Opinion
5-23-0546
06-11-2024
ANNAMALAI ANNAMALAI, Plaintiff-Appellant, v. DONALD FRANKLIN SAMUEL; GARLAND, SAMUEL & LOEB, P.C.; HASSAN HIGH; and BRUCE HARVEY, Defendants-Appellees.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Williamson County. No. 23-LA-32 Honorable Jeffrey A. Goffinet, Judge, presiding.
JUSTICE BOIE delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.
ORDER
BOIE, JUSTICE
¶ 1 Held: We affirm the dismissal of plaintiff's complaint where plaintiff does not cite anything in the record containing allegations that defendants performed any acts that would subject them to jurisdiction in Illinois.
¶ 2 Plaintiff, Annamalai Annamalai, sued numerous defendants. Defendants Garland Samuel &Loeb, P.C. (Garland Samuel), Donald Franklin Samuel, Hassan High, and Bruce Harvey moved to dismiss the complaint as to them. The circuit court granted the motion and plaintiff appeals. We affirm.
¶ 3 BACKGROUND
¶ 4 On March 24, 2023, plaintiff filed in the circuit court of Williamson County a complaint against Garland Samuel, Samuel, High, Harvey, Vijayaraghavan Raghunathan, Kannan Ramanujam, Samson D'Silva, and other, unknown defendants (identified as "John &Doe 1-20"). Plaintiff alleged that Garland Samuel, Samuel, High, and Harvey (hereafter defendants) resided in or around Atlanta, Georgia. The remaining named defendants resided in India.
¶ 5 Plaintiff requested a waiver of fees, which the circuit court granted, and requested that the circuit clerk be ordered to serve summonses, which the court denied. However, as the court later recounted, "For reasons the Court cannot explain, the Clerk sent copies of the complaint to the Atlanta and India defendants by certified mail." On April 10, 2023, plaintiff sent defendants requests to admit facts pursuant to Illinois Supreme Court Rule 216 (eff. July 1, 2014). On April 14, 2023, defendants, through local counsel, filed an appearance and a motion to dismiss.
¶ 6 The motion alleged that the court lacked personal jurisdiction over defendants, that they had not been properly served, that venue was improper in Williamson County, that the complaint failed to state a cause of action, and that, to the extent it could be considered to do so, any cause of action was barred by the statute of limitations.
¶ 7 The motion asserted that Garland Samuel was a law firm in Atlanta. Samuel and Harvey were attorneys with that firm and High was a paralegal there. Defendants' only connection with plaintiff was that the firm represented him in a criminal trial in the federal district court in Georgia. The firm's representation ceased following his conviction and, except for perhaps a few phone calls from plaintiff to the firm, defendants have had no contact with him since.
¶ 8 Plaintiff did not respond, and on May 12, 2023, the circuit court granted the motion to dismiss. During this time, plaintiff voluntarily dismissed the other named defendants. He also filed a motion for summary judgment, arguing that defendants' failure to respond to his requests to admit entitled him to judgment as a matter of law. The court struck the motion and the requests to admit, finding that they were premature because defendants had not been properly served.
¶ 9 On May 12, 2023, the circuit clerk's office received a letter from plaintiff stating that he had only recently become aware of the motion to dismiss but had not seen it. The court vacated the dismissal, ordered the clerk to send plaintiff a copy of the docket entry, and granted plaintiff an additional 10 days to respond to the motion to dismiss. On May 22, 2023, plaintiff requested additional time as he still had not received a copy of the motion. On June 5, 2023, plaintiff filed an "emergency" motion requesting a copy of the motion to dismiss, which the court granted. The court ordered the clerk to send a copy of the motion to plaintiff and the clerk did so on June 8, 2023. Plaintiff again asked that the clerk be ordered to serve summonses for him, a request which the court denied.
