CONCLUSION
For the reasons set forth above, the Court finds that Scott’s § 1983 claim is barred by the
statute of limitations and that diversity jurisdiction does not exist to support the remainder of
Scott’s claims in this case and therefore that it has no jurisdiction over the matter. Accordingly,
Defendant’s motion to dismiss (R. 13) is GRANTED. The dismissal shall be without prejudice

to the refiling of Scott’s potential state law claims in an appropriate state court as detailed in this

ENTERED: KE ec

Judge Ruben Castillo
United States District Court

opinion.

Dated: September 26, 2012

20


enforcing the Agreement. (/d.) He further argues that he has spent over $7,500 in medical
expenses arising out of the alleged false arrest and malicious prosecution. (/d. at 5-6.) Finally,
he asserts that in his capacity as an Assistant General Counsel for the General Services
Administration he must maintain a medium level security clearance, with a five year review of
that clearance anticipated in 2013. (dd. at 6.)

Aside from his affidavit admitting only to the $10,000 in out-of-pocket expenses (R. 15,
Pl.’s Resp., Ex. B), Scott has offered no affidavits or supporting materials to meet his burden of
“proving jurisdictional facts by a preponderance of the evidence.” Meridian Sec. Ins. Co., 441
F.3d at 543. His assertion that he suffered “embarrassment, damage to reputation, harassment,
emotional distress, loss of time, and other damages,” (R. 6, Amend, Compl. §{[ 84, 91, 95, 100),
is unsupported by any facts or evidence of specific injury. Furthermore, Scott cites no authority
for why he should be compensated for the time he spent defending the criminal charges and
enforcing the Agreement. Scott does not indicate that he lost time at work or otherwise incurred
any compensable expenses associated with the time he spent defending the criminal charges and
enforcing the Agreement. To the extent that Scott is seeking compensation pursuant to the
parties’ Agreement, compensation under the relevant provision of that Agreement is only
available if a party is successful in enforcing the Agreement. Scott has not alleged that he was.
Any “expenses” Scott may have incurred under the Agreement are purely speculative at this
point. Furthermore, pursuant to 28 U.S.C. § 1332, the amount in controversy must exceed
$75,000 “exclusive of interest and costs.” 28 U.S.C. § 1332(a). To the extent that any of the 200
hours cited by Scott were expended in prosecuting the instant matter, they would constitute costs,

not damages. See Gardynsky-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998)

14


services of the Arlington County Sheriff's Office to effect service upon Scott in the
Commonwealth of Virginia. (/d. | 46.) Indeed, Deputy Rodney Williams of the Arlington
County Sheriff’s Office attempted to effect service upon Scott. (/d. | 47.) Scott was, however,
on extended business in Boston when Deputy Williams attempted to effect service, and on
account of extraordinary contemporaneous snow conditions, Scott was only able to return to
Arlington, Virginia on weekends, when the Arlington County Sheriff's Office could not effect
service in person. (/d. | 48.)

On February 11, 2010, an ex parte hearing relating to the Petition nevertheless occurred.
(id. § 49.) Scott had not been served with the Petition and was not present at the February 11,
2010, hearing. (/d. 50.) At the ex parte hearing the presiding judge characterized the Petition
as being “extremely skimpy.” (/d. 451). The judge stated, “[w]ell, the description of incidents
indicates a phone call based on taxes. So I presume there is more to it and I’m going to allow
you to file a supplemental description of incidents and we’ll go from there.” (Jd. § 52.) Later,
Defendant testified about the circumstances surrounding the voicemail message. (/d. { 53.)
During her testimony, Defendant made no allegations of the use of foul language, abusive tone,
or threats in the voicemail message. (/d. § 54.) The judge denied the Petition without the benefit
of Scott’s presence, testimony, or examination of Defendant. (/d. { 55.) Upon the denial of the
Petition for an Order of Protection, Flather and Defendant allegedly knew or reasonably should
have known that the “telephone harassment” charges were completely unmeritorious. (id. { 56.)

