Opinion
Cause No. IP98-1200-C-T/G
January 12, 2001.
John D Raikos Attorney at Law Indianapolis, IN.
Michael L Einterz Indianapolis, IN.
Jeffrey M Linder Brown Linder Deprez Shelbyville, IN.
Jerry G Sheahan Indianapolis, IN.
ENTRY ON SUMMARY JUDGMENT MOTION
Though this entry is being made available to the public on the court's web site, it is not intended for publication either electronically or in paper form. Under the law of the case doctrine, it is presumed that the ruling or rulings in this entry will govern throughout the litigation before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). It should be noted, however, that this district judge's decision has no precedential authority and, therefore, is not binding on other courts, other judges in this district, or even other cases before this district judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); Old Republic Ins. Co. v. Chuhak Tecson, P.C., 84 F.3d 998, 1003 (7th Cir. 1996) ("decisions by district judges do not have the force of precedent"); Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995) ("District court decisions have no weight as precedents, no authority.").
This cause comes before the court on Defendant Harco Paving Sealcoating, Inc.'s ("Harco") Motion For Summary Judgment and Plaintiff Samueal R. Brooks' Cross-Motion For Summary Judgment on the sole remaining claim in this case-Plaintiff's claim for abuse of process. Having considered the motions, the court makes the following decision.
I. Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Summary judgment should be granted "only if there is no reasonably contestable issue of fact that is potentially outcome-determinative." Szymanski v. Rite-Way Lawn Maint. Co., 231 F.3d 360, 364 (7th Cir. 2000) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997)).
A genuine issue of material fact exists for trial if "[t]here is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). When ruling on a motion for summary judgment, the court views the evidence and draws all inferences in the light most favorable to the nonmoving party. See, e.g., Szymanski, 231 F.3d at 364. A mere scintilla of evidence supporting the nonmovant's position cannot withstand summary judgment. See, e.g., id. (citing Essex v. United Parcel Serv. Inc., 111 F.3d 1304, 1308 (7th Cir. 1997)). "`[A] party will be successful in opposing summary judgment only when they present definite, competent evidence to rebut the motion.'" Szymanski, 231 F.3d at 364 (quoting Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997) (citations and internal quotation marks omitted)).
Local Rule 56.1 governs summary judgment practice in this district. Parties moving for or opposing summary judgment are expected to comply with this rule's provisions. Neither party has done so in this case. Local Rule 56.1 provides in pertinent part as follows:
Local Rule 56.1 — Summary Judgment Procedure
(a) Requirements for Moving Party. A party filing a motion for summary judgment pursuant to FED. R. CIV. P. 56 must also serve and file the following:
(1) a Statement of Material Facts (either as a section of the brief or as a separate document), in compliance with L.R. 56.1(f), as to which the moving party contends there is no genuine issue and that entitles the moving party to a judgment as a matter of law; . . .
(b) Requirements for Non-Movant. A party opposing a motion filed pursuant to FED. R.CIV. P. 56 must, on or before the 30th day after service of the motion, serve and file the following:
(1) a Response to Statement of Material Facts (either as a section of the brief or as a separate document) in compliance with L.R. 56.1(f) that contains a response to each material factual assertion in the moving party's Statement of Material Facts, and if applicable, a separate Statement of Additional Material Facts that warrant denial of summary judgment;
. . .
(f) Requirements for Factual Statements and Responses Thereto.
(1) Format and Numbering. The Statement of Material Facts shall consist of numbered sentences. The Response to Statement of Material Facts must be numbered to correspond with the sentence numbers of the Statement of Material Facts, preferably with each respective factual statement repeated therein. Any Statement of Additional Material Facts must consist of numbered sentences and start with the next number after the last numbered sentence in the Statement of Material Facts. The Reply to Response to Statement of Material Facts, Reply to Statement of Additional Material Facts, Statement of Additional Evidence on Reply, and Surreply to Additional Material Facts must be numbered in a similar fashion, to correspond to the specific material fact to which they are responsive and with any additional facts numbered consecutively therefrom.
