Hearing Date: No hearing scheduled

Location: <<CourtRoomNumber>>
Judge: Calendar, H
FILED
8/8/2022 3:07 PM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS IRIS Y. MARTINEZ
COUNTY DEPARTMENT, LAW DIVISION CIRCUIT CLERK
COOK COUNTY, IL
FILED DATE: 8/8/2022 3:07 PM 2022L003763

2022L003763
Calendar, H
ROBERT BRONSTEIN, individually and as 18996718
Independent Administrator of the Estate of
N.B., a minor, Deceased; ROSELLENE No. 2022-L-003763
BRONSTEIN, individually,

Plaintiffs,

v.

LATIN SCHOOL OF CHICAGO, et. al,

Defendants.

DEFENDANTS J.B. AND LEIGH BALLEN’S

MOTION TO DISMISS UNDER 735 ILCS 5/2–615
 On January 13, 2022, N.B., a sophomore in high school, committed suicide. His parents,

understandably devastated, sued the Latin School and six of its employees, including a counselor,
FILED DATE: 8/8/2022 3:07 PM 2022L003763

a math teacher, and several administrators. They also sued five of N.B.’s former classmates and

their fathers, and named sixteen (16) respondents in discovery. The crux of their complaint is that

all of these individuals caused their son’s suicide. Plaintiff Robert Bronstein, as administrator of

N.B.’s estate, alleges a survival claim for intentional infliction of emotional distress against J.B.,

N.B.’s former teammate on the junior varsity basketball team, and four other classmates. 1 Plaintiff

also sued the boys’ fathers, including J.B.’s father, Leigh Ballen, for intentional and negligent

infliction of emotional distress and under Illinois’ Parental Responsibility Law. Plaintiff plainly

seeks to recover from J.B. and his father for N.B.’s death. He demands $100 million in damages.

However, the suicide rule—which provides that suicide is unforeseeable as a matter of law—bars

all of Plaintiff’s claims against Leigh and J.B.

Even besides the suicide rule, Plaintiff’s claims fail. Plaintiff’s negligent infliction of

emotional distress claim is directed only at Leigh Ballen, not J.B. Yet Plaintiff has not pleaded a

single fact to support such a claim against Leigh. The same goes for Plaintiff’s Parental

Responsibility claim, which is not supported (as it must be) by any allegation that J.B. engaged in

prior conduct that would put Leigh on notice that he had a duty to act.

What remains of Plaintiff’s claims is their request for $100 million in damages from J.B.,

a fifteen-year-old, for intentional infliction of emotional distress. The alleged factual basis for that

claim is a few messages that J.B. wrote between December 10 and December 13, 2021 in a group

text chain that included N.B.. Plaintiff also alleges “upon information and belief” that J.B. sent

1
In support of this motion, J.B. and Leigh Ballen hereby adopt and incorporate the arguments made by the other
defendants in their respective motions to dismiss.

1
 N.B. a Snapchat message “encouraging N.B. to kill himself” on December 13. As set forth in

greater detail below, Plaintiff has not provided any documentary evidence in support of this
FILED DATE: 8/8/2022 3:07 PM 2022L003763

allegation, and the only ostensible basis for it is hearsay from C.W., another minor, that on January

13, N.B. sent her a screenshot of J.B.’s purported message. Even accepting this inflammatory

allegation as true, J.B.’s alleged Snapchat and the group text thread occurred a month before N.B.

committed suicide. J.B.’s messages are neither independently—nor cumulatively—extreme and

outrageous and do not support a claim for intentional infliction of emotional distress against J.B.

J.B. and his father are not responsible for and did not cause N.B. to commit suicide. The

Bronsteins’ claims are unfounded; litigation cannot and will not ease Plaintiffs’ pain. Instead,

Plaintiffs’ suit only compounds the tragedy by wrongfully blaming five young boys and educators

for it. The case against J.B. and Leigh Ballen should be dismissed with prejudice.

FACTUAL ALLEGATIONS

Plaintiff alleges three counts against J.B. and/or Leigh Ballen: (1) intentional infliction of

emotional distress against Leigh Ballen and J.B. (Count III, “IIED”); (2) negligent infliction of

emotional distress against only Leigh Ballen (Count IV, “NIED”) ; and (3) violation of the Illinois

Parental Responsibility Law, 740 ILCS 115/3 et seq, against only Leigh Ballen (Count V).

