The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Frank R. DiFranco, )
)
Plaintiff, )
) Case No. 20‑CV‑7813
v. )
) Honorable Joan B. Gottschall
Monica Gordon, in her official capacity as )
Clerk of Cook County, Illinois; et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
This litigation stems from a close race in the 2020 general election for a judgeship on the
Circuit Court of Cook County, Illinois. Defendant Patricia Fallon was declared the winner by a
503-vote margin. Her opponent, plaintiff Frank R. DiFranco, filed this federal lawsuit alleging
constitutional claims via 42 U.S.C. § 1983, as well as supplemental state law claims, against
Fallon, the Cook County Clerk, and the county and state boards of election, seeking, among
other relief, to be declared the winner of the election. See Compl. 10–36, Dkt. No. 1. DiFranco
also filed a parallel election contest case in Cook County Circuit Court naming the same
defendants and asserting, among others, the constitutional and state law claims pleaded in his
federal complaint. See Pet. in No. 2020COEL000032, in this record at Dkt. No. 12-1.
On November 29, 2021, Judge Norgle found that this federal case paralleled DiFranco’s
state court election contest and stayed the federal case under Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976), to await the outcome of the state court case.
DiFranco v. Yarbrough, No. 20-CV-7813, slip op. at 20–21 (N.D. Ill. Nov. 29, 2021) (Dkt.
No. 60). DiFranco’s parallel state case has been litigated to a final judgment dismissing all of his
claims, and the Colorado River stay has been lifted. See DiFranco v. Fallon, 2023 IL App (1st)
220785 (Oct. 5, 2023), appeal denied No. 130187, 226 N.E.3d 32 (Ill. 2024), cert. denied 145 S.
Ct. 171 (Oct. 7, 2024).
Before this court are two motions to dismiss DiFranco’s complaint for failure to state a
claim. Defendants primarily argue that the final judgment in DiFranco’s state court election
contest bars further litigation of his federal claims under principles of res judicata and collateral
estoppel. DiFranco counters that the state court’s judgment is void because the court exceeded
the scope of its subject matter jurisdiction. See 10 Ill. Comp. Stat. 5/23 et seq. But the Illinois
appellate court resolved the question of subject matter jurisdiction, ruling adversely to DiFranco.
2023 IL App (1st) 220785, ¶¶ 38–43. For the reasons discussed herein, the Illinois appellate
court’s jurisdictional rulings preclude DiFranco from collaterally attacking the state court’s
jurisdiction, and the federal case is dismissed as barred by res judicata.
I. BACKGROUND
DiFranco filed his federal complaint on December 30, 2020. Dkt. No. 1. In addition to
Fallon, he named as defendants Karen Yarbrough, who was then the Cook County Clerk, in her
official and individual capacities; the Cook County Board of Elections (“county board”); and
Illinois State Board of Elections (“state board”). Compl. 1. DiFranco’s federal complaint has ten
counts. The complaint asserts claims under 42 U.S.C. § 1983 for violations of his right to
procedural and substantive due process (Counts I and III); a violation of the Equal Protection
Clause (Count II); violation of separation of powers principles (Count IV); a claim for a
declaratory judgment (Count V); a claim to hold Cook County vicariously liable under Monell v.
Department of Social Services of New York City, 436 U.S. 658 (1978) (Count VI); and a First
Amendment claim (Count IX). Compl. ¶¶ 46–116. DiFranco also pleads claims arising under
Illinois law; he invokes supplemental jurisdiction over these claims. 28 U.S.C. § 1367(a).
Specifically, the complaint asserts claim for willful and wanton conduct (Count VII), an
indemnification claim (Count VIII); and a claim under the Free and Fair Elections Clause of the
Illinois Constitution (Count X), Ill. Const. Art. III § 3. Compl. ¶¶ 117–25, 132–37.
