Levin v. Abramson
| Decision Date | 13 May 2020 |
| Docket Number | No. 18-cv-1723,18-cv-1723 |
| Parties | ALISA M. LEVIN and LEVIN LAW, LTD., Plaintiffs, v. PAUL ABRAMSON, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Hon. Martha M. Pacold
This case is about a review and a response on Yelp.com. Plaintiffs Alisa M. Levin and Levin Law, Ltd. (collectively, "Levin"), sued Paul Abramson for defamation and false light invasion of privacy, based on Abramson's Yelp review of Levin Law. Levin also wrote a Yelp response, so Abramson counterclaimed for defamation, legal malpractice, and breach of fiduciary duty. Currently before the court are Levin's motion to dismiss the counterclaim [48], Levin's motion to strike Abramson's affirmative defenses [49], Levin's motion for summary judgment [50], and Abramson's cross-motion for summary judgment [80]. For the following reasons, the court grants in part and denies in part the motion to dismiss, grants in part and denies in part the motion to strike, and denies the cross-motions for summary judgment.
On a motion to dismiss, a court looks to the well-pleaded facts in the complaint. Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). On a motion for summary judgment, the court draws from the parties' statements of material fact. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011) (citation omitted). The following background is derived from the parties' Statements of Undisputed Material Facts (Dkts. 51, 80 (Section IV), and 86) and the Counterclaim (Dkt. 45). As the court addresses each motion later in this opinion, it views the facts according to the relevant standard.1 The court also assumesfamiliarity with Judge Kennelly's Memorandum Opinion and Order in this case, which reviewed the allegations of Levin's complaint and denied Abramson's motion to dismiss Levin's complaint. See Levin v. Abramson, No. 18-cv-01723, 2018 WL 6812657, at *1-2 (N.D. Ill. Dec. 27, 2018).
Plaintiff Alisa Levin (collectively with her law firm Levin Law Ltd., "Levin") is an attorney licensed in Illinois. (Dkt. 51, PSOF ¶ 1.)2 Defendant Paul Abramson is a resident of California. (Id. ¶ 2.) In October 2015, Abramson hired Levin to assist a different attorney (whom Abramson had previously retained) with writing services in an Illinois lawsuit. (Id. ¶¶ 4, 7.) Abramson alleges that he hired Levin as a ghost writer, and her name was not to be included on any filings. (Dkt. 45 at 1.) Abramson paid Levin a $4,000 retainer and signed a written retainer agreement specifying that Levin would charge $315 an hour for her time. (Dkt. 51, PSOF ¶¶ 5, 8.) Among other things, the fee agreement specified: "If Client is on retainer, then in the event that Attorney requests replenishment of the Retainer, said funds must be deposited with Attorney within (21) days or unless an earlier deadline is provided by Attorney." (Dkt. 80-1 at 4.)
On December 2, Levin sent Abramson an invoice for 37.5 hours of her time, which resulted in fees $9,167 over and above the $4,000 retainer. Abramson responded the same day, disputing this amount. (Dkt. 80, DSOF ¶¶ 7-9.) Nonetheless, Levin charged Abramson's credit card $9,167 later that day. (Id. ¶ 10.) According to Levin, Abramson terminated Levin shortly after that by asking her to stop work in an email. (Dkt. 51, PSOF ¶ 10.)3
Abramson subsequently made complaints about this turn of events to the Chicago Bar Association and the ARDC. (Id. ¶ 20.) Levin represents that in spring 2017, the ARDC closed the investigation without taking any action. (Dkt. 50-1 at 4¶ 27.) As to the charge, Abramson initiated a chargeback dispute with his bank. (Id. ¶ 12.) The bank provisionally credited Abramson and debited the funds from Levin's account. (Id.) After an investigation, the funds were returned to Levin around June 2016. (Id. at 13.) In 2017, Abramson began invoicing Levin's firm, and had a collection agency make calls to Levin. (Id. ¶¶ 14-15.)
