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"Mammaw Needs A Home of Her Own!"
My name is Lottie and let's just be honest...I'm not a spring chicken! Some people might think that makes me less likely to find a family of my own, but if you'll give me a minute of your time, I'll change your mind with 10 reasons why you should adopt me.
Because I'm a "custom order", you know just what you're getting...I won't grow bigger and I've had time to develop my sparkling personality! Because I'm a mature girl, I won't chew your shoes or furniture. Because I like to play in short intervals, I won't wear out your arm with endless games of fetch. Because I'm neat, I know that outside is where "business" is done. Because I like all kinds of people (even well-behaved children), other dogs, and even cats, I can fit in anywhere and will ease into the family gently! Because I don't have "puppy brains", I can focus and I'm attentive when learning. Because I don't make a lot of demands on you, you'll still have time for yourself. Because I'm accustomed to people's schedules, I'll let you get a good night's sleep and won't make you get up at 1 AM for bathroom breaks or feeding. Because I've learned what's truly important in life, I'll be your loyal companion. And perhaps most importantly, because I know how lonely it is to feel unloved, I'll shower you with affection and appreciation for the wonderful life I'll have with you! Still think my age is a drawback? Think again! I've kept my girlish figure and I'm healthy. And all that "frosting" on my face? Well, it just reflects the wisdom I've gained. Older dogs are awesome, and if you give me a chance, I just know you'll fall in love with me!
Ms. Lottie is in a foster home in Elizabeth City, NC. Her approximate birthday is February 14, 2005 and she weighs 55 pounds. Lottie is house trained, crate trained, and is good on a leash. She is up to date on all her veterinary care and is spayed and microchipped. Lottie has "dry eye" for which she uses inexpensive eye drops. She is a beautiful girl with a great big heart and is ready to make your life complete!
**Sea Dog Rescue is a foster home based rescue - we do not have a shelter or kennel facility nor do we have regular hours when our companions can be seen. For the safety of our foster caregivers and our dogs, applications must be submitted and references checked prior to setting an appointment for a Meet and Greet with our dogs in our foster homes.**
All of our dogs have some potty training under their belly, however, dogs less than 8 months of age are not considered reliably potty trained. Most of our dogs less than 6 months of age are not yet spayed or neutered but this will be done by the rescue when they are 6 months old and is included in the adoption fee; these dogs enter homes as "Foster to Adopt" and ownership transfer will not occur until after surgical sterilization is completed. All of our dogs are up to date on vaccinations, including rabies if they are old enough. Microchipping is included in the adoption fee.
Adoption fee covers vetting received while in the rescue:
All age appropriate Vaccinations, including rabies (if old enough) Deworming Monthly flea/tick treatment and heartworm prevention Spay or neuter surgery Pre-surgical blood work Post-surgical pain management Microchip Sea Dog Rescue may be able to arrange free, safe transport for our Sea Dogs to their new homes FOSTERS NEEDED! Sea Dog Rescue is looking for Foster Caregivers who will temporarily give a home and lots of love to our companions while they await their forever home! Please contact us for more information on how you can be a part of saving lives; email email@example.com


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KaneGlenn Jacobs
- Birthdate: 04/26/1967 (age 49)
- Height: 7'0"
- Weight: 323 Ib
Jacobs began his professional wrestling career ...
-- Despite previous reports, former WWE/TNA star Low Ki (aka Senshi) will not be retiring from active in-ring competition. Low Ki is scheduled to compete for the Right Coast Pro Wrestling independent wrestling show on Saturday, June 13th in Newark, Delaware.
-- TMZ has pictures of Kane hanging out with actor Vince Vaughn at a BBQ in Texas over the weekend. The BBQ was an event for supporters of Ron Paul; Kane and Vaughn are both known and outspoken Libertarian who supported Paul's two presidential runs.
The pics, which include Kane shaking hands with Congressman Paul, can be seen here.

subset: commoncrawl


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The feminine name Mage is used in Greek. . Mage is not very commonly used baby name for girl. It is not ranked with in the top 1000 names.
Mage Mina, Mage Field, Mage Ioannou, Mage Konstantinidis, Mage Maria
We welcome your suggestions on What Does Name Mage Mean. Suggest Meaning of Name Mage.
If you know people with name Mage or have name Mage, please write down your opinion about "What is the meaning of my name Mage".
Name Of The Day
List of Greek baby names, Greek babies names, Greek baby names and meanings has been compiled from various resources. Please use this up to date list of Greek name as a reference to name your kid/child. This vast database of Greek names has been compiled from various references and suggestions provided by our web site users and resources partners. This information is developed to primarily serve as a reference. We are unable to respond on request for personalized assistance at the moment. Thank you for your support. Largest list of Greek baby names with meanings, numerology, popularity and comments.


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Since 1987, Pacific Hospitality Group has maintained a strategic vision and strong core values as guiding principles for business success. With luxury hotel properties from Napa Valley to Southern California, PHG's growing portfolio of hotel and resort investments reinforces the company's cohesive vision and ensuing success.
PHG manages, develops, finances, and owns hotels and resorts located in California, Hawaii, Arizona and Louisiana. We currently own and manage 11 hotels and resorts, representing over 2,676 rooms and 203,650 square feet of premier indoor meeting and event space.
Looking for friendly, detail oriented individuals to work as a team. Various shifts available AM 7:30am-4pm or PM 3pm-11:30pm. Clean and maintain guest rooms.
Balboa Bay Resort is an equal opportunity and E-verify employer.


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Tony Park has set himself the mammoth task of re-creating a quite different world, also going from bad times to worse, in African Dawn, a sprawling family history of Rhodesia-Zimbabwe from the 1950s to the present day. We start with the 1959 protests about bus fares that highlighted the plight of unempowered native Africans in their own country and continue through to the brutal expulsions of white farmers from what they, in turn, considered their ancestral lands in recent years.
There are a few stereotypes in the wronged black child who goes on to become a corrupt evil warlord and


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Cockpit speakers & forward cockpit bulkhead rehab.
I took Swedish Fish to the yard in May 2016 to accomplish several important tasks:
- new bottom paint
- remove slack from centerboard cable
- installed through-hull fitting and seacock for a future central air conditioning system
- replaced external strainer on engine raw water intake
- out-of-water marine survey, so that I could buy full insurance for the boat
I got delayed by the Memorial Day holiday, and a bout of bad weather. But while I was prohibited from work on the bottom waiting for these delays, I decided to use the down time to start doing some work on the cockpit, specifically, removing the antique instrumentation and beginning the process of filling the unused holes left behind, and installing the panel for the engine gauges and the new stereo speakers. A speaker would fill one of the holes, and the gauge box would swallow up two more. But I had to cut one new hole, so I was able to use the plug from that new cut to fill the remaining empty hole. I didn't finish this job until a couple weeks after I got back in the water. I am very happy with the results. It's just another example of how fluidly and beautifully a good ol' boat like Swedish Fish can be brought fully into the 21st century.
Companionway Doors
Companionway doors. I have been wanting to get this project done almost since the day I bought this boat, but there was always something else more pressing – until now. Hallelujah!
I did about 90% of this work myself. The Grill Man cut out the stainless steel blanks for the door frames, but I ground down all the sharp edges and corners, drilled them, tapped them, and most significantly, I polished them from dull metal all the way up to the mirror finish you see on them here. Polishing alone was about a day's work. If you really want to know how that's done, email me and I'll share (or check YouTube).
And my expert carpenter friend Russ Hirshman did the initial cutting of the doors. But I had to actually make them fit and work myself. The corners were chamfered way off, everything was sanded, checked for fit, and the process was repeated about four times before they started to come into shape. And I had to fabricate HDPE shims to make the doors line up properly with the hinges on the frames. I applied polyester resin to the finished doors, then three coats everywhere of Benjamin Moore Super Spec HP Urethane Alkyd Gloss Enamel in the same color as the rest of the boat exterior (AF-25, "Paper Mache").
What an improvement! Not only aesthetically, but just on a practical, day-to-day basis, it's like night and day. I'm so grateful to finally have these.
New Upholstery
Updated the groovy harvest gold 1970s salon and aft cabin upholstery with a 2016 alternative. After the face fabric was selected, many choices remained. The first criteria for fabric selection was NO COTTON. Cotton certainly has it's place, especially ashore, but on a boat it's just something waiting to rot, or it's already rotting. So the new face fabric is 100% polyester. The backs of the vertical seat cushions are a heavy nylon canvas. The fabric chosen for the seat tops is actually taken from a polyester sofa cover. And the bottom of the seat cushions is an open polyester-plastic-coated mesh, to allow those cushions to breathe and not retain moisture, which if allowed, would precipitate mold growth.
Hey, personal tastes are like bellybuttons: everybody has one. So don't judge me! But I hope you'll agree that the new upholstery is a big improvement over what we had. :-)
New Salon Deck
After years of neglect, the original salon deck, like so many other components of the boat, was toast. This month replacing it finally came to the top of the priority list. After seeing the prices of new 3/4″ teak & holly veneered marine plywood, I paused. But what really convinced me to use something else was the fact that veneers today ain't what they used to be. They are paper-thin, and I need something that's TOUGH. Besides, I also need something that's not as slippery as ice.
I consider this a real-life, practical live-aboard boat, not a cream puff that will be crushed under the rigors of cruising life. So I opted for marine plywood, which I would paint (it isn't pretty enough for varnish). Marine plywood (3/4″) ain't exactly cheap either, at $90/sheet, and this job would require two of them. Yeah, regular plywood probably would have worked just as well, but after living with the horrors of the original delaminated decking for the past two years, I wanted to know that the new deck was not going to delaminate again – ever.
The original decking was in two pieces, and Irwin must have put it in before they put the deck on the boat, because it was impossible to get the larger of the two to fit through the companionway door. Which meant that I first had to bifurcate it, in situ. I took all the pieces to my workshop and used them as templates for cutting the marine plywood into the new decking. All of the perimeter of the deck is undercut at a 45 degree angle, making this a rather complicated task of carpentry. Not having a carpenter available to help mandated that I do the work anyway, and simply do my best not to screw it up.
