Opinion
Case No. 00 C 04810
May 23, 2001
FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER PROVE-UP OF COMPLAINT
This cause came before the court for prove-up by default on the six-count complaint of plaintiff, Harvinder Harrison ("Harvinder"), individually and on behalf of her minor daughter, J.R., for tortious conduct of Harvinder's ex-husband, Rajender Singh ("Rajender"), and Rajender's current wife, Harveen Singh ("Harveen"). The conduct complained of arises from Rajender's violation of a state court order awarding custody of J.R. to Harvinder after the two divorced, whereby Rajender and Harveen kept J.R. after the end of a period of visitation and refused to return her to Harvinder. The complaint alleges Illinois statutory and common law claims of child abuse, child abduction, unlawful restraint, intentional infliction of emotional distress, interference with family relationship, and conspiracy to commit tortious and criminal acts. Plaintiff seeks more than $75,000 in compensatory damages as well as at least $1,000,000 in punitive damages. Jurisdiction rests in diversity under 28 U.S.C. § 1332. Harvinder appeared at the prove-up hearing by counsel and personally testified in support of her own and her daughter's claims. Rajender and Harveen failed to appear.
The court, having considered the affidavits and exhibits received in evidence, the testimony of Harvinder, and the law applicable to the facts, enters the following findings of fact and conclusions of law:
Findings of Fact
1. Summons and complaint were filed on August 8, 2000.
2. Harveen was personally served with summons and complaint on August 9, 2000 at her residence in New York.
3. Rajender was served with summons and complaint on August 9, 2000 by abode service at his last known address in New York, and mailing as provided by Article 3 Section 308(2) of the New York State Consolidated Laws and Federal Rule of Civil Procedure 4(e). The whereabouts of Rajender are unknown.
4. Rajender and Harveen have each failed to appear, plead, or otherwise defend as provided by rule, and each is in default.
5. Plaintiff has served each defendant with notice of the default hearing by mail and certified mail of this court's minute order entered February 5, 2001.
6. Harvinder and J.R. are citizens of Illinois.
7. Harveen is a citizen of New York.
8. The amount in controversy is alleged to exceed $75,000 exclusive of interest and costs.
9. Harvinder and Rajender were married on September 2, 1989. One child was born of the marriage, J.R., on September 27, 1993. J.R.'s birth name and real name is Jacqueline Randhawa.
10. When J.R. was four and one-half years old, Rajender and Harvinder were divorced. On or about March 20, 1998, a decree for dissolution of marriage was entered in Calhoun County, Texas, and an "original custody judgment" provided that Harvinder and Rajender were lawful joint custodians of the child. Harvinder, however, was by the decree entitled to primary custody of J.R., had the exclusive right to the immediate and continuing possession of J.R., had the exclusive right to establish the primary residency of J.R., and held the exclusive right to represent J.R. in legal actions and make other legal decisions in and on her behalf.
11. Following the divorce, J.R. lived with Harvinder in Texas. In August 1998, Harvinder and J.R. moved to Illinois, and since that time, the two have been permanent residents of Illinois. In May 1999, Harvinder re-married.
12. In December 1998, Rajender and Harveen married, and Harveen and her then five-year-old daughter took up residence with Rajender in Texas.
13. On June 8, 1999 Harvinder sent J.R. to Texas for visitation with Rajender.
14. During March and April, 2000, Dr. Roger Hatcher, a clinical psychologist licensed in Illinois, interviewed the adult parties and J.R. and performed certain tests upon them. According to his uncontroverted opinion, and based on his experience and observations, Harvinder and J.R. had a strong and healthy parent-child relationship prior to the June, 1999 visitation. Their bond was close and deep. Harvinder was J.R.'s primary emotional and psychological attachment. A healthy personal close relationship between J.R. and Harvinder was and is necessary for J.R.'s proper mental and emotional development, and continuing meaningful contact and communication between the child and Harvinder was and is necessary to sustain that relationship.
15. Shortly before Harvinder sent J.R. to Texas, Rajender told Harvinder he had no intention or plan to obtain custody and possession of J.R., and Harvinder reasonably relied upon Rajender's statement.
