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BOESE v. PARAMOUNT PICTURES CORP.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


December 12, 1996

ROBERT A. BOESE, Plaintiff,
v.
PARAMOUNT PICTURES CORPORATION, a Delaware corporation, PETER BRENNAN, and VIRGINIA K. WEATHERS n/k/a Virginia K. Johnson, Defendants.

The opinion of the court was delivered by: WILLIAMS

MEMORANDUM OPINION AND ORDER

 Before the court is the Paramount Defendants' motion to reconsider part of the order entered by this court on October 29, 1996 or, alternatively, for certification to the Seventh Circuit.

 I. Motion to Reconsider

 Paramount defendants urge the court to reconsider its order denying their motion for summary judgment as to plaintiff's false light invasion of privacy claim. Defendants base their motion on two arguments. First, defendants argue that this court's finding that the alleged defamatory statement was not "capable of being objectively verified as true or false" requires the dismissal of plaintiff's false-light claim. Secondly, defendants argue that plaintiff has failed to establish a genuine issue of material fact regarding actual malice.

 A. Opinion

 Specifically, defendants contend that a finding that a statement is a constitutionally protected expression of opinion and therefore, a non-actionable statement under the law of defamation, also applies to a false-light invasion of privacy claim. Defendants suggest that the law is very clear in this area by referring to decisions of other circuits. However, upon a closer examination, the law appears to be less settled than defendants suggest.

 While the court agrees with defendants that other circuits have found that opinion is a defense to a false-light claim; *fn1" the court also recognizes that courts universally have held that a statement need not be defamatory for a false-light privacy action to lie. Silk v. City of Chicago, 1996 U.S. Dist. LEXIS 8334, No. 95 C 0143, 1996 WL 312074 *36 (N.D. Ill. June 7, 1996); Zechman v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 742 F. Supp. 1359, 1373 (N.D. Ill. 1990). *fn2" In Silk, the court found the alleged defamatory statement -- "useless piece of shit" -- to be a non-actionable expression of opinion. Silk, 1996 U.S. Dist. LEXIS 8334, No. 95 C 0143, 1996 WL 312074 *35. However, the court did hold that, based on this same statement and low performance ratings, the plaintiff, nonetheless, stated a claim for false light invasion of privacy. Id. at *37. Similarly, in Zechman, applying the innocent construction rule, the court dismissed the plaintiff's defamation per se claim. Zechman, 742 F. Supp. at 1372. However, the court held that the innocent construction rule did not apply to the false-light claim *fn3" and therefore, the series of acts at issue conveyed a message actionable under a false-light privacy theory. Id. at 1374-74.

 This court reaches the same conclusion the Silk court and Zechman court reached: a non-defamatory statement can still give rise to a false-light invasion of privacy claim. Although, this court found the statement at issue to be an opinion and non-actionable in the defamation context, this finding does not change the court's analysis of plaintiff's false light claim.

 B. Actual Malice

 The defendants second basis for reconsideration is that plaintiff failed to establish a genuine issue of material fact concerning actual malice. Defendants unequivocally state that "plaintiff has come forward with no evidence that even suggests that the Paramount Defendants (or Ms. Pennington) had any subjective doubt as to the truth of [sic] falsity of any statement." (Def. Mot. at 5.) However, plaintiff has set forth enough facts in the 12(n) Statement based on the depositions of Pennington, Malm, and Brennan and the videotaped interviews with Virginia Weathers and her attorney to establish that a genuine issue of material fact exists as to actual malice. *fn4"

 Defendants challenge the idea that a departure from journalistic standards has bearing on the "actual malice" determination. Citing to both Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir. 1982), cert. denied, 459 U.S. 1226, 75 L. Ed. 2d 467, 103 S. Ct. 1233 (1983), and Woods v. Evansville Press Co., 791 F.2d 480 (7th Cir. 1986), defendants argue that "the Seventh Circuit's decision in Woods. . . demonstrates that failure to comply with so-called journalistic standards is not relevant to the actual malice inquiry, which is a subjective analysis." (Def. Mot. at 8.) However, defendants' argument overlooks the fact-intensive nature of the Woods court's determination *fn5" and mischaracterizes the Seventh Circuit's holding in Gertz. The Gertz court found that a failure to comply with journalistic standards to be very relevant to determining whether a party acted with actual malice. The Gertz court focused on the fact that "the publisher had 'obvious reasons to doubt the veracity . . . or accuracy of the author of the defamatory statements, and conducted only the most perfunctory investigation of the truth or falsity of the statements in the article.'" Id. at 538. Additionally, the article was submitted for typesetting only three to four hours after it was received. The usual editing time was shortcut, not because it was hot news, but because of editorial preference and prior planning. Id. The court held that "there was more than enough evidence for the jury to conclude that this article was published with utter disregard for the truth or falsity of the statements contained in the article about Gertz." Id.