The Complaint includes numerous conclusory and inflammatory characterizations of the

interactions among N.B. and his Latin classmates. (E.g. Compl. ¶ 90 (characterizing the

interactions as “repeated and persistent bullying”); id. ¶ 232 (describing conduct as “willful and

wanton”).) Even at this preliminary stage, however, the Court considers the facts alleged and not

mere characterizations or conclusory statements. See Oravek v. Cmty. Sch. Dist. 146, 264 Ill. App.

3d 895, 898, 637 N.E.2d 554, N.E.2d557 (1994) (“The bare characterization of certain acts as

willful and wanton misconduct is not sufficient to withstand a motion to dismiss because such

2
 misconduct must be manifested by facts alleged in the complaint”) (citations omitted).

A. N.B.’s Issues Predate Any Allegations Related to J.B.

FILED DATE: 8/8/2022 3:07 PM 2022L003763

In the 2021 fall semester, N.B. transferred from Francis W. Parker to the Latin School of

Chicago. (Compl. ¶ 3.) In September of that year, months before Plaintiff alleges that J.B. engaged

in any misconduct, N.B.’s mother, Rose Bronstein, reported to Latin school officials that N.B. was

threatening self-harm. (Compl. ¶ 53; see also id. ¶¶ 55-72.) On October 19, 2021—almost two

months before any of J.B.’s messages on the group text thread—Mrs. Bronstein sent a school

official the following message: “Things at home are horrific. [N.B.] has gone crazy. [Mr. Bronstein

and I] think we need to send [N.B.] away, [N.B.] is terrorizing us and sabotaging his school

responsibilities[.]” (Id. ¶ 84.) The same day, Mrs. Bronstein further stated, “I need a psychiatrist

[for N.B.], [N.B.] needs to be medicated. I’m afraid [N.B.] is going to hurt himself or hurt me.

Can [you] [please] refer me to one that is available ASAP.” (Id. ¶ 86 (emphasis added).)

B. J.B.’s Participation In A Group Text Thread With 10 Others, Including N.B.,

Regarding N.B.’s Posting of a Photo of Parker Defeating Latin on the Latin Junior
Varsity Basketball Team’s Social Media Account.
Plaintiff’s first allegation regarding J.B. involves his participation in a text thread that

began on December 10, 2021 with other Latin students, including N.B. (Compl. ¶¶ 179, 181.) On

December 10, Latin’s varsity basketball team played its archrival, Francis Parker. (Id.) N.B. had

played on Latin’s junior varsity team prior to this game. However, also prior to this game, N.B.

(or his parents) decided that he was going to transfer back to Parker from Latin. During the game,

N.B. sat among the Parker fans and not with his Latin teammates. While the game was in progress,

N.B. accessed the Latin junior varsity basketball team’s Instagram page and posted a photo of

Parker defeating Latin. (Id. ¶ 91.) 2 In a text thread purportedly beginning at 9:26 p.m. on December

2
In the texts attached to the Complaint (see Compl. Ex. P), N.B. indicates that this post was put there by another
student from N.B.’s phone, not N.B. himself. Nonetheless, there is no dispute that the post was from N.B.’s account.

3
 10, some members of the Latin junior varsity team confronted N.B. about his post and expressed

their opinions that N.B. had betrayed and disrespected his Latin teammates. (Id.)
FILED DATE: 8/8/2022 3:07 PM 2022L003763

The specific allegations related to J.B. are that he wrote “fuck you [N.B.]” and “in case you

forgot [N.B.] fuck you!” on the text thread. (Id. ¶¶ 91-92.) In addition, at 9:39 p.m. on the same

thread, J.B. posted a photograph of N.B. sitting with Parker students with the caption “the fucking

feds[.]” (Id. ¶ 94 (citing Compl. Ex. R).) 3 The same night on the same text thread, N.B. stated that

he thought his teammates’ responses were “excessive.” (Id. ¶ 92.) In response to that comment,

C.K., one of N.B.’s teammates who is named as a respondent in discovery, posted multiple

messages assuring N.B. that the members of the team did not wish him any harm. (Id. (“Chill on

him bro”; “u should also know that no one is srsly mad at u we don’t care”; “but onb u should

know [A.L.] and everyone else is joking.”.) Then the following exchange occurred:

(Id.) J.B.’s “^” message means, in text-speak, that he agreed with the texts above his message.

