United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER ON PENDING MOTIONS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
two consolidated cases arise out of an alleged affair between
Russell Flaum and Traci Hylland. Traci's husband Richard
Hylland sued Russell for alienation of affections, which is
16-CV-4060. Thereafter, Russell's wife Virginia sued the
Hyllands asserting a claim for alienation of affections
against Traci and two claims for invasion of privacy against
Richard, which is 16-CV-4168. The Hyllands have now moved for
judgment on the pleadings, or, alternatively, summary
judgment on all of Virginia's claims in 16-CV-4168.
16-CV-4168, Doc. 16. Virginia opposed the Hyllands'
motion and has filed a motion under Rule 56(d) of the Federal
Rules of Civil Procedure asking this Court to deny or
postpone ruling on the Hyllands' motion. 16-CV-4168, Doc.
25. For the reasons explained below, this Court grants the
Hyllands' motion in part and grants Virginia's motion
in part. The parties' motions are otherwise denied.
Hyllands are South Dakota residents but maintain a second
home in Indian Wells, California. The Flaums are Illinois
residents who also maintain a second home in Indian Wells,
California. Russell and Traci first met at a country club in
Indian Wells in late 2014. They started playing tennis
together and this progressed to other activities, including
going out to eat, attending tennis tournaments, and meeting
up in Palm Desert or Beverly Hills, California. Apparently at
Traci's request, Russell met with Traci and her therapist
in early May 2015 in Palm Desert.
returned to South Dakota on May 17, 2015, but she and Russell
continued to communicate through the mail, internet, and
telephone. Many of these communications were romantic in
nature, with Traci and Russell expressing love for one
another and discussing leaving their spouses. In July 2015,
after discovering these communications, Richard mailed a
package of material concerning Russell's relationship
with Traci to Virginia in Illinois. The package, among other
things, alleged that Traci and Russell engaged in sexual
intercourse in California and contained what appeared to be
emails and text messages Russell sent to Traci. In September
2015, Richard sent packages containing this same content to
Virginia and Russell's children and the fiance of one of
March 2016, Richard sued Russell in South Dakota state court
for alienating the affections of Traci. Russell removed the
case to this Court and moved to dismiss for lack of personal
jurisdiction. At the hearing on Russell's motion, Richard
through counsel acknowledged that he claims that the
alienation of affection tort was committed after Traci
returned to South Dakota in mid-May of 2015 and that Richard
is making no claim that any of the conduct in California
supports a cause of action or recovery. California law does
not recognize a claim for alienation of affection. In
November 2016, this Court denied Russell's motion to
dismiss, finding that personal jurisdiction over Russell
existed because Russell intentionally directed his conduct at
South Dakota, and because the alleged effects of his conduct
were suffered in South Dakota. 16-CV-4060, Doc. 21.
then filed her suit in this Court, asserting a claim for
alienation of affections against Traci and two claims for
invasion of privacy against Richard. 16-CV-4168, Doc. 10.
According to Virginia, both her alienation of affections
claim against Traci and Richard's alienation of
affections claim against Russell are based on the same
telephone calls, texts, and emails. Virginia's invasion
of privacy claims concern the packages Richard mailed
presumably from South Dakota to Illinois and the materials
Hyllands then moved for judgment on the pleadings or,
alternatively, summary judgment. 16-CV-4168, Doc. 16.
Virginia opposed the motion and also filed a motion under
Rule 56(d) asking this Court to either deny or continue the
Hyllands' motion for judgment on the pleadings.