Despite the failure of the Petition for an Order of Protection, Defendant was undeterred,
and the pursuit of the “telephone harassment” charges based on the same occurrence—a “very

calm” voicemail message relating to a contractual duty Defendant had neglected for thirteen

wn


Drugs Antitrust Litig., 123 F.3d 566, 607 (7th Cir. 1997). But that is just what Scott has done
here—wave his unsupported $300,000 punitive damages claim in the Court’s face. Scott’s
complaint does not contain facts that support an award of punitive damages, and therefore his
speculation as to the amount of such an award will not be considered by this Court in its
determination of the amount in controversy. See Smith, 337 F.3d at 896 (finding no basis in
Illinois law to support such a large award of punitive damages to establish the amount in
controversy minimum); see, e.g., Lewis, 631 F. Supp. 2d at 1067 (finding that the plaintiff's
prayer for punitive damages could not be used to calculate the jurisdictional threshold where the
plaintiff's complaint could not support an award of punitive damages).

In sum, the Court finds that Scott has failed to meet his burden of demonstrating that he
has satisfied the jurisdictional threshold and instead has simply pointed to speculative or
theoretical possibilities of recovery. Accordingly, Defendant’s motion to dismiss is granted
pursuant to Rule 12(b)(1).!

Under well-settled Seventh Circuit law, there is no federal claim for malicious
prosecution where state law provides an adequate remedy. See Newsome v. McCabe, 256 F.3d
747, 750 (7th Cir. 2001) (“{T]he existence of a tort claim under state law knocks out any
constitutional theory of malicious prosecution.”); see also Penn v. Harris, 296 F.3d 573, 576 (7th

Cir. 2002); McCullah v. Gadert, 344 F.3d 655, 658-59 (7th Cir. 2003); Holmes v. Vill. of

' Because the Court dismisses the complaint for lack of jurisdiction, it need not address
the Defendant’s alternative arguments that all of Scott’s claims are barred pursuant to the
doctrine of res judicata; that Scott’s claims should be dismissed or stayed pursuant to Colorado
River, 424 US. at 818, as duplicative of claims alleged by Scott in judicial proceedings that were
filed in the Circuit Court of Arlington County, Virginia; that Count II is barred by the statute of
limitations and fails to state a claim upon which relief can be granted; and that Count IV fails to
state a claim upon which relief can be granted. (R. 13, Def.’s Mot. at 7-11.)

18


alleged. See id, at 678.

When considering a Rule 12(b)(6) motion to dismiss, the Court is generally confined to
allegations in the complaint and cannot consider extrinsic evidence without converting the
motion into one for summary judgment, although “the bar on considering matters outside the
pleadings is not absolute.” Cont’l Cas. Co. y. Am. Nat. Ins. Co., 417 F.3d 727, 731 n.3 (7th Cir.
2005). The limitation on what the Court may consider is attenuated by Rule 10(c) of the Federal
Rules of Civil Procedure insofar as “documents attached to the complaint, documents that are
critical to the complaint and referred to in it, and information that is subject to proper judicial
notice” may also be considered by the Court in deciding a motion to dismiss without converting
it into a motion for summary judgment. Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th
Cir. 2012) (citing Fed. R. Civ. Pro. 10(c)). Documents that a defendant attaches to a motion to
dismiss will be considered part of the pleadings if they are referred to in the plaintiff's complaint
and are central to the plaintiff's claims. See, e.g., Maxwell v. Cnty. of Cook, No. 10 C 320, 2011
WL 1004561, at *3 (ND. Ill. March 17, 2011) (citing Cont’? Cas. Co., 417 F.3d at 731 n.3).
Furthermore, the Court may take judicial notice of matters of public record without converting a
motion to dismiss into a motion for summary judgment. See General Elec. Capital Corp. v.
Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997); Henson v. CSC Credit Servs., 29
F.3d 280, 284 (7th Cir. 1994). This includes taking judicial notice of state court decisions. See
520 S. Michigan Ave. Assocs., Ltd. vy. Shannon, 549 F.3d 1119, 1138 n.14 (7th Cir. 2008) (citing
Inre Salem, 465 F.3d 767, 771 (7th Cir. 2006)).

Federal Rule of Civil Procedure 8(a)(2) therefore imposes “two easy-to-clear hurdles” on

every complaint in order to survive a motion to dismiss pursuant to Federal Rule of Civil

10


Trial of the “telephone harassment” charges occurred on September 27, 2010. (/d. 4 74.)
Representing himself, Scott won a directed verdict of not guilty at the close of the People’s case
as presented by Flather. (/d. 75.) As the transcript of the trial reflects, Defendant twice
testified that Scott’s tone in the voicemail message was “very calm.” (/d. § 76.)