It worked! After all the cuts were made I sealed every side of the wood with Thompson's, paying special attention to the edges. After that dried, I applied three coats of Benjamin Moore Super Spec HP Urethane Alkyd Gloss Enamel in the same off-white color that the rest of the boat is painted. This was applied to the entire top, and every edge. Edges received additional coats until every spot stopped absorbing paint. After that dried, I masked the top with pin stripes, and applied two more coats of the same paint, but this time in a cocoa brown color, and with the final coat containing a non-skid additive. The end result is a faux teak & holly look, only it's much tougher, and can easily be spot-fixed as needed in the future.
Sail Pack
I really didn't see how not having a sail pack was a reasonable way to cruise a boat. Every time you lower the main, the sail is all over the cockpit, including all over the helmsman. Then it takes two people to wrestle it back atop the boom, flake it, and lash it down. But the work's not over! Now you have to sort out the sail cover and put it on. This tedious ritual is repeated every time you douse the main. That's unacceptable when there are better alternatives.
For me, the answer is a sail pack, aka "Mack Pack," aka "stack pack," aka "snack pack." No, I made up that last one.🙂
Anyway I had one made (from the Sailrite kit) and it's everything I expected – a world of improvement. Thanks so much to Helena for sewing it. Now the sail just drops into it's "taco," we pull the zipper, and viola! Done, and you're ready to think about something else. The work in putting away the main is slashed to a fraction of what it formerly was. Yay!
Hatches Rebuilt
Every yacht builder does things their own way. Some of these are ingenious. Some are shortcuts that are incredibly dumb, and sometimes worse. Sometimes the innovations are a little quirky. Irwin Yachts was no exception. When other builders were putting off-the-shelf OEM hatches on their boats, Irwin decided to build their own, probably because they could do it much cheaper, and translate the savings into lower sticker prices on the boats themselves.
Irwin factory hatches have teak frames, and 3/8″ thick smoked plexiglass tops. At first I didn't like them, and thought Irwin should have put the "plain vanilla" Bowmar or Lewmar hatches on their boats like every other manufacturer did. But after some years I came to love the Irwin hatches, because they built each one by hand, they looked old-school, and kinda salty. It was like something your dad built by hand. You just love it because of that individual craftsmanship character, even if it isn't "the best" in every way.
But the old hatches were emblematic of the neglect that the boat as a whole had suffered over the years. The teak frames were gray and ridged, half of them leaked, and the plexiglas tops were scratched, cracked, and generally kaput. In the winters I heavily insulated them to keep heat in the boat, and the summers they were always covered in some way to keep radiant solar heat out of the boat. So with them always being covered, why did I need plexiglas? Besides, plexiglass isn't very strong, and it's slippery as anything; you should never think about standing on it. Therefore I decided that opaque fiberglass tops would be a great replacement for the plexiglas. They could be painted the same color as the boat, and non-skid could be included. Again I turned to Tyndall Marine in Bridgeton NC for the solution. Keith Tyndall custom built new 3/8″ fiberglass tops for each of my hatches, including the companionway sliding hatch. They were all made to match the color of the boat, with the non-skid built in.
On the inside I also replaced the latch mechanisms (aka "dogs") that the factory had used. Instead I installed two stainless butterfly latches on each hatch. These are inexpensive, easy-to-find, easy-to-use, strong, and virtually indestructible – everything you would want a hatch dog to be.
After I refinished and varnished all the frames, I reassembled all the hatches with the new fiberglass tops. I also upgraded the crusty old aluminum hinges to polished stainless steel hardware from Sea Dog. The hatches are bombproof now, and they look great!
About Paint
After I painted my topsides, I received a lot of compliments – and questions about the paint I chose.
I knew what I wanted from my paint:
- reasonable cost
- high gloss
- durability
- easy prep, application, and clean up
but I only had a vague idea about the technical aspects that would actually define that paint.
After I read many dirtbag-sailor's testimonials about avoiding "boat/yacht" paint (or anything possible with those words on it) and their satisfaction with their results, I was convinced I could do likewise.
At first I had settled on Majic Tractor Truck & Implement Alkyd Enamel sold by Tractor Supply Company. This is decent paint and there is a hardener/catalyst available for it. I bought two quarts of this, but it wasn't available in the creamy-white shade I wanted, so twice I toted it to my local Benjamin Moore dealer so he could tint it to my desired color. He wasn't too happy about mixing another paint brand for me, but did because he's a nice guy and because I was a regular customer.
During my second visit the shop owner asked me about my project, and when I told him what I was doing, he suggested I simply switch to Benjamin Moore Super Spec HP Urethane Alkyd Gloss Enamel .
He assured me that it was the same or better than the Majic paint I was using, and I could buy it right there and he could mix the color for me on-the-spot, and it just made more sense. This is a commercial, high VOC urethane paint that is not available in home stores or even in BM stores that market to homeowners. The particular store I was in is an old hardware store (Riverside Hardware in New Bern, NC) that has traditionally catered to commercial/professional customers as much as to consumers.
I did get excellent results, and since then I've done more homework, and now I can give you a summary of why this is a good paint choice. Without going into a protracted and boring technical analysis of the chemical composition of paints, here's a short description of what you really want to know (if you're still reading this).
When it comes to topside boat paints there are basically two types:
The First Type:
Two-part polyurethane enamels e.g.,
- Interlux Perfection
- Awlgrip
- Imron
These are the best paints made for this application, period. They produce the highest gloss and the toughest durability available. But they have some downsides:
- Very expensive @ about $93/QUART on average
- dangerous to work with, as the catalysts required have cyanide in them, and require the painter to wear what is essentially a hazmat suit and a very specific type of respirator. (Fun! Not.)
- Extra work mixing the two parts correctly.
- Restricted in their availability for purchase.
- Messy, difficult clean up requiring acetone – a harsh chemical that triggers allergic sensitivities in most people after repeated exposures.
If you can afford that type of paint, and especially if you can afford to pay a pro to put it on your boat – go for it. You will be happy with the results.
The Second Type:
One-part, urethane or "polyurethane" alkyd enamels, e.g.,
- Interlux Brightsides
- Petit Easypoxy
- Benjamin Moore Super Spec HP Urethane Alkyd Gloss Enamel
- Sherwin Williams Pro Industrial Urethane Alkyd Enamel
The first two paints are sold to the boating market at about $130/gallon, and the latter two to the pro/industrial/commercial market at about $50/gallon. Otherwise, there is little difference between them.
These one-part urethane alkyd enamel (UAE) paints have been the backbone of the topside marine paint market for over 50 years. They are very good paints, but just not quite as good as the two-part enamels (Imron, Awlgrip, etc.). These UAE paints are used all over on ships, commercial fishing vessels, work boats, many small boats and yachts, and yes, farm tractors and backhoes. Advantages of these paints are:
- Quite reasonable cost compared to the two-part paints – especially if you avoid "boat" paints; compare $93/quart to $13/quart!
- Good gloss
- Tough, durable finish (just not quite as tough as the two-part paints)
- Relatively easy prep, handling, and clean-up (paint thinner will do).
So for the average DIY sailor on a budget (hey, that's me!), the choice is pretty clear. The enormous differences in price, risks, and hassles, just aren't worth the modest gains in gloss and durability. A one-part urethane alkyd enamel offers very good results at reasonable cost and DIY ease-of-use. Touch-ups are a simple matter of breaking open a can, stirring, and putting it on. Chunk your disposable brush, pop open a cold one, and climb back into the hammock.
That's what I'm talking about.
Under Sail – Finally !
After my company departed in October, I focused hard on getting the boat ready for her first sail since the restoration began more than a year ago. Actually, this would be her first sail in a few years, exactly how many I don't know, but I'm guessing that it has been at least three years, and possibly as many as five!
I had purchased and installed a new mainsheet, new halyards, and a new headsail furling control line. The sails were hanked on and ready. Finally, on November 5, the weather was good, I was available, and my buddy Dave was available. I really wanted Dave along for this maiden sail, since he had put so much work into the boat too – especially on the engine. I wish Glenn could have come, as he too had put in a lot of work on the boat, and he wanted to, but he had to work that day.
So Dave & I motored out to the broad part of the Neuse river, and it was time to raise sail. Dave insisted that he take the wheel so that I could have the honor of cranking up the main. There's not much more to say except that the main went up, the genny came out, we sheeted in, the boat heeled over, we killed the engine, and suddenly…WE WERE SAILING!!!
Top observed speed was 5.7 knots, but I know we got faster than that when some gusts over 15 miles per hour started heeling us over. 15 mph was enough to overpower with the 150 genoa we had up. After we furled in a bit, everything was good to go again. At that point we were too busy sailing to fiddle with our phone speed apps. We were both so happy to enjoy some fruits of all our labor.🙂
Six days later I had her out again, this time with Glenn on board. The last two photos are from that sail.
Hotel Swedish Fish – and some "Before" and "After" photos
Around the first of October I was informed by my eldest sister Nell that she and my dad (89!) would be stopping by to visit me in two weeks. I welcomed the idea, and assured her that Swedish Fish was big enough for all of us to stay on board – including her two small dogs, a west highland terrier and a mini-schnauzer!
Only problem for me was that, uh, well actually there were a few problems.
1. The forward cabin had no cushions in it (they were in storage).
2. The forward cabin was full of tools and boat/engine parts.
3. I had no linens for the forward cabin.
Well, that was about it. These were hurdles I knew I could overcome in two weeks. Only the toilet in the aft head was fully functional, so I wasn't sure how that was going to work out. Generally speaking, women need a toilet more than men do, but I couldn't put Nell in the aft cabin because I didn't think dad would be able to climb into the forward berth. So my plan was to put dad in the aft cabin, Nell (and her dogs) in the forward cabin, and I would sleep on the port settee in the salon. So as long as we could all manage the toilet arrangement, this would work. Besides, it was just for a couple of nights at the dock.
