Thursday, August 21, 2014

Second District Appellate Court Tackles Jurisdiction and Standing Questions

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP

Hadley v. Subscriber Doe, 2014 IL App (2d) 130489, involved a challenge to a request for discovery under Illinois Supreme Court Rule 224 (eff. May 30, 2008), which provides a mechanism to identify potential defendants before suit is filed. Here, the plaintiff sought an order directing Comcast Cable Communications, LLC (Comcast) to provide the identity and last known address of the defendant, subscriber Doe, a/k/a “Fuboy,” because the plaintiff wished to pursue a defamation claim against him for statements he anonymously posted about plaintiff on an internet message board.

In his defamation suit, the plaintiff named the defendant as “Subscriber Doe, a.k.a. Fuboy, whose legal name is unknown,” and that same day issued a subpoena to Comcast requesting Fuboy’s legal identity. Comcast notified Fuboy, and Fuboy hired an attorney who sought to quash the subpoena. At a hearing five months later, and with both Fuboy’s and plaintiff’s attorneys present, the trial court directed the parties that the subpoena and motion to quash would be better addressed within the Rule 224 context, finding Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, instructive. According to the Hadley court, Stone sets forth the standards for the application of Rule 224 to a defamation case and the plaintiff’s pleading obligations before an individual’s identity is revealed pre-suit. The trial court gave the plaintiff leave to file an amended complaint and a Rule 224 petition. Complying with the trial court’s instructions, the plaintiff filed an amended two-count complaint. Count I was the defamation claim against Fuboy, pleaded in accordance with Stone’s requirements, and Count II was the Rule 224 request seeking Fuboy’s legal identity and naming Comcast as the respondent.

Based, in part, on an evaluation of the sufficiency of the defamation count (Count I) under Stone, the trial court granted the Rule 224 request (Count II) and directed Comcast to release Fuboy’s identity and address. Fuboy then filed a motion to reconsider, which had been brought, in part, “to solidify the basis for [appeal].” After a discussion regarding the immediate appealability of standard Rule 224 orders and the impact of the still-pending defamation claim, the trial court stated that it believed the proper vehicle for appeal was Illinois Supreme Court Rule 303 (eff. June 4, 2008). However, “to ease the parties’ concerns,” the trial court stated that it would enter a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) as an alternative jurisdictional basis for appeal.

Fuboy appealed the trial court’s order requiring Comcast to provide the information, and at the outset the plaintiff claimed that Fuboy lacked standing to challenge the Rule 224 petition because the subpoena was issued to Comcast. The reviewing court disagreed with the plaintiff’s argument, citing Stone’s holding that a Rule 224 petitioner seeking to discover an individual’s identity before suit has the burden to provide allegations in the proposed defamation case sufficient to overcome a section 2-615 motion to dismiss. Because this standard was created to protect the rights of an unidentified defendant, the reviewing court reasoned, the defendant here had an interest in the proceedings even though he was not required to participate, and therefore, had standing to challenge the Rule 224 request.

After addressing the merits of the defamation claim, the court in Hadley delved into a discussion regarding the interplay between the trial court’s disposition of the plaintiff’s Rule 224 request and appellate jurisdiction under Rules 301 and 304(a). Addressing the dissent’s position that the appellate court lacked jurisdiction to consider the trial court’s order directing Comcast to provide Fuboy’s identity because it was a “nonfinal discovery order,” the reviewing court initially discussed Rule 224 and its counterpart, section 2-402 of the Code of Civil Procedure (735 ILCS 5/2-402 (West 2012)), known as the “respondents in discovery” statute. Section 2-402 could not have been applicable in this case, the majority determined, because that section was “meant to discover the identity of defendants other than the defendant named in the underlying complaint,” and is used after at least one defendant has been named in an existing complaint and the plaintiff seeks the identities of other defendants. Rule 224, by contrast, is the mechanism for discovering the identity of the same initial defendant, as the plaintiff sought to do here with the pseudonym of Fuboy. Thus, the majority determined, the trial court entered a Rule 224 order, not a section 2-402 order. Interestingly, the dissent later disclaimed any notion that it believed that the trial court’s order was a section 2-402 order, stating: “The majority suggests that I must believe that section 402 is the procedural posture under which the trial court entered its order. *** Such is not the case. It is clear to me that the trial court was simply looking for a jurisdictional hook for defendant to have an immediate appeal.”

The majority noted that Rule 224 orders “have been appealed as final judgments (presumably under Rule 301).” Indeed, as the court in Hadley pointed out, Rule 224 itself states that petitions brought under that rule are “independent [a]ctions.” The “irregularities” presented by the plaintiff’s Rule 224 request in this case, however, made a Rule 304(a) finding necessary because the request was (1) not filed prior to the plaintiff’s suit, and (2) filed as part of a two-count complaint, rather than an independent action, based on specific directives from the trial court following the plaintiff’s issuance of a subpoena to Comcast, “thus removing Rule 301 as a means by which to establish” appellate jurisdiction. The reviewing court noted that, “[a]lthough Rule 224 likely envisioned a one-count action,” the plaintiff’s Rule 224 request was part of a two-count complaint and presented what the court referred to as a “conundrum” when the Rule 224 was entered with the defamation count still pending. Therefore, “although a Rule 224 order is ordinarily a final and appealable order under Rule 301,” a Rule 304(a) finding was necessary in view of the remaining pending claim. Because the trial court had entered a Rule 304(a) finding, the reviewing court determined that appellate jurisdiction existed.

Apparently responding to the dissent’s position that Rule 304(a) jurisdiction did not exist in this case because there was just reason to delay enforcement or appeal (i.e., to avoid piecemeal appeals, prolonged litigation, and expense), the majority - in a footnote - gave a nod to its recent holding in AT&T v. Lyons & Pinner Electric Co., 2014 IL App (2d) 130577. In that case, the Appellate Court found that a Rule 304(a) finding had been improvidently entered where the trial court failed to consider the “Geier factors” (Geier v. Hamer Enterprises, 226 Ill. App. 3d 372 (1992)). However, the majority summarily distinguished AT&T on the grounds that the Hadley trial court’s apparent motivation to “get the case before the appellate court” was based on mootness considerations, which was one of the Geier factors. Specifically, when the trial court stated: “[t]here must be some avenue by which the defendant can seek relief without disclosure from a higher court than this one,” it had considered that the loss of anonymity could not be undone, and thus, that the issue would become moot if the case proceeded against a named defendant.

Recommended Citation: Katherine A. Grosh, Second District Appellate Court Tackles Jurisdiction and Standing QuestionsThe Brief, (August 21, 2014),

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