PROCEDURAL HISTORY

On March 23, 2012, James F. H. Scott commenced this action by filing a complaint
against Kelli D. Bender and Frederick P. Flather alleging malicious prosecution against Bender
(Count I); false imprisonment against Bender (Count ID); violation of 42 U.S.C. § 1983 against
Bender (Count III); breach of contract against Bender (Count IV); and tortious interference with
contract against Flather (Count V). (R. 1, Compl.)

On April 10, 2012, the Court dismissed the complaint without prejudice citing the
absolute or qualified immunity that Flather is entitled to for his actions as an Assistant State’s
Attorney in DuPage County. (R. 5, Min. Entry.) On June 12, 2012, Scott filed an amended
complaint alleging the present claims against Bender. (R. 6, Amend. Compl.)

Defendant filed her motion to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) on August 22, 2012. (R. 13, Def.’s Mot.) Scott admits that his § 1983
action against Defendant is time-barred but he argues that such an affirmative defense is an
improper basis to dismiss under Rule 12(b)(6). (R. 15, Pl.’s Resp. at 2.) Defendant argues that
Scott’s remaining claims do not satisfy the jurisdictional amount in controversy requirement of
28 U.S.C. § 1332. (R. 13, Def.’s Mot. at 5-6.) In addition, Defendant argues that all of Scott’s
claims are barred pursuant to the doctrine of res judicata. (id. at 7.) Next, Defendant argues that

Scott’s claims should be dismissed or stayed pursuant to the doctrine set forth in Colorado River


months—continued. (Jd. § 61.) On March 22, 2010, Scott was arrested, taken into custody,
handcuffed, searched numerous times, deprived of his belt and shoelaces, held in a cell with
apparent criminals for several hours, fingerprinted three times, and forced to post $1,000.00 bond
in DuPage County, Illinois. (/d. { 62.) The terms of bond releasing Scott from the DuPage
County Jail required that Scott remain within the State of Illinois. (Jd. 4 63.) Scott and his dog
live in the Commonwealth of Virginia. (Id. § 64.) On March 23, 2010, Scott filed a motion to
modify the terms of bond permitting him to leave the State of Illinois, providing the required
three-day notice for that motion to be heard. (/d. § 65.) On March 26, 2010, Scott’s motion to
modify the terms of bond was granted, and he returned to his home in Virginia. (/d. {| 66.)

On April 15, 2010, Scott sent an email to Meyer informing her, among other things, that
Defendant should make arrangements for the immediate dismissal of the “telephone harassment”
case and that Scott intended to pursue enforcement of the Agreement. (/d. 67.) Defendant has
acknowledged that Meyer forwarded the April 15, 2010, email to her. (/d. 4 68.) Defendant has
also acknowledged that she made no effort to have the “telephone harassment” charges
dismissed. (Jd. { 69.) Defendant has acknowledged that, notwithstanding the “Anti-Harassment”
and “Antilitigation” provisions of the Agreement, she conferred with Flather every “couple of
weeks” through the trial of the “telephone harassment” charges. (/d. 70.)

Scott allegedly suffered acute emotional distress on account of his arrest. (/d.§ 71.) On
account of the emotional trauma and extreme anxiety Scott encountered, soon after his return
from Illinois he began talking a selective serotonin reuptake inhibitor under consistent psychiatric
monitoring. (/d.§ 72.) Scott continues to take that selective serotonin reuptake inhibitor under

regular psychiatric care to this date. (Id. § 73.)