DiFranco filed his parallel lawsuit in Cook County Circuit Court one day after he filed
his federal complaint. DiFranco v. Fallon, No. 2020COEL000032 (Dec. 31, 2020). DiFranco
explained the relationship between the two suits on the second page of his federal complaint:
“The Plaintiff [DiFranco] has also filed an ‘election contest’ cause of action against the identical
Defendants in the Circuit Court of Cook County . . . arising from the same facts as alleged
herein. That cause of action includes the identical constitutional claims as presented by the
Plaintiff in this [federal] cause of action.” Compl. 2. DiFranco’s federal complaint then cites
England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964), and states that
DiFranco “expressly desires that the federal questions presented by constitutional claims asserted
in this cause of action be resolved by the United States District Court, and not the Courts of the
State of Illinois.” Compl. 2. The parties and the court refer to this as an England reservation.
England holds “that when a federal court abstains from deciding a federal constitutional issue to
enable the state courts to address an antecedent state-law issue, the plaintiff may reserve his right
to return to federal court for the disposition of his federal claims.” San Remo Hotel, L.P. v.
City & Cnty. of San Francisco, 545 U.S. 323, 339 (2005) (citing England, 375 U.S. at 419).
In an opinion dated November 29, 2021, Judge Norgle dismissed DiFranco’s complaint in
part and stayed this case pending the resolution of the state court election contest. See
DiFranco v. Yarbrough, No. 20-CV-7813, slip op. at 21–22 (Dkt. No. 60). That order dismissed
the state board of elections on Eleventh Amendment grounds, denied leave to amend the
complaint to name individual board members, and dismissed DiFranco’s claim that § 22-9.1 of
the Illinois Election Code is unconstitutional. Id. at 21. In entering a stay, the court ruled that
this case and DiFranco’s state suit paralleled each other and that exceptional circumstances
warranted federal court abstention under Colorado River. See id. at 21–22; see generally
Braid v. Stilley, 142 F.4th 956, 969–71 (7th Cir. 2025) (describing the two-step Colorado River
abstention analysis).
Judge Norgle retired on October 4, 2022. The Clerk of this court reassigned this case by
lot to the undersigned. See Am. Exec. Comm. Order 1, 5 (Oct. 5, 2022), Dkt. No. 74 (citing
N.D. Ill. L.R. 40.1(f)). In 2024, defendant Karen Yarbrough passed away while in office. See
Suggestion of Death (Apr. 10, 2024), Dkt. No. 104; Suppl. Suggestion of Death (Oct. 21, 2024),
Dkt. No. 129. The current Cook County Clerk, Monica Gordon, has been substituted insofar as
the complaint named Yarbrough in her official capacity. Minute Order 1 (Feb. 6, 2025), Dkt.
No. 156. The personal representative of Yarbrough’s estate, Henderson Yarbrough, has been
substituted “insofar as plaintiff sues [Karen Yarbrough] in her personal capacity.” Minute
Order 1 (Oct. 22, 2024), Dkt. No. 130.
DiFranco’s election contest suit in state court was resolved in the following manner. The
trial judge entered summary judgment on May 11, 2022, in favor of defendants and dismissed the
state case. Jt. Status Report ¶ 1 (Aug. 30, 2022), Dkt. No. 71. DiFranco appealed. On
October 5, 2023, the Illinois appellate court issued an opinion affirming the dismissal of
DiFranco’s state case. DiFranco v. Fallon, 2023 IL App (1st) 220785 (Oct. 5, 2023). DiFranco
unsuccessfully petitioned the Illinois Supreme Court for leave to appeal. See DiFranco v.
Fallon, No. 130187, 226 N.E.3d 32, at *1 (Ill. 2024). He then filed a petition for a writ of
certiorari in the United States Supreme Court. The Supreme Court denied certiorari on
October 7, 2024. 145 S. Ct. 171 (Oct. 7, 2024).
Following denial of certiorari, the parties agreed that the Colorado River stay should be
lifted and jointly proposed a schedule for briefing motions to dismiss the complaint. See Minute
Order 1 (Nov. 1, 2024), Dkt. No. 137. All defendants move to dismiss DiFranco’s federal
complaint under the doctrines of res judicata and collateral estoppel, which are sometimes also
called claim and issue preclusion, respectively.1 See Jt. Mot. Dismiss 6–15, Dkt. No. 139. In
addition, defendant Henderson Yarbrough argues that Karen Yarbrough’s estate is immune from
DiFranco’s personal capacity claims under Section 2-201 of the Illinois Local Government Tort
Immunity Act, 745 Ill. Comp. Stat. 10/2-201, because Karen Yarbrough took all of the actions at
issue in her official capacity as the Clerk of Cook County. See H. Yarbrough Mot. to Dismiss 2–
5, Dkt. No. 140.