16. At the time Harvinder sent J.R. to Rajender in Texas, based on Rajender's previous conduct regarding visitation, Harvinder reposed trust in Rajender that Rajender would return J.R. to her on July 14, 1999, that he would abide by the custody judgment between them, that he would disclose material facts to Harvinder concerning J.R., that he would support the parent-child relation between Harvinder and J.R., and that he would act in the best interests of J.R.
17. Rajender's actual physical possession of J.R. gave him a position of superiority, advantage, and influence to affect Harvinder's interests in these areas.
18. At the time Harvinder sent J.R. to Rajender in Texas she was also sending J.R. to Harveen. Harvinder reposed trust in Harveen, based on Harveen's previous conduct regarding visitation by J.R. with Rajender, trust that Harveen would return J.R. to her on July 14, 1999, that she would act in support of the custody judgment between Rajender and Harvinder, that she would disclose material facts to Harvinder concerning J.R., that she would support the parent-child relation between Harvinder and J.R., and that she would act in the best interests of J.R. Harveen's actual physical possession of J.R. gave her a position of superiority, advantage, and influence to affect Harvinder's interests in these areas.
19. During and after this period of visitation, a special relationship between J.R. and Rajender arising from the natural parent-child relation existed between them, combined with the facts of his physical possession and control of J.R., J.R.'s vulnerability to improper influence, the disparity of age, maturity, education, and resources between the two, and the superiority, advantage, and influence Rajender had over J.R. J.R reposed trust in Rajender to act at all times in her best interests.
20. During and after this period of visitation, a special relation between J.R. and Harveen arising from the stepparent-child relation existed between them, combined with the facts of her physical possession and control of J.R., J.R.'s vulnerability to improper influence, the disparity of age, maturity, education, and resources between the two, and the superiority, advantage, and influence she had over J.R. J.R reposed trust in Harveen to act at all times in her best interests.
21. Prior to the June 8, 1999 start of visitation, Rajender and Harveen knew of the close relationship existing between J.R. and Harvinder. Nevertheless, at some point prior to July 8, 1999, Rajender and Harveen formed a plan to obtain permanent custody and possession of J.R. by falsely alleging that J.R. had been abused and neglected when with Harvinder.
22. Commencing June 8, 1999, the first day of visitation with J.R., Rajender and Harveen undertook to implement their plan. From and after that date, the defendants participated in the following acts or conduct in furtherance of their plan:
(a) Rajender and Harveen immediately, continuously, and wrongfully engaged in a course of improper suggestion, coercion, deception, intimidation, reinforcement, and other manipulation of and influential behavior toward J.R., with the intention of unduly influencing J.R.
(b) Rajender and Harveen repeatedly, continuously, and wrongfully interfered with the duration, frequency, and privacy of communication between Harvinder and J.R., specifically including their wrongful refusal to permit Harvinder to speak to J.R. by telephone from July 14, 1999 (the day scheduled for J.R.'s return from visitation) until December 1999 (when defendants were ordered to cease their interference with phone calls between J.R. and Harvinder), and specifically including the interference with communication attendant to an abduction of J.R. by defendants, which commenced July 10, 2000, as set out below.
(c) Rajender and Harveen repeatedly and wrongfully took and retained J.R. and refused to return her to her lawful custodian, Harvinder, including the following: defendants wrongfully withheld J.R. beyond July 14, 1999, the date scheduled for her return from visitation; defendants repeatedly and wrongfully detained J.R. in New York and refused to relinquish permanent physical possession of J.R. to Harvinder during the pendency of legal proceedings instituted by Harvinder in Rajender Singh v. Harvinder Kour n/k/a Harvinder Harrison, No. 99 MR 674, before the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois for the immediate return of J.R., to show cause why Rajender was not in contempt of the original custody judgment, and for change of custody to Harvinder, solely. Defendants continued to refuse to relinquish possession of J.R. following judgment after trial in those proceedings, which resulted in an order of court on June 30, 2000 that Rajender "as soon as practical but on or before July 9, 2000" return the child to Harvinder.
