Jane Doe v. Cotterman, 17 C 58

• Decision Date: 09 March 2018
• Docket Number: No. 17 C 58,17 C 58
• Parties: JANE DOE, Plaintiff, v. HOWARD WESLEY COTTERMAN, Defendant.
• Court: U.S. District Court — Northern District of Illinois

JANE DOE, Plaintiff, v. HOWARD WESLEY COTTERMAN, Defendant.

No. 17 C 58

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

March 9, 2018

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

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.

BACKGROUND

The allegations in this case are straightforward but disturbing.¹ When Doe was a child, Cotterman frequently traveled to Illinois to visit her and her family. (Compl. ¶ 9, ECF No. 1.) Often during his visits, Cotterman persuaded Doe's mother to let Doe stay with him overnight at a hotel in Schaumburg or the surrounding area. (Id. ¶ 10.) At those hotels, when Doe was between the ages of four and eight (that is, between 2000 and 2004), Cotterman sexually abused her. (Id. ¶ 11.) Cotterman also photographed and filmed that abuse; he took and kept hundreds of pictures and videos depicting his molestation of his granddaughter. (Id.) Cotterman's abuse of Doe took place in other locations across the United States as well, including in California, where Cotterman resided at the time, and Indiana. (Id. ¶¶ 8, 12.)

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.² Cotterman fled the country before he could be arrested but was later apprehended in Australia and extradited to the United States. (Id. ¶ 15.) He subsequently was prosecuted in the United States District Court for the District of Arizona. (Id. ¶ 13.) Following litigation of a motion to suppress that took several years to resolve, Cotterman went to trial in 2014. (Id. ¶¶ 16-17.) After a two-day bench trial, Cotterman was convicted of producing, transporting, and possessing child pornography in violation of 28 U.S.C. §§ 2251 and 2252. (Id. ¶ 18.) He was later sentenced to 35 years in prison and lifetime supervised release. (Id. ¶ 19.) The district court, however, did notinclude a restitution judgment for Doe or any of other victims of Cotterman's crimes. (Id. ¶ 20.) Cotterman appealed the judgment, but it was affirmed by the Ninth Circuit in November 2015. United States v. Cotterman, 619 F. App'x 654, 655 (9th Cir. 2015).

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.

DISCUSSION

I. Cotterman's Motion to Dismiss

A. 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) forlack 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).³ The Court also must resolve any factual disputes in the plaintiff's favor, N. Grain Mtkg., 743 F.3d at 491; though, in this case, the facts material to personal jurisdiction are not in dispute.

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).⁴ The Illinois long-arm statute"permits its courts to exercise personal jurisdiction up to the limits of the Due Process Clause of the Fourteenth Amendment." Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 697 (7th Cir. 2015) (citations omitted); 735 ILCS 5/2-209(c) ("A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States."). Thus, Doe need only demonstrate that exercising personal jurisdiction over Cotterman in Illinois comports with the Due Process Clause. Kipp, 783 F.3d at 697 ("The parties have not argued, nor does Illinois law indicate, that the state's constitutional standards would differ from federal law in this case."); uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 425 (7th Cir. 2010) ("Because Illinois permits personal jurisdiction if it would be authorized by either the Illinois Constitution or the United States Constitution, the state statutory and federal constitutional requirements merge.") (citations omitted). The Due Process Clause authorizes personal jurisdiction over an out-of-state defendant when the defendant has "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citations omitted). Minimum contacts exist where "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).

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);⁵ see also Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (The specific jurisdiction inquiry "focuses on 'the relationship among the defendant, the forum, and the litigation.'") (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)). "In other words, there must be 'an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.'" Bristol-Myers, 137 S. Ct. at 1780 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). At bottom then, specific personal jurisdiction is appropriate if "the defendant purposefully directs [his] activities at the forum state[,] the alleged injury arises out of those activities," Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Hous. Metroplex, P.A., 623 F.3d 440, 444 (7th Cir. 2010), and exercising personal jurisdiction "comports with traditional notions of fair play and substantial justice," N. Grain Mktg., 743 F.3d at 492 (citation omitted).

1. Minimum Contacts Analysis

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...