Those texts clarified that, even though they were upset with N.B.’s perceived disloyalty, his

teammates did not wish N.B. harm. After more supportive messages from others to N.B. — “no

3
The Complaint incorrectly suggests that J.B. posted the photo after the text thread “[o]n or around the same time”
of N.B.’s Snapchat message to his friend at 1:15 a.m. on December 11, 2021. (Compl. ¶¶93-94, Exs. Q and R). J.B.
posted the photo at 9:39 p.m. on December 10 hours before J.B. and others sent supportive messages to N.B.

4
 one cares that u are going to parker or that u made sum mistakes bro ur good”; “I guarantee no one

is rly tripping bro its all love”; “its jokes bro”; “We don’t actually hate u lol” — J.B. supportively
FILED DATE: 8/8/2022 3:07 PM 2022L003763

wrote “yea [N.B.] trussss[.]” (Id. (“trusss” is a slang-shortened version of the word “trust”).) Other

members of the team then conveyed further support for N.B. (“either way its love bro” “Yea [N.B.]

bro, we dont hate you”). J.B. added “[N.B.] once you [g]o to parker it’s on sight but luv until then

[kissing emoji].” (Id. (emphasis added).) In other words, J.B. expressed that he would compete

against N.B. in basketball if N.B. went back to Parker, but until then stood in support of N.B.

C. Plaintiff’s Unsupported Hearsay Allegation “Upon Information and Belief” That

J.B. Sent N.B. a Message “Encouraging N.B. to Kill Himself.”

In Paragraph 2 of the Complaint, Plaintiff sensationally alleges that “N.B. received the

unconscionable cyberbullying message from a member of the school basketball team just weeks

before his death: [N.B.] GO KILL YOURSELF!” (original emphasis). Plaintiff does not directly

allege that J.B. sent this purportedly verbatim message. Instead, 94 paragraphs later, Plaintiff

alleges “upon information and belief” that, on December 13, 2021, J.B. sent N.B. a “Snapchat”

message “encouraging N.B. to kill himself.” (Id. ¶ 96.) Snapchat messages automatically disappear

once viewed, but Plaintiff alleges that N.B. preserved this Snapchat message in a screenshot. (Id.

¶ 97.) Incredibly, Plaintiff failed to attach a copy of this most significant and inflammatory

message as an exhibit to the Complaint. Plaintiff attached copies of the group text exchanges

described above as well as other documents that Plaintiff believes support his claims, but not this

one. Next, Plaintiff claims that N.B. sent the screenshot to another Latin student, C.W., also via

Snapchat on or around January 13 – a month after J.B. allegedly sent it. (Id.) Plaintiff’s most

incendiary allegation in the entire case, which Plaintiff alleges only “upon information and belief,”

is based on two disappearing messages and the hearsay testimony of C.W., a minor. (Id.)

In January 2022, N.B. was set to transfer from Latin back to Parker. (Id. ¶¶ 131, 178.) On

5
 January 13, 2022, a full month after J.B.’s alleged messages and three months after N.B.’s mother

reported that she feared N.B. would hurt himself, N.B. took his own life. (Id. ¶¶ 103, 106.)
FILED DATE: 8/8/2022 3:07 PM 2022L003763

ARGUMENT

First, the suicide rule bars all Plaintiff’s claims. Second, Plaintiff’s claims against Leigh

Ballen fail because Plaintiff does not allege any facts regarding Leigh’s conduct that support any

claims against him. Third, Plaintiff’s sole claim against J.B. for IIED should be dismissed because

Plaintiff has not pled facts showing J.B. intended to cause severe emotional distress or that his

actions were extreme and outrageous.

I. The “Suicide Rule” Bars All Plaintiff’s Claims.

Under Illinois law, suicide is an intervening and independent cause of death that breaks the

chain of causation and precludes tort liability for a decedent’s suicide. See, e.g., Turcios v.

DeBruler Co., 2015 IL 117962, ¶ 41, 32 N.E.3d 1117, 1128; Doe v. Doe, 2016 IL App (1st)

153272, ¶ 11, 67 N.E.3d 520, 524; Crumpton v. Walgreen Co., 375 Ill.App.3d 73, 79, 313 Ill. Dec.