(2) Format of Factual Assertions. Each material fact set forth in a Statement of Material Facts, Response to Statement of Material Facts, Statement of Additional Material Facts, Statement of Additional Evidence on Reply, or Surreply to Additional Material Facts must consist of concise, numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition. Each stated material fact shall be substantiated by specific citation to record evidence. Such citation shall be by page number and paragraph or line number, if possible.
. . . .
S.D. Ind. L.R. 56.1.
Though Harco's "STATEMENT OF MATERIAL FACTS," does not strictly comply with Local Rule 56.1-it does not consist of numbered sentences and each stated material fact is not substantiated by specific citation to record evidence-its failings pale in comparison to those of Mr. Brooks' summary judgment motion and response to Harco's motion. Mr. Brooks did not filed a Statement of Material Facts as required by Local Rule 56.1(a)(1). Nor did he file a Response to Statement of Material Facts, responding to each material factual assertion in Harco's Statement of Material Facts, as required by Local Rule 56.1(b)(1). Though Mr. Brooks' brief contains numerous additional factual assertions, he has not filed a separate Statement of Additional Material Facts. Moreover, none of the factual assertions in Mr. Brooks' brief are numbered sentences, as Local Rule 56.1(f)(1) requires, and not all of the factual assertions are substantiated by specific citation to record evidence (though some are), in violation of Local Rule 56.1(f)(2).
The parties' lack of compliance with Local Rule 56.1 has not advanced the court's efforts to resolve the pending motions for summary judgment and has caused unneeded delay in the resolution of these motions. Nonetheless, the court has reviewed the assertions contained in the parties' motions and briefs and has searched the record for evidence supporting those assertions, and in this way has derived the facts which follow.
II. Factual and Procedural Background
On August 31, 1998, Samueal R. Brooks filed his Complaint in this action against the Defendants, including Harco, and on January 21, 1999, he filed an Amended Complaint. The factual allegations of the Amended Complaint are essentially the same as those in the original Complaint, with the relatively minor differences noted in this court's Entry Discussing Motion To Dismiss of January 24, 2000 ("January 24 Entry"). The allegations in the Complaint stem from a contract for the sale of land located at 2701 S.E.merson Avenue in Marion County, Indiana. The contract, entitled "Land Contract", was executed on September 9, 1983 and was signed by Jerry G. Sheahan as purchaser and David L. Gradison, Barbara Ann Gradison Lurie, Michael Lee Gradison and Sheila M. Gradison White (collectively, "the Gradisons") as vendors. Background facts relating to that sale and related events can be found in the court's January 24 Entry, and the court presumes the reader has a familiarity with that Entry. The following facts are limited as much as practicable to those which are material to the resolution of the pending summary judgment motions directed at the sole remaining claim-the abuse of process claim.
On February 4, 1994, David Gradison, on his own behalf and as attorney in fact for Barbara Ann Gradison Lurie, Michael Lee Gradison, and Sheila Gradison White a/k/a Sheila M. Gradison executed a Quitclaim Deed conveying the Emerson property (the subject of the Land Contract) to Harco as well as any right, title, interest and obligation they had in and to the Land Contract. Harco accepted the Quitclaim Deed, thus acquiring an interest in the Emerson property.
On February 11, 1994, Harco through its attorney sent a Notice purportedly by "Certified Mail and Regular Mail" which demanded that any agreement Sheahan had with the prior owners was deemed canceled, null and void. The Notice, however, was not sent by certified mail and was sent only by regular mail.
On May 11, 1994, Harco filed a lawsuit in the Superior Court of Marion County, cause number 49C01-9405-CP-1558, against Sheahan for breach of the Land Contract, rescission of the Land Contract, foreclosure of the Emerson property and abandonment of the Emerson property (hereinafter this lawsuit will be referred to as "the state court action").
Florida Factoring Group, Inc. ("Florida Factoring Group") intervened in the state court action, claiming that Sheahan assigned his interest in the Land Contract to Florida Factoring Group. Both Sheahan and Florida Factoring Group filed a State Court Cross-Complaint against the Gradisons, alleging that Sheahan assigned all of his right, title, and interest in the Land Contract to Florida Factoring Group in October 1983. The State Court Cross-Complaint further alleged that Sheahan and Florida Factoring Group, "in concert," fully paid all of the money due under the Land Contract and therefore the Gradisons should be required to deliver to Sheahan and Florida Factoring Group full title to the Emerson property. In addition to seeking full title to the Emerson property, Sheahan and Florida Factoring Group sought compensatory and punitive damages for the allegedly willful and wanton conduct of Harco and the Gradisons.
