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April 18, 1990

JEANNIE NELSON, et al., Defendants

The opinion of the court was delivered by: SHADUR


 Sharyn Vantassell-Matin and Philip Matin (collectively "Matins") brought this action against Jeannie Nelson and her minor daughter Amy Beth (collectively "Nelsons"), American Airlines, Inc. ("American") and numerous others, asserting equally numerous claims. As a result of events too complicated (and really unnecessary) to recount here, the numbers of Matins' claims and remaining parties defendant have been pared down to two in Matins' most recent and Fourth Amended Complaint (the "Complaint"):

2. Count II charges American with libel.

 Both Nelsons and American have now moved separately for judgments on the pleadings pursuant to Fed. R. Civ. P. ("Rule") 12(c). For the reasons stated in this memorandum opinion and order, both motions are granted and this action is dismissed.


 Although bizarre, the facts of this case are simple. On March 14, 1988 Matins and Nelsons were fellow passengers on American's Flight 37 from Munich, West Germany to San Diego, California, with a scheduled stop in Chicago. *fn2" Nelsons were seated in seats 31 E and G, while Matins were in 31 H and J. During the movie portion of the flight, Jeannie Nelson complained to crew members that Matins were engaged in oral sex and other indecent activities in the view of Mrs. Nelson's 13-year-old daughter Amy. While the lead flight attendant moved Nelsons to a different part of the plane, the airplane's captain assigned other flight attendants to determine whether any other passengers had witnessed anything unusual. In addition the captain consulted with Ron McCall ("McCall"), an off-duty FBI agent and husband of one of the flight attendants on board. Nelsons repeated their story to McCall, who advised the captain and flight attendants to make a discreet investigation.

 Although the in-flight investigation turned up no one other than Nelsons who claimed to have seen anything quite so unusual, *fn3" the captain communicated with American's flight services center in Chicago, and that office notified the Chicago Police Department and the FBI. When Flight 37 landed in Chicago, Matins were arrested and questioned by the police and FBI agents who had been summoned. *fn4" After the questioning, the FBI and officials of the United States Attorney's office decided not to charge Matins with any federal offenses. Although Chicago police initially charged Matins with public indecency, that charge was dismissed (S.O.L.) on Matins' motion. *fn5"

 Matins claim that none of the events Nelsons described occurred. They insist the charge of indecency should be written off as a product of "a 13-year-old girl with an extremely vivid imagination who made this up" (see Exhibit 2, quoting Philip Matin).

 In spite of Matins' denials, the story hit the papers and the UPI wire service. Exhibit 1 reproduces a story sent across the UPI wire service, and Exhibit 2 reproduces a story from Matins' local paper, the Roseville Press-Tribune (Matins attached both exhibits to their Complaint). Both pieces contain police recitations of Nelsons' story as well as statements attributed to American spokesman Ed Martelle ("Martelle") about the incident. According to the articles, Martelle spoke to reporters from American's offices in Fort Worth, Texas.

 Matins claim the dissemination of Nelsons' story, first by Nelsons themselves and then by American, injured Matins in their business and professional reputations. *fn6" As indicated earlier, their originally-filed claims against UPI and other members of the media have previously been eliminated from this lawsuit.

 Choice of Law

 In diversity cases such as this, the familiar teaching from Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938) and Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941) calls upon Illinois choice of law rules to define the source of law for the substantive claims presented. For actions sounding in tort the seminal Illinois case is Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593 (1970), which rejected the traditional lex loci delicti rule as too inflexible and adopted instead the "most significant contacts" approach of the then-tentative Restatement (Second) of Conflict of Laws (1971) ("Restatement of Conflicts"). Under Ingersoll, 46 Ill.2d at 45, 262 N.E.2d at 595 the local law of the state in which the injury occurred would apply unless Illinois had a more significant relationship with the occurrence and with the parties, in which case Illinois substantive law would control.

 More recent cases beginning with Mitchell v. United Asbestos Corp., 100 Ill. App. 3d 485, 426 N.E.2d 350, 55 Ill. Dec. 375 (5th Dist. 1981) have worked a significant clarification of the approach mandated by Ingersoll. Rather than simply counting each state's contacts with the parties and the event involved and then selecting the law of the state with the highest tally, Mitchell followed the lead of jurisdictions that hold each state's contacts must be evaluated in light of that state's interest in having its law applied to the occurrence. What results is a three-step analysis of choice of law questions -- the more sophisticated approach known as "interest analysis."