I went to work packing up and out all of the tools and parts, cleaning, and bringing the cushions back from storage. Then it was time to think about bedding. I measured the shoulder width of the V berth and was surprised to learn that it is actually a couple of inches wider than a king-sized bed! So I was going to need a king-sized bed set to fit the V berth. Wow! I went shopping and found just what I needed, including a memory foam topper.
This brings me to a juncture I've been putting off since I purchased Swedish Fish II. I have had the "before" pictures in my possession all along, but chose not to publish them here because most of my boating-uninitiated readers would not be able to understand them. That is, they reveal the shocking condition of the boat at the time of purchase, and those readers would not be able to understand why anyone would want the boat. But now I'm going to show some of them, alongside their "after" counterparts. However, I must add that these aren't really "after" photos either, because I still have so many things planned to do to the boat's interior. But Nell and dad were on the way, so it is what it is, and by comparison to the "before" look of things, the improvements thus far are still pretty substantial.
Here goes…
Progress with the aesthetics
In August and September progress was made with several overdue exterior aesthetic improvements including brightwork, paint, and new hawespipes at the bow cleats.
Paint and varnish, like many or perhaps most other things about boats, have as many opinions and religious fervors surrounding them as they have boaters. Whatever – I don't enjoy those debates much, I just want my boat to look decent, and for reasonable money. Here are a few of my observations and thoughts along those lines.
Varnish and paint are not permanent. That is, once you've decided to use them, you're either going to be re-doing them or watching them go to ruin. Granted, some paints (e.g., professionally applied Imron) last much longer than others, but you have to ask yourself if the cost differential is worth it – and we're talking major league cost differential.
On the other hand, varnish has to be re-applied at least annually, no matter which brand you use. I've tried the ritzy Epiphanes, the popular Cetol, and also the run-of-the-mill hardware store (Rustoleum) stuff. To me, it doesn't matter which one you use, to keep it looking good you have to re-do it at least once a year, and twice a year is better. So for now I've come to the conclusion that cheap varnish (about $14/qt, Rustoleum) is just fine. It comes out golden and glossy and lasts a season or so. Then, just like the ritzy varnishes that cose 3x as much, you have to freshen it up again at the end of the season if you want it to keep looking nice.
I decided on the simplicity and low cost of roll and tip for my paint. I have no plans to paint the hull (yet), and only did the topsides. For a discussion of my paint selection, see my other post, About Paint. I washed the boat, filled and sanded a few rough spots, and laid it on. Two coats covered adequately. Didn't use anything for primer. Call me lazy. The boat looks good and draws many compliments. The paint is far from "perfect," but Swedish Fish is a real, working boat, operated and maintained by the same guy who enjoys her (me). That means compromises have to be accepted, but honestly I don't feel like I've compromised much.


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United States District Court, N.D. California
November 10, 2014
REAL ACTION PAINTBALL, INC., Plaintiff,v.ADVANCED TACTICAL ORDNANCE SYSTEMS, LLC, et al., Defendants
For Real Action Paintball, Inc., Plaintiff: Paul B. Overhauser, OVERHAUSER LAW OFFICES LLC, Greenfield, IN; B. Douglas Robbins, Wood Robbins LLP, San Francisco, CA.
For Advanced Tactical Ordnance Systems, LLC, An Indiana Company, Perfect Circle Projectiles, LLC, Gary Gibson, A resident of Illinois, Tiberius Arms, LLC, An Indiana Company, Tyler Tiberius, A resident of Indiana, Defendants: John Christopher Kirke, LEAD ATTORNEY, Donahue Fitzgerald LLP, Oakland, CA.
For Michael L. Blumenthal, A Resident of Illinois, David Piell, A Resident of Illinois, Defendants: John Christopher Kirke, LEAD ATTORNEY, Sophia Elena Contreras Schwartz, Donahue Fitzgerald LLP, Oakland, CA.
ORDER RE DEFENDANTS' MOTION FOR RELIEF FROM NONDISPOSITIVE DISCOVERY ORDER; ORDER RE: JOINT LETTER DISPUTES Re: Dkt. Nos. 112, 117-19
MARIA-ELENA JAMES, United States Magistrate Judge.
Pending before the Court is Defendants' motion for relief from Magistrate Judge Nandor Vadas' October 21, 2014 Discovery Order. Dkt. No. 112 (" Mot."). Additionally, the parties recently submitted three letter briefs outlining a number of disputes largely involving the same issues as discussed here. See Dkt. Nos. 117-19. After carefully reviewing the parties' positions, relevant legal authority, and the record in this case, for the reasons described below, the Court GRANTS IN PART and DENIES IN PART Defendants' motion for relief. The Court also DENIES WITHOUT PREJUDICE the parties' three letter briefs, Dkt. Nos. 117-19, and orders the parties to further meet and confer on those disputes in light of this order.
On May 27, 2014, Plaintiff Real Action Paintball, Inc. (" RAP4") filed the present Complaint against Advanced Tactical Ordnance Systems, LLC (" ATO"), Perfect Circle Projectiles LLC (" Perfect Circle"), Tiberius Arms LLC (" Tiberius Arms"), and individual Defendants Gary Gibson (an owner of Perfect Circle), Tyler Tiberius (an owner of Tiberius Arms), Michael Blumenthal, and David Piell (attorneys to ATO) (collectively " Defendants").[1] Compl., Dkt. No. 1.[2] The Complaint alleges 17 claims, including inter alia allegations that Defendants tortuously interfered with RAP4's California contracts, formed a civil conspiracy, and restrained trade in violation of California and Federal antitrust laws by forming agreements with California residents to refrain from doing business with RAP4, which is a California resident. Compl. ¶ ¶ 13, 16, 29, 30, 65-73, 100-112. Subsequently, four Defendants--Gibson, Perfect Circle, Blumenthal, and Piell--filed motions to dismiss for lack of personal jurisdiction. Dkt. Nos. 13, 39.
On August 28, 2014, the Court ordered that, pending resolution of these Defendants' motions to dismiss, all discovery in this case would be limited to that which aids in determining whether the Court has jurisdiction. Dkt. No. 80 (" Aug. 28 Order"). Not long after, pursuant to the Court's Discovery Standing Order, the parties filed two letter briefs addressing the disputes that are the underlying subjects of this order. See Dkt. Nos. 87-88. The Court referred resolution of these letter briefs to Magistrate Judge Nandor Vadas, who held a hearing on the disputes on October 10. Dkt. No. 105. At the hearing, Judge Vadas advised the parties that he would allow the discovery to go forward under a protective order and ordered counsel to submit proposed orders. Id. The parties submitted their proposed discovery orders on October 14. Dkt. No. 97. Judge Vadas issued an order adopting Plaintiffs' proposed discovery order on October 21. Dkt. No. 110 (" Oct. 21 Order"). The following day, Defendants filed a motion to stay and for relief from the Oct. 21 Order. Dkt. No. 112 (" Mot."). The Court granted the objecting Defendants' motion to stay and ordered RAP4 to respond. Dkt. No. 114. RAP4 filed its response on October 30. Dkt. No. 116 (" Opp'n").
The underlying subjects of this dispute concern four subpoenas issued by RAP4 to non-parties Krasnow Saunders (" Krasnow"), Conrad Sun (" Sun"), Hoover Hull LLP (" Hoover"), and FedBid, Inc. (collectively, the " Subpoenas"). See Declaration of John K. Kirke (" Kirke Decl."), Dkt. No. 113, Ex. A. None of the subpoenaed parties objected to the Subpoenas or moved to quash them, but Defendants contended that the Subpoenas sought documents unrelated to jurisdiction and went beyond the scope of discovery established by the Court's August 28 Order. Dkt. Nos. 87-88. RAP4 disagreed, asserting that the documents sought are relevant to the Court's jurisdiction determination. Id. The October 21 Order found the subpoenaed documents relevant to the issue of personal jurisdiction and ordered Krasnow, Sun, Hoover, and FedBid to respond to the Subpoenas within 14 days of that Order. Defendants now challenge the October 21 Order, arguing that it conflicts with this Court's August 28 Order by permitting discovery unrelated to jurisdiction.
A district court may modify or set aside a magistrate judge's nondispositive order " where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Fed.R.Civ.P. 72(a); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). A magistrate judge's resolution of a discovery dispute is " entitled to great deference." Doubt v. NCR Corp., 2011 WL 5914284, at *2 (N.D. Cal. Nov. 28, 2011). " A finding of fact is clearly erroneous" if the court is left with the " definite and firm conviction that a mistake has been committed." Burdick v. C.I.R., 979 F.2d 1369, 1370 (9th Cir. 1992). " A decision is 'contrary to law' if it applies an incorrect legal standard or fails to consider an element of the applicable standard." Conant v. McCoffey, 1998 WL 164946, *2 (N.D. Cal. Mar. 16, 1998) (citing Hunt v. Nat'l Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989)). Further, as a matter of logic, where the district court has issued an order limiting the scope of discovery for a particular matter, the district court may clarify its prior order in modifying the magistrate's nondispositive order.
A district court's decision whether to permit jurisdictional discovery is a discretionary one. See Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008); Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977). Such discovery " should ordinarily be granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary." Laub v. U.S. Dep't of the Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (quoting Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986)); see also Am. W. Airlines, Inc. v. GPA Grp., Ltd., 877 F.2d 793, 801 (9th Cir. 1989) (noting it is not an abuse of discretion to deny jurisdictional discovery " when it is clear that further discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction") (quoting Wells Fargo, 556 F.2d at 431 n.24). A court may grant jurisdictional discovery if the request is based on more than a " hunch that it might yield jurisdictionally relevant facts, " see Boschetto, 539 F.3d at 1020, or more than " bare allegations in the face of specific denials." See Terracom v. Valley Nat'l Bank, 49 F.3d 555, 562 (9th Cir. 1995) (citation omitted). A court may abuse its discretion by denying jurisdictional discovery where such discovery " might well demonstrate" jurisdictionally relevant facts and the plaintiff is denied the opportunity to develop the jurisdictional record. See Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1135 (9th Cir. 2003); Smugmug, Inc. v. Virtual Photo Store, LLC, 2009 WL 2488003, at *3 (N.D. Cal. Aug. 13, 2009) (allowing jurisdictional discovery " because the existing record is insufficient to support personal jurisdiction and [p]laintiff has demonstrated that it can supplement its jurisdictional allegations through discovery").