The state court found in favor of Harco and the Gradisons and against Sheahan and Florida Factoring Group. Harco proposed a judgment entry containing language attempting to foreclose "The interests of Defendant, Jerry Sheahan, and Intervenor, Florida Factoring Group, Inc. and all persons claiming through them to the following described real estate attached to this Order. . . ." The state court rejected the language "and all persons claiming through them" and did not include this language in its Judgment Entry of February 2, 1998. The State Court Judgment Entry provides as follows:
Plaintiff, Harco Paving Sealcoating, Inc., filed its Motion for Summary Judgment and Designation of Pleadings, and supporting Affidavit. And the Court, being duly advised, now finds that Judgment should be entered against Defendant, Jerry Sheahan, and Intervenor, Florida Factoring Group, Inc.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff, Harco Paving Sealcoating, Inc., hereby recovers judgment against Defendant, Jerry Sheahan, and Intervenor, Florida Factoring Group, Inc. and that all of Jerry Sheahan's and Florida Factoring Group, Inc.'s right, title, and interest to the real estate described in Exhibit `A' attached to the Complaint are hereby foreclosed.
IT IS FURTHER ORDERED by the Court that judgment is hereby entered in favor of Harco Paving Sealcoating, Inc. on the counterclaims and cross-claims alleged by Jerry Sheahan and Florida Factoring Group, Inc., and that Jerry Sheahan and Florida Factoring Group, Inc. shall take nothing by way of their cross-claims and counterclaims.
(State Ct. J. Entry at 1.) Sheahan took an appeal, the Indiana court of appeals affirmed, and the Indiana Supreme Court denied transfer.
On June 12, 1998, Harco induced David Gradison to execute a Corrective Quitclaim Deed which deleted language from the Quitclaim Deed of February 4, 1994, which language subjected the Quitclaim Deed to the Land Contract, thus deleting Brooks' alleged ownership interest in the Emerson property from the existing chain of title.
On June 24, 1998, Harco executed and delivered a Corporate Warranty Deed conveying the Emerson property to Shelby Gravel, which deed was recorded on June 29, 1998. Harco collected $459,000 from Shelby Gravel. First American Title Insurance Company issued a Title Insurance Commitment for Shelby Gravel under a commitment date of June 25, 1998.
On January 24, 2000, this court dismissed with prejudice Counts I, II and IV as well as that portion of Count III which does not seek damages. Thus, the only claim that remains in this case is Brooks's claim for abuse of process asserted in Count III of the Amended Complaint. (See Am. Compl. ¶ 60.) That count alleges as follows:
60. HARDING maliciously filed suit through his alter ego, HARCO, INC. against SHEAHAN in Marion County, Indiana, by standing in the shoes of GRADISON. HARDING falsely and fraudulently claimed sums in excess of $37,549.76 claimed by GRADISON, claiming that $81,177.00 was due when he knew no such amount was ever due, thereby abusing the legal process to collect in the name of GRADISON an amount fully paid and known to have been fully paid, a use not intended by the judicial process.
As the court understands the Amended Complaint, the abuse of process claim is alleged against Paul Harding, Jr., through his alter ego, Harco. As the undersigned noted in the Entry Discussing Pending Motions, entered April 10, 2000, it is unclear from the Amended Complaint's caption whether Defendant "Paul G. Harding, Jr., individually" is alleged to be the same entity as Defendant Harco. The pending defense motion for summary judgment was filed by Defendant Harco. Thus, it is also unclear whether the defense Motion For Summary Judgment filed by Harco was also made on behalf of "Paul G. Harding, Jr., individually." It is noted that the "WHEREFORE" clause at the end of the motion states as follows: "WHEREFORE, Defendant, Paul G. Harding, Jr., by counsel respectfully requests this Court enter judgment in its favor"; however, the court is unable to ascertain whether the request is made by "Paul G. Harding, Jr. d/b/a as Harco," which would suggest that the summary judgment motion is made on behalf of Harco only, or whether the request is made by "Paul G. Harding, Jr., individually," which would suggest that the motion is made on behalf of "Paul G. Harding, Jr., individually" and Harco.