————————————————————
1 Defendant Henderson Yarbrough expressly adopts his co-defendants’ res judicata and collateral
estoppel arguments. H. Yarbrough Mot. to Dismiss 5–6, Dkt. No. 140.
After briefing closed, this court directed the parties to file supplemental memoranda
concerning the effect, if any, of the Illinois Supreme Court’s decision in Ontiveroz v. Khokhar,
2025 IL 130316 (Jan. 24, 2025), on the res judicata and collateral estoppel issues raised in the
present case. Minute Order 1 (Aug. 6, 2025), Dkt. No. 164. DiFranco and defendants argue in
their respective supplemental memoranda that Ontiveroz supports their position. See Pl. Suppl.
Mem., Dkt. No. 165; Def. Supp. Mem., Dkt. No. 166.
II. MOTION STANDARD
Defendants move to dismiss DiFranco’s complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the
sufficiency of a complaint rather than the case’s merits or the merits of any affirmative defense.
See Richards v. Mitcheff, 696 F.3d 635, 637–38 (7th Cir. 2012). Rule 8(a)(2) requires every
complaint, and every other pleading that states a claim for relief, to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.”
To withstand a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this standard when its factual allegations
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–56. When testing
a complaint’s sufficiency, the court accepts the complaint’s well-pleaded facts as true and draws
reasonable inferences from those facts in the plaintiff’s favor, but conclusory allegations that
merely recite the elements of a claim do not enjoy a presumption of truth. Virnich v. Vorwald,
664 F.3d 206, 212 (7th Cir. 2011).
Defendants raise the affirmative defenses of res judicata and collateral estoppel. See Fed.
R. Civ. P. 8(c)(1). “Complaints need not anticipate defenses and attempt to defeat them.”
Mitcheff, 696 F.3d at 637 (citing Gomez v. Toledo, 446 U.S. 635 (1980)). Nevertheless, a
complaint may be dismissed based on an affirmative defense at the Rule 12(b)(6) stage if it
admits all the elements of an affirmative defense and the plaintiff has “pleaded himself out of
court.” E.g., Holmes v. Marion Cnty. Sheriff’s Off., 141 F.4th 818, 822 (7th Cir. 2025); Mitcheff,
696 F.3d at 637.
III. ANALYSIS
The Full Faith and Credit Act , 28 U.S.C. § 1738, “requires federal courts to give a state
court judgment the same preclusive effect it would have in state court.” Long v. Shorebank Dev.
Corp., 182 F.3d 548, 560 (7th Cir. 1999) (citing Marrese v. Am. Acad. of Orthopaedic Surgeons,
470 U.S. 373, 381 (1985)). “State law controls whether a state court judgment precludes a later
federal lawsuit.” White v. Ill. State Police, 15 F.4th 801, 809 (7th Cir. 2021) (citing Garcia v.
Vill. of Mt. Prospect, 360 F.3d 630, 634 (7th Cir. 2004)). The dispositive question is therefore
whether and to what extent Illinois courts would give res judicata and collateral estoppel effect
to the final judgment dismissing DiFranco’s election contest case.
A. Issue Preclusion/Collateral Estoppel
“Under the doctrine of collateral estoppel, also known as issue preclusion, an issue
cannot be litigated a second time between the same parties when it has already ‘been determined
by a valid and final judgment.’ ” Patrick v. City of Chicago, 81 F.4th 730, 735–36 (7th Cir. 2023)
(quoting Riley v. Calloway, 882 F.3d 738, 742 (7th Cir. 2018)). Defendants bear the burden of
raising the affirmative defense of issue preclusion and showing that it is applicable on the face of
the complaint. See id. at 736 (citing McDonald v. Adamson, 840 F.3d 343, 347 (7th Cir. 2016)).
Defendants must establish the following elements:
(1) the issue sought to be precluded must be the same as that involved in the prior
action;
(2) the issue must have been actually litigated;
(3) the determination of the issue must have been essential to the final judgment;
and
(4) the party against whom estoppel is invoked must [have been] fully represented
in the prior action.