¶ 10 On June 21, 2023, plaintiff requested additional time to respond to the motion. He stated that he had received the motion from a correctional officer at 8:34 p.m. on June 14, 2023, but needed additional time to respond because access to the law library was limited. The court gave him an additional 21 days. However, on June 28, 2023, plaintiff filed a response to the motion to dismiss and an amended complaint. The court struck the latter because it was filed without leave of court and granted the motion to dismiss on June 30, 2023. The court found no just reason to delay enforcement or appeal of its order.
¶ 11 On July 11, 2023, plaintiff filed "emergency" motions again requesting a copy of the motion to dismiss and for sanctions against defendants and their local counsel. After reciting the procedural history of the case, the court stated that it was "confused" that plaintiff would ask for a copy of the motion to dismiss again, having acknowledged receiving it on June 14. The court attributed the filing of the motion to a mistake.
¶ 12 However, in the latter motion, plaintiff represented that he has "never and ever seen [sic] any motions of the defendants." Despite claiming not to have seen it, plaintiff asserted that the certificate of service filed by defendants' attorney was fraudulent. The circuit court stated that it had reviewed the latter motion and denied it without comment. On July 25, 2023, plaintiff filed a notice of appeal.
¶ 13 ANALYSIS
¶ 14 Plaintiff's primary contention on appeal is that the circuit court erred by granting defendants' motion to dismiss. Section 2-209 of the Code of Civil Procedure (Code) permits Illinois courts to exercise personal jurisdiction over a nonresident defendant where that defendant has performed one of several enumerated acts within the State (735 ILCS 5/2-209(a) (West 2022)) or on "any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States" (id. § 2-209(c)). Further, section 2-301 of the Code provides:
"Prior to the filing of any other pleading or motion *** a party may object to the court's jurisdiction over the party's person, either on the ground that the party is not amenable to process of a court of this State or on the ground of insufficiency of process or insufficiency of service of process, by filing a motion to dismiss the entire proceeding ***. Such a motion may be made singly or included with others in a combined motion ***." Id. § 2-301(a).
¶ 15 The burden of proving a valid basis for jurisdiction over a nonresident defendant rests with the party seeking to impose jurisdiction. R.W. Sawant &Co. v. Allied Programs Corp., 111 Ill.2d 304, 310 (1986). Accordingly, a plaintiff has the burden to allege "facts in its complaint upon which jurisdiction could be found over the nonresident defendant." Reeves v. Baltimore &Ohio R.R. Co., 171 Ill.App.3d 1021, 1024 (1988). The failure to allege such facts "is, in and of itself, fatal" to the claim. Id.
¶ 16 Here, the precise nature of plaintiff's claim against defendants is difficult to discern from the complaint. As the circuit court and defendants observe, it appears to allege some type of legal malpractice at plaintiff's criminal trial. However, it is undisputed that that trial took place in Georgia nearly a decade ago. See United States v. Annamalai, 939 F.3d 1216 (11th Cir. 2019).
¶ 17 The circuit court noted that plaintiff's nearly 40-page complaint did not contain a single allegation that defendants undertook any activity in Illinois that would subject them to jurisdiction here, and plaintiff's brief does not direct us to any page in the record containing such an allegation. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (briefs "shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on"). Instead, plaintiff insists that personal jurisdiction has been established because defendants failed to respond to his Rule 216 requests. He ignores, however, that the circuit court struck those requests because they were sent to defendants before they were served. See Ill. S.Ct. R. 201(d) (eff. May 29, 2014) ("Prior to the time all defendants have appeared or are required to appear, no discovery procedure shall be noticed or otherwise initiated without leave of court granted upon good cause shown."). Thus, plaintiff cannot rely on defendants' failure to respond to his Rule 216 requests to establish jurisdiction.