Hoffman Estate, 511 F.3d 673, 683 (7th Cir. 2007); Parish v. City of Chi., 594 F.3d 551, 553 (7th
Cir. 2009). Illinois recognizes the tort of malicious prosecution, and therefore provides
aggrieved plaintiffs with an adequate remedy at law. See Ray v. City of Chi., 629 F.3d 660, 664
(citing Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996)). Thus, malicious prosecution
cannot be brought as a constitutional tort pursuant to § 1983. See Newsome, 256 F.3d at 750.
However, Scott can bring a claim for malicious prosecution in Illinois state court, as the statute
of limitations for malicious prosecution claims accrues when the underlying criminal proceedings
terminate in the plaintiff's favor. See Ferguson v. City of Chi., 820 N.E.2d 455, 462 (IIL. 2004).
The proceedings do not terminate, and a claim for malicious prosecution does not accrue, until
the State is precluded from seeking reinstatement of the charges. See id. at 461. That period is
marked by the expiration of the statutory speedy-trial period. See id. Only then can the
underlying criminal proceedings against the plaintiff be deemed to have terminated. See id. at
462. In addition, Scott may bring his breach of contract action in Illinois state court because
breach of written contract claims are governed by a ten-year statute of limitations. See
Armstrong v. Guigler, 673 N.E.2d 290, 293 (Ill. 1996) (holding that for oral contracts, as
opposed to written ones, the five-year statute of limitations applies rather than the ten-year statute
of limitations). Unfortunately for Scott, the statute of limitations has run on his claim for false
imprisonment, as under Illinois law claims for false imprisonment are governed by a two-year
statute of limitations. See Montague v. George J. London Mem’! Hosp., 396 N.E.2d 1289, 1293
(il. App. Ct. 1st Dist. 1979). Therefore, the appropriate forum for Scott’s claims of malicious
prosecution and breach of contract is Illinois state court, where his claims may not have already

accrued and where he need not plead damages in excess of $75,000 to proceed.

19


plaintiff's good faith allegation of the amount in controversy.” McMillian v. Sheraton Chicago
Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009) (internal citations omitted). However, when
a defendant challenges the amount in controversy, the plaintiff must support his assertion with
“competent proof.” Jd. A party must do more than “point to the theoretical availability of certain
categories of damages.” Am. Bankers Life Assur. of Fla. v. Evans, 319 F.3d 907, 909 (7th Cir.
2003). General assertions of damages, unsupported by any facts or evidence of specific injury,
do not suffice. See, e.g., Ganjavi v. Smith, No. 06 C 4189, 2007 WL 2298375, at *4 (N.D. Ill.
July 31, 2007).

When considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all of the
well-plead facts alleged in the plaintiff's complaint and construes all reasonable inferences in
favor of the nonmoving party. See Erickson, 551 U.S. at 94; Killingsworth, 507 F.3d at 618
(citing Savory, 469 F.3d at 670). To properly state a valid claim, the complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “Detailed factual allegations” are not required, but the plaintiff must allege facts
that, when “accepted as true. . state a claim to relief that is plausible on its face.” Ashcroft v.
Igbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (internal quotation marks omitted). To determine whether a complaint meets this
standard, the “reviewing court [must] draw on its judicial experience and common sense.” Jgbal,
556 U.S. at 678. If the factual allegations are well-plead, the Court entitles them to the
presumption of truth and then proceeds to determine whether they plausibly give rise to an
entitlement to relief. See id. at 679. A claim has facial plausibility when its factual content

allows the Court to draw a reasonable inference that the defendant is liable for the misconduct


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JAMES F. H. SCOTT, y
Plaintiff, )
vy. } No. 12 C 2148
KELLI D. BENDER, et al., } Judge Ruben Castillo
Defendants. }

MEMORANDUM OPINION AND ORDER

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

RELEVANT FACTS

In deciding the instant motion, the Court assumes the veracity of the well-plead
allegations in Scott’s complaint and construes all reasonable inferences in his favor. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Killingsworth v. HSBC Bank, 507 F.3d 614, 618
(7th Cir. 2007) (citing Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006)). At all times relevant
to Scott’s complaint, Defendant was Scott’s former wife. (R. 6, Amend Compl. § 10.) In
Summer 2007, Scott and Defendant entered into a Separation and Property Settlement

Agreement (“Agreement”). (/d. 11.) The Agreement provides, inter alia, “Anti-Harassment