178, 871 N.E.2d 905 (2007); Chalhoub v. Dixon, 338 Ill.App.3d 535, 539–40, 272 Ill.Dec. 860,

788 N.E.2d 164 (2003); Cleveland v. Rotman, 297 F.3d 569, 572 (7th Cir. 2002) (applying Illinois

law); Kleen v. Homak, 321 Ill.App.3d 639, 642, 255 Ill.Dec. 246, 749 N.E.2d 26 (2001). This

general rule that suicide is unforeseeable as a matter of law (known as the “suicide rule”) defeats

all of Plaintiff’s claims against J.B. and Leigh Ballen. As set forth below, the suicide rule squarely

bars Plaintiff’s NIED claim, and neither of the two narrow exceptions to the rule applies. Further,

Plaintiff comes nowhere near pleading the “rare case” in which suicide was a “likely result of

[J.B.’s] conduct,” thus overcoming the “heavy burden of pleading and proving facts that would

overcome application of the rule.” Turcios v. DeBruler Co., 2015 IL 117962, ¶¶ 31, 41. Therefore,

Plaintiff’s intentional tort claims also must be dismissed with prejudice.

6
 A. Plaintiff’s NIED Claim Against Leigh Ballen Fails For Lack of Causation.

The suicide rule bars all negligence claims stemming from suicides (including NIED
FILED DATE: 8/8/2022 3:07 PM 2022L003763

claims) with only two exceptions: (1) when the negligent act causes a physical injury that left the

decedent “so bereft of reason” that it caused him to commit suicide; and (2) when a medical

professional charged with the psychiatric treatment of the decedent breaches that duty and suicide

results. Dux v. United States, 69 F. Supp. 3d 781, 789 (N.D. Ill. 2014) (citing Stasiof v. Chicago

Hoist & Body Co., 50 Ill.App.2d 115, 200 N.E.2d 88 (1964) (announcing the “bereft of reason”

exception) and Winger v. Franciscan Medical Center, 299 Ill.App.3d 364, 233 Ill.Dec. 748, 701

N.E.2d 813, 814 (1998) (announcing “psychiatric treatment malpractice” exception)). Neither

exception has been nor could be alleged this case.

Plaintiff asserts his NIED claim against only Leigh Ballen, not J.B. Plaintiff does not allege

Leigh engaged in any conduct that caused N.B. any physical injury, much less a head injury so

severe it left N.B. “insane” or “bereft of reason” such that his suicide was not a voluntary act that

broke the chain of causation. See e.g. Stasiof, 50 Ill.App.2d at 122-23. Plaintiff does not allege

Leigh committed medical malpractice, nor could he, as Leigh is not a psychiatrist or medical

professional. Accordingly, neither exception to the suicide rule applies, and Plaintiff’s claim NIED

claim against Leigh must be dismissed with prejudice.

B. Plaintiff’s IIED Claims Against J.B. and Leigh Fail For Lack of Causation.

The Illinois Supreme Court recently reiterated that the suicide rule applies to both

intentional torts and negligence. Turcios v. DeBruler Co., 2015 IL 117962, ¶ 41 (“Because an

intentional tortfeasor’s liability is limited by the concept of foreseeability embodied in the doctrine

of proximate causation, a cause of action for wrongful death predicated on a suicide allegedly

brought about by the intentional infliction of emotional distress is subject to the general rule that

7
 suicide is unforeseeable as a matter of law.”). The Supreme Court held that, when “a plaintiff seeks

to recover damages for wrongful death based on the decedent’s suicide allegedly brought about
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through the intentional infliction of emotional distress, the plaintiff must do more than plead facts

which, if proven, would establish that the defendant’s conduct was a cause in fact of the suicide.”

Id. at 1128. Instead, “plaintiff must plead facts which, if proven, would overcome application of

the general rule that suicide is deemed unforeseeable as a matter of law. In other words, a plaintiff

must plead facts demonstrating that the suicide was foreseeable, i.e., that it was a likely result of

the defendant’s conduct.” Id.

To sufficiently state a claim for IIED against J.B. and Leigh Ballen, Plaintiff must allege

both distinct aspects of “proximate cause,” namely “cause in fact and legal cause.” Id. ¶ 23.