III. Discussion
Harco contends that by failing to file his claim for abuse of process within two years of the date of the alleged abuse, Mr. Brooks waived his right to pursue that claim. A cause of action for abuse of process under Indiana law accrues when the act complained of is committed, and the applicable limitations period is two years. See, e.g., Stutz v. McNagny, 558 N.E.2d 1103, 1106 (Ind.Ct.App. 1990); Cassidy v. Cain, 251 N.E.2d 852, 856 (Ind.Ct.App. 1969). Harco argues that the abuse of process claim arises from acts which occurred in 1994. The original Complaint in this case was filed on August 31, 1998.Harco is right about the limitations period and the accrual date of an abuse of process claim, however, nothing in Strutz limits an abuse of process claim solely to the filing of a complaint. The Indiana courts of appeals have rejected a restrictive view of the term "process". See, e.g., Reichhart v. City of New Haven, 674 N.E.2d 27 (Ind.Ct.App. 1996), trans. denied; Groen v. Elkins, 551 N.E.2d 876 (Ind.Ct.App. 1990), trans. denied.
Harco's contention that malicious prosecution addresses the continuing litigation of a matter once its lack of merit has become apparent whereas abuse of process addresses the initial act of filing suit (see Br. Supp. Def.'s Mot. Summ. J. at 3) is neither supported by any citation to legal authority nor consistent with the Indiana case law found during the court's own research.
The Indiana courts have said:
"Process" should not be "limited to the strict sense of the term, but [should be] broadly interpreted to encompass the entire range of `procedures' incident to litigation. . . . This broad reach of the `abuse of process' tort can be explained historically, since the tort evolved as a `catch-all' category to cover improper uses of the judicial machinery. . . ."
Reichhart, 674 N.E.2d at 31 (quotation and citation omitted). Further, "process" is described as "use of the `judicial machinery. . . .'" Id. at 32 (quoting Groen, 551 N.E.2d at 878 n. 3). Thus, process "is given an expansive definition and includes actions undertaken by a litigant in pursuing a legal claim." Id. Consequently, a plaintiff may allege an abuse of process claim premised upon not only the filing of a complaint but also upon other uses of the judicial process.
The problem for Mr. Brooks, however, is that his only allegation of abuse of process is based upon Harco's filing of the state court action, that is, the filing of the complaint in that action. (See Am. Compl. ¶ 60.) Under the liberal notice pleading requirements of the federal rules of civil procedure, all that is required is "that the plaintiff `set out in [his] complaint a short and plain statement of the claim that will provide the defendant with fair notice of the claim.'" Anderson v. Simon, 217 F.3d 472, 474 (7th Cir. 2000) (quoting Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999)), cert. denied, Anderson v. Simon, ___ S.Ct. ___, 2001 WL 12537 (U.S. Jan. 8, 2001). "[A] pleading must only contain enough to `allow the court and the defendant[s] to understand the gravamen of the plaintiff's complaint.'" Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999) (quoting Doherty v. City of Chicago, 75 F.3d 318, 326 (7th Cir. 1996)). "`For fair notice to be given, a complaint must at least include the operative facts upon which a plaintiff bases his claim.'" Brokaw v. Mercer County, ___ F.3d ___, 2000 WL 1848464, at *8 (7th Cir. Dec. 19, 2000) (quoting Kyle v. Morton High Sch., 144 F.3d 448, 455 (7th Cir. 1998)).
Similarly, the only specific allegation of abuse of process asserted in the original Complaint, which was asserted against Harding, Harco and the Gradisons, was the bringing of the state court action Sheahan. (Compl. ¶ 54.)