ANALYSIS

Scott invokes federal subject matter jurisdiction pursuant to 28 U.S.C. § 1331, as his
claim brought under 42 U.S.C. § 1983 arises under the laws of the United States. (R. 6, Amend.
Compl. {] 5, 94.) Defendant asserts that Scott’s § 1983 claim is untimely, as it was brought
more that two years after the arrest that forms the basis of the action. (R. 13, Def.’s Mot. at 4.)
Section 1983 does not contain an express statute of limitations, so the Court must apply the
forum state’s statute of limitations for personal injury suits to claims brought pursuant to § 1983.
See Wallace v. Kato, 594 U.S. 384, 387 (2007). The statute of limitations for § 1983 claims filed
in Illinois is two years, as provided for in 735 Ill. Comp. Stat. 5/13-202. See Ashafa v. City of
Chi., 146 F.3d 456, 462 (7th Cir. 1998); see also Jenkins v. Vill. of Maywood, 506 F.3d 622, 623
(7th Cir. 2007). Scott concedes that his § 1983 action is untimely but argues that the timeliness
of a cause of action is not a proper basis for dismissal under Rule 12(b)(6). (R. 15, PI.’s Resp. at
2.) Scott is correct that a plaintiff's failure to timely file a complaint under the governing statute
of limitations is an affirmative defense, and as such it need not be anticipated by the complaint in
order to survive a motion to dismiss. See Indep. Trust. Corp. v. Steward Inf. Servs. Corp., 665
F.3d 930, 935 (7th Cir. 2012). However, when the complaint “sets out all of the elements of an
affirmative defense” and plainly reveals that an action is untimely, dismissal under Rule 12(b)(6)
is the appropriate remedy. Jd. The § 1983 action arises out of an arrest that Scott affirmatively
pleads occurred on March 22, 2010. (R. 6, Amend. Compl. { 62, 87.) Scott’s original
complaint in this matter was filed on March 23, 2012, two years and one day after the alleged
arrest. (R. 1, Compl.) The statute of limitations in Illinois for claims brought pursuant to § 1983

is two years. See 735 Ill. Comp. Stat. 5/13-202; Ashafa, 146 F.3d at 462; Jenkins, 506 F.3d at

12


Procedure 12(b)(6). See Tamayo v. Blagojevich, 536 F.3d 1074, 1804 (7th Cir. 2008) (quoting
EEOC vy. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Twombly, 550
U.S. at 555)) (internal citations and quotation marks omitted); accord Iqbal, 556 U.S, at 678.
First, a complaint must describe the plaintiff's claims and the grounds supporting them in
“sufficient detail to give the defendants fair notice” of the claims alleged against them, which
requires more than mere “labels and conclusions” or a “formulaic recitation of the elements of a
cause of action.” Concentra, 496 F.3d at 776. Notice to the defendant alone, however, is not
sufficient. To survive a motion to dismiss, the complaint must also include factual allegations
which “plausibly suggest a right to relief, raising that possibility above a speculative level.” See
id. If a complaint does not satisfy these two “hurdles,” “the plaintiff pleads itself out of court.”
Id. “The plausibility standard . . . asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that were merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of entitlement to relief.”
Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “‘Plausibility’ in this context does not
imply that the district court should decide whose version to believe, or which version is more
likely than not.” Swanson y, Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). The plausibility
standard means that “the plaintiff must give enough details about the subject-matter of the case to
present a story that holds together. In other words, the court will ask itself cou/d these things
have happened, not did they happen.” Jd. Thus, a motion to dismiss may be properly granted in
favor of the moving party where the plaintiff does not allege a plausible entitlement to relief
either by failing to provide the defendant with notice of plausible claims alleged against her or by

asserting only speculative or conclusory allegations in the complaint.

11


Water Conservation Dist. v. U.S., 424 U.S. 800, 818 (1976) as duplicative of claims alleged by
Scott in judicial proceedings that were filed in the Circuit Court of Arlington County, Virginia.
(Ud. at 8-9.) Defendant further argues that Count II is barred by the statute of limitations and fails
to state a claim upon which relief can be granted. (/d. at 9-10.) Finally, Defendant argues that
Count IV must be dismissed because it fails to state a claim upon which relief can be granted.
(id. at 10-11.)

LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(1) asks the court to dismiss an action over
which it allegedly lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Jurisdiction
based on diversity exists if the amount in controversy exceeds $75,000 and the suit is between
citizens of different states. See 28 U.S.C. § 1332(a)(1). The plaintiff, as the party invoking the
Court’s jurisdiction, bears the burden of proving jurisdictional facts by a preponderance of the
evidence. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006).