Plaintiff has failed to plead that J.B.’s actions were either the cause-in-fact or proximate “legal”

cause of N.B.’s suicide.

i. Cause-In-Fact

The timing of events described in the Complaint do not lead to a plausible inference that

J.B.’s messages were the cause-in-fact of N.B.’s suicide. Illinois courts generally employ either

the “but for” test or the “substantial factor” test when evaluating cause in fact. Id. A defendant’s

conduct under the “but for” test, “is not the cause of an event if the event would have occurred

without it.” Id. Under the “substantial factor” test, “the defendant’s conduct is said to be a cause

of an event if it was a material element and a substantial factor in bringing the event about.” Id.

The Complaint does not pass either test. N.B.’s parents specifically allege that they were

concerned N.B. would harm himself in October 2021, two months before the first allegation that

J.B. sent a message related to N.B. (Compl. ¶¶ 84, 86.). Further, N.B. committed suicide on January

13, 2022, a full month after J.B.’s last alleged communication with or regarding N.B. (Id. ¶¶ 92,

8
 103, 106.) Even construing these facts in the light most favorable to Plaintiff, this sequence and

timing of events, combined with the palliative, rehabilitative messages J.B. and others sent to N.B.
FILED DATE: 8/8/2022 3:07 PM 2022L003763

do not give rise to the reasonable inference that J.B.’s actions were the cause-in-fact of N.B.’s

suicide. Cf. Murillo v. United States, 504 F. Supp. 3d 875, 893 (N.D. Ill. 2020) (no cause-in-fact

in part because of 14-day gap between alleged tortious conduct and decedent’s suicide).

ii. Proximate or “Legal” Cause

Plaintiff has not pled facts that suggest this is the “rare case” where suicide was foreseeable

to J.B., and he has not overcome his “heavy burden of pleading and providing facts that would

overcome application of the [suicide] rule.” Turcios, 32 N.E.3d at 1126, 1128. Plaintiff does not

allege any facts to suggest J.B. was aware of N.B.’s thoughts of self-harm or otherwise could have

predicted that N.B. might take his own life. Cf. McGregor for Est. of Yawer v. City of Chicago,

No. 16 C 4956, 2020 WL 10110999, at *2 (N.D. Ill. July 8, 2020) (no liability for police who beat

arrestee who subsequently killed himself even though arrestee told the officers he suffered from

clinical depression). The Complaint only refers to a few individual messages, all of which J.B. sent

between December 10 and 13, a full month prior to N.B.’s suicide. J.B.’s lack of any information,

much less knowledge that N.B. might contemplate self-harm, hardly suggest that J.B. could have

foreseen N.B. would actually commit suicide and defeat any attempt to “overcome application of

the general rule that suicide is unforeseeable as a matter of law.” Turcios, 32 N.E.3d at 1128.

In Turcios, the Supreme Court found that a tenant’s suicide broke the chain of causation

and defeated an IIED claim even though the landlord harassed the tenant, began demolishing the

decedent’s family home while they were still living there, and evicted them. Id. The Court stated:

“we believe it is the rare case in which the decedent’s suicide would not break the chain of

causation and bar a cause of action for wrongful death, even where the plaintiff alleges the

9
 defendant inflicted severe emotional distress. The case before us is not one of those rare cases.”

Id. As in Turcios, the allegations against J.B. do not make this a “rare case.”
FILED DATE: 8/8/2022 3:07 PM 2022L003763

Plaintiff will surely argue that J.B. should have foreseen the possibility that N.B. would

commit suicide because Plaintiff alleges “upon information and belief, on December 13, J.B. sent

a ‘Snapchat’ message to N.B. encouraging N.B. to kill himself.” (Compl. ¶ 96.) It appears there is

no direct, specific evidence of J.B.’s alleged communication that Plaintiff sensationally

highlighted at the outset of the Complaint (Id. ¶ 2.) First, Snapchat messages disappear upon

viewing. Second, although Plaintiff alleges that N.B. preserved the purported communication in a

screenshot, Plaintiff’s allegations “upon information and belief” suggest plaintiff has no

documentary evidence of it. Third, despite attaching other communications as exhibits, Plaintiff

attached nothing to support this bombshell allegation. Fourth, Plaintiff’s only other allegation is

that a month later “on January 13, 2022, N.B. sent a screenshot” of this Snapchat message to C.W.,

also “via Snapchat.” (Id. ¶ 97.) Thus, the only ostensible basis for Plaintiff’s claim that J.B. sent

N.B. a message encouraging him to kill himself is the hearsay from C.W., a minor.