It is implicit in the court's order of June 30, 2000, that Rajender was represented by counsel at the trial and may have testified. Rajender moved for temporary and permanent modification of custody and/or physical possession and to maintain the status quo, a motion the court denied as it granted Harvinder's motion for sole custody and the immediate return of J.R.
(d) Rajender and Harveen repeatedly hid and secreted J.R. from Harvinder, including moving their home from Texas to New York in July, 1999 and taking J.R. with them but concealing their move and location from Harvinder, and, thereafter, concealing J.R. commencing July 10, 2000.
(e) Rajender and Harveen repeatedly and wrongfully sent J.R. to therapy sessions to find child abuse in Harvinder's home and to treat J.R. for child abuse purportedly inflicted by Harvinder's husband, including nine therapy sessions in Texas during the original visitation, and repeated additional child sexual abuse therapy sessions in New York in the first half of 2000.
(f) Rajender and Harveen repeatedly filed false child abuse accusations with child protection authorities for the purpose of obstructing Harvinder's contact with J.R., specifically including reports in Texas, in Illinois, and twice in New York.
(g) Rajender and Harveen repeatedly made material misrepresentations of fact to Harvinder, and repeatedly concealed and suppressed material facts from Harvinder when they were under a duty to disclose these facts.
23. A Final Custody Judgment was entered by the circuit court in DuPage County on December 14, 2000, by which Harvinder retained all her rights under the original custody judgment but was also granted permanent, sole, and exclusive custody and possession of J.R. Notwithstanding the Final Custody Judgment, Rajender, with the aid of Harveen, continued to violate the decree as described above.
24. The false reports of child abuse filed by Rajender and Harveen in Texas, Illinois, and twice in New York were each deliberate and intentional.
25. The taking, retention and concealment of J.R. by Rajender as described in paragraph 22(d) were deliberate and intentional acts in violation of the orders of court original custody judgment of March 20, 1999, the orders of court entered June 30, 2000 and July 10, 2000, and the Final Custody Order.
26. Harveen's participation in the planning and commission of the taking, retention and concealment of J.R. by Rajender, was and is being done with the intent to prevent and obstruct the apprehension of Rajender and to impede efforts to locate or recover J.R., and includes knowingly furnishing false information to Harvinder and J.R., and failing to disclose material facts to them when she was under a duty to disclose such facts.
27. The acts and conduct of Rajender and Harveen as described in Paragraphs 22 through 26 above were willful and malicious.
28. The acts and conduct of Rajender and Harveen as described in Paragraphs 22 through 26 above were extreme and outrageous, exceeding all bounds of human decency.
29. The acts and conduct of Rajender and Harveen as described in Paragraphs 22 through 26 above were performed or participated in by Rajender and Harveen with knowledge that their conduct was certain or substantially certain to cause severe emotional distress to J.R. and Harvinder.
30. Rajender and Harveen's plan, and their participation in the acts and conduct done in support of the plan as described in Paragraphs 22 through 26 above, have caused severe mental and emotional distress to J.R. and severe mental and emotional distress to Harvinder, and such severe mental and emotional distress will continue into the future until the child is returned to Harvinder and thereafter.
31. Rajender and Harveen's plan, and their participation in the acts and conduct done in support of the plan as described in Paragraphs 22 through 26 above, was all without justifiable cause, excuse, or defense.
32. Rajender and Harveen's plan included the agreement with each other that together they would perform or participate in the unlawful acts and conduct described in Paragraphs 22 through 26 above; Rajender and Harveen committed such acts and conduct in furtherance of their plan; Rajender and Harveen committed such acts and conduct with reckless disregard of the risk of harm to J.R. and to Harvinder; and the acts and conduct did cause severe mental and emotional injury to J.R. and severe mental and emotional injury to Harvinder.
