See v. Illinois Gaming Board

2020 IL App (1st) 192200

No. 1-19-2200

Opinion filed August 18, 2020.

Modified upon denial of rehearing October 27, 2020.

Second Division

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

CHRISTOPHER SEE, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County.

)

v. )

) No. 19 L 4408

THE ILLINOIS GAMING BOARD; FRANCESCO )

SPIZZIRRI; RICHARD GESIORSKI; MARK )

FUESTING; and JAMES PEARCE, ) The Honorable

) James N. O’Hara,

Defendants-Appellees. ) Judge Presiding.

______________________________________________________________________________

JUSTICE LAVIN delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Coghlan concurred in the judgment and

opinion.

OPINION

¶1 In 2019, plaintiff Christopher See filed a complaint in the circuit court of Cook County

against defendants the Illinois Gaming Board (Gaming Board), Francesco Spizzirri, Richard

Gesiorski, Mark Fuesting, and James Pearce, alleging they violated the whistleblower protections

No. 1-19-2200

of the State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/15-5 et seq. (West

2018)). The circuit court granted defendants’ motion to dismiss the suit under section 2-619(a)(9)

of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2018)), concluding that it

was barred by the doctrine of res judicata due to a prior federal court ruling. See now appeals the

circuit court’s determination, arguing that the prior federal court ruling was jurisdictional and

therefore cannot preclude him from bringing the present suit in state court. He also cites

equitable principles in support. We affirm.

¶2 BACKGROUND

¶3 The Gaming Board administers the riverboat and video gambling industry in Illinois and,

by statute, can use services from the Illinois State Police (State Police) to fulfill its duties. See

230 ILCS 10/5 (West 2018). See, a sworn law enforcement officer with the Gaming Board, was

working as a “Gaming Special Agent” at Jumer’s Casino (Jumer’s) in Rock Island, Illinois, when

the facts underlying the present suit arose. As a gaming special agent, See was responsible for

investigating criminal activity related to gambling and taking appropriate law enforcement action

when needed. Around August 2016, See filed a 79-page union grievance alleging corruption and

favoritism within the Gaming Board and State Police. Following a series of events, See was

placed on administrative leave and asked to take a fitness-for-duty examination, as there were

concerns about his mental health based on his various statements. The tests resulted in a finding

of “fit for duty,” and See then returned to work at Jumer’s (although he now no longer works

there). Over the next several years, See repeated his grievances to other state and federal

agencies.

¶4 Following these events, on February 10, 2017, See filed suit in the federal district court

against the Gaming Board and a number of officials from the Gaming Board and State Police

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(federal defendants), alleging first amendment retaliation (count I), as well as violations of the

Ethics Act (count II) and the Americans with Disabilities Act (ADA) (42 U.S.C. §§ 12101–

12213 (2012)) (count III). The federal defendants moved to dismiss the Ethics Act claim, arguing

it was barred by the eleventh amendment, which generally prevents federal courts from hearing

cases against states. More particularly, the eleventh amendment prohibits federal courts from

hearing citizens’ suits against a state, its agencies, or state officials in their official capacities

unless Congress has abrogated the state’s sovereign immunity, the state has waived sovereign

immunity, or the suit is for prospective injunctive relief. Indiana Protection & Advocacy

Services v. Indiana Family & Social Services Adm’n, 603 F.3d 365, 370-71 (7th Cir. 2010). As

no exceptions applied, the federal defendants argued sovereign immunity barred See’s claim, and

See conceded the eleventh amendment dismissal. 1 Accordingly, the district court dismissed

count II alleging the Ethics Act violation. In June 2019, the district court also granted the federal

defendants’ summary judgment motion as to the first amendment and ADA claims, thus ruling

against See. See appealed that judgment.

¶5 Meanwhile, in April 2019, See had filed his present complaint in the circuit court of

Cook County, this time solely for the Ethics Act violation, against the same defendants (or those

in privity with the federal defendants). The Ethics Act expressly provides that Illinois circuit

courts have jurisdiction to hear Ethics Act claims. 5 ILCS 430/15-25 (West 2018). See again

asserted that defendants had retaliated against him for reporting corruption within the Gaming

Board and State Police, which was a protected activity under the Ethics Act. See alleged that he

1

See has not included in the record on appeal his response to the federal defendants’ motion to

dismiss, but the Illinois Attorney General has appended it to its appellee brief and now argues that we

may take judicial notice of the response since it is a public document of another court. We agree. See

In re Linda B., 2017 IL 119392, ¶ 31 n.7 (“Public documents, such as those included in the records of

other courts and administrative tribunals, fall within the category of ‘readily verifiable’ facts capable of

instant and unquestionable demonstration of which a court may take judicial notice.”).

