, anxiety, and mental anguish. (Id. ¶ 49.)

On April 23, 2019, Randy and Beth filed an eight-count complaint against Howard and Adam. Aliza subsequently filed a complaint against Adam, Howard, and Dale. The cases were consolidated, and Aliza, Randy and Beth have now filed this eight-count First Consolidated Amended Complaint against Adam, Howard, and Dale. (Dkt. 29.) Counts 1, 2, and 3 are claims under the Federal Wiretap Act, 18 U.S.C. § 2510 et seq. , and the remaining counts arise under state law. Accordingly, the court has federal question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a). The Chapmans now move to dismiss Counts 7 and 8, invasion of privacy and intentional infliction of emotional distress.

Discussion

"A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a 12(b)(6) motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has facial plausibility when the claimant "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When considering a motion to dismiss, the court will accept all well-pleaded factual allegations as true and view them in the light most favorable to the plaintiff. Lavalais v. Vill. of Melrose Park , 734 F.3d 629, 632 (7th Cir. 2013). On the other hand, "[t]he complaint must do more than recite the elements of a cause of action in a conclusory fashion." Roberts v. City of Chicago , 817 F.3d 561, 565 (7th Cir. 2016) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). The court applies these federal pleading requirements even where, as here, the claims arise "under state rather than federal law." Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc. , 536 F.3d 663, 670 (7th Cir. 2008) (citation and internal quotation marks omitted).

I. Invasion of Privacy (Count 7)

In Count 7, the Grosses assert a tort claim for intrusion upon seclusion, one of several privacy torts. The Illinois Supreme Court has expressly recognized this tort. Lawlor v. N. Am. Corp. of Illinois , 2012 IL 112530, ¶ 35, 368 Ill.Dec. 1, 983 N.E.2d 414, 425 ; see also McGreal v. AT & T Corp. , 892 F. Supp. 2d 996, 1014 (N.D. Ill. 2012) (noting that "all of the Illinois Appellate Courts have recognized such a tort" and citing cases). 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, 286 Ill.Dec. 320, 813 N.E.2d 1013, 1017 (2004). Focusing on the third element, the Chapmans argue that the Grosses have failed to allege facts that plausibly suggest the recording intruded on a private matter. "Without private facts, the other three elements of the tort need not be reached." Id. at 72, 286 Ill.Dec. 320, 813 N.E.2d 1013.

As the Chapmans point out, examples of inherently private facts include "a person's financial, medical, or sexual life, or a peculiarly private fact of an intimate[,] personal nature." Acosta v. Scott Labor LLC , 377 F. Supp. 2d 647, 650 (N.D. Ill. 2005) (quoting Green v. Chicago Tribune Co. , 286 Ill. App. 3d 1, 18, 675 N.E.2d 249, 260, 221 Ill.Dec. 342 (1996) (Cahill, J., dissenting)). The Chapmans argue that the Grosses have failed to allege that the recorded conversation included discussion of any of these types of inherently private facts. While the Grosses do not allege that their discussion fell into the categories listed by the court in Acosta , that "list is not exhaustive." Steinbach v. Vill. of Forest Park , No. 06-cv-04215, 2009 WL 2605283, at *4 (N.D. Ill. Aug. 25, 2009). In Steinbach , the court reasoned that the plaintiff's assertion at the pleading stage that "email communications from her constituents" were private was "not unreasonable," and explained that whether the emails were "actually private" was a question of fact that could not be resolved on a motion to dismiss. Id. (citation omitted).

The Grosses have asserted facts that reasonably support their claim that the discussion was private. They have alleged that they "freely and openly" discussed matters of family concern during their call with each other. Courts have frequently held that family matters are private. See Johnson v. K mart Corp. , 311 Ill. App. 3d 573, 579, 243 Ill.Dec. 591, 723 N.E.2d 1192, 1196 (2000) (denying summary judgment on an intrusion upon seclusion claim where a private investigator collected information on, among other things,...