Defendants seek relief from the October 21 Order on the ground that it is inconsistent with this Court's August 28 Order limiting discovery to that which aids in determining whether the Court has jurisdiction. Defendants argue that RAP4's Subpoenas are beyond the scope of the August 28 Order because (1) RAP4 cannot use ATO's contacts with California to establish personal jurisdiction over ATO's agents or related entities; and (2) the subpoenaed documents relate only to whether ATO had contacts with California, not whether the non-ATO Defendants had contacts with California. Mot. at 3.[3] The Court addresses Defendants' arguments in turn below.
A. Agents, Related Entities, and Establishing Personal Jurisdiction
Defendants argue that the act of an agent on behalf of a corporation is not grounds for personal jurisdiction of the agent. Mot. at 3 (citing Grober v. Mako Prods., Inc., 686 F.3d 1335 (Fed. Cir. 2012), reh'g denied (Sep. 14, 2012)[4] and Kransco Mfg., Inc. v. Markwitz, 656 F.2d 1376, 1379 (9th Cir. 1981)). Defendants also argue that a corporation's contacts within a state do not establish jurisdiction over a related entity. Id. (citing Holland Am. Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 459 (9th Cir. 2007)).
Defendants' articulation of these standards is somewhat overbroad. In Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), the United States Supreme Court instructed that " [e]ach defendant's contacts with the forum State must be assessed individually" and specifically held that the defendants' " status as employees does not somehow insulate them from jurisdiction[.]" Id. at 790 (citation omitted); see also Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (noting that Calder rejected " the suggestion that employees who act in their official capacity are somehow shielded from suit in their individual capacity"). The Ninth Circuit has noted that neither Calder nor Keeton considered " the existence of a state-created corporate form to create a due process limit on jurisdiction." Davis v. Metro Prods., Inc . 885 F.2d 515, 521-22 (9th Cir. 1989); see also j2 Global Commc'ns, Inc. v. Blue Jay, Inc., 2009 WL 29905, at *7 (N.D. Cal. Jan. 5, 2009) (interpreting Davis and finding " the fiduciary shield doctrine does not prevent this court from exercising jurisdiction over [defendant] merely because his acts in California were undertaken in an official, business capacity."); accord ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 177 (4th Cir. 2002) (interpreting Calder and holding that " the court's exercise of jurisdiction was proper if [the agent] had sufficient contacts with Virginia, even if those contacts were made ostensibly on behalf of [the corporation]").
Additionally, while Defendants cite Holland America Line for the proposition that " where a parent and a subsidiary are separate and distinct corporate entities, the presence of one . . . in a forum state may not be attributed to the other[, ]" that case specifically notes that this is the " general rule" thereby implying that there are exceptions. 485 F.3d at 459 (citing Doe v. Unocal Corp., 248 F.3d 915, 925 (9th Cir. 2001) (describing exceptions)). Thus, while ATO's contacts with California will not alone tie ATO's officers, agents, or related entities to this forum, this does not mean that discovery related those contacts is necessarily meaningless to the jurisdictional analysis; there are nuances to all these principles, and the parties are responsible for investigating them and developing their arguments accordingly.
In any case, " [e]ach defendant's contacts with the forum State must be assessed individually." Calder, 465 U.S. at 790 (1984). The United States Supreme Court recently revisited personal jurisdiction in Walden v. Fiore, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) and explained that in Calder personal jurisdiction was properly exercised over the employee defendants because " [e]ven though the defendants did not circulate the article themselves, they 'expressly aimed' 'their intentional, and allegedly tortious, actions' at California because they knew the National Enquirer 'ha[d] its largest circulation' in California, and that the article would 'have a potentially devastating impact' there." Id. at 1124 n.7 (citing Calder, 465 U.S. at 789-90)). " The crux of Calder was that the reputation-based 'effects' of the alleged libel connected the defendants to California, not just to the plaintiff." Id. at 1123-24. Simply put, " the plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him." Id. at 1122 (citations omitted).[5] In light of the foregoing, the relevant jurisdictional discovery in this case relates to each Defendant's contacts with California and the effects of that Defendant's conduct that connect him/it to California, not just to RAP4.
B. The Subpoenaed Documents and Jurisdictional Relevance
The Court next considers the individual Subpoenas and Defendants' second argument, that the subpoenaed documents relate only to whether ATO had contacts with California, not whether the non-ATO Defendants had contacts with California.
1. Sun, Hoover, and Krasnow Subpoenas
Three of RAP4's Subpoenas relate to agreements negotiated by Defendants with Sun and APON International, Inc. (" APON"), respectively the alleged broker and manufacturer of certain irritant projectiles at issue in this case. Compl. ¶ 16. RAP4's Complaint alleges that these agreements interfered with RAP4's California contracts, restrained trade in California, and caused injury to RAP4 in California. Oct. 21 Order at 2. These subpoenas specifically seek agreements between ATO and APON, as well as agreements between ATO and Sun, which includes the agreement that resulted in Sun's dismissal from the Indiana Action. Id.; see also Kirke Decl., Ex. A. The subpoenas also seek correspondence related to those agreements. Id.
Defendants recognize that the subpoenas seek " the settlement agreements between ATO and certain defendants in the Indiana Action and related communications" but object on the ground that " the subpoenas relate mostly to ATO, not to defendants who have moved to dismiss for lack of personal jurisdiction." Mot. at 1-2. They argue that " [t]he documents sought by the settlement-related subpoenas show only ATO's contacts with California which cannot be extended against the other defendants[.]" Id. at 3. In response, RAP4 argues that it is impossible to know what the documents show because they have not yet been produced. Opp'n at 4. RAP4, however, expects that " this evidence will be combined with other evidence to establish personal jurisdiction over each defendant." Id.; see also Dkt. No. 87 at 5; Dkt. No. 88 at 4.
While there are limits to this argument, the Court will permit RAP4 some latitude here. RAP4 alleges that Defendants--including the non-ATO defendants--interfered with California contracts and conspired to restrain trade in California in part through the use of the agreements with Sun and APON. These agreements, in combination with other evidence, could be useful to the personal jurisdiction analysis in showing that the Defendants' conduct connected them to California. See Kirke Decl., Ex. A (Kransow and Hoover subpoenas seek agreements between ATO and any person or entity in California, as well as ATO agreements " in which the obligation to refrain from engaging in commerce, trade or business does not exclude the State of California from its application.").
Regarding the correspondence sought, Defendants argue that RAP4 seeks only documents related to communications between ATO's counsel and the Hoover and Krasnow firms (counsel for APON and Sun respectively). While RAP4's subpoenas are limited in this respect, two of the Defendants named in the relevant claims are indeed ATO's counsel, Blumenthal and Piell. As the Court will ultimately rule on these Defendants' motions for lack of personal jurisdiction, discovery that " might well demonstrate" jurisdictionally relevant facts about these Defendants' contacts with the forum State is permissible. Although these Defendants' representation of ATO alone may be insufficient to establish personal jurisdiction, it is possible that evidence related to this representation, in conjunction with other facts, may be useful to the jurisdictional analysis.
2. FedBid Subpoena
The last subpoena requests all communications between FedBid and certain Defendants relating to two bids by RAP4, as well as documents concerning why those bids were later cancelled. See Kirke Decl., Ex. A. Defendants argue that it is unclear how communications between any Defendant and FedBid create contacts with California, noting that RAP4 did not tailor the subpoena's scope to commerce with California entities or deliveries. Mot. at 5. RAP4 responds that because it " was the bidder on these specific contracts, and because it is in California, the cancellation of the contracts at Defendants' behest necessarily caused harm in California." Opp'n at 5 (emphasis in original). The October 21 Order states that " RAP4 expects the documents to show that the Defendants (including the non-ATO Defendants) knew that RAP4 was in California and that the Defendants 'expressly calculated' for the cancellation to 'cause injury' to RAP4 in California." Oct. 21 Order at 5 (citing Sinatra v. Nat'l Enquirer, Inc., 854 F.2d 1191, 1198 (9th Cir. 1988)).
As described above, " Calder made clear that mere injury to a forum resident is not a sufficient connection to the forum. Regardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State." Walden, 134 S.Ct. at 1125-26 (where the defendant's " relevant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum State [did] not suffice to authorize jurisdiction."); see also Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 802 (7th Cir. 2014), as corrected (May 12, 2014) (interpreting Walden and finding the district court erred in basing personal jurisdiction on defendant's knowledge that plaintiff was an Indiana company and that its actions would harm the plaintiff in Indiana). Even in Sinatra the injury to the plaintiff was not the defendant's only connection with the forum, but rather " the misappropriation [was] properly viewed as an event within a sequence of activities designed to use California markets for the defendant's benefit." 854 F.2d at 1197.
While a court may grant jurisdictional discovery if the request is based on more than a " hunch that it might yield jurisdictionally relevant facts" or more than " bare allegations in the face of specific denials[, ]" it is unclear how the FedBid subpoena relates to California beyond allegedly causing injury to RAP4 in California. RAP4 provides no other argument as to why the evidence might be relevant to the connecting the Defendants' suit-related conduct to California. Unlike the Krasnow, Hoover, and Sun subpoenas that, when combined with other evidence, may show the relevant Defendants engaged in conduct connecting them with California (such as allegedly tortuously interfering with California contracts, forming agreements with California companies, and restraining trade in California), RAP4 does not explain how evidence sought in the FedBid subpoena could establish any Defendant's contacts to California except for injury to RAP4 there.