In ruling on a motion to dismiss for lack of subject matter jurisdiction, the Court may
look beyond the jurisdictional allegations of the complaint and view evidence to determine
whether jurisdiction has been established. See United Phosphorus, Ltd. v. Angus Chem. Co., 322
F.3d 942, 946 (7th Cir. 2003). The determination is based on “what the plaintiff is claiming,”
and “not whether plaintiff is likely to win or be awarded everything he seeks.” Brill v.
Countrywide Home Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005). With respect to the amount
in controversy, dismissal is appropriate only if it is “legally certain” that recovery will be less
than the jurisdictional floor. Meridian Sec. Ins. Co., 441 F.3d at 543.

When the jurisdictional threshold is uncontested, the Court generally “will accept the


complaint, initiating criminal “telephone harassment” proceedings against Scott based on the
voicemail message. (Id. { 27.) Despite Scott’s request, Flather refused to provide Scott with a
copy of the voicemail message. (/d. 38.) Scott has attempted to secure an electronic copy of
the voicemail message, submitting Freedom of Information Act requests to the DuPage County
State’s Attorney’s Office and the Wheaton, Illinois Police Department. (/d. 439.) Each body
has denied being in possession of the voicemail message. (Jd.) In subsequent proceedings,
Defendant testified that the voicemail message was the first direct contact she had received from
Scott since 2007. (Id. 40.)

On January 28, 2010, with Flather’s guidance, encouragement, assistance, and
participation, and at Flather’s request, Defendant petitioned the Circuit Court for DuPage County
for an Order of Protection (“Petition”) against Scott. (/d. 41.) The Petition was prepared on a
preprinted form, and in the appropriate location, Defendant identified the incident which formed
the basis of the Petition as: “James contacted me on my private cell phone and left me a message
regarding taxes. I don’t know how he got my phone number because | never gave it to him. I
didn’t call him back instead I contacted the local police department because James is not
supposed to have any contact with me per our divorce decree. During our marriage, James was
very controlling and | am aftaid of him.” (/d. 42.) The Petition allegedly served no other
purpose than to vex and harass Scott. (id. 7 43.)

Both Flather and Defendant intended for the Arlington County, Virginia, Sheriff's Office
to effect service of the Petition upon Scott at his home in Arlington. (/d. 444.) Both Flather and
Defendant were aware that the Arlington County Sheriffs Office would receive no compensation

for its efforts to serve the petition. (dd. | 45.) Flather and Defendant availed themselves of the


(“jurisdiction depends on the state of affairs when the case begins; what happens later is
irrelevant”).

In fact, Scott has not even alleged what amount he might be entitled to based on the
claimed 200 hours. In addition, Scott has failed to explain how his position as a government
lawyer translates to damages sufficient to meet the jurisdictional threshold. To the extent that
Scott is implying that the underlying criminal proceedings could adversely affect his anticipated
security clearance review in 2013, any damages in that regard are purely speculative. Finally, the
Court is not persuaded that Scott’s arrest, custody, fingerprinting, detention in Illinois, or the
alleged psychological damage that he suffered as a consequence gave rise to “embarrassment,
damage to reputation, harassment, emotional distress, loss of time, and other damages” supported
by evidence or facts of specific injury. See, e.g., Lewis v. Weiss, 631 F. Supp. 2d 1063, 1066
(N.D. Ill. 2009) (holding that allegations of “reputational harm, emotional harm, emotional
suffering, and humiliation” in addition to “substantial” legal expenses were too vague to establish
the jurisdictional floor for damages, absent any actual evidence of injury). The Court therefore
finds that these allegations are vague generalizations that do not rise to the level of competent
proof required to meet the statutory amount in controversy requirement necessary to invoke the
jurisdiction of this Court. See 28 U.S.C. § 1332(a); see, e.g., Ganjavi, 2007 WL 2298375, at *4
(holding that absent any actual evidence of injury, the plaintiff's allegations were too vague to
establish the jurisdictional floor for damages).

Next, Scott contends that he may rely on punitive damages to satisfy the amount in
controversy requirement. (R. 15, Pl.’s Resp. at 6.) The Seventh Circuit has cautioned against

finding the amount in controversy requirement met for “claims filed in federal court that attempt

15


at 896.

