Osler Inst., Inc. v. Miller

• Decision Date: 09 January 2015
• Docket Number: No. 1–13–3899.,1–13–3899.
• Citation: 24 N.E.3d 1272
• Parties: OSLER INSTITUTE, INC., Plaintiff–Appellant, v. Richard C. MILLER, Defendant–Appellee (Constance Stanley, Deborah McIntosh, Thomas Jeffers, and Nighthawk Medical Educators, Ltd., Defendants).
• Court: United States Appellate Court of Illinois

24 N.E.3d 1272

OSLER INSTITUTE, INC., Plaintiff–Appellant

v.Richard C. MILLER, Defendant–Appellee (Constance Stanley, Deborah McIntosh, Thomas Jeffers, and Nighthawk Medical Educators, Ltd., Defendants).

No. 1–13–3899.

Appellate Court of Illinois, First District, Fifth Division.

Jan. 9, 2015.

Steven L. Blakely and Nicolas J. Boileu, both of Acton & Snyder, LLP, of Danville, and James G. Bonebrake, of Friedman & Bonebrake, P.C., of Chicago, for appellant.

Troy S. Radunsky and Jason E. DeVore, both of DeVore Radunsky LLC, of Chicago, for appellee.

OPINION

Justice McBRIDE

delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Osler Institute, Inc., appeals from the circuit court's granting of defendant Richard Miller's motion to dismiss Osler's complaint pursuant to section 2–619(a)(9) of the Code of Civil Procedure

(Code) (735 ILCS 5/2–619(a)(9) (West 2012)) and the circuit court's denial of Osler's motion to strike an affidavit. On appeal, Osler argues that: (1) the circuit court erred by granting Miller's section 2–619(a)(9) motion to dismiss on the basis of laches; and (2) the circuit court erred by denying Osler's motion to strike Miller's affidavit in support of his section 2619(a)(9) motion to dismiss. We affirm.

¶ 2 In July 2005, Osler filed suit in Cook County against: defendant Richard Miller; Constance Stanley, Deborah McIntosh, and Thomas Jeffers, who are not parties to this appeal; and Nighthawk Medical Educators, Ltd., which is not a party to this appeal, in case No. 05 CH 11260 (2005 action). According to the complaint, Osler is a “non-profit corporation engaged in medical education” with a principal place of business in Terre Haute, Indiana. It offers “specialty review courses to help physicians * * * prepare for their board exams.” Osler alleged that, in April 2005, Miller and Jeffers incorporated Nighthawk and then, along with Stanley and McIntosh, did business as principals of Nighthawk while still employed by Osler using Osler's resources to do so. As a result, Osler alleged causes of actions including a breach of fiduciary duty and duty of loyalty, misappropriation of trade secrets, breach of contract, tortious interference with Osler's business relations and prospective economic advantage, tortious interference with Osler's contractual relations, tortious interference with fiduciary duty and duty of loyalty, and civil conspiracy.

¶ 3 On September 14, 2005, the circuit court entered a consent decree between Osler and Miller, Stanley, McIntosh, and Nighthawk. The consent decree barred Miller, Stanley, McIntosh, and Nighthawk from: competing with Osler; soliciting, contacting, or contracting with any employee of Osler; and acquiring, utilizing or disclosing, directly or indirectly, Osler's trade secrets or confidential information obtained while Miller, Stanley, and McIntosh were employed by Osler. The consent decree also provided:

“1. The Court has jurisdiction over the subject matter herein and has personal jurisdiction over all parties to this action pursuant to 765 ILCS § 1065/1 et seq.

and 735 ILCS § 5/2–209(a)(1), (a)(2), (a)(7), (a)(11) and/or (b).

2. Venue is proper in this Circuit pursuant to 735 ILCS § 5/2–101

.

3. The term of this Consent Decree is 36 months from the date of entry.

4. The geographic scope of this Consent Decree is the United States of America.

* * *

16. This Court retains jurisdiction of this action for the purpose of enforcing or modifying this Consent Decree and for the purpose of granting such additional relief as may be necessary or appropriate.”

¶ 4 On May 8, 2006, Osler gave notice that it would present a verified petition for rule to show cause before the circuit court. The attached petition alleged that Miller had violated the consent decree by serving as a faculty member for one of Osler's competitors, MD Exam Prep, and by unlawfully disclosing Osler's confidential information and proprietary trade secrets to MD Exam Prep. Specifically, Osler alleged that MD Exam Prep was offering the same course as Osler, “Radiation Oncology,” in the same city as Osler, Louisville, Kentucky, with the same faculty as Osler, on almost exactly the same days as Osler.

¶ 5 On May 26, 2006, Osler filed a fee petition based on the violation alleged in its verified petition for rule to show cause. The fee petition alleged that Osler learned of Miller's violation of the consent decree the week of May 1, 2006. The fee petition also totaled the attorney fees and costs incurred as a result of the violation. The petition stated that, “[c]onsistent with the Consent Decree, Osler reserves the right to seek additional attorneys' fees and other expenses and costs incurred in connection with enforcing the degree for its remaining term, or until September 14, 2008.”

