Higbee v. Malleris

• Decision Date: 16 January 2007
• Docket Number: No. 06 C 928.,06 C 928.
• Parties: Rosemary HIGBEE, Plaintiff, v. Leonidas MALLERIS, Alice Malleris, and Malleris and Malleris, Ltd., a Professional Corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

470 F.Supp.2d 845

Rosemary HIGBEE, Plaintiff, v. Leonidas MALLERIS, Alice Malleris, and Malleris and Malleris, Ltd., a Professional Corporation, Defendants.

No. 06 C 928.

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

January 16, 2007.

Rosemary Higbee, pro se, Barrington, IL.

Leonidas Malleris, Malleris & Malleris, Ltd., Inverness, IL, for defendants.

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR REMAND TO STATE COURT

FILIP, District Judge.

Plaintiff, Rosemary Higbee ("Plaintiff' or "Higbee"), sued defendants, Leonidas Malleris, Alice Malleris, and Malleris & Malleris, Ltd. (collectively, "Defendants"), in the Circuit Court. of Cook County for attorney malpractice. Defendants filed a notice of removal, and Plaintiff moved for remand to state court. For the reasons stated below, Plaintiffs motion to remand (D.E. 15) is granted.

BACKGROUND

The professional malpractice action in this case stems from alleged inadequacies of the Defendants—a lawfirm located in Inverness, Illinois, and the two attorneys who seemingly comprise it—during portions of an underlying federal employment case that was litigated in the Northern District of Illinois. The Plaintiff in both actions was Rosemary Higbee of Barrington, Illinois, who proceeds in the instant case pro se.

The initial underlying employment suit was filed in federal court in 1997. See generally Higbee v. Sentry Ins. Co., 253 F.3d 994, 995 (7th Cir.2001) ("Higbee I"). In that suit, Higbee accused her former employer, Sentry Insurance Company (also "Sentry"), of sexual harassment, age discrimination (Higbee was sixty when the employment suit was first filed), and retaliatory discharge. Id. During the course of that litigation, Higbee went through a long list of attorneys. Id. at 1000. Higbee's first two attorneys each withdrew, and her third then moved before the district court to "withdraw his appearance on behalf of Higbee due to what he said were irreconcilable differences with her." Id. at 995-96.

On the day that motion was noticed, the district court held an impromptu settlement conference, at which at least the general contours of a settlement in principle were reached. Id. at 996. The district court dismissed the employment case with prejudice, and the district court also denied the motion of the third counsel to withdraw. Id.

The parties, as well as Ms. Higbee's then-counsel (who, as explained subsequently, was eventually succeeded by various other counsel, including eventually those who are now the Defendants in this malpractice action), thereafter engaged in various discussions about the settlement documentation. Id. The parties discussed, inter alia, the scope of the release, the provision to Higbee of a psychological report prepared by Sentry's expert, and the scope of a non-disparagement clause. Id. It appears as though Sentry orally agreed to all of the modifications proposed by Higbee and her counsel, and Sentry forwarded a signed copy of a revised settlement agreement to Higbee's then-counsel. Id. at 997. (Again, that counsel was different from the present Defendants; there was at least one intervening attorney representing Higbee in the underlying litigation before the eventual trial, the counsel in which trial Higbee has now sued for malpractice.) Higbee refused to sign the settlement agreement, averring that it was unacceptable. Id. At that point, Higbee's then-counsel resigned. Id.

Higbee obtained new counsel and filed a Rule 60(b) motion under Fed.R.Civ.P. 60. Id. The district court eventually held a hearing and denied the Rule 60(b) motion after making findings of fact and issuing conclusions of law. Id. The district court held that the material terms of the settlement were reached at the prior, judicial settlement conference. Id.

On appeal, the Seventh Circuit reversed. Id. at 1000. The Seventh Circuit found that at least some terms of the settlement were unresolved, and therefore no settlement had been reached. Id. at 998. The Seventh Circuit also found that, although Sentry's counsel had signed a seeming settlement agreement concerning the employment suit that incorporated the changes requested by Higbee's counsel, Higbee denied that her then-counsel had it was not clear that her counsel had authority to settle the suit. Id. at 999-1000. The Seventh Circuit reversed and remanded, with Circuit Rule 36 applying on remand. Id. at 1000. Judge Kennelly received the case after the remand. In the course of subsequent proceedings, he granted in part and denied in part a summary judgment motion of Sentry. See D.E. 92 in Case No. 97 C 1349. In the course of the ruling, Judge Kennelly denied summary judgment on the sexual harassment claim because Sentry's own employees testified that the putative sexual harasser had the authority to affect Higbee's work assignments (e.g., id. at 7; see also id. at 2, 3), and therefore the putative harasser could be found to possess the authority to directly affect the terms and conditions of Higbee's employment. Id. at 7 (citing Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir.2002)). The district court also made clear that the putative harasser adamantly denied that he had variously groped Ms. Higbee's breasts at various times in the two years prior to her termination, as she alleged. See D.E. 92 in Case No. 97 C 1349, at 2-3. Judge Kennelly also denied the motion for summary judgment on the Age Discrimination claim (id at 8), and he granted the motion for summary judgment on the retaliation claim (id. at 10).