Although at the October 10 hearing RAP4's counsel asserted that the FedBid subpoena relates to its restraint of trade claim, RAP4's Complaint (and its intended Amended Complaint, see Dkt. No. 99-1) only alleges its restraint of trade claim against ATO and Perfect Circle. Perfect Circle is one of the Defendants moving to dismiss for lack of personal jurisdiction, but RAP4 does not articulate how the FedBid subpoena relates to Perfect Circle. RAP4's FedBid subpoena never mentions Perfect Circle and the Court is left guessing as to how RAP4 might connect Perfect Circle to California through the evidence sought in this subpoena. Perhaps the FedBid documents could somehow be shown to relate to establishing jurisdiction over some Defendant, but, at present, support for that connection is lacking, and a mere hunch about this subpoena's relevance is insufficient. The parties should be able to articulate how the discovery they seek might well demonstrate jurisdictionally relevant facts.
Based on the analysis above, the Court orders the following:
1. The motion for relief concerning the Krasnow, Hoover, and Sun subpoenas is DENIED. Krasnow, Hoover, and Sun shall respond to the subpoenas within 14 days of this order in compliance with the parties' Protective Order in this case (Dkt. No. 77)[6]
2. The motion for relief concerning the FedBid subpoena is GRANTED WITHOUT PREJUDICE; and
3. The parties' three letter briefs, Dkt. Nos. 117-19, are DENIED WITH PREJUDICE.
In modifying Judge Vadas's October 21 Order, the Court clarifies the intended scope of its August 28 Order, which previously did not articulate the parameters for the jurisdictional analysis. Going forward, the parties are to abide by the standards and principles articulated in this order and tailor their jurisdictional discovery accordingly. Further, given that the parties' recently submitted letter briefs, Dkt. Nos. 117-19, are largely copied from their arguments in the letter briefs addressed in this order, the Court hereby orders the parties to meet and confer again on those disputes in light of this order. If disputes remain, the parties may raise those disputes again at that time. All further discovery matters are hereby referred to Judge Vadas.
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United States District Court, Northern District of Illinois
September 18, 2003
ELLEN K. EMERY, PLAINTIFF,v.NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION D/B/A METRA/METROPOLITAN RAIL, ET AL., DEFENDANTS
In a twelve-count complaint raising various federal and state claims, plaintiff Ellen Emery has sued her former employer, defendant Northeast Illinois Regional Commuter Railroad Corporation d/b/a METRA/Metropolitan Rail ("Metra"), as well as Metre's executive director Philip Pagano, general counsel Michael Noland, associate general counsel Theresa Bamett, and senior attorneys Sue-Ann Rosen, Richard Capra, and Constance Valkan. The defendants have moved to dismiss all counts under Fed, R. Civ. P. 12(b)(6) for failure to state a claim. As explained below, the defendants1 motion is granted in part and denied in part.
Emery, an experienced trial attorney, was employed by Metra as in-house counsel from June 23, 1997 until she was terminated on March 4, 2002. Her practice focused on cases involving the Federal Employer Liability Act ("FELA"), 45 U.S.C. § 51, et seq., and she evidently was quite successful in her profession; within six months of being hired, she was [ Page 2]
promoted to Associate General Counsel-Litigation. In July 1999, Emery tripped over some raised electrical sockets at Metra's offices, resulting in a serious knee injury. Consequently, she had several surgeries and took a limited disability leave. Because her injury occurred at work, Emery filed a claim with Metra's Risk Management Department. Metra refused to pay the majority of her medical bills. After two years of attempting to resolve her claim with the Risk Management Department, Emery retained counsel to represent her in a FELA lawsuit against Metra.
Shortly after filing suit, Emery had her annual performance review with defendant Noland. Although she had always received annual performance bonuses in previous years, she did not receive a bonus, despite exemplary performance. Moreover, after she filed her FELA suit, she was told she could no longer represent Metra in FELA cases, was screened off all FELA cases, was denied access to all information concerning FELA cases, and was demoted to Senior Attorney. Metra also moved to disqualify Emery's counsel, Hoey, Farina & Downes (a firm which also represented many other plaintiffs in FELA actions against Metra), from all FELA cases involving Metra, accusing Emery of unethical behavior and disclosing attorney-client confidences, such as her knowledge of Metra's trial strategies, settlement practices and procedures, and case reserves. According to Emery, she never committed any such ethical violations.
Emery alleges that the defendants proceeded to defame her to various judges, attorneys, the John Marshall Law School ("JMLS"), its faculty, administration, graduates and students, and the National Association of Railroad Trial Lawyers (ltNARTC"), beginning before her [ Page 3]
termination on March 4, 2002, and continuing through the present. As a result, Emery commenced this lawsuit, alleging various counts involving constitutional deprivations of liberty and property interests in violation of 42 U.S.C. § 1983, conspiracy to violate her constitutional rights, retaliatory discharge and demotion, defamation, self-compelled defamation, tortious interference with contractual relations, tortious interference with prospective business advantage, civil conspiracy, and a violation of the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f). The defendants seek dismissal of all counts for failure to state a claim.
Emery concedes that no cause of action exists for retaliatory demotion or self-compelled defamation under Illinois law, so both Count I, to the extent it raises a retaliatory demotion claim, and Count VIII are dismissed without discussion. Likewise, Emery concedes that her claim in Count IV, for deprivation of her property interest in her job in violation of § 1983, cannot survive. The remaining counts are addressed below.
I. Federal Claims
A. Retaliation under FELA (against Metra)
Emery's claim for retaliation under FELA against Metra, raised in Count III, is dismissed for failure to state a claim. As the Seventh Circuit has recognized, "neither [FELA] nor any other source of federal law creates a federal right against retaliatory discharge" for a plaintiff who is fired after filing a FELA claim. Graf v. Elgin, Joliet & E. Ry., 790 F.2d 1341, 1344 (7th Cir. 1986); Shrader v. CSX Transp., Inc., 70 F.3d 255, 258 (2d Cir. 1995); Mayon v. S. Pac. Transp. Co., 805 F.2d 1250, 1252-53 (5th Cir. 1986) (only remedy available for employee terminated for [ Page 4]
filing FELA claim are the remedies under the Railway Labor Act, not FELA); Landfried v. Terminal R.R. Assoc., 721 F.2d 254, 256 (8th Cir. 1983) ("Congress has not enacted a statute prohibiting an employer from discharging an employee in retaliation for filing a FELA action."); see also Bielicke v. Terminal R.R. Assoc., 30 F.3d 877, 878 (7th Cir. 1994); Shrader, 70 F.3d at 258.
B. Federal Common Law Retaliation (against Metra)
Emery also sues Metra, in Count n, for retaliation under federal common law. "There is no federal general common law." Erie R.R. Co. v. Tomptins, 304 US. 64, 78 (1938). The Supreme Court "has recognized the need and authority [only] in some limited areas to formulate what has come to be known as `federal common law.'" Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981). "These instances are `few and restricted' and fall into essentially two categories: those in which a federal rule of decision is `necessary to protect uniquely federal interests,' and those in which Congress has given the courts the power to develop substantive law." Id. (internal citations omitted). Thus, "absent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases." Id. at 641 (footnotes omitted).
Emery cites not a single case recognizing a federal common law claim for retaliatory discharge for an employee terminated for filing a FELA claim.*fn1 This court declines to be the [ Page 5]
first. There is no unique federal interest at issue, nor is there congressional authorization to create substantive law. Indeed, as discussed in the previous section, although Congress could have created a remedy under FELA for employees like Emery, it declined to do so. Count n is dismissed for failure to state a claim.
C. § 1983 Claim for Deprivation of Liberty Interest (against all defendants)
In Count V, Emery claims that she has a constitutionally protected liberty interest in her reputation and that the defendants, through defamatory statements they made about her, deprived her of this constitutional right without due process of law in violation of § 1983. Actually, reputation itself is not a liberty interest protected by the Fourteenth Amendment. Siegert v. Gilley, 500 U.S. 226, 233 (1991). Rather, to the extent there is a protected liberty interest at issue here, it is Emery's interest in pursuing the occupation of her choice. See Townsend v. Vallos, 256 F.3d 661, 669 (7th Cir. 2001). Defamation becomes actionable as a constitutional claim "when a state actor casts doubt on an individual's `good name, reputation, honor or integrity* in such a manner that it becomes `virtually impossible for the [individual] to find new employment in his chosen field. . . ." Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 617 (7th Cir. 2002) (quoting Townsend, 256 F.3d at 670) (emphasis added). "[S]erious impairment of one's future employment" is not even enough. Id. (citation and internal quotation marks omitted). Further, the plaintiff must show that stigmatizing*fn2 information about him was publicly [ Page 6]
disclosed, and caused him to suffer "a tangible loss of other employment opportunities." Townsend, 256 F.3d at 669-70. Additionally, the stigmatizing information must have been disclosed incident to the discharge. Siegert, 500 U.S. at 234; Newton v. Chicago Sch. Reform 3d. of Trs., No. 96 C 7078, 1997 WL 603838, at *6 (N.D. HI. Sept. 24, 1997).