33. Rajender and Harveen's plan, and their participation in the acts and conduct done in support of the plan as described in Paragraphs 22 through 26 above, seriously disrupted and damaged the normal and healthy relationship J.R. had with Harvinder, and caused J.R. to believe:
• that Harvinder did not love her and was an unfit mother her;
• that Harvinder was a bad person;
• that Harvinder neglected, physically abused, and sexually abused her;
• that Harvinder knowingly permitted the stepfather to sexually abuse her;
• that Rajender and Harveen are her rescuers from, and protectors against, the abuse and neglect; and
• that any person who does not support the belief that she had been physically and sexually abused while with Harvinder cannot be trusted.
34. Rajender and Harveen's plan, and their participation in the acts and conduct done in support of the plan as described in Paragraphs 22 through 26 above, have irreparably, permanently, and substantially impaired J.R.'s attachment to Harvinder, have infused a false and unnatural hostility towards, and distrust and fear of Harvinder; have planted in J.R. false memories of her prior life with Harvinder including false memories of physical, emotional, and sexual abuse; and have instilled within J.R. a distorted view that the world is inhabited by those who would cause her harm and those who would protect her.
35. As a result of Rajender and Harveen's plan, and of their participation in the acts and conduct done in support of the plan as described in Paragraphs 22 through 26, J.R.'s emotional attachment to Harvinder has been irreparably, permanently, and substantially impaired. As a further result, J.R. has been and continues to be confused and emotionally insecure, and has been significantly harmed in her emotional and psychological development.
36. J.R. will require extensive psychological counseling and therapy to overcome the parental alienation she feels toward her mother, to help her rebuild her relationship with Harvinder, and to restore J.R.'s normal and healthy development.
Conclusions of Law
1. Jurisdiction
This court has jurisdiction over the parties and over the subject matter of the complaint. This conclusion is reached after considering three possible impediments to jurisdiction:
(A) As indicated, the complaint alleges diversity jurisdiction. Under 28 U.S.C. § 1332(a), plaintiff must allege that the dispute is between citizens of different States. Plaintiff's complaint alleges that Harvinder and J.R. are "residents" of Illinois, that Harveen is a resident of New York, and that Rajender's last known residence is in New York. "[A]llegations of residence are insufficient to establish diversity jurisdiction." Held v. Held, 137 F.3d 998, 1000 (7th Cir. 1998) It is well-settled that when the parties allege residence but not citizenship, the court must dismiss the suit unless leave of court is granted under 28 U.S.C. § 1653 to amend the complaint to properly allege diversity jurisdiction. Id. Because diversity of citizenship appears to be established based on the evidence received, however, the court will grant plaintiff leave to file a motion to amend the complaint to correct these defective allegations and will withhold entry of judgment in this case until such a motion is received.
(B) The court further points counsel to the record representations of the process server that Rajender was served with summons and complaint on August 9, 2000 by abode service at his last known address in New York, and by mail at that address. Although the evidence suggests that the whereabouts of Rajender is unknown, the complaint fails to allege such a fact. More important, if Rajender's whereabouts are unknown, diversity might not exist because Rajender might be a citizen of Illinois. Plaintiff's counsel is therefore referred to Lloyd v. Loeffler, 694 F.2d 489, 490, 493 (7th Cir. 1982) (fugitive defendant's last known domicile before he fled is his domicile for diversity purposes), to frame plaintiff's allegation of the citizenship of Rajender.
(C) A final threshold, which gave the court pause, was whether the claims asserted are merely ancillary to the custody decree entered in DuPage County. But according to Lloyd, 694 F.2d at 493, an action by the father of a child against the child's mother, her husband, and maternal grandparents for interference with custody of the plaintiff's child did not fall within the domestic relations exception to diversity jurisdiction. As this is a similar fact situation, the court finds that the tort claims asserted are not merely ancillary to the circuit court's decree. See also Kunz v. Deitch, 660 F. Supp. 679, 680 (N.D.Ill. 1987) (diversity jurisdiction asserted over Maryland citizen's claim against Illinois citizens for parental loss of a minor child's society and companionship and intentional infliction of emotional distress).
In discussing whether the action was ancillary to a Maryland custody decree, the court reasoned that if a tort action for wrongful interference with custody existed it would be litigated as an independent civil action and not as an appendix to the custody proceeding, which is strictly equitable. 694 F.2d at 493. (Citations omitted).
