Scott v. Bender

• Decision Date: 26 September 2012
• Docket Number: No. 12 C 2148.,12 C 2148.
• Citation: 893 F.Supp.2d 963
• Parties: James F.H. SCOTT, Plaintiff, v. Kelli D. BENDER, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

893 F.Supp.2d 963

James F.H. SCOTT, Plaintiff,

v.Kelli D. BENDER, et al., Defendants.

No. 12 C 2148.

United States District Court,

N.D. Illinois,

Eastern Division.

Sept. 26, 2012.

James F.H. Scott, Arlington, VA, pro se.

Matthew Paul Barrette, Ryan Arthur Mahoney, Sullivan Hincks & Conway, Oak Brook, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

James F.H. Scott brings this cause of action against Kelli D. Bender (“Defendant”) for malicious prosecution (Count I); false imprisonment (Count II); violation of 42 U.S.C. § 1983 (Count III); and breach of contract (Count IV). (R. 6, Amend. Compl.) Presently before the Court is Defendant's motion to dismiss Scott's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth herein, Defendant's motion to dismiss is granted, and Scott's complaint is dismissed.

RELEVANT FACTS

In deciding the instant motion, the Court assumes the veracity of the well-plead allegations in Scott's complaint and construes all reasonable inferences in his favor. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir.2007) (citing Savory v. Lyons, 469 F.3d 667, 670 (7th Cir.2006)). At all times relevant to Scott's complaint, Defendant was Scott's former wife. (R. 6, Amend Compl. ¶ 10.) In Summer 2007, Scott and Defendant entered into a Separation and Property Settlement Agreement (“Agreement”). ( Id. ¶ 11.) The Agreement provides, inter alia, “Anti–Harassment Provisions,” “Enforcement Provisions,” “Taxes Provisions,” “Antilitigation Provisions,” and a “Time Provision.” ( Id. ¶ 12.)

In November 2008, Scott engaged a mutually acceptable certified public accountant, Aiken & Company (“Aiken”), to prepare tax returns as contemplated in the “Tax Provisions” of the Agreement. ( Id. ¶ 13.) Scott immediately thereafter made efforts to communicate with Defendant's then-attorney, Tracy A. Meyer, regarding production of documents required for the returns. ( Id. ¶ 14.) Scott explicitly informed Meyer that Defendant had, at the time, produced no tax documents relating to tax year 2004. ( Id. ¶ 15.) Meyer and Defendant allegedly made communications tedious and exceedingly difficult, refusing at all times to engage in forms of instantaneous communication such as telephone conversations to discuss the coordination of production of tax documents. ( Id. ¶ 16.) Meyer provided numerous assurances that Defendant had provided all necessary tax documents to Aiken. ( Id. ¶ 17.)

On July 9, 2009, Scott visited the offices of Aiken to discuss the tax returns with Aiken's personnel. ( Id. ¶ 18.) Notwithstanding Meyer's assurances of production, it was evident that Defendant had still not provided documents relating to tax year 2004. ( Id. ¶ 19.) Later that day, Scott emailed Meyer, complaining that Defendant had still failed to produce documents relating to tax year 2004. ( Id. ¶ 20.) On July 10, 2009, Meyer responded: “Mr. Scott, I have made it clear to you since last year that I am not authorized by Kelli to communicate with you at all on this case any further. There is no need for you to continue emailing me.” ( Id. ¶ 21.) Because Scott received no further communications from Meyer, on July 16, 2009, Scott emailed Meyer in exasperation. ( Id. ¶ 22.) In his email, Scott complained that, among other things, Defendant had not provided Aiken with a W–2 Statement for 2004. ( Id.) On July 20, 2009, Meyer responded that according to Aiken, Defendant had furnished Aiken with everything they needed to prepare the joint returns, except for the 2004 W–2 Statement. ( Id. ¶ 23.) According to Meyer, Defendant arranged for her former employer to send a copy of her 2004 W–2 Statement directly to Aiken. ( Id.)

On December 14, 2009, Scott learned that Defendant still had not produced documents relating to tax year 2004. ( Id. ¶ 24.) Scott immediately emailed Meyer, complaining of her client's continued failure to produce such documents. ( Id. ¶ 25.) Meyer provided no response to Scott's December 14, 2009 email. ( Id. ¶ 26.) Scott emailed Meyer again on December 18, 2009, inquiring when the 2004 tax documents would be produced. ( Id. ¶ 27.) Scott still received no response. ( Id. ¶ 28.) It was evident to Scott that Defendant was allegedly constructively unrepresented with respect to the execution of the requirements of the Agreement. ( Id. ¶ 29.)