It should be noted, however, that Harco and the Gradisons challenged the sufficiency of the original Complaint. Their motion resulted in the court's dismissal of this action on jurisdictional grounds (for lack of complete diversity between plaintiff and defendants). Because the defendants previously challenged the sufficiency of the Complaint, and Mr. Brooks availed himself of the opportunity to file an Amended Complaint, it is less than clear that he is entitled to the benefit of notice pleading in this the second go around. He may be stuck with what he has pled specifically in his Amended Complaint-that the abuse of process was the filing of the state court action-and that is the only allegation of abuse of process in this case. One reasonably could conclude that the only fair notice given defendants with respect to the abuse of process claim was that the claim arose from the filing of the state court action and nothing else.
The abuse of process claim based on the filing of the state court action is barred by the applicable two year statute of limitations. See, e.g., Stutz, 558 N.E.2d at 1106; Cassidy, 251 N.E.2d at 856. Thus, if Mr. Brooks is limited to the specific allegations of his Amended Complaint, then his abuse of process claim should be dismissed as untimely.
Perhaps the court should delve into the record further. When Mr. Brooks' cross-motion, brief and affidavit all are considered in addition to his Amended Complaint, Plaintiff can be understood as alleging the following as uses of process: (1) Harco's June 24, 1998, execution of the Corporate Warranty Deed, conveying title in the Emerson property to Shelby Gravel, which Deed was recorded on June 29, 1998; (2) the malicious filing by Harco of legal actions that began in 1994 and continued thereafter; (3) Harco's sending through its attorney Michael L. Einterz of a Notice by "Certified Mail and Regular Mail" on February 11, 1994, to Sheahan which notice demanded that any agreement Sheahan had with the prior owners regarding the Emerson Property were deemed canceled, null and void; (4) Harco's filing of the state court action against Sheahan on May 11, 1994; (5) Harco's acceptance of a Quitclaim Deed release of interest only in the Land Contract, which deed was executed by David Gradison for himself and as attorney in fact for the other Gradisons on February 4, 1994; (6) Harco's proposal of a judgment entry in the state court action attempting to foreclose "[t]he interests of Defendant, Jerry Sheahan, and Intervenor, Florida Factoring Group, Inc. and all persons claiming through them to the following described real estate attached to this Order. . . ."; (7) Harco's obtaining of the Judgment Entry of February 2, 1998, in the state court action; (8) Harco's inducement of David Gradison to execute on June 12, 1998, a Corrective Quitclaim Deed which deleted language from the Quitclaim Deed of February 4, 1994, which language subjected the Deed to the Land Contract, thus deleting Brooks' alleged ownership interest in the Emerson property from the existing chain of title; (9) the issuance by First American Title Insurance Company of a Title Insurance Commitment for Shelby Gravel under a commitment date of June 25, 1998; and (10) Harco's collection of $459,000 from Shelby Gravel for the Emerson property.
It is readily apparent that most of these alleged uses of process do not constitute the use of process at all let alone the abuse of process. "Process" means the procedures incident to litigation. See Reichhart, 674 N.E.2d at 31. Stated another way, process means "use of the judicial machinery. . . ." Id. at 32 (quotation omitted), and "actions undertaken by a litigant in pursuing a legal claim." Id. Of these alleged instances of use of process, the only possible uses of process are Harco's filing of the state court action against Sheahan on May 11, 1994, Harco's proposal of a judgment entry in the state court action, and Harco's obtaining of the Judgment Entry of February 2, 1998, in the state court action. As stated previously, the abuse of process claim based on the filing of the state court action is barred by the applicable statute of limitations. The court, therefore, considers the remaining two possible uses of process, that is, the proposal of a Judgment Entry containing language which language ultimately was rejected by the state court and the obtaining of the Judgment Entry.
Though Brooks alleges the "malicious filing of legal actions that began in 1994 and continued thereafter" there is no evidence that any legal action was filed other than the state court action filed in May 1994.