16-CV-4168, Doc. 25. Virginia contended that Russell deleted
all of the messages Traci sent him, and that Virginia
therefore needs discovery to acquire the communications Traci
sent to Russell. Thereafter, Virginia filed a motion to
compel discovery, asserting that the Hyllands' responses
to Virginia's interrogatories and request for production
were deficient. 16-CV-4168, Doc. 34. Virginia's motion
mainly concerned Traci's communications with Russell, but
also sought some information about Richard's packages
sent to people in Illinois. Among other things, Virginia
asked the Hyllands to produce all of the electronic devices
they have used since 2015 so that a forensic expert could
search them for communications between Traci and Russell. The
Hyllands produced an additional 272 pages of documents, but
Virginia remained unsatisfied with the Hyllands'
discovery responses. After a hearing on the pending motions,
this Court granted in part Virginia's motion to compel,
ordering that Traci produce the iPhone she used to
communicate with Russell so that a forensic computer firm
could attempt to retrieve these communications. 16-CV-4168,
Standards of Review
ruling on a motion for judgment on the pleadings under Rule
12(c), courts must "accept as true all facts pleaded by
the non-moving party and grant all reasonable inferences from
the pleadings in favor of the non-moving party."
Haney v. Portfolio Recovery Assocs., LLC. 837 F.3d
918, 924 (8th Cir. 2016) (quoting United States v. Any
& All Radio Station Transmission Equip.. 207 F.3d
458, 462 (8th Cir. 2000)). A motion for judgment on the
pleadings under Rule 12(c) "should be granted only if
the moving party clearly establishes that there are no
material issues of fact and that it is entitled to judgment
as a matter of law." Porus Media Corp. v. Pall
Corp.. 186 F.3d 1077, 1079 (8th Cir. 1999).
judgment is appropriate under Rule 56(c) of the Federal Rules
of Civil Procedure "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). On summary
judgment, the facts and inferences drawn from those facts
must be viewed in the light most favorable to the non-moving
party. United States v. Diebold, Inc.. 369 U.S. 654,
655 (1962) (per curium).
Hyllands argue that Illinois law governs all of
Virginia's claims, that her claims for alienation of
affections and invasion of privacy by intrusion upon
seclusion fail under Illinois law, and that the Illinois
statute of limitations bars both of Virginia's claims for
invasion of privacy. This Court addresses Virginia's
claims in turn.
Alienation of Affections
parties disagree over which state's law governs
Virginia's claim for alienation of affections. The
Hyllands argue that Illinois law controls while Virginia
contends that South Dakota law should apply. When faced with
a conflict of law issue in a diversity case, a district court
should first determine whether the relevant laws actually
conflict and then, if a conflict exists, apply the choice of
law rules of the forum state. Prudential Ins. Co. of Am.
v Kamrath, 475 F.3d 920, 924 (8th Cir. 2007). Illinois
law conflicts with South Dakota law on the tort of,
alienation of affections because while South Dakota allows
recovery of punitive damages as well as damages for mental
suffering and loss of consortium, Illinois does
Jones v. Swanson, 341 F.3d 723, 736-37 (8th Cir.
2003) (discussing punitive damages in alienation of
affections claim in South Dakota); Kaplan v. Jewett
229 F.Supp.3d 731, 734-36 (N.D. 111. 2017) (noting that under
Illinois law, a plaintiff in an alienation of affections case
is limited to "actual damages" and cannot recover
punitive damages or damages for mental suffering or loss of
consortium); Morev v. Keller, 85 N.W.2d 57, 59 (S.D.
1957) (explaining that a plaintiff in an alienation of
affections case may recover for loss of consortium and mental
anguish); see also Pescatore v. Pan Am. World Airways,
Inc., 97 F.3d 1, 14 (2d Cir. 1996) (finding a conflict
where one state permitted recovery for loss of society in a
wrongful death action while the other state did not). Given
this conflict, this Court must apply South Dakota's
choice-of-law rules to determine which state's law
governs Virginia's alienation of affections claim.
Prudential Ins. Ca, 475 F.3d at 924.
Dakota follows the "most significant relationship"
test set forth in the Restatement (Second) of Conflict of
Laws to resolve choice of law questions. Burhenn v.
Dennis Supply Co., 685 N.W.2d 778, 784 (S.D. 2004).
Three sections of the Restatement are relevant to the most
significant relationship test in this case.
§ 6 of the Restatement sets forth the guiding principles
for the Restatement's choice of law approach:
(1) A court, subject to constitutional restrictions, will
follow a statutory directive of its own state on choice of
(2) When there is no such directive, the factors relevant to
the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant polices of other interested states and the
relative interests of those states in the determination ...