 First, the court must isolate the issues that arise in the case and treat with each individually. In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594, 611 & n. 13 (7th Cir. 1981) approved that issue-by-issue course -- called "depecage" -- quoting Reese, Depecage: A Common Phenomenon in Choice of Law, 73 Colum.L.Rev. 58, 59-60 (1973):

Amidst the chaos and tumult of choice of law there is at least one point on which there seems to be general agreement in the United States. This is that choice of the applicable law should frequently depend upon the issue involved. The search in these instances is not for the state whose law will be applied to govern all issues in a case; rather it is for the rule of law that can most approximately be applied to govern the particular issue. . . .

 Second, as to each issue the court must identify the policies embraced in the law of each of the competing states. On that score Restatement of Conflicts § 6 requires the court to consider these factors:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

 If all interested jurisdictions (including the forum state) apply the same legal rule to any issue, the court should apply to that issue the law with which it is most familiar -- that of the forum (see International Administrators, Inc. v. Life Insurance Co. of North America, 753 F.2d 1373, 1376 n. 4 (7th Cir. 1985)).

 Third and finally, the court must "examine the contacts of the respective jurisdictions to ascertain which has a superior connection with the occurrence and thus would have a superior interest in having its policy or law applied" ( Mitchell, 100 Ill.App.3d at 494, 426 N.E.2d at 357, quoting Miller v. Miller, 22 N.Y.2d 12, 17, 237 N.E.2d 877, 879, 290 N.Y.S.2d 734 (1968)). Under Restatement of Conflicts § 145 the significant contacts are:

(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.

 Although Illinois courts still give presumptive weight to the place of injury, that presumption may readily be overcome if another state has a more significant interest in applying its law ( Kaczmarek v. Allied Chemical Corp., 836 F.2d 1055, 1058 (7th Cir. 1987)).

 Those principles chart the course. It is time to determine what law governs each of Matins' claims and how those claims fare under that law.

 Slander Claim Against Nelsons

 In Count I Matins contend Nelsons' remarks (1) to flight attendants, cabin crew and others on Flight 37 and (2) to officers of the Chicago Police and Federal Bureau of Investigation were actionable slander. Nelsons counter that their statements were subject either to an absolute privilege as an initial step in a judicial proceeding or to a qualified privilege as the good faith reporting of illegal conduct to proper authorities. Nelsons ask this Court to apply Illinois law to the privilege issue, while Matins say California law controls. To cover all the bases, Nelsons insist their statements qualify for privilege under California law as well, and Matins argue Nelsons' privilege defense must fail even under Illinois law.

 1. Choice of Law.

 Three states could potentially claim an interest in prescribing the legal rules for Matins' claim against Nelsons:

1. California as Matins' domicile and the place where Matins would have suffered any injury to their personal and professional reputations,
2. Minnesota as Nelsons' domicile and
3. Illinois as the place where some of Nelsons' statements to police were made, and where the police investigation that led to Matins' arrest was conducted. *fn7"

 As between the latter two, Nelsons argue for Illinois because it, as the state in which the allegedly defamatory remarks were aired, has the greatest interest in seeing that the person injured by those remarks recover. In response Matins (citing Snead v. Forbes, Inc., 2 Ill. App. 3d 22, 275 N.E.2d 746, 748-49 (1st Dist. 1971) and Velle Transcendental Research Association, Inc. v. Esquire, Inc., 41 Ill. App. 3d 799, 802, 354 N.E.2d 622, 625 (1st Dist. 1976)) contend that California, where Matins felt the impact of the alleged injury, has an even greater interest in providing the law under which its injured citizens might recover. In reply Nelsons urge that those two cases (which sound in libel) are inapposite -- in each the defamatory statements were actually published in plaintiff's home state, whereas here Nelsons' unpublished statements could have caused Matins injury, if at all, only where they were spoken: Illinois.

 But each litigant's approach has the same vice: It has lost sight of the real interests at stake at this stage of these proceedings. As already stated, the first two steps in any choice of law analysis are (1) to identify each issue raised and deal with each separately, then (2) to identify the policies and purposes behind each state's law on each issue identified in the first step. Only then is it possible fairly to weigh each competing state's interest in having its policies advanced at the expense of the other state's interests.

 Here both parties skipped steps 1 and 2 to launch headlong into their (by all appearances well-considered) weighing of the interests that each state has in applying its substantive law of slander. Nelsons' current motion does not at all raise the threshold issue whether Matins have even made their case for slander. Instead Nelsons rest all their hopes on the applicability of the defenses of absolute and qualified ...

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