 In the present case, plaintiff has set forth facts in the 12(n) Statement regarding defendants journalism similar to the facts highlighted by the Gertz court. Specifically, plaintiff sets forth the following: 1. The Weathers story was not "hot" news because it did not have to be aired immediately. (12(n) Stmt. P 29 (citing Ex. 5, Pennington Dep. 125:16-22)); 2. The Paramount defendants were under no particular deadline with respect to investigation of the Weathers story, and thus could have investigated the truth about Boese if they had chosen to do so. (12(n) Stmt. P 30 (citing Ex. 5, Pennington Dep. 32:9-13)). As in Gertz, this court finds that plaintiff has set forth enough facts to suggest that a genuine issue exists for trial as to whether defendants acted with utter disregard for the truth or falsity of the statement contained in the Hard Copy episode.

 For the foregoing reasons, Paramount defendants motion to reconsider in part is denied.

 II. Certification

 Defendants have moved this court for an order certifying the above questions for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The decision whether to allow an immediate interlocutory appeal of a non-final order under section 1292(b) is within the discretion of the district court. Swint v. Chambers County Com'n, 514 U.S. 35, 131 L. Ed. 2d 60, 115 S. Ct. 1203, 1210 (1995). When deciding a motion for certification, the district court must consider the following factors: (1) whether the motion to be appealed involves a controlling question of law; (2) whether an immediate appeal from the order may materially advance the ultimate termination of the litigation; and (3) whether there is a substantial ground for difference of opinion on that question of law. 28 U.S.C. § 1292(b); Kirkland & Ellis v. CMI Corporation, 1996 U.S. Dist. LEXIS 17542, No. 95 C 7457, 1996 WL 674072 *2 (N.D. Ill. Nov. 19, 1996). Another consideration is whether certification would only prolong the life of the litigation at all the parties' expense. Id. (citing Harris v. Karri-On Campers, Inc., 640 F.2d 65, 68 (7th Cir. 1981)). Each element of the section 1292(b) test must be met before certification may be granted. Id. (citing Segni v. Commercial Office of Spain, 650 F. Supp. 1045, 1046 (N.D. Ill. 1987)).

 The party seeking interlocutory review has the burden of persuading the court that "exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Fisons Limited v. United States, 458 F.2d 1241, 1248 (7th Cir.), cert. denied, 405 U.S. 1041, 31 L. Ed. 2d 581, 92 S. Ct. 1312 (1972). Courts generally disfavor piecemeal appeals in favor of a single appeal. Fisons, 458 F.2d at 1248.

 Applying these principles, the court turns to the present motion for certification. The court must determine whether there is a substantial ground for difference of opinion on the question of law. An interlocutory review should not be allowed merely to provide a review of difficult rulings in hard cases. Kirkland & Ellis v. CMI Corporation, 1996 U.S. Dist. LEXIS 17542, No. 95 C 7457, 1996 WL 674072 at *4 (citing McCann v. Communications Design Corp., 775 F. Supp. 1506, 1534 (D.Conn. 1991)). If the central question of law has not been settled by controlling authority, the moving party must still show that there is a substantial likelihood that the district court ruling will be reversed on appeal. Id. (citing TCF Banking and Sav., F.A. v. Arthur Young & Co., 697 F. Supp. 362, 366 (D. Minn. 1988)).

 While defendants have argued that controlling questions of law are involved, defendants have failed to demonstrate that the Seventh Circuit, viewing the facts in the light most favorable to the plaintiff, will reverse our ruling. Therefore, the interlocutory appeal will only serve to delay the course of this litigation. Accordingly, we deny defendants' motion for certification.

 Conclusion

 For all of the foregoing reasons, both Paramount defendants' motion for partial reconsideration and motion for certification are denied.

 ENTER:

 Ann Claire Williams, Judge

 United States District Court

 Dated: DEC 12 1996


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