Neither the execution of a Warranty Deed; the sending of the Notice; the acceptance of the Quitclaim Deed; inducement of Gradison to execute the Corrective Quitclaim Deed; the execution of the Corporate Warranty Deed; the issuance of a Title Insurance Commitment, the conveyance of the property to Shelby Gravel by Warranty Deed; nor the collection of $459,000 from Shelby Gravel constitutes judicial procedures. Even if these were uses of judicial process, an abuse of process claim premised upon the sending of the Notice or the acceptance of the Quitclaim Deed would be barred by the statute of limitations. Moreover, even if these acts were uses of process, an abuse of process claim based on any of them is inextricably intertwined with the state court Judgment Entry foreclosing any interest in the Emerson Property of Sheahan and Florida Factoring Group (and thus Mr. Brooks as he and Florida Factoring Group are one and the same), so that an abuse of process claim based on such acts would be barred by the Rooker-Feldman doctrine. See infra at 17-21 discussing Rooker-Feldman.
The Indiana Supreme Court recently stated that "[a]n abuse of process action `requires a finding of misuse or misapplication of process for an end other than that which it was designed to accomplish. The purpose for which the process is used is the only thing of importance.'" Nat'l City Bank, Ind. v. Shortridge, 689 N.E.2d 1248, 1252 (Ind. 1997) (quoting Display Fixtures Co. v. R.L. Hatcher, Inc., 438 N.E.2d 26, 31 (Ind.Ct.App. 1982)), supplemented by, 691 N.E.2d 1210 (Ind. 1998). Thus, an abuse of process claim has two elements: (1) an ulterior purpose, and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. See, e.g., Lake County Trust Co. v. Wine, 704 N.E.2d 1035, 1040 (Ind.Ct.App. 1998); Yater v. McCoy, 681 N.E.2d 232, 233 (Ind.Ct.App. 1997); Reichhart, 674 N.E.2d at 30. "`The gravamen of that tort is not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends.'" Shortridge, 689 N.E.2d at 1252 (quoting Heck v. Humphrey, 512 U.S. 477, 486 n. 5 (1994)). "`[T]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.'" Wine, 704 N.E.2d at 1040-41 (quoting Reichhart, 674 N.E.2d at 31 (citing Groen, 551 N.E.2d at 878-79)); see also Comfax Corp. v. N. Am. Van Lines, Inc., 638 N.E.2d 476, 481 (Ind.Ct.App. 1994) ("A regular and legitimate use of process, though with an ulterior motive or bad intention is not malicious abuse of process.") (quotation omitted); Broadhurst v. Moenning, 633 N.E.2d 326, 333 (Ind.Ct.App. 1994) (holding borrower had no claim for abuse of process against Bank where Bank's use of process to foreclose on mortgage was legitimate use of judicial system).
In light of this case law, the court believes that the abuse of process claim based on the remaining two possible uses of process is barred by either the Rooker-Feldman doctrine or res judicata. Deciding whether a claim is barred by Rooker-Feldman or res judicata is not an easy undertaking. See, e.g., Centres, Inc. v. Town of Brookfield, Wis., 148 F.3d 699, 703 (7th Cir. 1998). Because the applicability of Rooker-Feldman should be decided before res judicata principles are considered, the court turns to the Rooker-Feldman doctrine. See, e.g., Centres, 148 F.3d at 703.
Rooker-Feldman involves the court's subject matter jurisdiction; it therefore can be raised sua sponte by the court. See 4901 Corp. v. Town of Cicero, 220 F.3d 522, 527 (7th Cir. 2000); Garry, 82 F.3d at 1364. Indeed, the court has an unwaivering obligation to determine whether it has subject matter jurisdiction. See, e.g., Campanella v. Commerce Exch. Bank, 137 F.3d 885, 890 (6th Cir. 1998); Joyce v. Joyce, 975 F.2d 379, 386 (7th Cir. 1992); FED. R. CIV. P. 12(h)(3).
"The Rooker-Feldman doctrine precludes lower federal courts from exercising jurisdiction over claims that would require them to review a final judgment of a state court." Manley v. City of Chicago, Nos. 99-3785, 00-1154, ___ F.3d ___, 2001 WL 12479, at *2 (7th Cir. Jan. 5, 2001). "The doctrine applies not only to claims that were actually raised before the state court, but also to claims that are inextricably intertwined with state court determinations." Manley, 2001 WL 12479, at *2 (citing Ritter v. Ross, 992 F.2d 750, 753 (1993)). The court's inquiry is whether it "`"is in essence being called upon to review the state-court decision."'" Id. (quoting Ritter, 992 F.2d at 754 (quoting Dist. of Col. Court of Appeals v. Feldman, 460 U.S. 462, 483-84 n. 16 (1983)).
