421). This opinion has already shown that Plaintiffs’ claims meet these strict standards - their claims
lacked any reasonable legal foundation. Therefore, we order Plaintiffs'® to reimburse Mrs. Schmitt for
the unwarranted legal costs, including attorneys’ fees, which she incurred defending against their §
1983 claims in this court.

According to her filings, Mrs. Schmitt's attorney billed her $23,527.54 to defend this action
($19,095.00 in fees and $4,432.54 in other costs). See Reply to Resp. to Show Cause, Ex. G. Plaintiffs
offer us no reason to question this amount. Since CBC Bricks did not join the complaint until July 17,
2001, Mr. Schmitt must pay all costs incurred before this date ($10,102.50 in fees and $3,391.99 in
other costs), while Plaintiffs will split evenly all costs incurred on and after this date ($8,992.50 in fees
and $1,040.55 in other costs). See fd. We therefore order Mr. Schmitt and CBC Bricks to pay,

respectively, $18,511.02 and $5,016.52 to Mrs. Schmitt.

CONCLUSION
Plaintiffs’ motions for reconsideration are denied. We order Mr. Schmitt, Mr. Smetana, and Mr.
Taheny to pay this court $5,000 each for their violations of Rule 11(b). We order Mr. Schmitt and CBC
Bricks to pay, respectively, $18,511.02 and $5,016.52 to Mrs. Schmitt to reimburse her for her

attorneys’ fees under § 1988(b) and her other costs under Rule 54(d)(1). No further motions for

reconsideration will be considered in this case. It is so ordered. Aon

MARVIN E. ASPEN
United States District Judge

Dated if: cjor—

"8Section 1988(b) authorizes courts to assess fees only against parties, not their attorneys. See
Hamer v. County of Lake, 819 F.2d 1362, 1370 (7th Cir. 1987) (citing Roadway Express, Inc.
v. Piper, 447 U.S. 752, 761 (1980)).

13


unconstitutionally vague in that several words and phrases in the statute (e.g., "impractical," "diligent
inquiry," “reasonable efforts," and "comparable method of service") are not explicitly defined. Plaintiffs
maintained that Mrs. Schmitt relied on this unconstitutionally vague statute to obtain an order for
substitute service of process from the state trial court, and then used either the Kane County sheriff or
Terry Vincent, a licensed private detective, to serve process upon the three parties named in the order.
Plaintiffs argued that in using a sheriff or licensed private detective to serve process pursuant to an
unconstitutionally vague statute, Mrs. Schmitt engaged in state action which ultimately deprived
Plaintiffs of their right to due process. Plaintiffs sought to undo the effects of this deprivation by filing
a complaint under 42 U.S.C. § 1983 asking for a declaratory judgment that the state trial court did not
have personal jurisdiction over them and that all orders entered by that court were therefore void.
Mrs. Schmitt moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the complaint for lack of
subject matter jurisdiction. We granted her motion ~ we found the federal claim to be frivolous, and
under the so-called "substantiality doctrine,"® federal district courts do not have subject matter
Jurisdiction over frivolous complaints.® See Schmitt v. Schmitt, 165 F.Supp.2d at 793-94.

Furthermore, we ordered the Plaintiffs and their attorneys to show cause why they should not be

unsuccessful. The court may order service to be made in any manner consistent with
due process.
7385 Ill. Comp. Stat. Ann. 5/2-203.1.

®The substantiality doctrine requires a district court to determine before entertaining a federal
claim whether the merits are “sufficiently substantial to engage the subject matter jurisdiction of the
court." Gammon v. GC Services L.P., 27 F.3d 1254, 1256 (7th Cir. 1994). If the federal claim is
either “immaterial and made solely for the purpose of obtaining jurisdiction” or “wholly insubstantial
and frivolous,” a court must dismiss the claim for lack of subject matter jurisdiction. Ricketts v.
Midwest National Bank, 874 F.2d 1177, 1180 (7th Cir. 1989) (quoting Be// v. Hood, 327 U.S.
678, 682-83 (1946)).