Scott cites William J. Templeman Co. v. Liberty Mut. Ins. Co., 735 N.E.2d 669, 674-75
(Ill. App. Ct. 1st Dist. 2000), for the proposition that punitive damages are also recoverable under
Illinois law for claims of malicious prosecution, (R. 15, P1.’s Resp. at 5.) Scott ignores or fails
to appreciate the principle that the Illinois Appellate Court was trying to express in Templeman;
namely, that punitive damages and compensatory damages are not identical, and that punitive
damages for a claim of malicious prosecution require a “higher degree of malice than is
necessary to prove malicious prosecution.” Jd. at 674 (citing AAA Employment, Inc. v. Weed, 457
So.2d 428, 432 (Ala. Civ. App. 1984)). “In a malicious prosecution case in the absence of proof
of malice, {the plaintiff] would only be entitled to recover compensatory damages.” Id. at 674-75
(quoting Thieme v. MacArthur, 1 N.E.2d 514, 518 (ll. App. Ct. 2d Dist. 1936)) (internal
quotation marks omitted); see also Swick v. Liautaud, 662 N.E.2d 1238, 1247 (Ill. 1996)
(McMorrow, J. concurring) (“[A] defendant’s conduct may be sufficiently malicious to support
the underlying cause of action without necessarily being sufficient to support an award of
punitive damages.”). Scott has not provided any facts, either in his pleading or in his response to
Defendant’s motion to dismiss, that would establish malice beyond the norm for a malicious
prosecution claim. Therefore, Scott has not come forward with “competent proof” that his claim
for malicious prosecution could support an award of punitive damages in the amount of
$300,000, and it appears to a legal certainty that the claim of $300,000 in punitive damages
cannot be sustained on Scott’s malicious prosecution claim. See Smith, 337 F.3d at 896.

A plaintiff must present competent proof to support his punitive damages claims; he

“cannot simply wave” those claims “in [the Court’s] face.” Jn re Brand Name Prescription

17


that according to Aiken, Defendant had furnished Aiken with everything they needed to prepare
the joint returns, except for the 2004 W-2 Statement. (Jd. ] 23.) According to Meyer, Defendant
arranged for her former employer to send a copy of her 2004 W-2 Statement directly to Aiken.
(id)

On December 14, 2009, Scott learned that Defendant still had not produced documents
relating to tax year 2004. (/d. { 24.) Scott immediately emailed Meyer, complaining of her
client’s continued failure to produce such documents. (/d. § 25.) Meyer provided no response to
Scott’s December 14, 2009 email. (id. § 26.) Scott emailed Meyer again on December 18, 2009,
inquiring when the 2004 tax documents would be produced. (/d. 27.) Scott still received no
response. (/d. 4 28.) It was evident to Scott that Defendant was allegedly constructively
unrepresented with respect to the execution of the requirements of the Agreement. (/d. § 29.)

On December 20, 2009, Scott telephoned Defendant directly, leaving a voicemail
message requesting that she contact him to discuss production of the 2004 tax documents. (/d. §
30.) At this time, thirteen months had elapsed since Scott first requested production of the 2004
tax documents. (/d. § 31.) During this thirteen month period, Defendant’s and Meyer’s limited
discussions were largely confined to unfulfilled promises to produce. (/d. § 32.) Defendant has
testified that the tone of Scott’s voicemail message was “very calm.” (/d. § 33.) Defendant did
not return the voicemail message as Scott requested. (/d. | 34.) Rather, Defendant called the
Wheaton, Illinois police. (fd. | 35.) The Wheaton, Illinois Police Department prepared a
tecording of the voicemail message. (Id. 4 36.)

On January 11, 2010, in cooperation with Assistant State’s Attorney Frederick Flather

and upon Flather’s direction, Defendant filed a sworn verification of Flather’s criminal


Provisions,” “Enforcement Provisions,” “Taxes Provisions,” “Antilitigation Provisions,” and a
“Time Provision.” (/d. J 12.)