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had notified the State Police and state inspector general, as well as the attorney general, among

others, of the alleged corruption. He added that, between August 2016, when he first filed his

grievance, and March 2019, defendants had given him intentionally false performance reviews,

issued defamatory memos, altered his work hours, declined to give job training, and filed

disciplinary charges against him.

¶6 Defendants moved to dismiss the complaint under section 2-619(a)(9) of the Code as

barred by res judicata and collateral estoppel since it was basically the same cause of action,

same defendants, and the federal district court had already rendered a final judgment on the

merits of the federal action. Defendants argued that to the extent See had raised new allegations

in the state action, they could and should have been raised in the federal action. Defendants

added that res judicata applied because See had “commenced a new action after part of [his]

original cause of action [had] gone to final judgment” and, further, that he should be prohibited

from claim splitting.

¶7 See countered that the federal ethics claim was dismissed under the eleventh amendment

for lack of jurisdiction and so the dismissal was not final on the merits. Therefore, See argued

that neither res judicata nor collateral estoppel applied.

¶8 Following responsive pleadings, the circuit court granted defendants’ motion to dismiss

under section 2-619(a)(9) based on res judicata. This appeal followed. The Illinois Attorney

General’s Office (Attorney General) has filed a brief in response on behalf of the Gaming Board

and the named officials.

¶9 ANALYSIS

¶ 10 A motion to dismiss under section 2-619(a)(9) admits the legal sufficiency of the

plaintiff’s claim but asserts certain defects or defenses outside the pleadings that defeat the

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claim. Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. When ruling on the motion, a court should

construe the pleadings and supporting documents in the light most favorable to the nonmoving

party. Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008). The question on appeal is whether a

genuine issue of material fact should have precluded the dismissal or, absent such an issue of

fact, whether dismissal is proper as a matter of law. Sandholm, 2012 IL 111443, ¶ 55. We review

such a dismissal de novo, and this requires no deference to the circuit court’s reasoning. Benton

v. Little League Baseball, Inc., 2020 IL App (1st) 190549, ¶ 29. We can thus affirm on any basis

present in the record. Id.; see also American Service Insurance Co. v. City of Chicago, 404 Ill.

App. 3d 769, 776 (2010) (a reviewing court may affirm the dismissal if the record supports a

proper ground for dismissal).

¶ 11 On appeal, See argues the circuit court erred in granting the Attorney General’s section 2-

619(a)(9) dismissal motion based on res judicata. Although neither party relied on federal

common law in the circuit court, on appeal the Attorney General correctly asserts that it applies

when determining the preclusive effect of a federal court judgment, and See concedes this point

in his reply brief. See Taylor v. Struggle, 553 U.S. 880, 891 (2008); National Union Fire

Insurance Co. of Pittsburgh, PA v. DiMucci, 2015 IL App (1st) 122725, ¶ 30. Given that the

Central District of Illinois issued the federal judgment, we turn to Seventh Circuit precedent as

we proceed in our review. See DiMucci, 2015 IL App (1st) 122725, ¶ 30.

¶ 12 Where it applies, res judicata prevents the relitigation of claims already litigated as well

as those that could have been litigated but were not. Palka v. City of Chicago, 662 F.3d 428, 437

(7th Cir. 2011). The doctrine is designed to relieve parties of the costs and burdens of defending

against repeated lawsuits, conserve judicial resources, and promote reliance on adjudications by

preventing inconsistent decisions. Allen v. McCurry, 449 U.S. 90, 94 (1980). Under federal law,

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res judicata has three elements: (1) identity of parties, (2) a final judgment on the merits, and

(3) an identity of the cause of action (as determined by comparing the suits’ operative facts).

Palka, 662 F.3d at 437.

¶ 13 Here, there is no dispute as to the first and third elements. There was an identity of parties

given that the Gaming Board, Spizzirri, and Fuesting were also named defendants in See’s

federal action, and the other named defendants in this case (Gesiorski and Pearce) are in privity

with the federal defendants. See Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 301 (7th Cir.