°We also offered an alternative grounds for our decision - we found that Plaintiffs were
essentially attempting to appeal several adverse state court judgments, but that under the Rooker-
Feldman doctrine, federal district courts do not have subject matter jurisdiction to review state court
decisions. See Schmitt v. Schmitt, 165 F.Supp.2d at 794-97. Mr. Schmitt does not seek
reconsideration of this alternative holding, but CBC Bricks does. Because we find that the substantiality
doctrine offers sufficient grounds to dismiss this complaint, however, we will not reconsider our
Rooker-Feldman holding.

4


722 F.2d 360, 366 (7th Cir. 1983)). Therefore, while a state court action is in progress, whether at the
trial or appellate level, a federal challenge to any state court ruling is premature. In this case, concurrent
with his federal litigation, Mr. Schmitt pursued appeals in the Illinois state courts on the issue of
personal jurisdiction. Mr. Smetana should have known that Mr. Schmitt had not yet suffered the
deprivation necessary to support a § 1983 claim.

Mr. Schmitt also asks us to reconsider our void-for-vagueness conclusion. He claims that the
INinois statute governing service of process by special order of the court "impermissibly delegates basic
policy matters ...on an ad hoc and subjective basis" to state trial court judges and should therefore
be declared void. See Mot. For Recons. (Schmitt) 111 (quoting Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 498 (1982)), The Seventh Circuit has indicated that the void-
for-vagueness doctrine "is successfully invoked only in cases in which a vague statutory term either has
anin terrorem effect or licenses uncabined discretion by policy or other public officers, thus inviting
abuse." LC & S, Inc. v. Warren County Area Plan Comm'n, 244 F.3d 601, 605 (7th Cir. 2001).
The Illinois statute does not, however, license uncabined discretion by state judges. Although the
statute asks state judges to determine whether personal service is "impractical" after "reasonable efforts"
have been made to do so and to devise a "comparable method of service," these phrases do not give
judges uncabined discretion. Just the opposite, in fact - these phrases provide judges with standards
by which to determine whether special service is appropriate, standards developed through and
governed by Illinois common law. Nor does the fact that these phrases are not more specifically defined
make the statute unconstitutionally vague - judges and juries make similar determinations every day
in every area of the law.

Mr. Schmitt has clearly been disappointed with the direction of the state court proceedings and
has filed this suit against Mrs. Schmitt in an attempt to end run the state courts. Indeed, this fact is
clear from his fruitless attempt to remove the divorce proceedings from state to federal court. The
substantiality doctrine, however, "retards efforts by plaintiffs to recast what are really state-law claims
as federal claims." Crowley Cutlery Co. v. United States, 849 F.2d 273, 277 (7th Cir. 1988).
Because Count One was frivolous and made solely for the purpose of obtaining federal jurisdiction, this

9


Indeed, this argument may be even more frivolous than the first.

The sheer number of defects in this argument suggests the degree of its frivolity. First, the
method of service in this case in no way deprived Mr. Schmitt of his right to due process.'* The lilinois
statute authorizes state courts to order service of process by means other than personal service when
personal service is found to be impractical. Despite Mr. Schmitt's arguments to the contrary, personal
service is not a due process requirement. See generally Hess v. Pawloski, 274 U.S. 352 (1927)
(upholding service of process by registered mail). Rather, service satisfies due process if it is
“reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections." Mu/lane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950). In this case, the state trial court authorized Mrs.
Schmitt to serve process upon Ms. Boness, a secretary at one of Mr. Schmitt's businesses, upon the
reasonable belief that a secretary would pass these legal documents on to her boss. There is nothing
unusual about service in this manner. Indeed, Illinois law specifically provides for substitute service,
allowing plaintiffs to serve defendants at their homes by leaving the document with a family member
at least 13 years old. See 735 ILCS 5/2-203(a)(2). Moreover, for the purposes of service of process

upon private corporations, state statutes have long authorized substitute service upon agents of a

“We believe that the key paragraph in this Complaint . . . is paragraph 14, in that
paragraph we take issue with the action of Sandra Schmitt in submitting the Affidavit
of William Bochte [an attorney at the firm representing her] which is in conclusory form
. .. and we Say therefore in violation of due process... . [I]f the Court will examine all
the facts there is absolutely no evidence that Kim Schmitt was evading process which
is the conclusion to the contrary in the William Bochte Affidavit ....” Mot. for Recons.
(Schmitt) 114.

