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SOCORRO v. IMI DATA SEARCH

April 28, 2003

EDWARD SOCORRO, PLAINTIFF,
v.
IMI DATA SEARCH, INC. AND HILTON HOTELS CORP., DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, United States District Judge,

MEMORANDUM OPINION AND ORDER

Plaintiff Edward Socorro sued Hilton Hotels Corp., his former employer, and IMI Data Search, Inc., the company Hilton hired to perform a background check on him. The seven count complaint alleges violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and Illinois common law. The case is before the Court on defendants' motions to dismiss Socorro's state law claims. For the reasons stated below, defendants' motions are granted in part and denied in part.

BACKGROUND

On a motion to dismiss, the Court accepts the plaintiff's factual allegations as true and construes all inferences and ambiguities in his favor. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Kelly v. Crosfield Catalysts, 135 F.3d 1202, 1205 (7th Cir. 1998). Socorro's complaint alleges the following factual scenario.

Sometime before July 2000, Hilton contacted Socorro about a job possibility. Socorro was then employed by another firm and had been for a considerable period of time. On July 24, 2000, Hilton offered Socorro the position of Director of Travel Industry Sales/Travel Partner Relations. Socorro accepted and reported to work on August 14. On his first day, he completed several employment forms, among them a Hilton employment application. On the application Socorro truthfully replied "no" to the question whether he had ever been convicted of a felony or misdemeanor. A paragraph at the bottom of the application form stated "I authorize Hilton to investigate my background. . . ." Because he did not initial this paragraph, Socorro maintains that he did not give permission for a background check.

Some time after Socorro had begun his employment at Hilton, Hilton hired IMI to investigate Socorro's background and particularly whether he had any criminal convictions. Around September 7, 2002, IMI reported to Hilton, albeit mistakenly, that Socorro had been convicted of a misdemeanor and had served six months in jail.

Socorro was not informed of the background check, but on October 9, a managing director called Socorro and asked him if he had ever been convicted or spent six months in jail. Socorro, again truthfully, replied that he had not. Hilton did not, however, investigate the veracity of his denial or press IMI to verify its report. On October 10, Hilton informed Socorro that he had been terminated for falsifying his application. After multiple requests for a copy of his personnel file, on February 5, 2001, Hitlon provided him a partial file.

Socorro alleges that after his termination, Hilton repeated to third parties that Socorro was fired because he lied on his application and that he was a convict who had spent six months in jail. Socorro credits his extended inability to secure new employment, despite various attempts, to these false statements. Socorro did finally secure new employment in May 2001, but at a substantially lower rate of compensation than the Hilton position.

Socorro filed this lawsuit in Illinois state court; defendants removed the case to federal court after he amended his complaint to include a claim under the Fair Credit Reporting Act. Socorros's amended complaint contains seven counts: defamation by both Hilton and IMI; tortious interference with prospective economic advantage by IMI; infliction of emotional distress by Hilton and IMI; false light invasion of privacy by Hilton and IMI; negligence by Hilton; negligent hiring, retention and/or supervision by Hilton; and violations of the FCRA by both Hilton and IMI. Defendants have moved to dismiss the state law claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

DISCUSSION

A motion to dismiss tests the sufficiency of the complaint, not the merits of the suit. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Accepting the plaintiff's allegations as true, the Court will dismiss a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A. Hilton's Motion to Dismiss

1. Defamation

Hilton argues that Socorro's defamation and false light claims should be dismissed because they "are not pled with the requisite specificity required under Illinois law," and because Socorro "has not alleged sufficient facts to state a claim." Hilton's Mot. to Dismiss at 3. Under Illinois law, a statement is considered defamatory if it "tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him." Kolegas v. Heftel Broad. Corp., 154 Ill.2d 1, 10, 607 N.E.2d 201, 206 (1992). The elements of a defamation claim are (1) a defamatory assertion of fact about the plaintiff; ...


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