Waagner v. United States, 971 F.3d 647, 657 (7th Cir. 2020) (quotation omitted).
Defendants attached no evidence to their pending Rule 12(b)(6) motions. Dkt. Nos. 139
and 140. Nor did they ask this court to take judicial notice of any state court documents.
DiFranco pointed out this deficiency in his response memoranda. This court had no basis for
determining what issues were actually litigated without pleadings, motion papers (if applicable),
or judgments.
Defendants attempt to remedy this shortcoming by attaching four exhibits to their reply
memorandum. See Jt. Reply, Ex. A–D, Dkt. No. 146. They request that the court take judicial
notice of these exhibits, which they allege consist of litigation documents filed in state court. See
id. at 12–13. Consistent with Rule 201 of the Federal Rules of Evidence, a court “may take
judicial notice of matters of public record when ruling on a motion to dismiss. And ‘taking
judicial notice of matters of public record need not convert a motion to dismiss into a motion for
summary judgment.’ ” Fosnight v. Jones, 41 F.4th 916, 922 (7th Cir. 2022) (citation modified)
(quoting Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012)).
Defendants’ request to take judicial notice comes too late. By waiting until their reply
brief, defendants deprived DiFranco of an opportunity to respond to the specific documents on
which defendants base their collateral estoppel arguments. DiFranco had no chance to contest
the authenticity of these documents (if he wished to do so), make arguments about what they say,
or draw the court’s attention to any other state court documents he contends are relevant to the
collateral estoppel analysis. Waiver doctrine protects DiFranco. “[A]rguments raised for the
first time in [a] reply brief are waived because they leave no chance to respond.” White v. United
States, 8 F.4th 547, 552 (7th Cir. 2021) (citing Wonsey v. City of Chicago, 940 F.3d 394, 398
(7th Cir. 2019)); accord United States v. Alvarez-Martinez, 286 F.3d 470, 475 (7th Cir. 2002);
Parrillo v. Com. Union Ins. Co., 85 F.3d 1245, 1250 (7th Cir. 1996). Defendants do not argue
that DiFranco’s complaint contains everything the court needs to apply collateral estoppel, and it
does not. Since defendants have waived their request to take judicial notice of the documents
they contend are necessary to the collateral estoppel analysis, their motion to dismiss on
collateral estoppel grounds is denied.2
B. Claim Preclusion/
“Under Illinois law, [the defense of] res judicata requires ‘(1) a final judgment on the
merits rendered by a court of competent jurisdiction, (2) the same cause of action, and (3) the
same parties or their privies.’” White v. Ill. State Police, 15 F.4th 801, 809 (7th Cir. 2021)
(quoting Chi. Title Land Tr. Co. v. Potash Corp. of Saskatchewan Sales, Ltd., 664 F.3d 1075,
1079 (7th Cir. 2011). Unlike collateral estoppel, the defense of res judicata “bar[s] not only
every matter that was actually determined in the first suit, but also every matter that might have
been raised and determined in that suit.” Id. (quoting Chi. Title, 664 F.3d at 1079). So, where it
applies, res judicata bars a second suit “regardless of whether the second proceeding involves
new arguments not passed upon in the initial action.” Sapp v. Foxx, 106 F.4th 660, 666 (7th Cir.
2024), cert. denied, 145 S. Ct. 446 (2024) (citing River Park, Inc. v. City of Highland Park,
703 N.E.2d 883, 889 (Ill. 1998)).
DiFranco disputes each res judicata element, but his complaint commencing this federal
suit and Judge Norgle’s November 29, 2021, opinion, which is the law of this case, make plain
that DiFranco brought the same causes of action against the same defendants in both cases. See
Compl. 1–2. There is also no dispute that the judgment dismissing DiFranco’s state court
election contest case is final.
Many of DiFranco’s arguments amount to a jurisdictional challenge. In his view, the
state court exceeded its highly circumscribed statutory jurisdiction over his election contest
action. For example, DiFranco maintains that, despite their identical captions, the two suits did
not involve the same parties or causes of action for res judicata purposes because Fallon was the
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2 For essentially the same reasons, the court does not consider the exhibits DiFranco attached to
his supplemental memorandum of law dated August 12, 2025. Pl. Supp. Mem. 10–302, Dkt. No. 165.