“[T]he purpose of filing this case is to rectify the fact that there was not a proper
predicate for the Substitute Service Order supported by not one iota of evidence that
Kim Schmitt was evading service.” Mot. for Recons. (Schmitt) # 18.

“The principal argument is that the Substitute Service Order was improperly grounded
upon an Affidavit of Mr. Bochte which did not demonstrate in any way that Kim Schmitt
was evading service, nor did it point to any evidence showing that any effort was really
made to actually serve Kim Schmitt.”Mot. for Recons. (Schmitt) | 20.

12We discuss the merits of the constitutional claim here only to demonstrate the frivolousness
of the complaint.


assessed sanctions under Fed. R. Civ. P. 11(b)(1)-(2) or attorneys’ fees under 42 U.S.C. 1988(b) for filing
this frivolous complaint. See id. at 797.

Before us now are responses to this show-cause order as well as separate motions for
reconsideration filed by Mr. Schmitt and CBC Bricks. Mr. Schmitt argues that we misunderstood his
federal claim and asks us to consider an alternative argument. CBC Bricks contends that we
misapprehended several important facts which demonstrate that its complaint was not frivolous. For
the reasons offered below, we reaffirm our earlier decision and impose sanctions and assess attorneys'

fees against Plaintiffs and their attorneys.

DISCUSSION

A. Mr. Schmitt's Motion for Reconsideration

Mr. Schmitt claims that we misunderstood his portion of the complaint - he maintains that
unconstitutional vagueness was merely an ‘alternative argument" and not the "principal allegation" in
Count One.'° Mot. for Recons. (Schmitt) 112. Instead, Mr. Schmitt suggests that his main argument
is a bit simpler - Mrs. Schmitt submitted insufficient evidence to warrant the state trial court's order for

service by special order of the court.'? This argument is indeed much simpler, but no less frivolous.

‘We note that the complaint which Mr. Smetana filed on Mr. Schmitt's behalf was poorly
drafted and very difficult to understand; unfortunately, this is no less true of the motion for
reconsideration. In both instances, we have struggled to construct the most charitable interpretation
of Mr. Schmitt's legal claim.

“Our interpretation of Mr. Schmitt’s new “principal allegation” is based on the following
passages in his motion for reconsideration:

“(We ask this Court to closely examine the Statement of Material Facts as it relates to
the woefully inadequate attempts to serve Kim Schmitt and the total paucity of any
evidence showing evasion of service by Kim Schmitt. Kim Schmitt filed this 1983
Complaint solely because he believed his Fourteenth Amendment Due Process Rights
were violated... .” Mot. for Recons. (Schmitt) 18.

“(T]he essence of the Complaint [is that] the actions of Sandra Schmitt together with
the Detective Terry Vincent in seeking to enforce the court's order of July 13 by serving
. .. Catherine Boness because she was an employee of a closely held company Bricks
Inc., in the absence of any evidence or any effort to pierce the corporate veil. This is the
principle [sic] theory of state action in the 1983 complaint.” Mot. for Recons. (Schmitt)
1:10.


Third, while pursuing this federal litigation, Mr. Schmitt petitioned the Illinois Supreme Court
for leave to appeal these adverse lower court decisions. See /n re Marriage of Schmitt, No. 91822
(Ill. 2001). Principles of federalism and comity, however, generally require a federal district court to
abstain from hearing any federal claims until ongoing state proceedings on the same issue are
completed. See Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987); Owens-Corning Fiberglas
Corp. v. Moran, 959 F.2d 634, 635-36 (7th Cir. 1992); Lynk v. LaPorte Superior Court No. 2,
789 F.2d 554, 563-566 (7th Cir. 1986). Mr. Smetana should have known that simultaneously pursuing
litigation on the same issue in state and federal court is generally not permitted.