¶ 6 In August 2006, the circuit court entered an order that Miller was to pay Osler a total of $13,379.35, the final payment being due on September 21, 2006. The order also stated that the court retained jurisdiction to enforce the terms of the 2005 consent decree.

¶ 7 On September 26, 2008, 12 days after the 2005 consent decree expired, Osler filed suit against Miller, Stanley, McIntosh, and 18 other defendants in the Vigo County superior court in the state of Indiana (Indiana action). The complaint alleged that, two years prior on September 27, 2006, Osler learned that defendants, including Miller, were sending out stolen copies of Osler lecture notes, PowerPoint files, and “other valuable and confidential files” using various business names in order to compete with Osler. Specifically, Osler alleged defendants had violated the consent decree in March and April 2006 in Toronto, Ontario, Canada, and in June 2006 in Louisville, Kentucky.

¶ 8 In November 2009, the Vigo County superior court granted Miller's motion to dismiss the Indiana action, finding that the court lacked subject matter jurisdiction pursuant to the consent decree and also based on the doctrine of comity. See Osler Institute, Inc. v. Miller, No. 84A051003–PL–237, slip op. at 5, 2010 WL 3799508 (Ind.Ct.App. Sept. 30, 2010)

; see also Hermesdorf v. Wu, 372 Ill.App.3d 842, 850, 310 Ill.Dec. 721, 867 N.E.2d 34 (2007) (a reviewing court may take judicial notice of a written decision that is part of the record in another court).

¶ 9 The court of appeals of Indiana affirmed the dismissal of the Indiana action, but disagreed with the superior court's conclusion that the action was barred by a lack of subject matter jurisdiction or comity considerations. Miller, No. 84A05–1003–PL–237, slip op. at 5. The court first noted:

“In the instant case, there is no dispute that the Illinois court had jurisdiction over the prior action and rendered a final judgment on the merits of that action. There is also no dispute that Osler and Miller were parties to the Illinois action and are parties in the case herein. Consequently, claim preclusion bars Osler's Indiana action against Miller.” Id. at 6.

The court of appeals went on to affirm the dismissal based on res judicata, finding that Osler could have brought its claims in the 2005 action that had been filed in the circuit court of Cook County. Id. at 6–7. The court observed:

“[A]ccording to Osler's Indiana pleading, ‘[o]n September 27, 2006, [Osler] first learned of the theft, conversion, and unauthorized use of its power [-]point presentations, lecture DVD[s], and lecture notes for medical board review courses by the defendants....' [Citation.] And September 27, 2006, was just over a year after the Illinois court entered the Consent Decree, and about two years before the Illinois court's stated jurisdiction over the decree was set to expire. * * *

Having been aware of the newly alleged conversion almost two full years before the expiration of the Illinois court's jurisdiction to enforce the Consent Decree, Osler could well have raised its Indiana claims in the Illinois action. Osler's newly discovered information was within the subject matter of the Consent Decree, which was based, among other things, on Osler's original allegations that Miller had misappropriated Osler's trade secrets. Further, the Illinois court expressly retained jurisdiction over the parties to that action ‘for the purpose of enforcing or modifying this Consent Decree and for the purpose of granting such additional relief as may be necessary or appropriate.’ [Citation].” Miller, No. 84A05–1003–PL–237, slip op. at 6–7.

¶ 10 In September 2011, Osler filed a complaint in case No. 11 CH 33466 (2011 action).

¶ 11 In November 2011, Osler filed the supplemental complaint to the 2005 action at issue in the present case, identical in substance to the complaint filed in the 2011 action. In it, Osler alleged: while still employed by Osler in 2006, defendants continued to operate continuing medical education businesses under various names including The Canadian Institute for C.M.E. and MD Exam Prep in the state of Indiana; prior to the defendants' cessation of employment with Osler, they removed power point presentations, lecture DVDs, and lecture notes for medical board review courses from Osler and converted the property for their own use; Osler's property was taken without the knowledge or permission of Osler; Osler's property was used by Nighthawk, The Canadian Institute for C.M.E., and MD Exam Prep without Osler's permission; and Osler learned of the theft, conversion, and unauthorized use of its property on September 27, 2006. Both complaints alleged the same causes of action, including theft, conversion, the unauthorized use of Osler's property, and violation of the consent decree. Ultimately, Osler requested the value of the converted property and the profits realized by defendants in using the converted property as damages.

¶ 12 In April 2012, Miller filed a motion to dismiss Osler's complaint in the 2011 action, alleging that the complaint was duplicative and contained various other deficiencies.

¶ 13 In September 2012, after a hearing, the circuit court granted Miller's ...