On March 22, 2017, Abramson, using the name "Van R.,"4 published the following review on Levin Law's Chicago Yelp profile:
(Id. ¶ 16; Dkt. 45 at 10.) Later that day, Levin posted the following Yelp response:
This review is by an ex-client Paul Abramson who is still complaining about having to pay my firm in 2015 after suing every lawyer he has ever had. Mr. Abramson had been sued by his father (after years of litigation between the family) and when after doing an extensive amount of work he refused to pay me, Mr. Abramson's credit card was charged with Mr. Abramson's permission for services rendered as our retainer agreement authorized me in writing to do. Mr. Abramson, in his vast displeasure at having to actually pay his attorney for working on his behalf has engaged in a campaign of falsehoods that have been addressed by the credit card company (deciding successfully for my business when it reviewed the vast evidence of against [sic] Mr. Abramson and reinstating the charge on Mr. Abramson's credit card), the court's and the Chicago Bar Association and Attorney Registration and Disciplinary Commission all in my firm's favor, all of whom have reviewed and decided thatMr. Abramson's defamatory statements and harassing allegations are worthless.
(Dkt. 45 at 10; Dkt. 80, DSOF ¶ 12.)5 On July 27, 2017, Abramson updated his original review by removing the first line, "Craig's list legal predator - not your legal advocate." (Dkt. 51, PSOF ¶ 17.) Abramson also published a similar review on Google, and made a complaint to the Better Business Bureau. (Id. ¶¶ 18-19.)
Abramson alleges that contrary to the claim in Levin's Yelp response that he has sued "every lawyer he has ever had," he has "only sued attorney Barry Feinberg and Steven Marderosian." (Dkt. 45 at 3 ¶ 10(a).) Abramson supports this allegation with a letter from attorney Andrew Dunk, one of Abramson's lawyers whom Abramson has not sued. (Id.; Dkt. 45 at 13.) Abramson further alleges that there was no written signed retainer agreement and Abramson did not authorize Levin to charge his credit card. (Id. at 3 ¶ 10(b).) Abramson also alleges that his credit card company in fact ruled in his favor and never reinstated the charges. (Id. at 3 ¶ 10(c).) Finally, he alleges that neither a court nor the CBA nor the ARDC has found in Levin's favor or exonerated her in any way. (Id. at 3-4 ¶ 10(d).)
In March 2018, Levin brought this suit against Abramson. Abramson moved to dismiss; Judge Kennelly denied that motion. See Levin, 2018 WL 6812657, at *1. Abramson subsequently brought a counterclaim against Levin. (Dkt. 45.) Levin moved to dismiss the counterclaim (Dkt. 48), to strike Abramson's affirmative defenses (Dkt. 49), and for summary judgment on her claims (Dkt. 50). Abramson then filed a cross motion for summary judgment on Levin's claims. (Dkt. 80.) In August 2019, the case was reassigned to this judge.
The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). Plaintiffs allege that they are citizens of Illinois and defendant is a citizen of California. (Dkt. 6 ¶ 6.) Judge Kennelly explained before that "the Court cannot say, at least at this juncture, that it appears 'to a legal certainty' that the recoverable damages on Levin's two claims—including punitive damages, which are recoverable on claims of this type, see, e.g., Neuros Co. v KTurbo, Inc., 698 F.3d 514, 519 (7th Cir. 2012)—will not exceed the $75,000 jurisdictional minimum." Levin, 2018 WL 6812657, at *4. The filings now before the court offer no reason for a different conclusion.
Levin moves to dismiss Abramson's counterclaim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The court first addresses whether Abramson's claims are time-barred, and then turns to whether Abramson has stated claims.
Levin argues that all three claims that Abramson asserts in his counterclaim—defamation, legal malpractice, and breach of fiduciary duty—are time-barred. Levin purports to advance this argument pursuant to Rule 12(b)(1). Rule 12(b)(1) allows a party to assert by motion the defense of "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). A statute of limitations does not affect this court's jurisdiction. Leavell v. Kieffer, 189 F.3d 492, 494 (7th Cir. 1999). Since a statute of limitations defense is an affirmative defense, this argument should be analyzed as a motion for judgment on the pleadings under Rule 12(c). Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (citing Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)). "The same standard applies to both motions to dismiss and motions for judgment on the pleadings." Williams v. East-West Univ., No. 17-cv-07092, 2018 WL 4591863, at *1 (N.D. Ill. Sept. 25, 2018). On a Rule 12(b)(6) motion to dismiss a counterclaim, the court "accept[s] all well-pleaded allegations in the counterclaim as true and draw[s]...
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