To determine whether the Rooker-Feldman doctrine applies, the court asks the fundamental question "whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment." Long v. Shorebank Dev. Corp., 182 F.3d 548, 555 (7th Cir. 1999) (quotation omitted); see also Centres, 148 F.3d at 702; Garry v. Geils, 82 F.3d 1362, 1365 (7th Cir. 1996). "`If the injury alleged resulted from the state court judgment itself, the Rooker-Feldman doctrine dictates that the federal courts lack subject matter jurisdiction, even if the state court judgment was erroneous or unconstitutional.'" Long, 182 F.3d at 555 (quoting Centres, 148 F.3d at 702 (footnote omitted)); see also Garry, 82 F.3d at 1365-66. "`By contrast, if the alleged injury is distinct from the state court judgment and not inextricably intertwined with it, the Rooker-Feldman doctrine does not apply, although the doctrines of claim and issue preclusion may be applicable.'" Long, 182 F.3d at 555 (quoting Centres, 148 F.3d at 702); see also Garry, 82 F.3d at 1365-66.
The Seventh Circuit has identified a rough guide for determining whether Rooker-Feldman or res judicata applies based on the status of the federal plaintiff in the prior state court judgment: "if the federal plaintiff was the plaintiff in state court, apply res judicata; if the federal plaintiff was the defendant in state court, apply Rooker-Feldman." Garry, 82 F.3d at 1367; see also Homola v. McNamara, 59 F.3d 647, 650 (7th Cir. 1995). As the Homola court explained:
A plaintiff who loses and tries again encounters the law of preclusion. The second complaint shows that the plaintiff wants to ignore rather than upset the judgment of the state tribunal. A defendant who has lost in state court and sues in federal court does not assert injury at the hands of his adversary; he asserts injury at the hands of the court, and the second suit therefore is an effort to obtain collateral review. It must be dismissed not on the basis of preclusion but for lack of jurisdiction.
Homola, 59 F.3d at 650. The Seventh Circuit has noted that this rough guide will have exceptions, for example when the prior state court action was a declaratory judgment action. See Garry, 82 F.3d at 1368.
The court determines that the Rooker-Feldman doctrine bars Mr. Brooks' abuse of process claim based on the proposal of the Judgment Entry and obtaining of the Judgment Entry in the state court action. The court concludes that Mr. Brooks' alleged injury resulted from the Judgment Entry in the state court action (as well as affirmance on appeal and denial of transfer), or at the least, is inextricably intertwined with that Judgment Entry (as well as affirmance on appeal and denial of transfer). Though the proposal of a Judgment Entry containing the words ultimately rejected by the state court is separate from the Judgment Entry, the proposal did not harm Mr. Brooks, if at all, until the Judgment Entry was entered against him. Of course, because the court rejected certain language proposed by Harco, it is doubtful that the inclusion of such language in the proposal caused Mr. Brooks any harm at all. To the extent Mr. Brooks complains about the proposal of the Judgment Entry aside from the rejected language, that proposal had no effect, that is, it was not "complete," until the state court made the Judgment Entry. See Garry, 82 F.3d at 1368 ("While the plaintiffs complain that the defendants moved the proposed ditch location as an act of political retaliation against them, the injury alleged was only complete when the state court actually condemned the property"); GASH Assocs. v. Village of Rosemont, Ill., 995 F.2d 726, 729 (7th Cir. 1993) (the injury "came from the judgment confirming the sale"). Similarly, Harco's obtaining of the Judgment Entry did not occur and thus was not "complete" until the state court made the Judgment Entry. See id.
In GASH, a junior mortgagee foreclosed on its property. At a foreclosure auction, the Village of Rosemont purchased the property, and the state court confirmed the sale. While the foreclosure action was pending, the Village brought a condemnation action in state court. GASH filed a federal action, alleging the Village brought the state condemnation action to depress the price of the property. Id. at 727.