Fourth, we fail to see how Mrs. Schmitt is the proper party in this case. Mr. Schmitt believes
that Mrs. Schmitt submitted insufficient evidence to warrant substitute service of process, but even if
this were true, her action was without legal consequence absent the state trial court judge's order. Mr.
Schmitt's real dispute, then, is with the state trial court judge who relied upon the allegedly insufficient
evidence.'* Apparently understanding that this would likely be a fruitless claim, Mr. Smetana pursued
what he should have realized was an equally meritless claim against Mrs. Schmitt.*®

Fifth, even if service did violate his right to due process, there is reason to doubt whether Mr.
Schmitt has yet suffered the deprivation of a federally-protected right necessary to sustain a § 1983
claim. Where the source of the alleged injury is an adverse state court ruling (and the real injury here
was caused by the state court decisions authorizing substitute service of process and asserting personal
jurisdiction over Mr. Schmitt), no deprivation has occurred until the state court judgment has become

final. See Lynk v. LaPorte Superior Court No. 2,789 F.2d at 560 (citing Brown v. Brienen,

*4Indeed, in a emergency supplement to their briefs, Plaintiffs argue that Mitchum v. Foster,
407 U.S. 225 (1972), in which the Supreme Court held that a § 1983 plaintiff could, in limited
circumstances, seek injunctive relief against state judicial officials, is “dispositive of the case.” See
Joint Emer. Mot. to Supp. Mot. for Recons. 12, However, Mitchum would only be relevant if Plaintiffs
had brought their claim against the state judge. Instead, Plaintiffs brought their claim against Mrs.
Schmitt; how Mitchum is relevant to the claim against her is a mystery.

‘8 Mr. Schmitt might have had a claim if he had alleged a conspiracy between Mrs. Schmitt and
the state trial court judge, but he has totally disclaimed this argument. See Mot. for Recons. (Schmitt)
16 ('No where in this Complaint does Kim Schmitt predicate its state action upon actions of the State
Court Judge.").

8


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge ‘1 Sitting Judge if Other
“Or Magistrate Judge Marvin Aspen than Assigned Judge
CASE NUMBER 01 C 4028 DATE 1/25/2002
CASE Schmitt,etal vs. Sandra L. Schmitt
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

MOTION: of the motion being presented.)

DOCKET ENTRY:

qd) im Filed motion of [ use listing in “Motion” box above.]

(2) ia Brief in support of motion due

(3) Oo Answer brief to motion due. . Reply to answer brief due.

(4) Oo Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at.

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) i] Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QO FRCP4(m) (General Rule21 CFRCP41{a)(1) ) FRCP41(a)(2).

(10) 44 [Other docket entry] Enter Memorandum Opinion and Order: Plaintiffs’ motions for
reconsideration (33-1 & 35-1) are denied. We order Mr. Schmitt, Mr. Smetana, and Mr. Taheny to pay
this court $5,000 each for their violations of Rule 11(b). We order Mr. Schmitt and CBC Bricks to pay,
respectively, $18,811.02 and $5,016.52 to Mrs. Schmitt to reimburse her for her attorneys’ fees under §
1988(b) and her other costs under Rule 54(d)(1). No further motions for reconsideration will be
considered in this case. Defendant’s motion to dismiss (38-1) is moot.

dl) ff (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. umber of potiees

V_ | Notices mailed by judge’s staff. 602
Notified counsel by telephone. dave docketed
Docketing to mail notices. ree

Mail AO 450 form. 2 deputy iniils

dunge Lauites

Copy to judge/magistrate judge.

1/25/2002

hot iy vw ited noi
courtroom 4:6 ky Sze led notice

GL. deputy’s ou
initials

Date/time received Ww LU i~
central Clerk's Office

mailing deputy initials

Document
jumber

UN



Although Count Two is replete with complaints about Judge Golden, it utterly fails to state a
claim against Mrs. Schmitt. CBC Bricks complains of “constitutional denial of due process, equal
protection and property rights,” Third Am. Compl. 1 47, but all of these alleged constitutional
deprivations are a result of actions taken by Judge Golden, not Mrs. Schmitt. CBC Bricks’ problems
with Judge Golden cannot be remedied in a federal suit against Mrs. Schmitt.

