ROBERT M. KUHN,
98 C 2395
CHARLES P. KOCORAS, District Judge:
Before the court are defendant Robert Kuhn's motion requesting this court to abstain from exercising its jurisdiction and defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, both of defendant's motions are denied.
Plaintiff Evonne Kuhn and defendant, her former husband, are embroiled in a bitterly contested divorce proceeding in the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Wheaton, Illinois. On April 17, 1998, a Judgment for Dissolution of Marriage Grounds Only was entered in DuPage County. That same day, plaintiff filed a six count complaint with this court. In count I, plaintiff states a cause of action under the Violence Against Women Act of 1994 ("VAWA"), 42 U.S.C. §13981, alleging that during their marriage, defendant committed a series of crimes of violence against plaintiff motivated by her gender. Plaintiff bases her VAWA cause of action upon defendant's alleged violations of 720 ILCS 5/10-3 (unlawful restraint), 720 ILCS 5/12-4(a) (aggravated battery) and 720 ILCS 5/12-13(a) (criminal sexual assault). Counts II-VI of plaintiff's complaint are state tort claims through which plaintiff seeks recovery for personal injuries she allegedly suffered as a result of defendant's assaults and batteries of her. Plaintiff contends that this court has jurisdiction over her VAWA count pursuant to 28 U.S.C. §1331 and supplemental jurisdiction over counts II-VI pursuant to 28 U.S.C. §1367.
A brief history of the parties' marriage is necessary. The following facts are taken from plaintiff's complaint, the allegations of which must be assumed as true for purposes of defendant's motion to dismiss. Plaintiff and defendant were married on March 20, 1996. On or about April 19, 1996, defendant told plaintiff that he had engaged in sexual relations with another woman shortly before the parties were married. That night, plaintiff told defendant that she wanted a divorce and that she needed to leave the marital residence to think things over. As plaintiff attempted to leave, defendant grabbed her by the shoulders and told her that she could not leave because she was his wife. Defendant then straddled plaintiff on the floor, pinning her arms to the floor with his knees and hit her in the face with his hand. As a result of the events of April 19, 1996, plaintiff allegedly suffered a black eye and bruises all over her body.
The complaint further alleges that on or about June 27, 1996, the parties were temporarily residing in the Residence Inn by Marriott in Lombard, Illinois. Sometime that day, defendant told plaintiff that he wanted to have sex with her. Plaintiff told defendant that she was tired and weak and requested that they have sex at another time. Defendant became angry at plaintiff's response and reminded plaintiff that she was his wife and that wives were supposed to have sex with their husbands. Defendant then forced plaintiff to have sex with him twice.
On or about August 11, 1996, while the parties were in the marital residence at 1903 Midwest Club Parkway in Oak Brook, Illinois, defendant twice put his hands around plaintiff's neck, as if to choke her; the first time telling plaintiff he was going to kill her and the second time telling plaintiff "if she did not get help," he was going to kill her. On or about January 2, 1997, while the parties were at a restaurant in Hawaii, without plaintiff's consent, defendant struck plaintiff in the ear with his hand.
On or about March 19, 1997, while the parties were in the Oak Brook marital residence, the telephone rang and defendant answered it. After the phone call ended, defendant told plaintiff that the call was from a process server. When plaintiff thereafter attempted to leave the residence, defendant grabbed her, twisted her little finger and broke it. Plaintiff ran to her car in the garage, got in the driver's seat and closed the door behind her. Before plaintiff could start the car, defendant opened the car door and hurled himself on top of her, pinning her in the driver's seat until the process server arrived to serve plaintiff with divorce papers.
In an affidavit attached to her response to defendant's motion to dismiss, plaintiff also alleges that during the course of her marriage to defendant, defendant would often express sexist comments in her presence. Examples of these comments included that women have no right to be involved in the business world, that women should never have been given the right to vote and that a man's wife is required to obey him. We also note that as part of the parties' dissolution of marriage proceedings, defendant filed a verified petition for order of protection against plaintiff alleging that on several occasions, plaintiff punched, kicked and spit at defendant. The evidence indicates that the state court denied this petition.
Defendant has two motions pending before the court. Defendant filed a motion requesting that we abstain from exercising federal jurisdiction over plaintiff's VAWA cause of action. Defendant also filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We will examine each of defendant's motions in turn.
We first examine defendant's motion to abstain from exercising jurisdiction. Defendant asserts that pursuant to Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), we should abstain from exercising jurisdiction over the allegations in plaintiff's complaint because the issues raised in her federal complaint are currently the subject of consideration by the DuPage County judge presiding over the parties' divorce. Defendant also argues that we should abstain from exercising jurisdiction over plaintiff's federal claims based upon the so-called domestic relations exception to federal jurisdiction. Prior to analyzing the abstention question in the present matter, a brief discussion of federal abstention is in order.