2. Venue
Venue is proper in this district under 28 U.S.C. § 1391(a)(2) in that a substantial part of the events giving rise to the claim occurred in this district, including defendants' false accusations of child abuse to Illinois authorities and the presence of defendants for the trial of the custody dispute — the preparation of which included consultations with court appointed experts regarding the false accusations and which resulted in the Final Custody Order depriving Rajender of custody of J.R.
3. Count I. Child Abuse
Count I claims that defendants' conduct of causing J.R. to believe that Harvinder is an unfit, abusive and neglectful mother, of isolating J.R. from her mother and preventing the maintenance of the filial bond between them, of having the child counseled for sexual abuse that did not occur, and of physically detaining and concealing J.R., constituted emotional abuse of J.R and damaged her mental and emotional well being and development. Although plaintiff alleges a tort of emotional child abuse, she has not demonstrated that such a tort exists under Illinois law. The court's own research finds no instance of an award of damages for a tort called child abuse. The Illinois Wrongs to Children Act under the Criminal Code of 1961, as amended ("Code"), at 720 ILCS §§ 150 et seq., does not have a crime of nonsexual child abuse. The Juvenile Court Act of 1987, 705 ILCS § 405/2-3(2), provides that an "abused minor" is one whose parent or responsible person inflicts, allows to be inflicted, or creates a substantial risk of, physical injury by other than accidental means which causes death, disfigurement or other impairment of health, or loss or impairment of any bodily function; or who subjects a child to any sex offense, torture, or excessive corporal punishment. The evidence does not support a finding that J.R. is an abused minor. In light of plaintiff's failure to establish that a tort of child abuse exists in Illinois, or even that child abuse as defined by the Juvenile Court act has occurred, the court finds that plaintiff has failed to establish her proof on Count I.
4. Count II. Child Abduction/Count V. Interference with Family Relationship Plaintiff contends, in Count II, that Rajender has committed the offense of child abduction prohibited by 720 ILCS § 5/10-5(b)(1) and that Harveen has aided and abetted Rajender in violation of 720 ILCS § 5/10-7. As applicable here
[a] person commits child abduction when he or she: (1) [i]ntentionally violates any terms of a valid court order granting sole or joint custody, care or possession to another, by concealing or detaining the child or removing the child from the jurisdiction of the court; or . . . (5) [a]t the expiration of visitation rights outside the State, intentionally fails or refuses to return or impedes the return of the child to the lawful custodian in Illinois. . . .
Id. at §§ 5/10-5(b)(1) and (b)(5). This offense is punishable as a Class 4 felony. Id. at § 5/10-5(d). Plaintiff contends that she can recover in damages against defendants for the injuries resulting from the commission of this crime, citing 720 ILCS § 5/1-4, which provides that the Code "does not bar, suspend, or otherwise affect any right or liability to damages . . . authorized by law to be recovered or enforced in a civil action . . . and the civil injury is not merged in the offense." This section merely preserves existing civil remedies; it does not create civil liability for every crime enumerated in the Code.
In Count V, plaintiff contends that the defendants' conduct damaged the family relationship between J.R. and Harvinder and resulted in the loss of society of one another. Plaintiff has given the court no guidance on these issues, but the court's own research (a task that should have been done by plaintiff's counsel) indicates that the conduct complained of in Counts II and V, essentially parental kidnapping in violation of a custody order, is a claim for custodial interference, which under the Restatement (Second) of Torts § 700 (1981) provides:
One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.
(Emphasis added). The facts as presented at the hearing clearly establish these elements. However, although this tort is recognized in some states, such as Wisconsin (see Lloyd, 694 F.2d at 495-96), plaintiff has not demonstrated to the court that the courts of Illinois recognize her claim. Although the Illinois Supreme Court in Dralle v. Ruder, 529 N.E.2d 209 (Ill. 1988), has noted a split in the Illinois appellate courts, and has left the door open for recognition of a cause of action for loss of society for what has been termed "'direct interference' with the parent-child relationship," at least one federal court ruling on the issue since Dralle has held that the Illinois Supreme Court, if squarely presented with the issue, would not find such a cause of action. See Alber v. Illinois Dep't of Mental Health and Dev. Disabilities, 786 F. Supp. 1340, 1363-65 (N.D.Ill. 1992) (denying existence of cause of action to parents claiming they were physically separated over course of many weeks from their developmentally disabled children by deliberate acts of third parties). Because plaintiff has not provided the court with any sound reason why the Illinois Supreme Court would recognize such a cause of action, the court dismisses Count II (both the claim against Rajender and that against Harveen for aiding and abetting) and also dismisses Count V.