1985) (noting, privity applies to successive parties who adequately represent the same legal

interests). There was likewise identity of the causes of action. Both lawsuits arise from the same

operative facts involving the alleged retaliatory conduct against See in light of his

whistleblowing. 2 See effectively concedes these points. See Humphrey v. Tharaldson

Enterprises, Inc., 95 F.3d 624, 626 (7th Cir. 1996).

¶ 14 The dispute, rather, draws on element two of the res judicata analysis, i.e., whether there

was a final judgment on the merits in the federal action and whether See is precluded from

relitigating his Ethics Act claim. See maintains that the federal court never considered the merits

of his Ethics Act claim since it was dismissed under the eleventh amendment. He argues it was

dismissed on jurisdictional, not substantive, grounds and asserts he should have his day in state

court as to the Gaming Board’s retaliatory conduct towards him. Indeed, a judgment on the

merits is one that completely disposes of the underlying cause of action or determines that the

plaintiff has no cause of action. Harper Plastics, Inc. v. Amoco Chemicals Corp., 657 F.2d 939,

943 (7th Cir. 1981). It is a judgment based on legal rights and not mere matters of practice,

2

The Attorney General points out that the additional facts alleged in the state Ethics Act

complaint occurred before summary judgment was entered in the federal case and thus for res judicata

purposes could have been asserted in the federal action. See Palka, 662 F.3d at 437.

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procedure, jurisdiction, or form. Whitaker v. Wisconsin Department of Health Services, 45 F.

Supp. 3d 876, 880 (E.D. Wis. 2014). At least one federal district court, in Whitaker, has found a

dismissal based on eleventh amendment immunity functions more like a dismissal based on the

affirmative defenses of lack of personal jurisdiction or venue and thus does not operate as a

dismissal on the merits. See id.; see also Harper Plastics, Inc., 657 F.2d at 943 (noting a

dismissal for want of jurisdiction does not preclude a court of competent jurisdiction from

reaching the merits of the claim in a subsequent suit).

¶ 15 The Attorney General responds that it is immaterial whether the federal court’s dismissal

of See’s Ethics Act claim on eleventh amendment immunity grounds was jurisdictional. The

Attorney General notes that, in the federal action, See’s remaining counts involving the first

amendment and ADA proceeded and were ultimately dismissed by summary judgment. Given

that See chose to proceed in federal court to final judgment, the Attorney General argues he

should be prohibited from relitigating his Ethics Act claim in state court.

¶ 16 The Attorney General’s argument focuses on claim preclusion, which is also an aspect of

the res judicata doctrine. Waid v. Merrill Area Public Schools, 91 F.3d 857, 863 (7th Cir. 1996),

abrogated on other grounds by Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009).

“Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that

never has been litigated, because of a determination that it should have been advanced in an

earlier suit.” Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n.1

(1984). Generally, plaintiffs must assert their claims initially in the forum with the broadest

possible jurisdiction, which allows plaintiffs to resolve in one adjudication the maximum number

of claims that arise from a set of events. Waid, 91 F.3d at 864. Thus, when faced with an

unconstrained choice between a forum of limited versus broad jurisdiction, a plaintiff’s decision

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to proceed in the more limited forum precludes him from bringing any unlitigated claims in a

subsequent proceeding. Id. at 864-65. For example, a plaintiff who has causes of action for unfair

competition under state law and for trademark infringement under federal law, both arising from

the same operative facts, cannot bring a state court action for the unfair competition claim and

then turn around and file suit in federal court for the trademark claim. Id. at 865. In other words,

a party cannot split causes of action into separate grounds of recovery and bring successive

lawsuits; where a plaintiff can, he should consolidate all his claims in a single lawsuit. Nalco Co.

v. Chen, 843 F.3d 670, 674 (7th Cir. 2016); Kim v. Sara Lee Bakery Group, Inc., 412 F. Supp. 2d

929, 941 (N.D. Ill. 2006); see also Wilson v. City of Chicago, 120 F.3d 681, 687 (7th Cir. 1997)

(“Two claims arising from the same facts are one claim for res judicata purposes, and may not be

split ** by making each claim the subject of a separate suit ***.”).

¶ 17 The Attorney General argues that See failed to do this. Rather than filing all his claims in

state court, which had unconstrained jurisdiction over the state Ethics Act and federal causes of

action, See chose to file them in the more limited forum of federal court. Again, the federal

defendants argued sovereign immunity barred See’s Ethics Act claim, and See conceded the

eleventh amendment dismissal. The Attorney General relies on Humphrey, 95 F.3d at 626-27.

