a

No. 02 C7314 Page 4

Pipefitters Welfare Educ, Fund, 25 F.3d 417, 420 (7 Cir. 1994), The court should dismiss a

claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
While the complaint does not need to provide the correct legal theory to withstand a Rule
12(b)(6) motion, it must allege all of the elements necessary to recover. Ellsworth y. City of

Racine, 774 F.2d 182, 184 (7 Cir. 1985), cert. denied, 475 U.S. 1047 (1986).

Plaintiff alleges that defendants were unjustly enriched when they failed to return the
money she paid them in connection with the dispositions of the two lawsuits. She claims that
her right to reimbursement was triggered as soon as the appellate court remanded the cases
for further proceedings. We need not reach the merits of her claim at this time, only decide
whether she states a claim and whether we have jurisdiction to hear her case.

The Seventh Circuit held that appeal of the bankruptcy case through the federal system

was not the proper forum in which to litigate this claim. Zurn, 290 F.3d at 864. Instead, the

court determined that the proper forum was the state court. Id. at 864-65. In doing so,
however, it seems clear that the Seventh Circuit was not absolutely limiting the forum in which
plaintiff could file suit but instead limiting the procedure that she could use to do so. The
Seventh Circuit’s opinion does nothing to bar plaintiff from filing this independent action
based on state law if she meets the statutory requirements of diversity jurisdiction. To the
extent that plaintiffs claim is based on state law, we serve as the equivalent of a state court in
handling this dispute.

Likewise, the Rooker-Feldman doctrine and res judicata do not help defendants.

Plaintiff here is neither seeking to use the federal court system to review a state court judgment



No. 02 C 7314 Page 3

alleging that she was never reimbursed by defendants the money that she paid under the
liquidation plan. The petition to reopen was granted but Zurn’s motion for repayment was
denied by the bankruptcy court. The district court affirmed the decision of the bankruptcy
court and Zurn appealed the case to the Seventh Circuit. The Seventh Circuit affirmed the
district court’s decision, stating that “the parties must thereafter look to the state courts to
handle their complete dispute and may not drag selected issues back to the bankruptcy forum
years later.” In re Zurn, 290 F.3d 861, 864 (7 Cir, 2002).

Defendants allege, along with their motion, that the Illinois Appellate Court’s mandate
was filed in DuPage County, on November 9, 1998. Not until January 2000 did plaintiff move
to reinstate the initial tort case in the lower state court and she never acted to reinstate the
second case in lower state court. The DuPage County court denied her petition to reinstate,
determining that she was the prevailing party on appeal, the 14-month delay was unjustified
and concluding that plaintiff had therefore abandoned her claim.

Plaintiff now brings this suit for unjust enrichment to recover the money paid under
the liquidation plan. She alleges that she was entitled to reimbursement at the time that the
Illinois Appellate Court reversed the orders of the lower state courts, yet she has yet to receive
any money from defendants. Defendants argue that the Seventh Circuit’s opinion requires any
subsequent litigation in this matter to take place in state court and that this issue was already
decided in the earlier decisions.

DISCUSSION
In deciding a Rule 12(b)(6) motion to dismiss we must assume the truth of all well-

pleaded allegations, making all inferences in the plaintiff's favor. Sidney S. Arst Co. v.



No. 02 C 7314 Page 5

with which she is unhappy, nor seeking to relitigate the tort case against Botti and the Botti
firm or the attorneys’ fees case against the two law firms. Instead, she has filed an
independent claim, alleging that defendants were unjustly enriched as a result of their failure
to reimburse her during the ongoing litigation. Illinois law allows a party to use such an
independent action for unjust enrichment to obtain restitution arising from previous litigation,
rather than forcing the prospective plaintiff to reopen the previous case. Liberty Mutual Ins.
Co. y. Zambole, 141 Ill. App. 3d 803, 491 N.E.2d 132, 96 Hl. Dec. 318 (Il. App. Ct. 2° Dist.
1986).
CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss is denied.

4) JAMES B. MORAN
or Judge, U. S. District Court

Ha SF , 2003.