To find that the resulting State Court Judgment Entry resulted from an abuse of process, the court in essence would have to review the Judgment Entry. That is, to find an abuse of process by Harco in securing the Judgment Entry, the court would have to find that Harco's state court action seeking to foreclose the interest of Sheahan and Florida Factoring Group in the Emerson Property was an irregular and illegitimate use of the judicial system. To so find, the court would have to find that there was "some extortionate perversion of lawfully initiated process to illegitimate ends," Shortridge, 689 N.E.2d at 1252 (quotation omitted), meaning that the state court was wrong to find in favor of Harco and against Sheahan and Florida Factoring Group and to foreclose the interest of Sheahan and Florida Factoring Group in the Emerson Property. This is exactly what Rooker-Feldman precludes this court from doing.
Application of the rough guide set forth in Homola supports the conclusion that Rooker-Feldman applies in the instant case. Florida Factoring Group was an intervenor defendant in the state court action. The Complaint in the instant case refers to "Plaintiff S. R. Brooks, d/b/a Florida Factoring Group, Inc.," (Compl. ¶ 43), thus demonstrating that Mr. Brooks considers himself and Florida Factoring Group to be one and the same. Further, as the court noted in its prior entry of January 24, 2000, Mary Lou Brooks, Plaintiff's mother, swore in state court that in October 1983 Mr. Sheahan assigned all his interest in the Land Contract to Florida Factoring Group, and then subsequently swore in the Amended Complaint in this court that in October 1983 Mr. Sheahan assigned all his interest in the Land Contract to her son, Mr. Brooks. The only way to harmonize these allegations is to assume that the two apparently different assignments were in reality a single assignment to one and the same party. The court therefore concludes that Mr. Brooks, the plaintiff here, was a defendant in the state court action. Under the rough guide set forth in Homola, the Rooker-Feldman doctrine should be applied to Mr. Brooks' abuse of process claim.
IV. Conclusion
Plaintiff's abuse of process claim against Harco based on the filing of the State Court Action is barred by the applicable statute of limitations. To the extent Plaintiff's abuse of process claim against Harco is based on any other alleged uses of process, Plaintiff's claim is time-barred, fails to state a claim because the alleged uses of process do not involve the judicial process, or the Rooker-Feldman doctrine precludes this court from reaching that claim. Accordingly, Harco's motion for summary judgment is GRANTED with respect to the abuse of process claim based on any alleged acts occurring more than two years prior to the filing of the instant action, and Plaintiff's abuse of process claim based on any other alleged acts is DISMISSED WITH PREJUDICE.
As stated, it is unclear whether Harco's motion for summary judgment is made on behalf of "Paul G. Harding, Jr., individually"; however, Plaintiff's abuse of process claim against "Paul G. Harding, Jr., individually" is be destined for the same fate as Plaintiff's abuse of process claim against Harco. The Seventh Circuit has said that "where one defendant files a motion for summary judgment which the court grants, the district court may sua sponte enter summary judgment in favor of additional non-moving defendants if the motion raised by the first defendant is equally effective in barring the claim against the other defendants and the plaintiff had an adequate opportunity to argue in opposition to the motion." Malak v. Assoc. Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 1986); see also Acequia, Inc. v. Prudential Ins. Co. of America, 226 F.3d 798, 807-08 (7th Cir. 2000) ("Malak states that a holding common to all defendants may result in summary judgment for all defendants, even if fewer than all of them moved for summary judgment."). Mr. Brooks had an adequate opportunity to respond to Harco's motion for summary judgment, he responded, and in addition, he filed his own motion for summary judgment on the abuse of process claim. Furthermore, logic dictates that had Defendant "Paul G. Harding, Jr., individually" moved for summary judgment on the abuse of process claim, that claim would suffer the same result as the abuse of process claim against Harco. Therefore, the court sua sponte finds that Defendant "Paul G. Harding, Jr., individually" should be GRANTED summary judgment on Plaintiff's abuse of process claim.
Plaintiff's cross-motion for summary judgment is DENIED and any other pending motions are DENIED AS MOOT.
As this entry disposes of the sole remaining claim, final judgment shall be duly entered.
ALL OF WHICH IS ORDERED.