CBC Bricks claims, however, that it had no recourse but to pursue a federal lawsuit because the
Illinois Supreme Court granted Mr. Schmitt's motion to stay the state court divorce proceedings until
the resolution of the federal removal action. Although it was unfortunate that Lois Schmitt, the alleged
owner of CBC Bricks, had her state court legal remedies blocked because of the frivolous attempt by her
son to remove his divorce proceedings to federal court, her legal remedy was most assuredly not a
federal suit against her son’s estranged wife. Now that the United States Supreme Court has finally
ended her son’s bizarre quest to remove his divorce to federal court, Lois Schmitt will be free to appeal
Judge Golden’s order.

Because Count Two was frivolous and concocted solely for the purpose of obtaining federal
jurisdiction, this Court correctly dismissed it for lack of subject matter jurisdiction. CBC Bricks’ motion

for reconsideration is therefore denied.

D. Sanctions

In submitting a pleading to the court, an attorney represents that it is not being used for an
“improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of
litigation" and that the claims therein are "warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the establishment of new law.” Fed.R.Civ.P.
11(b)(1)-(2). If the court determines that Rule 11(b) has in fact been violated, it may impose sanctions
against both the offending parties and their lawyers. See Fed.R.Civ.P. 11(c) (court may impose
sanctions against attorneys or parties for violations of 11(b)). These sanctions must be limited to “what
is sufficient to deter repetition of such conduct.” Fed.R.Civ.P. 11(c)(2). Where, as here, the court
imposes sanctions on its own initiative, the sanction may include “directives of a nonmonetary nature

11


Court correctly dismissed it for lack of subject matter jurisdiction. Mr. Schmitt's motion for

reconsideration is therefore denied.

C. CBC Bricks's Motion for Reconsideration

CBC Bricks claims that we gave its portion of the complaint short shrift in our earlier opinion.
Count Two, CBC Bricks maintains, sets forth a number of reasons why the state trial court’s
impoundment of $160,000 in company funds was improper. First, it maintains that since it was not
a party to the divorce action and it never received service of process, Judge Golden did not have
jurisdiction to impound company funds.’® See Mot. for Recons. (CBC Bricks) 119-10. Second, it claims
that since the state appellate court had not yet transmitted its mandate back to the trial court after
denying an earlier appeal in the case by Mr. Schmitt, Judge Golden did not have jurisdiction to enter
this order. See Mot. for Recons. (CBC Bricks) 1 12-15, 19. Third, it alleges that before impounding
these funds Judge Golden failed to determine whether the company was a marital asset’” and whether
the funds were outside the ordinary course of business as required by 750 ILCS 502(a)(2). See Mot.
for Recons. (CBC Bricks) 11 20, 22. CBC Bricks claims that it was unable to pursue these arguments
in state court because the Illinois Supreme Court granted Mr. Schmitt’s motion to stay the state
proceedings until the federal removal proceedings were completed. See Mot. for Recons. (CBC Bricks)
125. With no immediate recourse in state court, only then did CBC Bricks join Mr. Schmitt's federal suit
against Mrs. Schmitt. See Mot. for Recons. (CBC Bricks) 134.

While we did not directly address this argument in our previous opinion, the reason is simple
~ the argument is so patently frivolous that we did not feel required to do so. CBC Bricks obviously feels

otherwise, however, so we will now briefly address Count Two.

‘Sin our earlier opinion, we concluded that CBC Bricks was a party to the divorce action, See
Schmitt v. Schmitt, 165 F.Supp.2d at 795-96. The company now cites authority suggesting that
this conclusion was incorrect. See Mot. for Recons. (CBC Bricks) 110. We will not revisit this
question, however, because its resolution does not alter our conclusion that Count Two was properly
dismissed as frivolous.

"CBC Bricks claims that its owner is Lois Schmitt, Mr. Schmitt's mother. See Mot. for Recons.
(CBC Bricks) 132.