The case eventually proceeded to a jury trial before Judge Kennelly. See generally Higbee v. Sentry Ins. Co., 440 F.3d 408 (7th Cir.2006) ("Higbee II"). At the conclusion of the trial, the "jury found for Sentry Insurance on Rosemary Higbee's claims of sexual harassment and age discrimination." Id. at 408.

On appeal, the Seventh Circuit affirmed the judgment below. Id. The basis of the appeal was Higbee's contention—assumed arguendo to be correct for purposes of the appeal—that Higbee would have "fared better" if the trial court had not given a jury instruction which reflected the Seventh Circuit's then (at the time of the trial) and current (at the time of this opinion) extant definition of a "supervisor" in the employment context. See id. (citing Rhodes v. Ill. Dept. of Transp., 359 F.3d 498, 506 (7th Cir.2004); Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir.2002); and Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1034 (7th Cir.1998)); accord Patton v. Keystone RV Co., 455 F.3d 812, 814 n. 2 (7th Cir.2006) (post-Higbee II opinion citing Rhodes, 359 F.3d at 506, and Parkins, 163 F.3d at 1034, regarding the applicable standard for "supervisor"). In Higbee II, a unanimous panel of the Seventh Circuit noted that while "there has been some dissatisfaction expressed with our definition of supervisor"—id., 440 F.3d at 409 (citing Rhodes, 359 F.3d at 510 (Rovner, J., concurring) (suggesting that a reexamination of the Seventh Circuit's articulated criteria for identifying supervisors might be appropriate))—Plaintiff had not objected to the giving of the extant Seventh Circuit law at trial, and there was no plain error in the giving of such an instruction. Id., 440 F.3d at 409-10.

It is arguably ambiguous in the Seventh Circuit opinion whether the panel again reaffirmed the standard Seventh Circuit law—in that, when conducting "plain error" review under Fed.R.Civ.P. 51(d)(2), the Higbee II court stated that, "[w]hat we have here is no error at all. The district court properly applied the law of the Seventh Circuit in instructing the jury, law which remains in force today." Id. at 409. However, a prior portion of the opinion stated that the panel need not resolve whether any retooling of the "supervisor" definition was necessary or appropriate., Id. at 409, and To avoid ambiguity, this Court will resolve this issue for present purposes in Ms. Higbee's favor (i.e., by assuming that the Seventh Circuit did not expressly and substantively reject her invitation to revisit Seventh Circuit precedent in this area). That assumption assists Higbee (in that, without it, her malpractice suit is a non-starter), but it does not affect this Court's assessment of the propriety of remand, for the reasons explained at length in the next section of this opinion.

In January 2006, Higbee filed suit against Leonidas Malleris, Alice Malleris, and Malleris & Malleris, Ltd., in the Circuit Court of Cook County. (D.E. 1, Ex. A.) (It appears that Higbee had at least five sets of attorneys in the underlying employment discrimination case; the Mallerise's and their firm were the last of this set in the district court, although different counsel subsequently represented Higbee in the Court of Appeals.) The suit is one for professional negligence under Illinois common law, there being no federal attorney malpractice statute or cause of action for malpractice provided in Title VII or the ADEA. (Id., Ex. A at 3 (Higbee alleging that, "[a]s a direct and proximate result of one or more of the negligent acts or omissions set forth above, and but for those acts or omissions, plaintiff would have prevailed in her [employment discrimination] action against Sentry"); see also, e.g., id. at 2 (Defendants stating that "this is a legal malpractice case").) The alleged "negligent acts or omissions" highlighted by Higbee included inadequate trial preparations (id., Ex. A at 2); "fail[ure] to introduce evidence which was readily available" and that would have supported Higbee's claim that the putative harasser was, as a matter of law, Higbee's supervisor (id., Ex. A at 3); and the, failure, to object to the giving of a jury instruction concerning the definition of "supervisor" that tracked extant Seventh. Circuit law. (Iid., Ex. A at 2-3.).

Defendants filed a notice of removal to this Court. (D.E. 1.) Defendants contend in the notice of removal that because "almost all of the issues in this case are...