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United States District Court, Northern District of Illinois, E.D

September 27, 1983


The opinion of the court was delivered by: Shadur, District Judge.


Anne Pawelek ("Pawelek") has filed each of these lawsuits as a purported class action against Paramount Studios Corporation, its Chairman Barry Diller and all other Paramount "owners and executives" (collectively "Paramount" in the singular). Both suits share a single gravamen: the claimed impropriety of Paramount's inclusion of "Polish jokes" in its motion picture "Flashdance."*fn1 Paramount has now moved pursuant to Fed.R.Civ.P. ("Rule") 12(b)(6) to dismiss each of Pawelek's pro se Complaints (collectively the "Complaint" in the singular) for failure to state a claim. For the reasons stated in this memorandum opinion and order, Paramount's motion is granted.

Motion To Dismiss

Understandably only the Complaint in 83 C 5109 identifies a specific jurisdictional source:*fn2 18 U.S.C. § 241-42, federal criminal statutes defining civil rights violations. But as Paramount points out, it is well settled no private right of action inheres in those criminal provisions. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (per curiam); Weiland v. Byrne, 392 F. Supp. 21, 22 (N.D.Ill. 1975).

However, in keeping with our judicial system's solicitude towards pro se litigants,*fn3 this Court has searched for other viable claims that might lurk within the Complaint. It has considered three possibilities:

    1. a claim under the various federal civil rights
  statutes (such as 42 U.S.C. § 1983 and 1985(3));*fn4

    2. and 3. state law claims for defamation and
  intentional infliction of emotional distress.*fn5

But the legal sufficiency of the Complaint cannot be salvaged under any of those theories.

As for the Complaint's arguable civil rights claim, this Court's independent research has disclosed no authority for the proposition that group defamation by private actors — the gravamen of the Complaint — infringes any federal constitutional or statutory rights. Rather the case law establishes just the opposite. See, e.g., United Brotherhood of Carpenters and Joiners of America v. Scott, ___ U.S. ___, 103 S.Ct. 3352, 3356-57, 77 L.Ed.2d 1049 (1983) (Section 1985(3) does not apply to "wholly private conspiracies" to abridge federal rights that shield the individual from government action); Paul v. Davis, 424 U.S. 693, 701-10, 96 S.Ct. 1155, 1160-65, 47 L.Ed.2d 405 (1976) (mere defamation even by state officials is not actionable under Section 1983*fn6). Absent any supporting authority, this Court is certainly not willing to embrace such a bizarre theory of federal civil rights liability.

Pawelek's failure to plead special (i.e., pecuniary) damages*fn7 defeats any possible defamation claim. As such cases as Whitby v. Associates Discount Corp., 59 Ill.App.2d 337, 340, 207 N.E.2d 482, 484 (3d Dist. 1965) teach, Illinois law requires proof of special damages unless the defamatory statement (whether characterized as libel or slander) falls within one of the four "per se" defamatory categories:

    1. those imputing the commission of a criminal

    2. those imputing infection with a communicable
  disease of any kind which, if true, would tend to
  exclude one from society;

    3. those imputing inability to perform or want of
  integrity in the discharge of duties of office or

    4. those prejudicing a particular party in his
  profession or trade.

Obviously the "Polish jokes" mentioned in "Flashdance"*fn8 — however distasteful or in bad taste they are — do not fit within the first two categories. And the inapplicability of the third and fourth categories requires little explanation. All the controlling Illinois authorities uniformly define those two categories to include defamatory statements that directly tend to injure an individual's business or employment prospects and to exclude those that merely affect his "general reputation in the community." 33A I.L.P. Slander and Libel §§ 27-28, at 45-53. At worst the "Polish jokes" in "Flashdance" indirectly disparaged the intelligence of Polish-Americans and thereby injured their "general reputation in the community." But to suggest the movie's use of those jokes directly impaired the ability of such individuals (either individually or collectively) to secure employment or to conduct business strains credulity. Accordingly the Complaint fails to state a claim for defamation.*fn9

Nor can the Complaint be sustained as an action for intentional infliction of emotional distress. As outlined in Debolt v. Mutual of Omaha, 56 Ill.App.3d 111, 113, 13 Ill.Dec. 656, 658, 371 N.E.2d 373, 375 (1st Dist. 1978), that tort has four components:

1. extreme and outrageous conduct;

    2. intent by the defendant to cause, or a reckless
  disregard of the probability of causing, emotional

    3. severe or extreme emotional distress suffered by
  the plaintiff; and

    4. an actual and proximate causation of emotional
  distress by the defendant's outrageous conduct.

Neither the first nor the third element is adequately alleged by the Complaint. As underscored in Public Finance Corp. v. Davis, 66 Ill.2d 85, 90, 4 Ill.Dec. 652, 654, 360 N.E.2d 765, 767 (1976) (quoting Restatement (Second) of Torts ("Restatement") § 46, comment (d) (1965)):

  Liability has been found only where the conduct has
  been so outrageous in character, and so extreme in
  degree, as to go beyond all possible bounds of
  decency. . . .

However objectionable, the telling of "Polish jokes" simply does not attain that degree of outlandishness. Such conduct "amounts to no more than insults or indignities," which the Illinois courts tell us as a matter of law cannot be deemed "extreme and outrageous." Farnor v. Irmco Corp., 73 Ill.App.3d 851, 856, 29 Ill.Dec. 894, 899, 392 N.E.2d 591, 596 (1st Dist. 1979). Accord, Public Finance, 36 Ill.App.3d 99, 104, 343 N.E.2d 226, 230 (1st Dist.), aff'd, 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765 (1976) (quoting Restatement § 46, comment (f)) ("[T]he mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough").*fn10

Public Finance, 66 Ill.2d at 90, 4 Ill.Dec. at 654, 360 N.E.2d at 767, emphasis in original, interprets the requirement of "severe emotional distress" in an equally stringent manner:

  [I]nfliction of emotional distress alone is not
  sufficient to give rise to a cause of action. The
  emotional distress must be severe. Although fright,
  horror, grief, shame, humiliation, worry, etc. may
  fall within the ambit of the term "emotional
  distress," these mental conditions alone are not
  actionable. "The law intervenes only where the
  distress inflicted is so severe that no reasonable
  man could be expected to endure it. The intensity and
  the duration of the distress are factors to be
  considered in determining its severity." [Restatement
  § 46,] Comment (j). See also Prosser, Law of Torts
  sec. 12, at 54 (4th ed. 1971).

Emotional distress experienced by a "reasonable" Polish-American when told a "Polish joke" could not possibly approach that degree of severity. Such an individual will likely feel humiliated or insulted. He or she may well react with justifiable anger toward the source of the joke. But as the quoted passage makes clear, such reactions lack the requisite severity as a matter of law. See also Irving, 46 Ill.App.3d at 167, 4 Ill.Dec. at 723, 360 N.E.2d at 986. For those reasons, no viable claim for intentional infliction of emotional distress can be gleaned from the Complaint.


Having failed to detect any cognizable legal theory, this Court must grant Paramount's motion to dismiss.*fn11 Because this Court (unaided by the argument of counsel for plaintiff, as the result of her refusal to accept assistance) cannot foresee that the Complaint can be repleaded to state a cause of action, the actions themselves are dismissed.

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