10


corporation, including secretaries. See, e.g., 735 ILCS 5/2-204 (service of process on a private
corporation is valid if made on “any officer or agent of the corporation”); Millard v. Castle Baking
Co., 161 N.E.2d 483 (IIl.App.Ct. 1 Dist. 1959) (secretary may be agent of corporation for purpose of
receiving service of process on its behalf). See also A-Z Equip. Co. v. Moody, 410 N.E.2d 438,
441 (|Il App.Ct. 4 Dist. 1980) (service upon “secretary on duty” of company is valid service upon the
owner of the company). Service upon Ms. Boness was reasonably calculated to apprise Mr. Schmitt
and other interested parties of the pendency of the action and to afford them an opportunity to present
their objections - indeed, that both Mr. Schmitt and CBC Bricks appeared in the state trial court to
present their objections to the court's jurisdiction demonstrates this fact. Mr. Smetana should have
known that this constitutional argument was meritless.

Second, Mr. Schmitt made this same constitutional argument to both the state trial and
appellate courts and lost; he then asked us to review these adverse state court decisions. The Rooker-
Feldman doctrine, however, generally prohibits federal district courts from engaging in appellate
review of state court decisions.’* See Leaf v. Supreme Court of Wisconsin, 979 F.2d 589, 598
(7th Cir. 1992) (Rooker-Feldman “precludes parties from raising in federal district court claims that
were reviewed by the state court”), Under 28 U.S.C. § 1257, only the Supreme Court has appellate
jurisdiction over the decisions of state courts, Garry v. Ge//s, 82 F.3d 1362, 1365 (7th Cir. 1996), so
“litigants who feel a state proceeding has violated their constitutional rights must appeal that decision
through their state courts and thence to the Supreme Court.” Young v. Murphy, 90 F.3d 1225, 1230
(7th Cir. 1996), Mr. Schmitt challenged the constitutionality of service of process in the state courts,
and he lost. In this situation, he had only one further recourse ~ appeal to the Illinois Supreme Court
and then to the United States Supreme Court. He could not, however, appeal this decision to the lower

federal courts, and Mr. Smetana should have known this,

*8One exception to this general rule is habeas corpus ~ under 28 U.S.C. § 2241, lower federal
courts are specifically authorized to engage in collateral review of state court judgments. Garry v.
Geils, 82 F.3d 1362, 1365 n4 (7th Cir. 1996).


June 26, 2001, Mr. Schmitt filed a petition for leave to appeal this decision to the Illinois Supreme Court.
See /n re Marriage of Schmitt, No, 91822 (Ill. 2001). On December 5, 2001, the Illinois Supreme
Court denied the petition.

Meanwhile, on May 24, 2001, CBC Bricks filed a motion objecting to the trial court's jurisdiction
over it. Judge Golden denied the motion and impounded $160,000 in compa ny funds. CBC Bricks then
filed an interlocutory appeal which the state appellate court dismissed on July 18, 2001. See /n re
Marriage of Schmitt, No. 2-01-0566 (Ill. App. Ct. 2 Dist.). CBC Bricks did not ask the Illinois
Supreme Court to review this decision.®

Finally, on May 31, 2001, Mr. Schmitt filed in federal court the complaint at issue today.®
Although it was not originally a party to this action, CBC Bricks joined Mr. Schmitt as a plaintiff on July
17, 2001. Although their complaint was not a model of clarity, we discerned the following: Plaintiffs

claimed that the Illinois statute providing for service of process by special order of the court’ is

*According to CBC Bricks, it did not pursue an appeal because by this time the Illinois Supreme
Court had granted Mr. Schmitt's motion to stay all state court proceedings. See Mot. for Recons. (CBC
Bricks) 1 25.