Even accepting these “upon information and belief” hearsay allegations as true for

purposes of this motion to dismiss, one person’s suggestion to another that he kill himself, standing

alone, does not make a suicide occurring thirty-one days later foreseeable. Expressions suggesting

someone kill himself have long been commonplace to communicate that the recipient of the

comment should be embarrassed of his conduct. Teenagers and adults alike now often use such

vulgar expressions on social media and the Internet. These types of communications on social

media and the internet are banter or hyperbole, not calls to action to be taken literally. Absent any

allegations of J.B.’s specific knowledge that N.B. was at risk to commit suicide, not even a

message encouraging N.B. to kill himself would foreseeably result in the act. J.B. could not have

10
 foreseen and is not responsible for his teammate’s suicide thirty-one days later.

II. Plaintiff’s Claims Against Leigh Ballen Should Be Dismissed Because The Complaint
FILED DATE: 8/8/2022 3:07 PM 2022L003763

Is Devoid of Allegations Regarding Him.

In addition to the suicide rule, the claims against Leigh Ballen are precluded for another,

independent reason—there are exactly zero substantive allegations against him.

A. Plaintiff Has Not Alleged Any Facts In Support Of An IIED Or NIED Claim
Against Leigh Ballen.

Plaintiff’s NIED claim is directed only at Leigh Ballen and the other parent-defendants,

not at J.B. and the other student-defendants. (See Count IV, ¶ 242 (asking for judgment for NIED

against only “Parents and/or Guardians of Minor Defendants”).) Plaintiff also includes a direct

IIED count against Leigh Ballen apart from any derivative IIED claim against him arising from

J.B.’s actions under the Parental Responsibility law.

Neither direct claim against Leigh Ballen is supported by any factual allegations. Plaintiff

does not allege that Leigh Ballen ever met or communicated with N.B., much less caused him any

emotional distress, whether negligently or intentionally. Indeed, beyond identifying Leigh as a

resident of Cook County, the Complaint contains no allegations regarding his conduct. Plaintiff

has thus failed to even try to state an IIED or NIED claim against him.

B. Plaintiff Has Not Alleged Any Facts Showing Leigh Ballen Had The Requisite
Knowledge To Support A Parental Responsibility Claim.

Plaintiff’s failure to allege a direct IIED or NIED claim against Leigh leaves only a

derivative Parental Responsibility claim against him. But Plaintiff has not satisfied the knowledge

requirement for such a claim. A Parental Responsibility claim survives a motion to dismiss “only

if the complaint alleges specific instances of prior conduct sufficient to put the parent on notice

that the act complained of was likely to occur.” Allstate Ins. Co. v. Pruitt By Pruitt, 177 Ill. App.

3d 407, 412, 532 N.E.2d 401, 404 (1988) (citation omitted). Thus, “to hold the parent liable for a

11
 child’s acts, a complaint must allege specific instances of prior conduct sufficient to put the parents

on notice that the act complained of was likely to occur.” Kosrow For Use & Benefit of Hoffman
FILED DATE: 8/8/2022 3:07 PM 2022L003763

v. Smith, 162 Ill. App. 3d 120, 124, 514 N.E.2d 1016, 1019 (1987). The Complaint does not contain

a single allegation regarding J.B.’s conduct prior to the alleged tortious conduct. Nor does it

contain any allegations regarding Leigh Ballen’s knowledge of any prior conduct that put him on

notice that J.B. was likely to engage in any tortious conduct. For this additional reason, the Parental

Responsibility Law claim should be dismissed. Id at 1019.

III. Plaintiff’s Sole Claim Against J.B. For IIED Should Be Dismissed Because Plaintiff
Has Not Alleged Extreme and Outrageous Conduct or Sufficient Intent to Harm.

To state an IIED claim, Plaintiff must allege: “(1) the defendant's conduct was truly

extreme and outrageous; (2) the defendant either intended that his conduct inflict severe emotional

distress, or knew that there was at least a high probability that his conduct would cause severe

emotional distress; and (3) the defendant's conduct did in fact cause severe emotional distress.”