In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 14, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Supreme Court stated:
Any analysis of Colorado River abstention requires a court to first ask whether the concurrent state and federal court proceedings are parallel. Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1287 (7th Cir. 1988). If the proceedings are not parallel, the Colorado River doctrine is inapplicable. Id. Suits are parallel when "substantially the same parties are contemporaneously litigating the same issues in another forum." Id. (citing Calvert Fire Insurance Co. v. American Mutual Reinsurance Co., 600 F.2d 1228, 1229 n.1 (7th Cir. 1979)). To determine whether the same issues are being litigated in another forum, we must look for a "substantial likelihood that the state litigation will dispose of all claims presented in the federal case." Day v. Union Mines Inc., 862 F.2d 652, 656 (7th Cir. 1988) (quoting Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 695 (7th Cir. 1985)). This test requires us to determine what issues will be resolved in the state court based upon the status of the state litigation at the time a stay is requested. Day, 862 F.2d at 656.
In the present matter, we find that the parties' state and federal suits are not parallel. Although there can be no doubt that the same parties are involved in both the state and federal suits, defendant has failed to establish that the parties are "contemporaneously litigating substantially the same issues" in the state and federal forums.
We think considerable questions exist as to whether the parties' divorce proceedings will dispose of the tort claims contained in plaintiff's federal lawsuit. Although Illinois domestic relations law is not a speciality of federal courts, a review of the relevant cases indicates that plaintiff may be prohibited from raising her tort claims in the parties' marital dissolution proceedings. See In re Marriage of Foran, 225 Ill. App. 3d 756, 587 N.E.2d 570 (4th Dist. 1992) (domestic relations courts are courts of limited jurisdiction and domestic relations judge had no authority to conduct a "separate trial within the dissolution proceeding" 'to determine whether a wife passed a sexually transmitted disease on to her husband); Vance v. Chandler, 231 Ill. App. 3d 747, 597 N.E.2d 233 (3rd Dist. 1992) (interpreting Foran to hold that plaintiff could not have brought an IHED claim within the confines of parties' marital dissolution proceeding).
Although defendant correctly notes that the state court explicitly reserved jurisdiction over the claims contained in plaintiff'S federal complaint, defendant admits that the issues remaining before the domestic relations judge involve maintenance and property allocation. We fail to see that a substantial likelihood exists, at present, that the state litigation will dispose of all the tort claims contained in plaintiff's federal complaint. For these reasons, we reject defendant's arguments that, pursuant to the Colorado River doctrine, we should abstain from exercising federal jurisdiction over plaintiffs claims.
Likewise, we also reject defendant's argument that the domestic relations exception to federal jurisdiction bars us from exercising jurisdiction over plaintiff's claims. The domestic relations exception bars a federal court from exercising jurisdiction over a case involving one or more of the "distinctive forms of relief associated with the domestic relations jurisdiction," namely, the granting of a divorce or an annulment, an award of child custody or a decree of alimony or child support. Ankenbrandt v. Richards, 504 U.S. 689, 693-94, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992); Friedlander v. Friedlander, 1998 WL 420391 (7th Cir. 1998). In the present matter, plaintiff's federal complaint contains a VAWA count and several counts sounding in state tort law. In addition, plaintiff's complaint seeks damages for her alleged injuries. Because plaintiff's complaint does not involve "distinctive forms of relief associated with the domestic relations jurisdiction," the domestic relations exception does not bar us from exercising federal jurisdiction over plaintiff's claims. For all of the foregoing reasons, defendant's motion requesting this court abstain from exercising jurisdiction over plaintiff's claims is denied.
We next turn to defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, defendant's motion to dismiss is denied.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. A defendant must meet a high standard in order to have a complaint dismissed for failure to state a claim upon which relief may be granted. In ruling on a motion to dismiss, the court must construe the complaint's allegations in the light most favorable to the plaintiff and all well-pleaded facts and allegations in the plaintiff's complaint must be taken as true. Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993), cert. denied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993). The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992), cert. denied, 506 U.S. 893, 113 S.Ct. 267, 121 L.Ed.2d 196 (1992).
In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court is limited to the allegations contained in the pleadings themselves. Documents incorporated by reference into the pleadings and documents attached to the pleadings as exhibits are considered part of the pleadings for all purposes. Fed.R.Civ.P. 10(c). It is with these principles in mind that we review defendant's motion to dismiss.
In September 1994, Congress passed the VAWA which established a civil rights remedy, in the form of a federal cause of action, to victims of gender-motivated violence. The civil rights provision of the VAWA provides:
The VAWA does not cover "random acts of violence unrelated to gender" or "acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender . . ." 42 U.S.C. §13981(e). Rather, Congress explicitly limited the VAWA's civil rights provision to cover only "crime[s] of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender . . ." 42 U.S.C. §13981(d)(1). Thus, to state a cause of action under the VAWA, a plaintiff must allege that he or she was the victim of a crime of violence that was committed because of his or her gender and was carried out, at least in part, on the alleged perpetrator's animus based upon the plaintiff's gender. It is with these concepts in mind that we turn to defendant's motion to dismiss.