°On June 1, 2001, Mr. Schmitt also filed with Judge Plunkett of the Northern District of Illinois
a petition to remove his divorce proceedings from state to federal court. On June 7, 2001, we stayed
Plaintiffs’ motion to transfer and consolidate the two federal court cases pending Judge Plunkett's ruling
on Mrs. Schmitt’s motion to remand the divorce proceedings to state court. On June 28, 2001, Judge
Plunkett held that there was no federal jurisdiction over this matter and remanded the divorce
proceedings to Illinois state court. See Schmitt v. Schmitt, No. 01-CV-4087 (N.D.Il. 2001). Judge
Plunkett, although aware of the pending § 1983 action, did not consider it in deciding whether there
was federal jurisdiction over the divorce proceedings. Mr. Schmitt appealed, but the Seventh Circuit
Court of Appeals held that a remand to state court for lack of subject matter jurisdiction was not
reviewable. See Schmitt v. Schmitt, No. 01-2782 (7th Cir. 2001). Mr. Schmitt then filed a petition
for writ of certiorari with the United States Supreme Court, which the Court recently denied. See
Schmitt v. Schmitt, 70 U.S.L.W. 3317 (January 7, 2002). The lilinois Supreme Court has stayed all
proceedings in state court until the appeal of this federal removal action is final. See /n re Marriage
of Schmitt, No. 91822 (Ill, 2001).

’The statute reads as follows:

Service by special order of the court. If service upon an individual defendant is
impractical under items (1) and (2) of subsection (a) of Section 2-203, the plaintiff may
move, without notice, that the court enter an order directing a comparable method of
service. The motion shall be accompanied by an affidavit stating the nature and extent
of the investigation made to determine the whereabouts of the defendant and the
reasons why service is impractical under items (1) and (2) of subsection (a) of Section
2-203, including a specific statement showing that a diligent inquiry as to the location
of the individual defendant was made and reasonable efforts to make service have been

3


BACKGROUND'

On February 4, 2000, Mrs. Schmitt filed for divorce in Illinois state court. Claiming that she was.
unable to obtain personal service of process upon her husband because he was intentionally evading
service, Mrs. Schmitt moved under 735 Il. Comp. Stat. Ann. 5/2-203.1 for service of process by special
order of the court. Illinois Circuit Court Judge Patricia Piper Golden granted the motion on July 13,
2000. Pursuant to 735 III. Comp. Stat. Ann. 5/2-202, Mrs. Schmitt then used Terry Vincent, a licensed
private detective, to serve process upon three parties approved by the court: Catherine Boness,”
Stephen Sullivan,’ and the law firm Pankratz, Riffner, & Scott.*

On August 1, 2000, Mr. Schmitt filed a motion contesting service of process, alleging that Mrs.
Schmitt's motion for substitute service of process was a "fraud on the court designed to disenfranchise
respondent and prevent him from exercising his rights to procedural and substantive due process."
Judge Golden denied this motion. On August 2, 2000, Judge Golden issued two preliminary orders:
the first required Mr. Schmitt to pay Mrs. Schmitt various amounts for maintenance, landscaping, travel,
and attorneys' fees, and the second enjoined Mr. Schmitt and various of his alleged business entities,
including CBC Bricks, from disposing of any assets without prior written notice to Mrs. Schmitt and her
attorneys. Mr. Schmitt then filed an interlocutory appeal to the Illinois appellate court, claiming that
Judge Golden's orders were void because the method of service of process did not satisfy due process
requirements. On April 25, 2001, the appeliate court held that the method of service of process
employed in this case was constitutionally permissible. See /n re Marriage of Schmitt, 321
lil App.3d 360, 747 N.E.2d 524 (Ill App. 2 Dist. 2001). On May 22, 2001, the appellate court denied

Mr. Schmitt's petition for a rehearing and refused his request to stay the trial court proceedings. On

‘This section includes several minor additions and corrections to the procedural history offered
in our previous opinion. None of these additions or corrections are material to the outcome in this case.

2Ms. Boness is an employee of Bricks, Inc (“Bricks”). Mr. Schmitt admits that he owns Bricks.
See Third Am. Compl. 1 29.

$M. Sullivan is an attorney who had previously represented Mr. Schmitt in an unrelated matter.
“This law firm had previously represented Mr. Schmitt in an unrelated matter.