Defendants have not had an opportunity to respond to those supplemental exhibits, and the order
permitting supplemental briefing did not authorize any party to file additional evidence. See Order dated
Aug. 6, 2025, at 1, Dkt. No. 164.
only proper defendant to an election contest, even though DiFranco named additional
defendants.3
In Illinois, the statutory right to contest an election has no common law precursor, and an
action to contest an election “is neither at law nor in equity in Illinois.” Flake v. Pretzel,
46 N.E.2d 375, 378 (Ill. 1941) (per curiam) (citations omitted). “Since the right to contest an
election is purely statutory,” the Illinois Supreme Court has long held that “the procedure
prescribed by statute must be strictly followed.” Id. (citing Girhard v. Yost, 176 N.E. 899
(Ill. 1931)). The Illinois Supreme Court reaffirmed earlier this year that “circuit courts may
exercise jurisdiction over election cases only as provided by statute because, in election cases,
the court exercises special statutory jurisdiction. Because the court has no powers from any
other source, the language of the statute conferring jurisdiction limits the extent of the court's
jurisdiction. ‘In the exercise of special statutory jurisdiction, if the mode of procedure prescribed
by statute is not strictly pursued, no jurisdiction is conferred on the circuit court.’ ” Ontiveroz v.
Khokhar, 2025 IL 130316, ¶ 42 (quoting Bettis v. Marsaglia, 2014 IL 117050, ¶ 14; collecting
additional citations).
The Illinois Election Code gives a candidate, or another qualifying elector, thirty days to
file a verified petition to contest an election; the petition must comply strictly with 10 Ill. Comp.
Stat. 5/23-20 (West 2025). See Ontiveroz, 2025 IL 130316, ¶ 43. The statute further provides
that “summons shall issue against the person whose office is contested, and he may be served
with process, or notified to appear, in the same manner as is provided in other civil cases” when
such a petition is filed. 10 Ill. Comp. Stat. 5/23-21. Illinois courts have generally construed
these provisions as limiting the proper respondent in an election contest proceeding to the
candidate who was declared the winner. See Fiegenbaum v. McFarlane, 77 N.E.2d 816, 818–19
————————————————————
3 The parties did not brief whether Illinois procedural and substantive law permit an Article 23
election contest to be joined in a single petition with other claims. This court takes no position on that
question but notes that the Illinois appellate court’s decision in Sherman v. Indian Trails Public Library
District, 2012 IL App (1st) 112771, ¶¶ 13-18, involved constitutional claims and an election contest
pleaded in the same petition. The Sherman court did not discuss joinder.
(Ill. 1948); Black v. Termunde, 303 N.E.2d 803, 805–06 (Ill. App. Ct. 1st Dist. 1973). Citing
these and similar cases, DiFranco maintains that the state court lacked jurisdiction over the
county clerk, the state board, and the county board, and the judgment dismissing his election
contest proceeding is void insofar as it adjudicated his claims against them.
DiFranco’s jurisdictional attack runs aground on the Illinois appellate court’s rulings on
direct review of his election contest petition that it and the state trial court possessed subject
matter jurisdiction. See DiFranco v. Fallon, 2023 IL App (1st) 220785, ¶ 37. Even though no
party raised a jurisdictional question, the Illinois appellate court did so on its own initiative,
explaining that it was “obliged to consider its own jurisdiction, even when no party raises the
issue,” and it was also “obliged to take notice of matters that go to the jurisdiction of the circuit
court.” Id. (citation modified) (citing Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,
770 N.E.2d 177, 184 (Ill. 2002)); accord Ontiveroz, 2025 IL 130316, ¶¶ 48–49. Under the first
subheading of the analysis section of its opinion, the Illinois appellate court ruled that it and the
trial court possessed jurisdiction and that the case was justiciable, even though Fallon had taken
the oath of office. See id. ¶¶ 37–43. DiFranco did not challenge the Illinois appellate court's
jurisdictional rulings when he petitioned the Illinois Supreme Court for leave to appeal, and he
did not challenge jurisdiction in his petition for a writ of certiorari filed in the United States
Supreme Court. See Pet. for Appeal 4, DiFranco v. Fallon, No. 130187, (Nov. 9, 2023); Pet. for
Cert. p. i, DiFranco v. Fallon, No. 23-1339 (June 21, 2024) (questions presented).