¶ 18 Plaintiff appears to argue that defendants submitted to the court's jurisdiction by filing a motion to dismiss. But section 2-301 of the Code expressly permits this and allows a defendant to include other bases for dismissal. The current version of section 2-301 eliminated the concept of the special and limited appearance to contest jurisdiction. KSAC Corp. v. Recycle Free, Inc., 364 Ill.App.3d 593, 595 (2006). Previously, it had been held that a general appearance waived any objection to personal jurisdiction (id. at 595-96), but that is no longer the case.
¶ 19 Plaintiff also complains that the court decided the motion to dismiss before ruling on his summary judgment motion. However, the court struck that motion as well. Obviously, if defendants were not subject to the court's jurisdiction, the court lacked the power to grant summary judgment against them.
¶ 20 In his brief, plaintiff asserts that defendants had numerous contacts with him in Illinois. He claims that Harvey and Samuel "had extensive phone communications and express correspondences" with him, "came to see [plaintiff] in prison several times," and" 'negotiated' several times business dealing" with plaintiff when he was in the federal prison at Marion. Plaintiff fails to cite to any portion of his complaint-or anywhere else in the record-where these allegations can be found. Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Plaintiff refers to an "Affidavit/Declaration under 28 U.S.C. 1746" allegedly filed in conjunction with his brief. We have been unable to locate such a document but, if it exists, we still cannot consider it.
¶ 21 An appellate court may not consider documents that are not part of the certified record on appeal, and attachments to appellate briefs that are not contained in the record on appeal cannot be used to supplement the record and are not properly before a reviewing court. Kilpatrick v. Baxter Healthcare Corp., 2023 IL App (2d) 230088, ¶ 11. References to evidence outside the record are not permitted and should be stricken. Id.
¶ 22 Plaintiff further asserts that "ALL the defendanst [sic] are subject to a standing final order of execution and as well the specific order of performance to" plaintiff "which was already ordered against the defendants." We are unsure what this means, and plaintiff does not identify any place in the record where such an order can be found.
¶ 23 Plaintiff further contends that defendants presented no evidence that they were not subject to jurisdiction in Illinois. However, plaintiff had the burden to allege facts showing that the defendants were subject to jurisdiction here. Reeves, 171 Ill.App.3d at 1024. He has not done so and cannot shift the burden to defendants to prove a negative.
¶ 24 Plaintiff's failure to allege facts that would subject defendants to jurisdiction in Illinois completely disposes of this case. His brief, however, purports to raise numerous additional issues. To the extent these arguments raise legitimate issues concerning the circuit court's dismissal of the complaint, they essentially rehash the arguments made earlier. We have considered and rejected them. We feel compelled, however, to comment briefly on several specific arguments.
¶ 25 Plaintiff asserts that the clerk "properly served the summons and complaint." This is false. Section 2-209 requires personal service on a defendant. 735 ILCS 5/2-209(d) (West 2022). Section 2-203.1 of the Code allows a court to authorize alternative service where "a diligent inquiry as to the location of the individual defendant was made and reasonable efforts to make service have been unsuccessful." Id. § 2-203.1. However, the trial court denied plaintiff's request for alternate service in this case. The purported mail service without court approval was therefore ineffective.
¶ 26 One of plaintiff's arguments claims that the circuit court failed to give full faith and credit to an Indiana judgment. The finding that the circuit court lacked jurisdiction over defendants applies to this claim as well. Moreover, we need not give full faith and credit to a foreign judgment if it is obvious that it was entered under circumstances that would "deprive the foreign court of jurisdiction over the nonresident under the general Constitutional standards of due process." Sackett Enterprises, Inc. v. Staren, 211 Ill.App.3d 997, 1001 (1991).
¶ 27 Plaintiff apparently refers to an order from a court in Vigo County, Indiana. The "order" purports to be signed by a judge and certified by the circuit court clerk. It appears to be in plaintiff's handwriting and is frankly nonsensical. The purported order provides:
"The court finds for the plaintiff for, to Execute the Final Judgment. All the account debtors, who has already admitted as 'Party-in-Privity,' pursuant to Indiana Trial Rule
36(b) shall specifically perform all the acts as per their respective admissions at this proceedings."