2


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KIM A. SCHMITT and CBC BRICKS, INC.,

)
)
Plaintiffs, }
)
v. ) No. 01 C 4028
SANDRA L, SCHMITT, )
)
Defendant. ) D 0 C KET,
MEMORANDUM OPINION AND ORDER
MEMORANDUM OPINION AND ORDER JAN 2 8 2og2

MARVIN E. ASPEN, Chief Judge:

Defendant Sandra L. Schmitt ("Mrs. Schmitt") brought divorce proceedings in Illinois state court
against her husband, Kim A. Schmitt ("Mr. Schmitt’). The state trial court entered preliminary orders
awarding Mrs. Schmitt substantial monthly maintenance fees and enjoining Mr. Schmitt and various
business entities which he allegedly owned, including CBC Bricks, Inc. ("CBC Bricks'), from disposing
of assets. At both the state trial and appellate court levels, Mr. Schmitt and CBC Bricks argued that the
Illinois state courts did not have personal jurisdiction over them because, among other reasons, the
method of service of process employed by Mrs. Schmitt violated their right to due process. After the
state courts rejected this claim, Mr. Schmitt and CBC Bricks ("Plaintiffs') filed this complaint in federal
court under 42 U.S.C. § 1983, alleging violations of their right to due process and seeking a declaratory
judgment that ail state court orders previously entered were thereby void ab initio. Mrs. Schmitt filed
a motion to dismiss for lack of subject matter jurisdiction. We granted Mrs. Schmitt's motion and
ordered Plaintiffs and their attorneys, Gerard C. Smetana and Dennis G. Taheny, to show cause why
they should not be sanctioned and assessed attorneys’ fees for filing a frivolous complaint. See
Schmitt v. Schmitt, 165 F.Supp.2d 789 (N.D.IIl. 2001). Before us now are their responses to this
show-cause order as well as separate motions for reconsideration filed by Mr. Schmitt and CBC Bricks.
For the following reasons, we deny the motions for reconsideration and we order Plaintiffs and their

attorneys to pay sanctions to the court and attorneys' fees to Mrs. Schmitt in amounts detailed below.


[or] an order to pay a penalty into court,” id., but monetary sanctions cannot be awarded for violations
of Rule 11(b)(2) against a represented party. See Fed.R.Civ.P. 11(c)(2)(A).

In our earlier opinion, this court on its own motion ordered Plaintiffs and their attorneys to show
cause why they should not be sanctioned and assessed attorney's fees for filing this frivolous
complaint. After reviewing their filings, we find that Mr. Smetana, Mr. Taheny, and Mr. Schmitt have
violated Rule 11(b). We believe that Mr. Smetana and Mr. Taheny should have known that the legal
arguments they were making were without legal foundation and therefore violated Rule 11(b){2).
Indeed, the complaint is so obviously deficient that one must infer that Mr. Schmitt pursued this
litigation solely for the purpose of harassing his estranged wife and imposing increased legal costs upon
her in violation of Rule 11(b)(1). We have spent many needless hours on this frivolous case to the
detriment of the speedier disposition of other federal litigation. Therefore, in order to deter them from
any such future misconduct, we order Mr. Schmitt to pay this court $5,000 for his violation of Rule
11(b}(1), and we order Mr, Smetana and Mr. Taheny to pay this court $5,000 each for their violations
of Rule 11(b)(2). However, we decline to impose sanctions upon CBC Bricks. Although its attempt to
pursue litigation in the federal courts was misguided, it has offered a reasonable explanation for why
it did so, namely that its access to state court appellate review was blocked. We therefore do not
conclude that its action was designed to “harass or to cause unnecessary delay or needless increase

in the cost of litigation.” Fed.R.Civ.P. 11(b)(1).

E. Attorneys’ Fees and Costs

In addition to costs, see Fed.R.Civ.P. 54(d)(1), a prevailing defendant in a § 1983 case may be
awarded attorneys' fees under 42 U.S.C. § 1988(b) if the plaintiff's claim was "frivolous, unreasonable,
or groundless." Hershinow v. Bonamarte, 772 F.2d 394, 395 (7th Cir. 1985) (quoting
Christianburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412,422
(1978)). In making such an award, the court must be mindful of the potential chilling effect such an
award might have on civil rights plaintiffs. lo. Nonetheless, the court may award such fees where a
claim is found to be “groundless or without foundation.’” Id. (quoting Christianburg, 434 U.S. at

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