There, the plaintiff fully litigated a civil rights violation before a Wisconsin state administrative

agency, which was a forum of limited jurisdiction that could not consider any additional claims.

The Seventh Circuit held that claim preclusion barred the plaintiff’s subsequent federal civil

rights lawsuit because he had available both state and federal forums with general jurisdiction to

address all his claims, but the plaintiff instead chose the limited administrative tribunal.

¶ 18 The Attorney General argues, and we agree, a similar scenario presents itself here.

Because Illinois state court had the broadest possible jurisdiction, See should have initiated his

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lawsuit there. See could have consolidated all his claims in a single lawsuit in state court, a fact

he expressly acknowledged during oral argument. Instead, he chose a limited forum, which

means the principles of claim preclusion or claim splitting bar his current suit. We thus reject

See’s argument that an exception to claim splitting applies. 3 Federal courts only tolerate claim

splitting if the plaintiff is forced to pursue one claim in a forum with limited jurisdiction and then

another in a different forum. See, e.g., Staats v. County of Sawyer, 220 F.3d 511, 516 (7th Cir.

2000) (where administrative agency had exclusive jurisdiction over the plaintiff’s state

discrimination claim, but could not hear federal claims, res judicata did not bar the plaintiff’s

later federal suit raising the federal claims). That was not the case here.

¶ 19 In his reply brief, See also argues that Humphrey is inapplicable because here the federal

court did in fact have supplemental jurisdiction to consider his Ethics Act claim. He cites

Higgins v. Mississippi, 217 F.3d 951, 953-54 (7th Cir. 2000), in support. In Higgins, the Seventh

Circuit noted the well-established rule that a state may waive its eleventh amendment immunity

from being sued in federal court, and then, of course, the federal court can consider the claim. In

that sense, Higgins noted the immunity operates more as an affirmative defense than a legal

principle destroying a federal court’s subject matter jurisdiction. The court wrote:

“A more refined analysis might distinguish between the ‘original’ eleventh amendment,

which forbids the federal courts to entertain diversity suits against states and thus is

clearly jurisdictional, from the later interpretations that transformed the amendment into a

comprehensive charter of state sovereign immunity, creating thus an affirmative defense

rather than a limitation on jurisdiction.” Id. at 953.

3

In his reply brief, See relies on the Restatement (Second) of Judgments § 25 cmt. e (1982), to

argue that his claim splitting actions were permissible, but his reliance on that section is misplaced and

contradicted by the accompanying illustrations and also case law, particularly Waid (cited above and

which addressed section 25).

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Higgins held, however, that a state’s waiver did not preclude a federal court from sua sponte

raising an eleventh amendment defense, which would result in the suit’s dismissal.

¶ 20 In effect, See argues that since the federal court in this case potentially could have heard

his Ethics Act claim, it was not a limited forum and therefore See should now be able to file suit

in state court. See writes: “it was not See who sought to split his claims, it was the Defendants,”

because they raised eleventh amendment immunity in federal court. He adds that “[t]he only

reason that the claim was removed was because the Defendants requested that be done.” We

reject See’s contentions for several reasons.

¶ 21 First, it is worth noting that the Attorney General, in filing its motion to dismiss the

federal Ethics Act claim, did not advocate that it be removed to state court. The Attorney General

simply argued that the claim was barred by the eleventh amendment and therefore should not be

heard in federal court. In response, See “acknowledge[d] that the Defendants can properly seek

to have this claim dismissed in federal court” and, for that reason, he did “not oppose the motion

to dismiss.”

¶ 22 Second, See basically advocates a game of jurisprudential roulette with respect to

eleventh amendment immunity or a “wait and see” approach, given that in a federal action both

the state party and a federal court can raise the defense. Such an approach does not lend to

consistency. Again, See could have filed all three causes of action in state court and therefore not

encountered any eleventh amendment immunity problems. See Jackson v. Sweet Ideas, Ltd.

Partnership, 321 Ill. App. 3d 1029, 1033 (2001) (noting state courts have concurrent jurisdiction

with federal courts over ADA claims); Tampam Farms, Inc. v. Supervisor of Assessments for

Ogle County, 271 Ill. App. 3d 798, 803 (1995) (noting same with regard to section 1983).