In Illinois, “[R]es judicata is not applicable when a judgment is void. A void judgment,
that is, one entered by a court which lacks jurisdiction over the parties, the subject matter, or
lacks inherent power to enter the particular judgment, or an order procured by fraud, can be
attacked at any time, in any court, either directly or collaterally, provided that the party is
properly before the court.” Long v. Shorebank Dev. Corp., 182 F.3d 548, 560–61 (7th Cir. 1999)
(citation modified); accord Lady v. Montgomery Ward & Co., 399 N.E.2d 346, 348–49 (Ill. App.
Ct. 4th Dist. 1980).
This exception comes with an important caveat, however. The Illinois Supreme Court
has long given res judicata effect to jurisdictional rulings. See, e.g., Dillenburg v. Hellgren,
21 N.E.2d 393, 395 (Ill. 1939) (citing Chamblin v. Chamblin, 1 N.E.2d 73 (Ill. 1936)). In
Illinois, "Once a question of jurisdiction of the subject matter of a suit has been determined on
appeal, just as it cannot be attacked collaterally in a later proceeding, it cannot be attacked in a
later appeal; the doctrine of res judicata is fully applicable and precludes the raising of the
issue." Moore v. Ill. Pollution Control Bd., 561 N.E.2d 170, 174 (Ill. App. Ct. 5th Dist. 1990)
(citing Sidwell v. Sidwell, 328 N.E.2d 595 (Ill. App. Ct. 4th Dist. 1975)). "The common law of
Illinois establishes that, where the question of jurisdiction, whether it be jurisdiction of the
subject matter or of the parties, has been raised and decided, the adjudication of the issue
precludes the raising of the question again." Id. at 177; See also Word Seed Church v. Vill. of
Hazel Crest, 111 F.4th 814, 822–23 (7th Cir. 2024) (discussing federal law).
Applying these principles in the instant suit, DiFranco had an opportunity to contest the
Illinois appellate court’s jurisdictional rulings, but he did not ask the Illinois Supreme Court or
the United States Supreme Court to overturn them. Res judicata therefore prevents DiFranco
from collaterally attacking the state trial court’s jurisdiction and arguing that it did not extend to
adjudicating his § 1983 claims and other claims against the Cook County Clerk, the Illinois State
Board of Elections, and the Cook County Board of Elections. As the United States Supreme
Court has explained when applying general res judicata (consistent with Illinois law), “A party
that has had an opportunity to litigate the question of subject-matter jurisdiction may not reopen
that question in a collateral attack upon an adverse judgment. It has long been the rule that
principles of res judicata apply to jurisdictional determinations—both subject matter and
personal.” Word Seed Church, 111 F.4th at 822–23 (quoting Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9 (1982); ellipsis omitted).
C. Exceptions
Illinois courts recognize six exceptions to the res judicata doctrine:
(1) the parties have agreed in terms or in effect that plaintiff may split his claim or
the defendant has acquiesced therein; (2) the court in the first action expressly
reserved the plaintiff's right to maintain the second action; (3) the plaintiff was
unable to obtain relief on this claim because of a restriction on the subject-matter
jurisdiction of the court in the first action; (4) the judgment in the first action was
plainly inconsistent with the equitable implementation of a statutory scheme;
(5) the case involves a continuing or recurrent wrong; or (6) it is clearly and
convincingly shown that the policies favoring preclusion of a second action are
overcome for an extraordinary reason.
Tebbens v. Levin & Conde, 2018 IL App (1st) 170777, ¶ 42 (quoting Hudson v. City of Chicago,
889 N.E.2d 210, 217 (Ill. 2008)); accord Svendsen v. Pritzker, 91 F.4th 876, 877–78 (7th Cir.
2024). DiFranco contends that the first, third, fifth, and sixth exceptions apply here. See Resp.
to Mot. to Dismiss 7–15, Dkt. No. 144. Notably, DiFranco cites no case law supporting his
arguments that an Illinois court would apply these exceptions here. See id. Although DiFranco
articulates these exceptions in his briefing and explains in general terms why he believes some
apply, his failure to cite legal authority supporting all but one of his contentions results in waiver.