It is not evident from the complaint that any of the allegedly defamatory statements were made incident to Emery's discharge. Nowhere in Count V, or anywhere else in her complaint, does Emery allege that any defendant made a defamatory statement about her incident to her termination. Further, although Emery incorporates into Count V at least 21 purportedly defamatory statements that defendants made about her from January 15, 2002 through the present, it is unclear which, if any, of those statements were made incident to her termination on March 4, 2002. Emery argues that because her termination occurred within the "January 15, 2002 through the present" time frame in which the defamatory statements were made, "it is clear from the Complaint that the statements were made in relation to her discharge." (Pl.'s Opp. at 17.) The court disagrees. As argued by Emery, all of the allegedly defamatory statements made over a one-year period*fn3 were statements incident to her discharge. That argument ignores the law. To be actionable under § 1983, a defamatory statement must be published "in the context of termination," (i.e., incident to termination). McMath v. City of Gary, Ind., 976 F.2d 1026, 1032 (7th Cir. 1992). Neither defamatory statements made after the employee's termination nor defamatory statements made in an effort to cause an employee to quit are actionable under § 1983. Siegert, 500 U.S. at 234; Newton, 1997 WL 603838 at *7. This is not to suggest that the [ Page 7]
publication and termination must occur simultaneously. But defamatory statements made weeks (let alone months) before or after termination are not statements made in the context of termination. Morris v. Lindau, 196 F.3d 102, 114 (2d Cir. 1999) (defamation must occur close in time to dismissal to succeed on § 1983 claim for deprivation of liberty interest); see also Rodriguez de Quinpnez v. Perez, 596 F.2d 486, 490 n. 3 (1st Cir. 1979) (questioning sufficiency of nexus between plaintiff's termination at i defan atory comments published a week earlier).
Emery may have a state law defamation claim for such statements, but not a § 1983 claim. She has not alleged that any defamatory statements were made in the context of her termination, nor would it be reasonable to make such an inference here. There is no way to ascertain from the complaint which, if any, of the multitude of purportedly defamatory statements were made in the context of her termination. Although notice pleading is sufficient, this claim, as pleaded, fails adequately to allege that any statements were made incident to Emery's discharge. Count V is therefore dismissed for failure to state a claim.
D. § 1983 Conspiracy Claim (against all defendants)
Because Emery's underlying § 1983 claim fails to state a claim, Emery's claim in Count VI that the defendants conspired to violate her constitutional rights in violation of § 1983 must also be dismissed. Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982) (no conspiracy claim absent actual denial of a civil right). Even if Emery's § 1983 claim had survived, however, her conspiracy claim would still be dismissed because the intracorporate conspiracy doctrine bars Emery's claim.
Under the intracorporate conspiracy doctrine, which originated in the context of antitrust [ Page 8]
cases, "a conspiracy cannot exist solely between members of the same entity." Payton v. Rush-Presbyterian — St. Luke's Medical Center, 184 F.3d 623, 632 (7th Cir. 1999). The doctrine shields entities and their employees "from conspiracy liability for routine, collaborative business decisions" that are later alleged to be unconstitutional. Newsome v. James, No. 96 C 7680, 2000 WL 528475, at *15 (N.D. 111. Apr. 26, 2000). Thus, "managers of a corporation jointly pursuing its lawful business do not become `conspirators' when acts within the scope of their employment are said to be discriminatory or retaliatory." Wright v. III. Dept. of Children & Family Servs., 40 F.3d 1492, 1508 (7th Cir. 1994) (citation and internal quotation marks).
The Seventh Circuit has ruled that the doctrine applies to all claims under 42 U.S.C. § 1985, and applies when the claim is against individual members of a single corporate or governmental entity. Id. The Seventh Circuit has not yet addressed whether the doctrine extends to § 1983 cases. Some courts have extended the doctrine to § 1983 cases involving employment claims and claims against school administrators. See, e.g., Salto v. Mercado, No. 96 C 7168, 1997 WL 222874, at * 1 (N.D. III. Apr. 24, 1997) (collecting cases). In contrast, courts facing § 1983 claims involving police misconduct have refused to apply the doctrine. See, e.g., Moreno v. Town of Cicero, No. 01 C 1726, 2002 WL 31017932, at *3 (N.D. III. Sept. 5, 2002); Newsome, 2000 WL 528475, at *15; Salto, 1997 WL 222874, at *1. Emery does not argue that the doctrine should not apply to any § 1983 claims, but rather only that it is inapplicable to her claim.
Whether the doctrine applies in a given § 1983 case, just as in a § 1985 case, depends on "whether the wrongful conduct was performed within the scope of the conspirators' official duties." Doe v.3d of Educ. of Hononegah Cmty. High Sch. Dist. #207, 833 F. Supp. 1366, 1382 [ Page 9]
(N.D.III. 1993) (barring both § 1985 and § 1983 claims against board of education). The doctrine likely would not apply Vhere corporate [or government] employees are shown to have been motivated solely by personal bias. In that case, the interests of the corporation [or government entity] would have played no part in the employees' collective action, so the action could not have been taken within the scope of employment." Hartman v. Bd., of Trs. of Cmty. Coll. Dist. No. 508, 4 F.3d 465, 470 (7th Cir. 1993) (emphasis added). Further, although the doctrine can apply whether single or multiple unconstitutional acts are involved, in "egregious circumstances" intra-entity collaborative decisions thai result in unconstitutional actions fall outside the scope of the doctrine. Wright, 40 F.3d at 1508-09 (§ 1985 case). Considering those factors, it makes sense that the doctrine will rarely, if ever, apply in police misconduct cases. A claim that several police officers conspired to frame a person for murder, see Newsome, 2000 WL 528475, at * 15, would not be barred by the intracorporate conspiracy doctrine, the rationale being that the officers were neither acting in the interests of the police department, nor in the scope of their official duties.
In contrast, this claim relates to an allegedly collaborative decision at Metra regarding what statements to make about Emery's termination. Such a collaborative decision falls directly within the type of routine, collaborative business decisions shielded by the intracorporate conspiracy doctrine. Emery, however, argues that her claim is not barred by the intracorporate conspiracy doctrine because the complaint alleges that the individual defendants were acting in their own self-interest. Where personal bias is the sole motivation, the doctrine does not apply. Hartman, 4 F.3d at 470 (but plaintiff cannot avoid the intracorporate conspiracy doctrine "by showing that [government] employees were motivated in part by personal bias"). Although [ Page 10]
Emery alleges that the individual defendants acted against Metra's interests and solely in their own self-interest, that allegation is inconsistent with her claim that the individual defendants conspired with Metra. Her conspiracy claim is thus logically inconsistent. If, as Emery alleges, Metra and the individual defendants shared the same conspiratorial goal of depriving her of her interest in pursuing the occupation of her choice, then the individual defendants necessarily must have been acting in Metra's expressed interests (even if they were also motivated by their personal biases against Emery). Under no set of facts could a jury conclude that the individual defendants, acting entirely independent of Metra's interests, conspired with Metra toward a common goal. Emery's claim that the defendants, including Metra, conspired together is barred by the intracorporate conspiracy doctrine. Count VI is therefore dismissed.
E. Older Worker Benefit Protection Act (against Metra)
In Count XII, Emery claims that Metra violated the Older Workers Benefit Protection Act ("OWBPA"), 29 U.S.C. § 626(f) by offering to allow her to resign as Associate General Counsel if she agreed to waive all of her rights and claims, but failing to give her 21 days to consider the offer. Emery clearly misses the point of the OWBPA. The OWBPA, an amendment to the Age Discrimination in Employment Act ("ADEA"), "`governs the effect under federal law of waivers or releases on ADEA claims. . . .'" Whitehead v. OMa. Gas & Elec. Co., 187 F.3d 1184, 1191 (10th Cir. 1999) (quoting Oubre v. Entergy Operations, Inc., 522 U.S. 422, 427 (1998)). Under § 626(f), a waiver of an ADEA claim is valid only if it is made knowingly and voluntarily. 42 U.S.C. § 626(f)(1). Section 626(f) sets forth the minimum requirements for a waiver to be deemed knowing and voluntary, which includes a requirement that the employer give the employee at least 21 days to consider the agreement. Id. at § 626(f)(1)(F)(i). The OWBPA [ Page 11]
therefore simply governs whether, as a matter of law, an employee has waived her right to bring an ADEA claim. Whitehead, 187 F.3d at 1192. An OWBPA violation might be relevant if Emery had signed a waiver of her ADEA claims, then sought to raise them on the ground that the waiver was invalid. See Williams v. Gen. Motors Corp., 901 F. Supp. 252, 255 (E.D. Mich. 1995) ("only conclusion that necessarily follows [from OWBPA violation] is that an employee who has suffered such a violation has not lost the right to press claims of age discrimination under ADEA"). But that is not the case here. Emery does not allege that she signed such a waiver. More significantly, Emery makes no claim that Metra discriminated against her based on her age. A violation of the OWBPA, by itself, is not grounds for an age discrimination claim. Whitehead, 187 F.3d at 1192. Count XII is therefore dismissed for failure to state a claim.
II. State Law Claims
A. Retaliatory Discharge (against Metra)
Emery also brings a state law claim for retaliatory discharge against Metra (Count I), but this claim must be dismissed. Although Illinois law recognizes tort claims for retaliatory discharge, it does so on a narrow basis. The general rule is that "an employer may fire an employee-at-will for any reason or no reason at all." Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 492 (III. 1998). The retaliatory discharge tort is a very limited exception to that general rule. Id. To establish such a claim, a plaintiff must allege that "(1) he was discharged in retaliation for his activities; and (2) the discharge is in contravention of a clearly mandated public policy." Id. at 493. According to the Illinois Supreme Court, retaliatory discharge claims have been allowed in only two situations: "when an employee is fired for filing, or in anticipation of the filing of, a claim under the Workers' Compensation Act" and "when an employee is [ Page 12]
discharged in retaliation for the reporting of illegal or improper conduct, otherwise known as `whistle blowing.'" Id.; Brandon v. Anesthesia & Pain Mgmt. Assoc., Ltd., 277 F.3d 936, 940 (7th Cir. 2002).