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

On July 9, 2009, Scott visited the offices of Aiken to discuss the tax returns with Aiken’s
personnel. (/d. { 18.) Notwithstanding Meyer’s assurances of production, it was evident that
Defendant had still not provided documents relating to tax year 2004. (/d. 19.) Later that day,
Scott emailed Meyer, complaining that Defendant had still failed to produce documents relating
to tax year 2004. (Id. § 20.) On July 10, 2009, Meyer responded: “Mr. Scott, I have made it
clear to you since last year that I am not authorized by Kelli to communicate with you at all on
this case any further. There is no need for you to continue emailing me.” (/d. 21.) Because
Scott received no further communications from Meyer, on July 16, 2009, Scott emailed Meyer in.
exasperation. (Jd. 22.) In his email, Scott complained that, among other things, Defendant had

not provided Aiken with a W-2 Statement for 2004. (/d.) On July 20, 2009, Meyer responded


623. Thus, Scott’s § 1983 cause of action contained in Count III is untimely and it is therefore
dismissed pursuant to Rule 12(b)(6).

Because his only count arising under federal law is dismissed, Scott must rely on diversity
jurisdiction pursuant to 28 U.S.C. § 1332 to invoke federal jurisdiction for the remainder of his
claims. Scott prays for $150,000 in compensatory damages on each of his counts and $300,000
in punitive damages on Counts I-III. (R. 6, Amend. Compl. {§ 85, 92, 96, 101.) Defendant
argues that the claims do not support the amount in controversy of $75,000 because Scott does
not allege actual damages that would justify compensation in the amount he prays for or the
threshold jurisdictional amount. (R. 13, Def.’s Mot. at 5.) Scott, however, claims that the
compensatory damages and punitive damages sought in his complaint are sufficient to invoke the
jurisdiction of this Court. (R. 15, Pl.’s Resp. at 5-6.)

Assuming, arguendo, that compensatory damages are recoverable, Scott must offer
“competent proof” in support of his amount in controversy assertion. McMillian, 567 F.3d at
844; Brill, 427 F.3d at 447 (“Whichever side chooses federal court must establish jurisdiction; it
is not enough to file a pleading and leave it to the court or the adverse party to negate
jurisdiction.”). In his response, Scott merely argues that his complaint states “quite reasonable
damages well in excess of $75,000.” (R. 15, Pl.’s Resp. at 5.) He asserts that he was “arrested,
handcuffed, taken into custody, searched numerous times, held in a jail cell for several hours,
fingerprinted, detained in Illinois for four days pending a hearing on his motion to modify bail,
and suffered acute emotional trauma and anxicty necessitating intensive, continuing, psychiatric
care.” (/d.) Scott further argues in support of his damages claim that he has spent in excess of

$2,500 in out-of-pocket expenses and over 200 hours defending the criminal charges and

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to circumvent the amount in controversy requirement for diversity jurisdiction by seeking
excessive and unrealistic punitive damages.” Smith v. Am. General Life and Acc. Ins. Co., Inc.,
337 F.3d 888, 893 (7th Cir. 2003). The Court must “take a realistic look at the size of the
punitive damages demanded” to see if they are sufficient to invoke the exercise of federal
jurisdiction. Jd. at 894 (citing State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408
(2003)). Where punitive damages are relied upon to satisfy the amount in controversy
requirement, the Court must first determine whether punitive damages are recoverable under the
applicable law. See LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 551 (7th Cir. 2008).
The Seventh Circuit has cautioned that “if it appears to a legal certainty that the claim for the
requisite level of punitive damages cannot be sustained, then regardless of how much the plaintiff
seeks in punitive damages relative to compensatory damages, []he cannot use the punitive
damages towards the jurisdictional minimum.” Smith, 337 F.3d at 896.

Scott cites Adams y. Zayre Corp., 499 N.E.2d 678, 685-86 (Ill. App. Ct. 2d Dist. 1986),
for the proposition that punitive damages are recoverable under Illinois state law for claims of
false imprisonment. (R. 15, PI.’s Resp. at 5.) Unlike the plaintiff in Adams, see id., Scott has not
alleged or otherwise presented any facts that would establish that his arrest and subsequent
prosecution were conducted recklessly, oppressively, insultingly, willfully, or in violation of any
guidelines or rules established for such procedures. Furthermore, the award of punitive damages
in Adams, id. at 685, was $30,000, a far cry from the $300,000 that Scott is praying for in the
instant case. There is no basis in Illinois law to support such a vast award of punitive damages
for a claim of false imprisonment, and it appears to a legal certainty that the claim of $300,000 in

punitive damages cannot be sustained on Scott’s false imprisonment claim. See Smith, 337 F.3d

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