See id. “The failure to cite authorities in support of a particular argument constitutes a waiver of
the issue.” LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 921–22 (7th Cir. 1997) (citing Tyler v.
Runyon, 70 F.3d 458, 464 (7th Cir. 1995); other citation omitted).
Only DiFranco’s argument that the first exception (agreement or acquiescence to claim
splitting) applies is supported by citations to authority. See Resp. to Mot. to Dismiss 8–12.
DiFranco focuses on his communicated intent without showing defendants’ assent to claim
splitting. He points out, for instance, that he filed suit nearly simultaneously in state and federal
court and that he moved for a stay in federal court. Resp. to Mot. to Dismiss 9, Dkt. No. 144.
Not so. DiFranco argued before Judge Norgle that Colorado River was inapplicable. Mem.
Opp’n First Mot. to Dismiss 8–15 (Apr. 21, 2021), Dkt. No. 21. Nor did defendants agree to a
stay. Rather, they moved this court and the state court to dismiss all of DiFranco’s claims,
evincing no preference for either court proceeding to judgment first. Defendants requested a stay
under Colorado River “in the alternative” to dismissal. Mem. Supp. First Mot. To Dismiss 10–
15, (Mar. 23, 2021), Dkt. No. 12.
DiFranco also points to the England reservation in his federal complaint. But Judge
Norgle held that England and its rationale are inapposite here when he stayed this case in 2021.
DiFranco v. Yarbrough, No. 20-CV-7813, slip op. at 20–21 (N.D. Ill. Nov. 29, 2021), Dkt.
No. 60. “While the Court today stays the case, including Plaintiff’s § 1983 claims, pending the
state election contest, the Court clarifies that England does not apply here. That case merely
‘permits the federal court to engage in Pullman abstention’ and is ‘not relevant here where the
purpose of abstention is not clarification of state law, but reluctance to interfere with an ongoing
state judicial proceeding.’ ” Id. at 19 (quoting Duty Free Shop. Inc. v. Administracion De
Terrenos De P.R., 889 F.2d 1181, 1183 (1st Cir. 1989)).
The law of the case doctrine, which applies when a case is reassigned to a different judge,
“embodies the notion that a court ought not to re-visit an earlier ruling in a case absent a
compelling reason, such as manifest error or a change in the law, that warrants re-examination.”
Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007) (collecting authorities); see Best v.
Shell Oil Co., 107 F.3d 544, 546 (7th Cir. 1997). Judge Norgle’s ruling remains the law of this
case, and DiFranco does not ask this court to revisit it or provide any reason to do so. Given
Judge Norgle’s ruling, DiFranco could not reasonably rely on his England reservation when he
litigated his claims in state court, and this court accordingly rejects his arguments predicated on
the purported reservation in his federal complaint.
In summary, no res judicata exception has been shown to apply. Judge Norgle decided
to stay the federal case, and the state court judgment dismissing all claims and parties has been
litigated to a final judgment. As the Seventh Circuit recently explained when affirming a res
judicata dismissal, Illinois law “permits only one suit concerning any single set of events, no
matter how a plaintiff chooses to allocate legal theories or remedial requests.” Svendsen v.
Pritzker, 91 F.4th 876, 879 (7th Cir. 2024) (citations omitted). Here, DiFranco had an
opportunity to litigate his claims in state court; the Illinois appellate court ruled that it and the
trial court possessed subject matter jurisdiction. Consistent with Svendsen, Illinois law does not
afford him a second bite at the proverbial apple. See id.
IV. CONCLUSION
For the reasons stated, defendants’ motions to dismiss DiFranco’s claims as barred by res
judicata are granted. Because res judicata bars DiFranco’s claims, it is unnecessary to rule on
Henderson Yarbrough’s alternative arguments for dismissal. A judgment consistent with this
memorandum opinion and order will be issued forthwith.
Date: September 2, 2025 /s/ Joan B. Gottschall
United States District Judge