On December 20, 2009, Scott telephoned Defendant directly, leaving a voicemail message requesting that she contact him to discuss production of the 2004 tax documents. ( Id. ¶ 30.) At this time, thirteen months had elapsed since Scott first requested production of the 2004 tax documents. ( Id. ¶ 31.) During this thirteen month period, Defendant's and Meyer's limited discussions were largely confined to unfulfilled promises to produce. ( Id. ¶ 32.) Defendant has testified that the tone of Scott's voicemail message was “very calm.” ( Id. ¶ 33.) Defendant did not return the voicemail message as Scott requested. ( Id. ¶ 34.) Rather, Defendant called the Wheaton, Illinois police. ( Id. ¶ 35.) The Wheaton, Illinois Police Department prepared a recording of the voicemail message. ( Id. ¶ 36.)

On January 11, 2010, in cooperation with Assistant State's Attorney Frederick Flather and upon Flather's direction, Defendant filed a sworn verification of Flather's criminal complaint, initiating criminal “telephone harassment” proceedings against Scott based on the voicemail message. ( Id. ¶ 27.) Despite Scott's request, Flather refused to provide Scott with a copy of the voicemail message. ( Id. ¶ 38.) Scott has attempted to secure an electronic copy of the voicemail message, submitting Freedom of Information Act requests to the DuPage County State's Attorney's Office and the Wheaton, Illinois Police Department. ( Id. ¶ 39.) Each body has denied being in possession of the voicemail message. ( Id.) In subsequent proceedings, Defendant testified that the voicemail message was the first direct contact she had received from Scott since 2007. ( Id. ¶ 40.)

On January 28, 2010, with Flather's guidance, encouragement, assistance, and participation, and at Flather's request, Defendant petitioned the Circuit Court for DuPage County for an Order of Protection (“Petition”) against Scott. ( Id. ¶ 41.) The Petition was prepared on a preprinted form, and in the appropriate location, Defendant identified the incident which formed the basis of the Petition as: “James contacted me on my private cell phone and left me a message regarding taxes. I don't know how he got my phone number because I never gave it to him. I didn't call him back instead I contacted the local police department because James is not supposed to have any contact with me per our divorce decree. During our marriage, James was very controlling and I am afraid of him.” ( Id. ¶ 42.) The Petition allegedly served no other purpose than to vex and harass Scott. ( Id. ¶ 43.)

Both Flather and Defendant intended for the Arlington County, Virginia, Sheriff's Office to effect service of the Petition upon Scott at his home in Arlington. ( Id. ¶ 44.) Both Flather and Defendant were aware that the Arlington County Sheriff's Office would receive no compensation for its efforts to serve the petition. ( Id. ¶ 45.) Flather and Defendant availed themselves of the services of the Arlington County Sheriff's Office to effect service upon Scott in the Commonwealth of Virginia. ( Id. ¶ 46.) Indeed, Deputy Rodney Williams of the Arlington County Sheriff's Office attempted to effect service upon Scott. ( Id. ¶ 47.) Scott was, however, on extended business in Boston when Deputy Williams attempted to effect service, and on account of extraordinary contemporaneous snow conditions, Scott was only able to return to Arlington, Virginia on weekends, when the Arlington County Sheriff's Office could not effect service in person. ( Id. ¶ 48.)

On February 11, 2010, an ex parte hearing relating to the Petition nevertheless occurred. ( Id. ¶ 49.) Scott had not been served with the Petition and was not present at the February 11, 2010, hearing. ( Id. ¶ 50.) At the ex parte hearing the presiding judge characterized the Petition as being “extremely skimpy.” ( Id. ¶ 51). The judge stated, “[w]ell, the description of incidents indicates a phone call based on taxes. So I presume there is more to it and I'm going to allow you to file a supplemental description of incidents and we'll go from there.” ( Id. ¶ 52.) Later, Defendant testified about the circumstances surrounding the voicemail message. ( Id. ¶ 53.) During her testimony, Defendant made no allegations of the use of foul language, abusive tone, or threats in the voicemail message. ( Id. ¶ 54.) The judge denied the Petition without the benefit of Scott's presence, testimony, or examination of Defendant. ( Id. ¶ 55.) Upon the denial of the Petition for an Order of Protection, Flather and Defendant allegedly knew or reasonably should have known that the “telephone harassment” charges were completely unmeritorious. ( Id. ¶ 56.)

Despite the failure of the Petition for an Order of Protection, Defendant was undeterred, and the pursuit of the “telephone harassment” charges based on the same occurrence—a “very calm” voicemail message relating to a contractual duty Defendant had neglected for thirteen months—continued. ( Id. ¶ 61.) On March 22, 2010, Scott was arrested, taken into custody, handcuffed, searched numerous times, deprived of his belt and shoelaces, held in a cell with apparent criminals for several hours, fingerprinted three times, and forced to post $1,000.00 bond in DuPage County, Illinois. ( Id. ¶ 62.) The terms of bond releasing Scott from the DuPage County Jail required that Scott remain within the State of Illinois. ( Id. ¶ 63.) Scott and his dog live in the Commonwealth of Virginia. ( Id. ¶ 64.) On March 23, 2010, Scott filed a motion to modify the...