Sutherland v. Illinois Bell, 254 Ill. App. 3d 983, 994, 627 N.E.2d 145, 152 (1993). The Complaint

does not allege facts supporting the conclusion that J.B.’s conduct was either “extreme and

outrageous” or that he intended to cause N.B. severe emotional harm.

A. J.B.’s Conduct Was Not Extreme and Outrageous.

To state an IIED claim a plaintiff must allege facts to establish that the defendant’s conduct

was “extreme and outrageous.” Bianchi v. McQueen, 2016 IL App (2d) 150646, ¶ 82, 58 N.E.3d

680, 699 (citation omitted). The standard for “extreme and outrageous” conduct is “extraordinarily

high[.]” Ross v. City of Evanston, No. 99 C 2507, 1999 WL 705900, at *1 (N.D. Ill. Aug. 27, 1999)

(applying Illinois law). To plead extreme and outrageous conduct, “defendant’s conduct must be

so extreme as to go beyond all possible bounds of decency, and to be regarded as intolerable in a

civilized community.” Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 21, 180 Ill.Dec. 307,

12
 607 N.E.2d 201 (1992). “[M]ere insults, indignities, threats, annoyances, petty oppressions or

trivialities do not constitute extreme and outrageous conduct.” Bianchi, 2016 IL App (2d) 150646,
FILED DATE: 8/8/2022 3:07 PM 2022L003763

¶ 83 (quotations omitted). The Illinois Supreme Court has explained that “[t]he law intervenes only

where the distress inflicted is so severe that no reasonable man could be expected to endure it.”

McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809 (1988).

J.B.’s alleged conduct was not “extreme and outrageous.” Plaintiff alleges that J.B. sent

messages related to N.B on a text thread with other Latin students and disseminated a photo of

N.B. with a caption “the fucking feds[.]” J.B.’s alleged participation in the thread consists of:

• “fuck you”
• “in case you forgot fuck you!”
• J.B.’s agreement with C.K.’s messages providing N.B. assurances:

• “lmao”
• “yea trussss”
• “once you [g]o to parker its on sight but luv until then [kissing emoji]”

(Compl. ¶¶ 91-92.) Plaintiff also includes a hearsay allegation that “upon information and belief”

J.B. sent N.B. a message on December 13 “encouraging N.B. to kill himself.” (Id. ¶¶ 96-97.)

Even accepting these allegations as true, J.B.’s conduct toward N.B. comes nowhere near

conduct “that no reasonable man could be expected to endure.” McGrath, 126 Ill. 2d at 86.

“[I]solated acts are not enough to constitute extreme and outrageous behavior.” Mellerke v.

McMurdo, No. 94 C 2030, 1995 WL 461887, at *4 (N.D. Ill. July 14, 1995) (applying Illinois law

13
 and collecting cases). J.B. allegedly sent a few messages as part of a group text thread and one

alleged Snapchat message between December 10 to December 13. “[I]nappropriate, and no doubt
FILED DATE: 8/8/2022 3:07 PM 2022L003763

upsetting” remarks simply do not rise to the level of “extreme and outrageous” conduct. Cortezano

v. Salin Bank & Tr. Co., 680 F.3d 936, 941 (7th Cir. 2012) (no extreme and outrageous conduct

when employer shouted directly in plaintiff’s face that plaintiff’s husband was “garbage and a

piece of shit”) (quotations omitted) (applying Indiana law); see also Cuellar v. House of Doolittle,

Ltd., No. 02 C 8657, 2004 WL 1718417, at *5 (N.D. Ill. July 29, 2004) (“Here, the alleged extreme

and outrageous conduct consists of two isolated incidents when Hendricks made a comment to

Cuellar to which Cuellar believed that Hendricks was belittling his religion and the threat that

Cuellar would lose his job if he did not work on Saturdays. Such conduct does not constitute

extreme and outrageous conduct.”). The same goes for J.B.’s alleged messages.

In addition to the limited number of messages, the other factors courts consider also cut in

J.B.’s favor. The Illinois Supreme Court has identified two key factors in determining whether

conduct was “extreme and outrageous”: (1) whether the defendant “stood in a position of power

or authority relative to the plaintiff”; and (2) whether the defendant knew the plaintiff was

“peculiarly susceptible to emotional distress, by reason of some physical or mental condition or

peculiarity.” McGrath, 126 Ill. 2d at 86-91 (examples of positions of authority include “police

officers, school authorities, landlords and collecting creditors”).