¶ 28 Indiana Trial Rule 36 contains no mention of parties "in privity." Much like Illinois Supreme Court Rule 216, it provides that a party "may serve upon any other party" a request for admissions. Ind. Trial Rule 36 (eff. Jan. 1, 1982). The only defendant in the Indiana case was Viswal Kalyani, who is not a party to this case. Kalyani is the only name appearing on the order. Plaintiff's filings in the Illinois circuit court also include a 16-page list of "account debtors" with listed addresses in India and numerous U.S. states. It is doubtful that even the lone defendant was properly served. See Annamalai v. Kalyani, No. 84A01-1710-MI-2520 (2018) (appeal from the dismissal of another case against the same defendant in part for failing to effect service and due to plaintiff's "abusive litigation" practices). In their appellate brief, defendants claim they are unaware of any case in Indiana involving them. In short, none of the present defendants were properly made parties to the Indiana case and thus the circuit court was not required to give it full faith and credit.
Although the court reversed and remanded for a proper hearing under Indiana trial rules, it noted that plaintiff had already filed five actions in that jurisdiction, three of which had been dismissed.
¶ 29 Finally, we comment on one additional matter. In circuit court pleadings, and in his appellate brief, plaintiff engages in repeated and personal attacks upon defendants and their attorney. He accuses counsel of fraudulent conduct and has asked both the circuit court and this court to sanction him, apparently because plaintiff did not immediately receive a copy of defendants' motion to dismiss. Such personal attacks are "inappropriate, if not irresponsible" (Estate of Besinger v. Village of Carpentersville, 258 Ill.App.3d 218, 222 (1994)) and have been held to warrant sanctions (Parkway Bank &Trust Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 86 ("defendants devoted a large portion of their briefs in this court not to citation of applicable law or the record below, but to mentioning the name of one of Parkway's attorneys in the context of countless ad feminam attacks")).
¶ 30 Plaintiff repeatedly asserts that the certificate of service attached to the motion is fraudulent. It states that the attorney filed the motion to dismiss "using the ODYSSEY eFileIL system which will automatically send email notification of such filing to all attorneys and parties of record." Plaintiff has not pointed to a shred of evidence that this is false. Instead, he argues that it is "common sense" that federal inmates cannot receive emails. He does not explain why this should be common knowledge and does not point to any evidence that defendants' attorney actually knew it. Instead, defense counsel complied with the court rules.
¶ 31 With very limited exceptions, the Illinois Supreme Court mandates electronic filing and service of documents. Ill. S.Ct. R. 9(a) (eff. Jan. 1, 2020); R. 11(c) (eff. July 1, 2017). While plaintiff was exempt from the electronic filing rules, he was not expressly exempted from the rules governing electronic service of documents filed by other parties. Perhaps had he considered the matter, defense counsel might have realized that plaintiff would not automatically receive electronic filings, but this falls far short of establishing fraudulent conduct. "It has long been held that once a court acquires jurisdiction, it is the duty of the litigants to follow the case." Esczuk v. Chicago Transit Authority, 39 Ill.2d 464, 467 (1968).
¶ 32 In any event, plaintiff can establish no prejudice from not immediately receiving the motion to dismiss. When plaintiff notified the court that he had not received it, the court immediately vacated the initial dismissal order. Plaintiff asked for a copy of the motion directly from the court and acknowledged receiving it. Although the court gave him an additional 30 days to respond, he filed a response 14 days later.
¶ 33 Plaintiff's persistent allegations of fraud and misconduct appear to be a smokescreen to deflect attention from his own flagrant and repeated violations of applicable statute and court rules and the circuit court's orders.
¶ 34 CONCLUSION
¶ 35 For the reasons stated, we affirm the circuit court's judgment.
¶ 36 Affirmed.