Likewise, upon discovering the eleventh amendment hitch in federal court, See could have

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sought a voluntary dismissal and then refiled his entire action in state court. See Fed. R. Civ. P.

41(a) (allowing for voluntary dismissals). 4 Instead, See chose to proceed on the two remaining

causes of action in federal court, which were summarily dismissed, and to refile his Ethics Act

claim. Although preventable, See chose to split his claims, and he now seeks to relitigate a claim

that arises from the same operative facts as those already litigated. This is the very thing that

res judicata was designed to prevent, as See’s state action represents additional costs and

burdens of defending against a repeated lawsuit, the expenditure of additional judicial resources,

and possibly inconsistent decisions. See Allen, 449 U.S. at 94; Supporters to Oppose Pollution,

Inc. v. Heritage Group, 973 F.2d 1320, 1327 (7th Cir. 1992) (“Res judicata is a doctrine of

defendant’s protection, not of plaintiff’s right.”).

¶ 23 See made a strategic decision, a point he effectively conceded at oral argument, and

cannot now complain that he is being denied his day in court. On the contrary, because See chose

to proceed initially in federal court to final judgment, he is bound by the effects of the path he

charted. See Ross v. Board of Education of Township High School District 211, 486 F.3d 279,

284 (7th Cir. 2007) (noting the fact that an appeal was lodged does not defeat the finality of the

judgment); see also Czarniecki v. City of Chicago, 633 F.3d 545, 549 (7th Cir. 2011) (noting

4

A plaintiff may voluntarily dismiss his federal action before the opposing party serves an answer

or a summary judgment motion, or by stipulation signed by all the parties. Fed. R. Civ. P. 41(a)(1)(A).

Alternatively, the plaintiff may request a dismissal by court order, “on terms the court considers proper.”

Fed. R. Civ. P. 41(a)(2). In either case, the dismissal generally operates as one without prejudice, which

permits refiling the entire action. See Wells Fargo Bank, N.A. v. Younan Properties, Inc., 737 F.3d 465,

468 (7th Cir. 2013) (noting a voluntary dismissal under Rule 41(a)(2) is without prejudice, meaning that

the plaintiff can refile his suit, for example, in state court); Nelson v. Napolitano, 657 F.3d 586, 587 (7th

Cir. 2011) (a suit that is voluntarily dismissed under Rule 41(a) generally is treated as if it had never been

filed). In his briefs, See does not argue or cite any facts or case law that demonstrate that he could not

have sought a voluntary dismissal under Rule 41 and refiled his entire action in state court. See

Czarniecki v. City of Chicago, 633 F.3d 545, 549 (7th Cir. 2011) (the absence of discussion amounts to

abandonment of claims).

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finality depends on whether the district court has finished with the case). We therefore reject

See’s argument that equitable considerations militate against dismissal of his state action.

¶ 24 Finally, even apart from our holding, we conclude that See has forfeited his right to

proceed in state court. In his appellant’s brief, See relies mainly on an Illinois Supreme Court

rule, state law, and a different basis for reversal than in his reply brief. He explicitly violates

Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018), governing briefs in this court. Rule

341(h)(7) requires that the argument contain the contentions of the appellant together with proper

citation to legal authority, and “[p]oints not argued are forfeited and shall not be raised in the

reply brief, in oral argument, or on petition for rehearing.” Id. In addition, See’s opening brief

fails to meaningfully discuss the nature of an eleventh amendment dismissal in federal court as it

relates to claim preclusion. See Whitaker, 45 F. Supp. 3d at 880 (noting the absence of federal

case law in that context and detailing why an eleventh amendment dismissal is not one on the

merits). A reviewing court is entitled to have the issues clearly defined and supported by

pertinent authority and cohesive arguments; it is not merely a repository into which parties may

dump the burden of argument and research, nor is it the obligation of this court to act as an

advocate. See Atlas v. Mayer Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33.

¶ 25 CONCLUSION

¶ 26 For all the reasons stated, we affirm the dismissal of See’s case based on res judicata.

¶ 27 Affirmed.

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Cite as: See v. Illinois Gaming Board, 2020 IL App (1st) 192200

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-L-4408;

the Hon. James N. O’Hara, Judge, presiding.

Attorneys John A. Baker, of Baker, Baker & Krajewski, LLC, of Springfield,

for for appellant.

Appellant:

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,

for Solicitor General, and Carson R. Griffis, Assistant Attorney

Appellee: General, of counsel), for appellees.

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