DEFAM, text of the motion for sanctions

Below are some excerpts from the "Memorandum of law in support of defendant’s motion for sanctions".

I. Introduction

These actions were filed by Plaintiffs Emanuel Christopher Welch and Bill Welch, and their attorney, James J. Roche, in violation of Illinois Supreme Court Rule 137. Bill Welch’s Complaint contains untrue statements of fact which he and his attorneys knew or should have known were untrue. Chris Welch’s Complaint was not warranted by existing law of by any good-faith argument for changes thereto. Furthermore, both Complaints were filed for an improper purpose: to harass and bankrupt Defendant Carl Nyberg (“Mr. Nyberg”) in an effort to silence a political critic during an election season. Both Complaints are sanctionable, and Mr. Nyberg asks this Court to order that reasonable expenses and attorney fees be paid by the Plaintiffs and/or their attorneys, and that both actions be dismissed with prejudice.

III. Discussion
A. Legal Standards

Illinois Supreme Court Rules prohibit attorneys from signing pleadings not “well grounded in fact” or “warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law,” or from filing pleadings “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”

B The Plaintiffs Have Violated Rule 137
1. Bill Welch’s Complaint Contains Numerous Untrue Statements
a. Bill Welch was Indicted

Bill Welch’s Complaint is founded upon a basic untruth: that he was never indicted for “the crime of drug dealing,” and that Mr. Nyberg’s statement that he was is false and defamatory.
2. Chris Welch's Complaint is not Well Grounded in Law

[A]ll of the statements in the five Proviso Probe postings are clearly nonactionable political opinions, constitutionally protected under Milkovich v. Lorain Journal Co., as interpreted by the Illinois Supreme Court.

b. Mr. Nyberg's Letter to Mr. Roche is Non-Actionable

Thus, Chris Welch’s Complaint was not warranted by existing law, as none of the quote statements was anything more than reflection of a constitutionally protected political opinion. Moreover, the Complaint did not attempt to make any argument, good-faith or otherwise, for the extension, modification, or reversal of that existing law.

3. Both Lawsuits were Brought for an Illegitimate Purpose--to Silence and Bankrupt a Political Critic

Both lawsuits were brought for no purpose other than to harass, bankrupt and silence Mr. Nyberg, without regard to the truth of the allegations contained therein or their legal merit.
This case bears striking similarity to Thomas v. Hileman, 333 Ill.App.3d 132 (2002). Dick Hileman, Commissioner of the Village of Gardner, had sued Richard Thomas for defamation based on a letter to the editor of the Gardner Chronicle newspaper criticizing Hileman’s politics. Id. at 670-71. The trial court had found, and the Appellate Court affirmed, that Thomas’ statements were constitutionally protected opinions, nonactionable under the innocent construction rule, and conditionally privileged as the subject of the statements was a public figure. Id. at 671. In response, Thomas sued Hileman for malicious prosecution. The suit alleged special damages in the fact that Thomas’ free speech rights had been “chilled” by the abuse of the judicial process by a political candidate to silence a critic. Id. at 673. Ultimately, the Appellate Court ruled that this “chilling effect” did not amount to special damages, but suggested that Rule 137 was available to redress Hileman’s conduct in filing a frivolous suit.

a. These Lawsuits were Filed to Harass Mr. Nyberg

Chris Welch was quoted in the West Suburban Journal as stating “Carl Nyberg is a hack who calls himself a reporter…. My goal is to put Carl Nyberg out of business.” See Frank Life, Nyberg claims poor political practice, West Suburban Journal, Sept. 29, 2005. Mr. Roche, the Welches’ attorney, stated he wished to “take away every piece of earthly belongings” Mr. Nyberg has. Both of these statements suggest that Roche and the Plaintiffs sought not to recover for the damages to the Welches’ reputations, but rather to prevent Mr. Nyberg from discussing and criticizing Chris Welch’s activities by bankrupting him. In conjunction with the filing of allegations that Roche and the Plaintiffs must have known were false, and other allegations with no legal merit, these statements demonstrate that both lawsuits were not brought for a legitimate purpose.
Underscoring this is the Welches’ timing. It is unlikely a coincidence that these lawsuits were commenced shortly before Chris Welch’s campaign for General Assembly, a time when Chris Welch knew Mr. Nyberg would be especially vocal. It is also unlikely a coincidence that the Welches dismissed their claims shortly after they discovered they would face opposition from a large law firm which would be prepared to prove the falsity of their allegations (and the truth of Mr. Nyberg’s statements). And it is unlikely a coincidence that the Complaints were dismissed on the eve of the date on which Mr. Nyberg was required to file his response to the Complaints (which, needless to say, would have been a motion to dismiss), before he had an opportunity to address the Welches’ claims on their merits.

D. The Court should Hold a Hearing on the Issue of Sanctions and Permit Limited Discovery in Anticipation of Such a Hearing

The Appellate Court held in Berg v. Mid-America Indus., Inc. 293 Ill.App.3d at 731 (1997), that a sanction of dismissal, or sanctions based on untrue pleadings or suits brought for an improper purpose, would require the Court to provide the plaintiffs an opportunity to be heard and present evidence on the merits of their complaints. Therefore, Mr. Nyberg requests that the Court hold a hearing on his Motion for Sanctions. In anticipation of such a hearing, Mr. Nyberg requests that he be permitted to conduct limited discovery on the issue of sanctions, including at least an opportunity to depose Plaintiffs and Mr. Roche on the truth of Mr. Nyberg’s statements and their purpose in bringing the suits.