As a railroad employee, Emery has no right to file a claim under the Workers' Compensation Act, 820 ILCS 305/1, et seq. Storks v. N.E. Ill. Reg'l Commuter R.R. Corp., 245 F. Supp.2d 896, 898 (N.D. 111. 2003) (FELA offers exclusive remedy for railroad employees seeking to recover for personal injury incurred in course of employment). Emery, however, argues that her FELA lawsuit is analogous to a claim under the Workers' Compensation Act, and her retaliatory discharge claim, by analogy, is actionable. The court grants that the causes of action are in some respects analogous, and it is possible that an Illinois court, faced with a claim that an individual was fired for asserting rights to compensation for FELA injuries, might well find that a sufficient public policy interest was implicated.*fn4 But the inquiry in the Illinois courts as to whether a claim of retaliatory discharge lies is not limited to a determination of whether there are important public policy interests at stake when a worker brings an action to recover for work-related injuries. "[O]ne of the factors that a court considers in deciding whether to allow a retaliatory discharge claim is the existence of an alternative remedy. The tort . . . was not intended to serve as a substitute means for enforcement of particular laws." Stebbings v. Univ. of Chicago, 726 N.E.2d 1136, 1141 (111. App. Ct. 2000) (internal citations omitted). Indeed, the [ Page 13]
Illinois Supreme Court allows retaliatory discharge claims for employees allegedly discharged after filing Workman's Compensation claims "precisely because there [is] no other remedy available to vindicate the public policy involved." Brudnicki v. Gen. Elec. Co., 535 F. Supp. 84, 89 (N.D. III. 1982) (citing Kelsey v. Motorola, Inc., 384 N.E.2d 353 (1978)).
Here, Emery has a remedy under the Railway Labor Act ("RLA"), 45 U.S.C. § 151, et seq. Shrader, 70 R3d at 258. Under the RLA, she can file a grievance. Both reinstatement and back pay are available remedies, although punitive damages are not. Hysten v. Burlington N. SanteFe Ry. Co., 196 F. Supp.2d 1162, 1168-69 (D. Kan. 2002). In contrast, under Illinois law, punitive damages usually are available in retaliatory discharge cases, if warranted. Midgett v. Sackett-Chicago, Inc., 473 N.E.2d 1280, 1283 (Ill. 1985). Had Emery been discharged by a different employer, that fact would likely save her claim: Illinois courts have allowed retaliatory discharge claims in cases where the available alternative remedy did not allow punitive damages, reasoning that the deterrent effect of punitive damages is key to dissuading employers from retaliating against employees. Id. But the fact that Emery cannot recover punitive damages under the RLA makes no difference here, because Emery cannot recover punitive damages from Metra under Illinois law, either. Under 745 ILCS § 10/2-102, local public entities, like Metra, are not liable to pay punitive damages in any action. Williams v. Northeast Ill. Reg'l Commuter R.R. Corp., No. 97 C 6606, 1998 WL 901695, at *9-10 (N.D. Ill. Dec. 17, 1998) (citing statute and Smith v. Northeast Ill. Reg'l Commuter R.R. Corp., 569 N.E.2d 41 (Ill.App. Ct. 1991)). This court finds it unlikely that Illinois courts would extend the narrow tort of retaliatory discharge to encompass a claim like Emery's where she has an adequate alternative remedy.
Emery also argues that employees, like her, who report violations of the Occupational [ Page 14]
Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. § 651, have actionable retaliatory discharge claims under Illinois law. Without saying so explicitly, Emery essentially argues that she qualifies as a whistle-blower. The case on which she relies, Sherman v. Kraft General Foods, Inc., 651 N.E.2d 708, 712 (III. App. Ct. 1995), was a case in which the plaintiff reported OSHA violations. Illinois courts have recognized retaliatory discharge claims brought by employees allegedly discharged after reporting violations of various federal laws.*fn5 Brandon, 277 F.3d at 942 (collecting cases). Those cases involved violations of nuclear regulations, radioactive materials regulations, federal record keeping regulations, federal securities laws, and OSHA. Id. The impact of reporting such violations in those cases clearly extended beyond protecting an individual's rights and interests, and implicated the general welfare of others. The court is not persuaded that Emery's claim similarly implicates the general public welfare. She filed her FELA claim based on personal, physical injuries she incurred when she tripped over some raised electrical sockets at work. Complaining of a trip-and-fall is categorically different from reporting asbestos-related occupational hazards. See Sherman, 651 N.E.2d at 712. Moreover, even if such a claim could be characterized as whistle-blowing, the reporting of a federal violation is not the issue here. Emery does not allege she was discharged for filing a FELA claim or complaint, but that she was discharged for filing her FELA lawsuit, which occurred two-and-a-half years after [ Page 15]
she initially blew the whistle.*fn6
The defendants raise the additional argument that, as an attorney, Emery cannot bring a retaliatory discharge claim. The general rule is that attorneys cannot bring claims for retaliatory discharge under Illinois law against their employer/client because in most circumstances, "a client may discharge his attorney at any time, with or without cause." Balla v. Gambro, Inc., 584 N.E.2d 104, 108-109 (III. 1991). As explained above, Emery fails to state a claim for retaliatory discharge regardless of her status as attorney. The court therefore need not address whether Emery's case presents a basis for departure from this general rule. Count I is dismissed.
B. Defamation (against Metra, Noland, Barnett, Rosen, Capra & Valkan)
In Count VII, Emery brings a defamation claim against Metra, Noland, Barnett, Capra and Valkan. For defamation claims, federal courts require a plaintiff to plead defamation "with some specificity." Betten v. Citibank F.S.B., No. 94 C 5460, 1995 WL 387802, at *3 (N.D. III. June 28, 1995). A plaintiff bringing a defamation claim is required to plead `the alleged defamatory words published or spoken by the defendant." Chisholm v. Foothill Capital Corp., 940 F. Supp. 1273, 1284 (N.D. Ill. 1996). The reason for this rule is that "general knowledge of the exact language used is necessary [for defendants] to form a responsive pleading." Id. (citation and internal quotation marks omitted). Nevertheless, while courts give lip service to an in haec verba pleading requirement, at least in this district, a plaintiff need not allege the defamatory language verbatim. See id. [ Page 16]
Emery adequately satisfies the pleading requirements here. Indeed, more than twenty of the alleged defamatory statements at issue are pled as direct quotes. The problem defendants have with the complaint is that Emery neither specifies which defendant made which statement nor offers any context for the statements. Relying on cases from other circuits, defendants claim that Emery's defamation claim should he dismissed for failure to plead "the time, place, content, speaker, and listener of the alleged defamatory matter." Caudle v. Thomason, 942 F. Supp. 635, 638 (D.D.C. 1996). The court disagrees. No court in this district has ever required that degree of specificity for a defamation claim. See, e.g., Woodard v. Am. Family Mut. Ins. Co., 950 F. Supp. 1382, 1388 (N.D. III 1997) (requiring only content, not date, of libelous publication). Indeed, courts recognize that plaintiffs may not be able to state precisely which defendant made which statement, or to whom, without the benefit of discovery. Wynne v. Stevenson, No. 02 C 5263, 2002 WL 31804497, at *2 (N.D. III. Dec. 13.2002); Cozzi v. Pepsi-Cola Gen. Bottlers, Inc., No. 95 C 3648, 1997 WL 308841, at *6 (N.D. III, June 2, 1997). Emery's defamation claim against the individual defendants is sufficient.
As for the defamation claim against Metra, "a corporation is jointly and severally liable for [defamatory] statements actionable against its employee when the employee is acting within the scope of his employment." Reed v. Northwestern Publ'g Co., 530 N.E.2d 474, 484 (III. 1988). But Emery specifically alleges that the defamatory statements made by Noland, Barnett, Rosen, Capra and Valkan "were not made within the scope of their official duties, but for personal motives." (Compl. ¶ 39.) In so alleging, Emery has effectively pled herself out of court with respect to her claim against Metra. The defamation count, as it relates to Metra, is therefore dismissed. Emery may of course amend if she is can cure this defect; any amendment must be [ Page 17]
filed within twenty-one days.
Additionally, the court recognizes that the defamation claim, as it stands, makes it difficult for the defendants to answer or assert affirmative defenses.*fn7 The court therefore grants the defendants' request for a more definite statement. Emery is directed to supplement her defamation allegations within twenty-one days to include facts regarding the speaker, listener, timing and context of each alleged defamatory statement, to the extent she has such knowledge. Cozzi, 1997 WL 308841, at *6.
C. Tortious Interference with Contract (against Noland, Barnett, Rosen, Capra & Valkan)
Emery's claim for tortious interference with contract, set forth in Count IX, fails. Under Illinois law, there can be no claim for tortious interference with contract unless a valid and enforceable contract exists between the plaintiff and another. A-AbartElec. Supply, Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1404 (7th Cir. 1992). In the complaint, Emery makes the conclusory allegation that she had a valid, enforceable contract with Metra, an allegation that Metra challenges. In her opposition brief, Emery effectively concedes that she was an at-will employee. In Illinois, at-will employees have no enforceable contract rights against their employers, and thus cannot bring claims for tortious interference with a contract.*fn8 Dames & [ Page 18]
Moore v. Baxter & Woodman, Inc., 21 F. Supp.2d 817, 824 (N.D. III. 1998); McKay v. Pinkerton's Inc., 607 N.E.2d 237, 240 (III. App. Ct. 1993); Lusher v. Becker Bros., Inc., 509 N.E.2d 444, 445 (Dl. App. Ct. 1987). Count X is therefore dismissed.
D. Intentional Interference with Prospective Economic Advantage (against Noland, Barnett, Rosen, Capra & Valkan only)
In Count X, Emery seeks to hold the individual defendants liable for intentional interference with prospective economic (or business) advantage. Under Illinois law, to state a claim for intentional interference with prospective economic advantage, a plaintiff must allege: "(1) his reasonable expectation of entering into a valid business relationship; (2) the defendant's knowledge of the plaintiffs expectancy; (3) purposeful interference by the defendant that prevents the plaintiffs legitimate expectancy from ripening into a valid business relationship; and (4) damages to the plaintiff resulting from such interference." Fetthauer v. City of Geneva, 568 N.E.2d 870, 878 (III. 1991). Emery claims that the individual defendants interfered with her reasonable expectation of continuing her business relationships with (1) Metra, (2) NARTC, (3) JMLS, its administration, professors, graduates and students, and (4) various judges and attorneys. Emery claims that she reasonably expected each of these business relationships to continue "as valid relationships with employment and business opportunities." (See, e.g., Compl. ¶ 141.) The court addresses each of these claims in turn.