See Dralle, 529 N.E.2d at 214-15 (noting that recovery for loss of companionship was approved in Dymek v. Nyquist, 469 N.E.2d 659 (Ill.App.Ct. 1984), in which the court permitted a divorced father to bring an action alleging that a former spouse and a psychiatrist conspired to brainwash the plaintiff's son, but was rejected in Whitehorse v. Critchfield, 494 N.E.2d 743 (Ill.App.Ct. 1986), in which the court denied a father's cause of action for loss of society resulting from alleged acts intended to induce his child to abandon his home).
For a full discussion of parental kidnapping remedies, see Richard A. Campbell, Transition: The Tort of Custodial Interference — Toward a More Complete Remedy to Parental Kidnappings," 1983 U. ILL. L. REV. 229. See also Note, "Parental Kidnapping and the Tort of Custodial Interference: Not in a Child's Best Interests," 25 IND. L. REV. 893 (1991).
5. Count III. False Imprisonment
A claim of unlawful restraint, which the court for present purposes considers as identical with false imprisonment, may be maintained in Illinois where the defendant has intentionally caused "even a brief restraint on the plaintiff's freedom." Arthur v. Lutheran General Hospital, Inc., 692 N.E.2d 1238, 1242 (Ill.App.Ct. 1998), quoting W. Keeton, Prosser Keeton on Torts § 11, at 48 (5th ed. 1984). The elements of proof are that the plaintiff's "personal liberty was unreasonably or unlawfully restrained against his will and that defendant(s) caused or procured the restraint." Id. at 1243, quoting Vincent v. Williams, 279 Ill. App.3d 1, 5-6, 216 Ill. Dec. 13, 664 N.E.2d 650 (1996). "False imprisonment requires an actual or legal intent to restrain. Id., citing Lopez v. Winchell's Donut House, 126 Ill. App.3d 46, 50, 81 Ill. Dec. 507, 466 N.E.2d 1309 (1984). Plaintiff, on behalf of J.R., has established that defendants intentionally restrained J.R. from returning to her mother at the end of her visitation period on July 14, 1999, and have persisted in that restraint since that time. The court infers from the evidence that defendants overpowered J.R.'s will to return to her mother and but for such conduct, J.R. desired to return to her mother and was forcibly prevented by the defendants from doing so. Therefore, plaintiff has established her claim of false imprisonment.
Unlawful restraint is a criminal offense. "A person commits the offense of unlawful restraint when he knowingly without legal authority detains another." 720 ILCS § 5/10-3.