Neither of these factors supports a finding that J.B.’s alleged conduct was extreme and

outrageous. Plaintiff does not allege that J.B. held a position of power over N.B. And while the

Complaint states that N.B.’s parents were aware that N.B. was contemplating suicide, it does not

state that J.B. was aware of that (or aware of any other mental health issue for that matter). To the

contrary, the Complaint clarifies that, as soon as N.B. expressed to J.B. and his teammates that he

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 was upset by what they had said, J.B. and his teammates quickly acted to assuage his concerns and

assure N.B. that they supported him. (Compl. ¶ 92.) These are not the actions of individuals that
FILED DATE: 8/8/2022 3:07 PM 2022L003763

knew N.B. was susceptible to emotional distress and sought to inflict more severe distress, much

less actions that were “beyond all possible bounds of decency, and to be regarded as intolerable in

a civilized community.” Kolegas, 154 Ill.2d at 21. Because J.B.’s alleged actions do not clear the

high bar of “extreme and outrageous” conduct, Plaintiff’s IIED claim should be dismissed.

B. Plaintiff Has Not Sufficiently Pled J.B. Intended To Cause Emotional Harm.

To plead IIED, Plaintiff must allege facts establishing J.B. “intended to inflict severe

emotional distress or knew that there was a high probability that its conduct would do so.” Welsh

v. Commonwealth Edison Co., 306 Ill. App. 3d 148, 154, 713 N.E.2d 679, 683 (1999). The

Complaint offers a simple, non-malicious explanation as to why J.B. allegedly made the

statements—he and his teammates were frustrated by N.B.’s perceived disloyalty. (Compl. ¶¶ 91-

92.) Perhaps more importantly, on the very same night that they expressed their frustration with

N.B., J.B. and his teammates quickly sent messages making it clear that they bore no ill-will toward

N.B. and did not wish him harm. (Id.) Those reassuring messages undermine any claim that J.B.

(and his teammates) acted with the intent to cause N.B. severe emotional distress. Because the

facts alleged do not show that J.B. had any inkling that his communications would cause N.B.

severe distress, nor that J.B. intended to cause N.B. severe distress, Plaintiff did not and cannot

sufficiently allege that J.B. acted with the requisite intent to support an IIED claim. 4

4
Plaintiff’s Parental Responsibility Law (PRL) claim against Leigh should similarly be dismissed. Plaintiff must
allege facts showing J.B.’s actions were “willful or malicious.” 740 ILCS 115/3. Although Plaintiff alleges the bare
conclusion that J.B.’s actions were “willful and wanton,” (Compl. ¶ 232), the Court must “disregard mere conclusions
of law or fact unsupported by the facts alleged.” Oravek, 637 N.E.2d at 557. Because Plaintiff has not alleged facts
showing J.B. acted “willfully and maliciously,” the derivative PRL claims against Leigh Ballen should be dismissed.
See Harkcom v. E. Texas Motor Freight Lines, Inc., 104 Ill. App. 3d 780, 783, 433 N.E.2d 291, 294 (1982) (affirming
dismissal of IIED count on identical grounds and noting “[t]he mere addition of the words willfully or wantonly to
factual allegations utilized in a negligence claim is insufficient to support a cause of action for an intentional tort”).

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 CONCLUSION

For all the reasons above, the Court should dismiss Plaintiff’s claims for failure to state a
FILED DATE: 8/8/2022 3:07 PM 2022L003763

claim under 2-615 with prejudice.

Respectfully Submitted,
By: /s/ Matt Ryan
Attorney for Defendants

Matthew S. Ryan, # 6278362

Michael Maione, #6324282
Cotsirilos, Tighe, Streicker,
Poulos, and Campbell, Ltd.
33 North Dearborn St, Suite 600
Chicago IL, 60602
312-332-5675

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 CERTIFICATE OF SERVICE

I, Matthew S. Ryan, an attorney, certify that I caused to be served the foregoing

FILED DATE: 8/8/2022 3:07 PM 2022L003763

DEFENDANTS J.B. AND LEIGH BALLEN’S MOTION TO DISMISS UNDER 735 ILCS 5/2–
615, on all counsel of record in the above-captioned matter on this 8th day of August, 2022.

/s/ Matt Ryan

Matthew S. Ryan

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