Regarding Emery's claim that the individual defendants interfered with her ongoing business relationship with Metra, the individual defendants do not question at this stage whether her expectation of continuing the relationship with Metra was reasonable. Rather, they move to dismiss on the ground that Emery has not alleged that they, Metra's employees and attorneys, are [ Page 19]
third parties for purposes of tortious interference. They also argue that as Metro's attorneys, they had a conditional privilege to advise their client.
A party cannot tortiously interfere with its own business relationship. Quist v. Bd. of Trs. of Cmty. Coll. Dist. No. 525, 629 N.E.2d 807, 811-12 (III. App. Ct. 1994). Ordinarily, the agents of a party to the business relationship cannot be liable for tortious interference either, because they are not third parties to the relationship. Id. Further, a conditional privilege exists if the defendant "acts to protect a conflicting interest which is considered to be of equal or greater value" than the plaintiff's interest in protecting a business relationship. Schott v. Glover, 440 N.E.2d 376, 379-80 (III. App. Ct. 1982) (discussing interference with contractual relationship, and explaining that business relationship receives less protection under the law than contractual relationship). Under the conditional privilege, an attorney, "when acting in his professional capacity, [is] free to advise his client without fear of personal liability to third persons if the advice later proves to be incorrect." Id. at 380. There are exceptions to these general rules, however. Agents who act in their own personal interests and contrary to the interests of their employer may be deemed third parties. See, e.g., Anderson v. Grayslake Sch. Dist. 46, No. 94 C 5133, 1995 WL 9190, at *5 (N.D. III. Jan. 6, 1995). Likewise, even where a conditional privilege exists, the privilege does not shield a defendant who acts with malice. Delloma v. Consol. Coal Co., 996 F.2d 168, 172 (7th Cir. 1993). For purposes of a claim for tortious interference with prospective economic relationship, "malice" means "intentionally and without justification" (not "vindictive or malevolent"). Id. (citing Fellhauer, 568 N.E.2d at 878). A "defendant may abuse the privilege, by making unjustified statements, by excessive publication of statements, or by making statements in conflict with the interest which gave rise to the privilege." Id. Here, [ Page 20]
Emery alleges that the individual defendants acted in their own personal interests, and against Metra's best interests, and did so with "a desire to harm Emery that was unrelated to the interests of their client." (Compl. ¶ 35.) For notice pleading purposes, this is sufficient.*fn9
Emery also claims that defendant Noland interfered with her relationship with the NARTC. Emery alleges that after she was elected president of the NARTC's Illinois/Indiana chapter, Noland made defamatory statements about her to Ronald Cuchna, an active member of the NARTC, who in turn spoke to the Executive Director of NARTC, demanding cancellation of Emery's membership. Emery's NARTC membership was cancelled and she was forced to step down as president of the local chapter. Emery's expectation of maintaining her presidency is not too speculative to be actionable, despite the defendant's argument to the contrary. She was not merely a candidate for the position — she had been elected. C.f. Buchanan v. Serbin Fashions, Inc., 698 F. Supp. 731, 734 (N.D. III. 1988).
Additionally, Emery claims the individual defendants interfered with her reasonable expectation of continuing her business relationship with JMLS, its administration, professors, graduates and students. According to Emery, she represented JMLS on a goodwill basis regarding the school's informational, promotional, and advertising materials. Additionally, she had received an L.L.M. from the school and had an ongoing relationship with her professors, [ Page 21]
some of whom had asked her to publish papers in various law reviews and journals. Emery alleges that the individual defendants (apparently all of them) posted a job notice for the Associate General Counsel position at JMLS two months after she had been removed from the position, even though they already knew that defendant Rosen would get the position. As a result of this posting, she received calls from various people regarding her job status at Metro. According to Emery, the posting, together with "widespread publishing of defamatory statements," led to the demise of her relationships with JMLS, its faculty, administration, graduates and students.
The claims relating to JMLS's faculty, administrators, graduates and students are far too attenuated to state a claim for intentional interference with prospective business advantage. Under Illinois law, a person who is the leading candidate for a job and allegedly loses the position as a result of defendant's interference has no claim because the "hope of receiving a job offer is not a sufficient expectancy." Anderson v. Vanden Dorpel, 667 N.E.2d 1296, 1299 (Ill. 1996). Illinois courts have likewise rejected claims by professors whose renewable contracts were not renewed, finding that the plaintiff lacked a sufficient expectation of continued employment. Id. at 1300 (discussing Werblood v. Columbia Coll., 536 N.E.2d 750 (III. App. Ct 1989) and Williams v. Weaver, 495 N.E.2d 1147 (III. App. Ct. 1986)). Given such precedent, the fact that professors had asked her to publish papers in the past is too speculative to support her claim. Further, by claiming the individual defendants interfered with her reasonable expectation of continued business relationships with professors, administrators, students and graduates, she is essentially claiming that they interfered with her prospects for networking. Indeed, according to the complaint, Emery reasonably expected each of these business relationships to continue "as [ Page 22]
valid relationships with employment and business opportunities." (Compl. ¶ 141.) (emphasis added). Yet she identifies no particular employment or business opportunity, and thus, alleges no more than the mere hope that these relationships might generate concrete opportunities. Emery offers no Illinois case that applies the tort of interference with prospective business advantage so expansively, and this court declines to do so. As a result, Emery has failed to allege an interference claim with respect to JMLS's faculty, administration, graduates and students.
The claims relating to her representation of JMLS, and the demise of that relationship, survive, however. Emery alleges that she represented JMLS throughout 2001 and into 2002, and that the individual defendants9 intentional and unjustifiable conduct led to the dissolution of that relationship.*fn10 Under Illinois law, a third party who intentionally causes the termination of an at-will contract between an attorney and client may be liable for tortious interference with prospective business advantage, because until the attorney-client relationship is terminated, the at-will contract has value to the attorney. Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk & W. Ry. Co., 748 N.E.2d 153, 161 (III. 2001).
As for Emery's claim that the individual defendants interfered with her legitimate expectancy of continued relationships with judges and attorneys "as valid relationships with employment and business opportunities," this claim fails for the same reason that her claim regarding her relationships with the JMLS faculty, administration, graduates and students fails: her claim is based merely on the hope that networking will evolve into a tangible business opportunity, which is insufficient. Further, to the extent Emery claims that the individual [ Page 23]
defendants interfered with her prospects for a federal judicial appointment, her claim is entirely too speculative. Emery had applied and interviewed for several federal judicial appointments. Evidently, she was told that the "process might take several years to come to fruition, but that Emery was a solid candidate for a judicial position." (Compl. ¶ 55.) The possibility of a federal judicial appointment years in the future is not actionable. See Anderson, 667 N.E.2d at 1299 ("hope of receiving a job offer" insufficient). To hold otherwise, at least under the facts alleged here, "would considerably broaden the scope of the tort." Id. at 1301.
Accordingly, Count X survives solely to the extent Emery claims that (1) the individual defendants intentionally interfered with her attorney-client relationships with Metra and JMLS, and (2) defendant Noland intentionally interfered with her relationship with the NARTC.
E. Civil Conspiracy (against all individual defendants)
The defendants seek dismissal of the civil conspiracy claim in Count XI on the ground that a principal and agent cannot conspire with each other under Illinois law. Buckner v. Atlantic Plant Maint., Inc., 694 N.E.2d 565, 571 (III. 1998). That is true, but defendants overlook the fact that, unlike her § 1983 conspiracy claim, Emery brings her civil conspiracy claim solely against the individual defendants, not against Metra. Thus, there is no issue of a principal conspiring with its agents. Further, Emery's conspiracy claim incorporated all of her substantive state law claims. Because some of Emery's substantive claims survive, her conspiracy claim also survives. The defendants also argue that they cannot discern the general nature of her conspiracy claim or which defendants allegedly conspired. The answer is quite simple: Emery alleges that all of the individual defendants conspired to defame her and to intentionally interfere with her prospective business advantage — the only substantive state law claims against the individual defendants that [ Page 24]
survive dismissal. According to the Seventh Circuit, "`[I]t is enough in pleading a conspiracy merely to indicate the parties, general purpose, and approximate date, so that the defendant has notice of what he is charged with.'" Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (quoting Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002)). The complaint adequately puts the individual defendants on notice of the civil conspiracy claim against them. Count XI therefore survives the motion to dismiss.
III. "Motions" Raised in the Briefs
Both sides attempt to make various motions in their briefs. This is procedurally improper. According to this district's local rules, all motions must be presented to the court, and are subject to dismissal if not properly noticed. N.D. III. L.R. 5.3, 78.2. Emery asks the court to strike certain references by defendants to the other judicial proceedings. The court denies the motion, but notes that it found no need to consider those other proceedings. The defendants seek a more definite statement on numerous counts, in the event the court does not dismiss. As explained above, the court grants this request solely with respect to the defamation claim, Count VII. Finally, Emery seeks leave to amend the complaint to add two counts, alleging retaliation in violation of § 1983 and OSHA. The court denies this motion for failure to properly present it, and for failure to attach the proposed new pleading. Bank of Wanakee v. Rochester Chees Sales, Inc., 906 F.2d 1185, 1192 (7th Cir. 1990).
The defendants' motion to dismiss is granted in part and denied in part, for the reasons set forth above. Specifically, Count XI and parts of Counts Vn and X survive. Counts I through VI, VII, IX and XII, part of Count X, and Count VII as it relates to Metra are dismissed. Emery has [ Page 25]
twenty-one days from the date of this order to file an amended complaint to the extent she can cure any of the defects addressed in this order. Likewise, Emery has twenty-one days to file a more definite statement for Count VII. In the event Emery does not amend, or amends but fails to state a federal claim, the court will decline to exercise supplemental jurisdiction and the case will be dismissed.
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