In the present matter, defendant essentially argues that we must dismiss plaintiff's complaint because plaintiff failed to establish that the alleged crimes of violence giving rise to her VAWA cause of action (unlawful restraint, aggravated battery, and criminal sexual assault) were motivated by gender. Plaintiff responds with evidence that defendant was motivated by animus towards women when he allegedly committed the violent acts. The complaint must be construed in the light most favorable to the plaintiff and on that basis, we find that she sufficiently alleged facts to support her VAWA claim. For this reason, defendant's motion to dismiss must be denied.
The limited case law interpreting the VAWA supports our decision. In Crisonino v. New York Housing Authority, 985 F.Supp. 385, 391 (S.D.N.Y. 1997), the court held that if the defendant called plaintiff a "dumb bitch" and later shoved her to the ground, a reasonable jury could conclude that the defendant's actions were motivated by plaintiff's gender and were committed, at least in part, based upon the defendant's animus towards women. Furthermore, in Anisimov v. Lake, 982 F.Supp. 531, 541 (N.D.Ill. 1997), the court held that the plaintiff's allegations that defendant fondled her, touched her breasts, and ultimately raped her were sufficient to meet the "minimum federal pleading requirements and state a claim under the VAWA's Civil Rights Remedy."
We likewise hold that plaintiff pleaded sufficient facts to establish that defendant's alleged criminal sexual assault of her was motivated by plaintiff's gender. The interplay between plaintiff's gender and her status as a wife will require a greater evidentiary exposition. Plaintiff alleges that on June 27, 1996, while at the Residence Inn by Marriott in Lombard, Illinois, defendant forced plaintiff to twice engage in sexual intercourse with him after she indicated that she was too tired to have sex. In Anisimov, the court held that although rape is not per se "'crime of violence motivated by gender,' the cases where [rape] is not [a crime of violence motivated by gender] appear to this Court to be few and far between." Anisimov, 982 F.Supp. at 541. In Mattison v. Click Corporation of America, Inc., 1998 WL 32597 (E.D.Pa. 1998), the court denied defendant's motion to dismiss plaintiff's VAWA claims, holding:
We agree with the rationale of the Anisimov and Mattison courts. We too have little doubt that an alleged criminal sexual assault is motivated by gender and that cases in which a criminal sexual assault is not motivated by gender are few and far between.
We must address one final argument raised by defendant regarding plaintiff's allegations of criminal sexual assault. Defendant argues that pursuant to the applicable Illinois law, 720 ILCS 5/12-18(c), plaintiff failed to sufficiently plead the crime of criminal sexual assault. 720 ILCS 5/12-18(c) reads:
Defendant argues that because plaintiff failed to report the alleged criminal sexual assault within 30 days, she failed to sufficiently plead the crime of criminal sexual assault. Defendant argues, therefore, that plaintiff cannot maintain a VAWA cause of action because she failed to sufficiently plead the underlying crime.
We reject defendant's argument. First, plaintiff bases her VAWA count upon three different crimes allegedly motivated by gender: unlawful restraint, aggravated battery and criminal sexual assault. Any one of these alleged crimes, if motivated by gender, is sufficient to establish a VAWA cause of action. We earlier held that plaintiff plead sufficient facts to assert that defendant's alleged unlawful restraint and aggravated battery of her were motivated by gender. Therefore, plaintiff's VAWA count would survive defendant's motion to dismiss without her allegations of criminal sexual assault.
Defendant's argument that plaintiff cannot maintain a VAWA cause of action because she failed to sufficiently plead the underlying crime of criminal sexual assault must also be rejected based upon our reading of the plain language of the VAWA. The VAWA defines a crime of violence as "an act or series of acts that would constitute a felony against the person . . . whether or not those acts have actually resulted in criminal charges, prosecution, or conviction . . ." 42 U.S.C. §13981(d)(2)(A) (emphasis added). In the present matter, defendant's alleged criminal sexual assault of plaintiff satisfies this definition of a "crime of violence." Plaintiff sufficiently alleged conduct that would have constituted a felony had plaintiff satisfied the 30 day filing requirement of 720 ILCS 5/12-18(c). On its face, the VAWA does not require the filing of criminal charges nor the prosecution of an individual for alleged criminal conduct. We hold, therefore, that plaintiff's failure to satisfy the procedural requirements of 720 ILCS 5/12-18(c) does not bar her from pleading defendant's alleged criminal sexual assault of her as the underlying "crime of violence" for VAWA purposes.
For each of the foregoing reasons, we find that plaintiff presented sufficient evidence to set forth the essential elements of a VAWA cause of action. For this reason, defendant's motion to dismiss is denied.
For the reasons set forth above, defendant's motion requesting this court to abstain from exercising its jurisdiction is denied and defendant's motion to dismiss is denied.
/s/ Charles P. Kocoras
United States District Judge
Dated: September 16, 1998