6. Count IV. Intentional Infliction of Emotional Distress
To establish a claim of intentional infliction of emotional distress, plaintiff must prove that the defendant engaged in extreme and outrageous conduct against the plaintiff, that defendant knew that severe emotional distress was certain or substantially certain to result from his conduct, and that defendant's conduct caused severe emotional distress. Wynne v. Loyola Univ. of Chicago, 741 N.E.2d 669, 677 (Ill.App.Ct. 2000); Rekosh v. Parks, 735 N.E.2d 765, 772 (Ill.App.Ct. 2000). Extreme and outrageous conduct necessary to finding a party liable for intentional infliction of emotional distress requires conduct that goes "beyond all possible bounds of decency" and is "judged on an objective standard based on all of the facts and circumstances of a particular case." Rekosh, 735 N.E.2d at 772. The court concludes that, even in light of the requirement that the conduct be "beyond all possible bounds of decency," defendants' conduct qualifies. Defendants deprived J.R., a small child, of her primary relationship in life at the time of the events at issue; they knew that their conduct was substantially certain to cause emotional distress to J.R. and that in fact J.R. has suffered and will continue to suffer severe emotional distress. In addition, the court concludes that defendants have intentionally inflicted emotional distress on Harvinder by violating the trust she placed in Rajender that he would return J.R., by refusing to return J.R., by making false accusations of child abuse against Harvinder's husband and by depriving Harvinder of the companionship of her child. The court further concludes that Rajender and Harveen engaged in this conduct intentionally and with knowledge that it would cause or was substantially certain to cause emotional harm to Harvinder, and in fact Harvinder has suffered severe emotional distress. See Kunz, 660 F. Supp. at 683-84 (holding that plaintiff, father of infant, stated a claim under Illinois law for intentional infliction of emotional distress where he alleged that grandparents of infant, after having child in their care until their daughter's (the infant's mother's) death, refused to relinquish the infant to her father, falsely claimed to potential adoptive parents that the father had had no contact with the infant and his whereabouts were unknown, and induced the adopting couple to petition for adoption, thereby forcing plaintiff to hire an attorney to contest the adoption and obtain custody from the grandparents). Plaintiff has proven her claim for intentional infliction of emotional distress.
7. Count VI. Conspiracy
Plaintiff claims that Rajender and Harveen agreed to a common scheme to commit a criminal offense, the abduction of J.R., as well as the tortious conduct described in Counts I-V, that on July 10, 2000, and thereafter, Rajender and Harveen participated in the unlawful abduction, concealment and detention of JR, and that as a result of their conspiracy, the family relationship between J.R. and Harvinder has been damaged, they have lost the society of each other, and they have suffered severe emotional distress and harm.
Civil conspiracy is defined as 'a combination of two or more persons for the purpose of accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful means.' In order to state a claim for civil conspiracy, a plaintiff must allege an agreement and a tortious act committed in furtherance of that agreement. The agreement is 'a necessary and important' element of this cause of action. The civil conspiracy theory has the effect of extending liability for a tortious act beyond the active tortfeasor to individuals who have not acted but have only planned, assisted, or encouraged the act.
McClure v. Owens Corning Fiberglas Corp., 720 N.E.2d 242, 258 (Ill. 1998) (citations and internal quotations omitted). The court infers from the conduct of Rajender and Harveen that they acted in concert, pursuant to an agreement: (A) to deprive, and did in fact deprive, Harvinder of her rightful custody of J.R., a criminal offense under 720 ILCS § 5/10-5(b)(1); (B) to falsely imprison, and did in fact falsely imprison, J.R. as set out above; and (C) to inflict, and did in fact inflict, emotional distress on Harvinder and J.R. as set out above. Inasmuch as these acts constitute an agreement to commit unlawful acts and constitute concerted action in furtherance of unlawful acts, the court concludes that plaintiff has established her claim for conspiracy, from which the court can impose joint liability against Rajender and Harveen.
ages
plaintiff having proved the allegations of her complaint, the court hereby assesses against Rajender and Harveen, jointly and severally, and in favor of plaintiff, compensatory damages for emotional harm and emotional distress in the amount of $57,500 (which is approximately $2,500 for each month after July 14, 1999 to the date of judgment during which defendants have unlawfully kept J.R.). The court also hereby assesses against Rajender and Harveen, jointly and severally, and in favor of plaintiff for the benefit of J.R., compensatory damages for emotional harm and emotional distress in the amount of $57,500. Because the court finds that Rajender and Harveen each have acted knowingly, willfully, and with knowledge that their conduct would cause or was substantially certain to cause serious harm to plaintiff and her child, the court assesses punitive damages against Rajender in the amount of $100,000, and against Harveen in the amount of $100,000. The court allocates one-half of the punitive damages to the plaintiff and one-half to J.R. Plaintiff is entitled to costs as well.
ORDER
The court continues until June 14, 2001 ruling on plaintiff's motion for judgment by default. Plaintiff is directed not later than June 14, 2001, to file, serve, and notice a motion for leave to amend the complaint to correct defects in the pleadings and a proposed judgment order calculating the award of damages through the date June 14, 2001, according to the formula for damages set out above.