~

Minute Onder Form (06/97)

United States District Court, Northern District of Illinois

(/0)

Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 7314 DATE 3/5/2003
CASE Mary Anne Zurn vs. Aldo E. Botti etc. et al.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

Gy)

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
(1) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motiondue__.
(3) Oo Answer brief to motion due___. Reply to answer brief due__
(4) oO Ruling/Hearingon set for_—_at
(5) a Status hearing[held/continued to] [set for/re-set for]on__set for__ at.
(6) Q Pretrial conference[held/continued to] [set for/re-set for]on____setfor__——sat__.
(7) Qo Trial[set for/re-set for] on__at
(8) im} [Bench/Jury trial] [Hearing] held/continuedto__at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) ClLocal Rule 41,1 OFRCP41(a)(1) 1 FRCP41(a)(2).
ao) =f [Other docket entry] | Enter Memorandum Opinion and Order. Defendants’ motion to dismiss is

denied. Status hearing set for March 20, 2003 at 9:15am.

a [For further detail see order attached to the original minute order.}

No notices required, advised in open court.

No notices required. number of notices

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form. Lynos Latsia sn
veTT

Copy to judge/magistrate judge.

courtroom

60:2 Hd S- wyH EU
WAH deputy’s

QT omaatqy
initials
Date/time received in
central Clerk’s Office

railing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION gook iF

4

MARY ANNE ZURN, ) war 06 2003
)
Plaintiff, )
)

vs. ) No. 02 C 7314

)
ALDO E. BOTTI, BOTTI, MARINACCIO & )
TAMELING, LTD. (n/k/a Botti, Marinaccio & )
DeLongis, Ltd.), and MORAN, MOREHOUSE )
& BRUNO, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Mary Anne Zurn filed suit against defendants Aldo E. Botti (Botti), Botti,
Marinaccio & Tameling, Ltd. (Botti firm), and Moran, Morehouse & Bruno (Moran
firm),alleging unjust enrichment. Defendants filed a motion to dismiss the complaint for lack
of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and 12(h)(3) and for failure
to state a complaint pursuant to Rule 12(b)(6), arguing that plaintiff’s claim is barred by the
doctrines of res judicata and issue preclusion. For the following reasons, defendants’ motion
to dismiss is denied.

BACKGROUND

This litigation began in 1993 when Zurn filed suit against Botti and the Botti firm in
state court in DuPage County alleging intentional infliction of emotional distress and battery.
On May 9, 1994, the state court issued a final order dismissing both counts of plaintiffs
complaint with prejudice and assessing attorney’s fees, costs and a punitive sanction against

Zurn for a total amount of $64,498.40.


No. 02 C 7314 Page 2

Subsequent to Zurn’s suit the Botti firm and the Moran firm filed suit against Zurn
seeking to recover fees and costs arising from legal work for Zurn in unrelated matters. On
July 11, 1994, the state court entered a default judgment against Zurn on all counts of the
complaint in the amount of $84,332.36 plus prejudgment interest and costs. Plaintiff Zurn
appealed both decisions.

Before the appeals were heard Zurn filed a voluntary petition in bankruptcy on March
16, 1995, She sought removal of the pending appeals to bankruptcy court. The defendants
filed motions to remand and abstention, which were entered by the bankruptcy court on
August 17, 1995, and the cases were remanded to the Illinois Appellate Court. Plaintiff
appealed the bankruptcy court’s decision to the district court, where it was affirmed on
October 13, 1996. The bankruptcy court confirmed Zorn’s liquidation plan on November 15,
1995, requiring her to pay defendants’ claims in full. In March 1996, plaintiff made the
payments required by the plan, totaling $178,735.67 to the Botti firm and $7,442.01 to the
Moran firm,

Plaintiff continued to pursue her now consolidated appeals to the Illinois Appellate
Court. On March 28, 1998, the court issued an order (1) affirming the dismissal of the tort
claims against the Botti firm; (2) remanding the battery claim against Botti for further
proceedings; (3) reversing the order of sanctions against Zurn, with leave for the lower court
to reinstate them; and (4) reversing and remanding the default judgment against Zurn. Botti
and the Botti firm filed a petition for appeal to the Illinois Supreme Court which was denied
on November 9, 1998.

On November 18, 2000, plaintiff Zurn filed a petition to reopen the bankruptcy case,