BENTON – U.S. Magistrate Reona Daly rejected St. Clair County jurisdiction in a case against Illinois Supreme Court candidate David Overstreet on Oct. 28.
She denied a motion to remand it to Associate Judge Jeffrey Watson, who entered an emergency order against Overstreet’s telephone messages.
Plaintiff Jacqueline Racener claims Overstreet invaded her privacy in violation of the Telephone Communications Privacy Act.
Daly found Racener couldn’t avoid federal jurisdiction by filing her case as a discovery motion rather than a civil suit.
“Now that the case is in federal court, federal procedural rules apply,” Daly wrote.
She set a Nov. 10 deadline for Racener to file a complaint.
Attorney John Driscoll of St. Louis, a top contributor to Overstreet’s opponent Judy Cates, opened the case in St. Clair County.
He filed it Sept. 30 in the miscellaneous remedy division rather than the law division where suits civil suits begin.
He sought a discovery order so he could identify the source of calls, and provided allegations to show the need for discovery. He proposed a class action seeking $500 to $1,500 for each violation.
He claimed damages would increase exponentially without an injunction.
Chief Judge Andrew Gleeson assigned Watson.
Driscoll proposed a temporary injunction and Watson signed it on the day the case opened without notice to Overstreet.
Watson set the order to expire Oct. 10, and set a hearing Oct. 13.
Overstreet retained Smith Amundsen of Chicago, and Patrick Bousquet of that firm removed the case to district court on Oct. 12.
Driscoll moved for immediate remand on Oct. 13, claiming Overstreet removed the case under a section of U.S. code that applies only to civil actions.
He invoked Illinois Rule 244, allowing an independent action for discovery for the sole purpose of ascertaining the identity of responsible persons.
He called removal a desperate 11th hour stall tactic.
Daly saw it otherwise and wrote, “Federal rules of civil procedure do not contemplate the maintenance of a suit purely for discovery.”
She found no authority to support Racener’s contention that the relief she sought didn’t elevate her Rule 224 petition to a civil action.
She found Overstreet provided many district court opinions finding an action removable before the filing of a complaint if a plaintiff filed a pleading that set forth a claim over which a federal court has jurisdiction.
“If the plaintiff files a motion for injunctive relief pursuant to a federal statute before she files a complaint, the motion for injunctive relief is the initial pleading that prompts the removal process.” Daly wrote.
“If the defendant waits for the plaintiff to file a complaint, instead of removing the matter based on the motion for injunctive relief, the defendant may miss the 30 day deadline for removal and waive his right to have the matter heard in federal court.”
She wrote that district courts clearly have subject matter jurisdiction over Telephone Communications Privacy Act claims.
“There are certain procedures available to litigants in state courts that are not available in federal court, and vice versa, which a litigant must consider before deciding which pleadings to file,” she wrote.
She found Racener chose to pursue injunctive relief pursuant to federal statute, and removal was therefore appropriate.
Overstreet said he was pleased with the ruling.
“From the beginning, we knew this was a politically motivated lawsuit from a desperate campaign," he said. "We are going to continue working hard for the voters in the Fifth Judicial District.”
Overstreet seeks the seat of retiring Justice Lloyd Karmeier on the Republican ticket, and Cates seeks the seat as a Democrat.
Karmeier won as a Republican in 2004, and voters retained him in 2014.