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CODY v. HARRIS

January 21, 2004.

MARK CODY, Plaintiff,
v.
TAFT HARRIS and DONTRON, INC., d/b/a CRAWFORD BROADCASTING CO. a Texas Corporation, Defendants



The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District

MEMORANDUM OPINION AND ORDER

Plaintiff Mark Cody filed a nine-count complaint against two defendants, Taft Harris and Dontron, Inc. (hereinafter "Dontron"). The defendants subsequently moved to dismiss all nine counts. For the reasons set forth below, we grant the defendants' motion with regard to Counts I, II, VII, VIII, and IX and deny the motion with regard to Counts III, IV, V, and VI.*fn1

BACKGROUND

  For the purpose of a motion to dismiss, we accept all well-pled allegations as true. MCM Partners, Inc. v. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 972 (7th Cir. 1995). We therefore recite the facts as Cody presents them in his complaint. Page 2

  In March 2001, the Crawford Broadcasting Company (which is owned by defendant Dontron, Inc., d/b/a Crawford Broadcasting Co., hereinafter "Crawford Studios") hired Plaintiff Mark Cody to work as the General Sales Manager for radio station WPWX. In October of 2001, while Cody was on paternity leave, he received a letter from Crawford Studios terminating his employment with WPWX. (Compl. ¶ 10.) Four days after Cody received the letter, an article appeared in Inside Radio, the radio industry's most widely distributed daily trade publication, falsely stating that upon his termination, "Cody was escorted from the [Crawford Studios] building, locks and codes were changed with the security present." (Compl. ¶ 11.) Either Defendant Taft Harris ("Harris"), WPWX's General Manager, or the management at Crawford Studios provided this false information to Inside Radio in order to damage Cody's reputation. Id. Cody claims that management at WPWX later directed its staff members to have no contact with Cody. He further alleges that management "openly and frequently disparaged" Cody during staff meetings. (Compl. ¶ 21.)

  While employed at Crawford Studios, Cody had attempted to develop a website for WPWX-FM. (Compl. ¶ 9.) He informed Harris that the domain name, "www.WPWX.com" was available for purchase from its owner, William Slembarski. Crawford Studios declined to purchase the domain name. (Compl. ¶ 14.) After Cody's termination, in January 2002, Crawford Studios learned that the domain name, "www.WPWX.com" contained pornographic material and included distasteful comments about the radio station (that need not be repeated for the purposes of this opinion). During staff meetings the following week, Harris accused Cody of posting the offensive material on the website, stating that Cody "would not get away with it" and that Crawford was "going to get him." (Compl. ¶ 16.) As a result of Harris' comments, word spread throughout the radio industry that Cody was responsible for posting the material. Cody began to be "inundated with inquiries into his role in posting" the offensive material on the WPWX website. (Compl. ¶ 17.) Page 3

  The following week, Inside Radio published an article about the website incident. The article quoted Harris as stating that the person who posted the information on the website had to be "a competitor or one particular ex-employee" and that the person had tried to extort $25,000 from the radio station in exchange for removing the material from the website. (Compl. ¶ 18.) Again, Cody received several inquiries as a result of the article from "colleagues in the industry expressing concern and asking why Crawford so vindictively pursued him." (Compl. ¶ 19.) Later that week, a website dedicated to media in Chicago (www.drewandjill.com) reported that "[r]umor has it a disgruntled employee of Dontron reserved the WPWX.com domain recently when the previous owner did not renew it." In fact, Cody did not post any of the offensive material onto the website. (Compl. ¶ 23.)

  After the release of the second Inside Radio article, Cody had difficulty finding a job as a general manager of a radio station. Thus, in November 2001, Cody took a job as an independent contractor for WVON-AM. As part of his work with WVON, Cody brought the station's general sales manager, Dan Johnson, to Crawford Studios. During their visit, several Crawford Studios employees saw Cody and Johnson together. (Compl. ¶ 12.) A Crawford Studios employee subsequently telephoned Johnson and told him that he was banned from Crawford Studios forever because of his relationship with Cody. As a result of this telephone call, Cody's independent contractor relationship with WVON-AM fell apart in January 2002. (Compl. ¶ 13.)

  In March 2002, Cody entered into an agreement with Central City Productions, Inc. (hereinafter "CCP.") CCP also had a business relationship with Crawford Studios. In May of 2002, Donald Jackson, CCP's Chief Executive Officer told Cody that Harris had accused Cody of "misrepresenting CCP's capabilities to prospective business partners" and of engaging in a personal vendetta against Harris. Harris subsequently directed Crawford Studios to terminate certain business relationships with CCP because of CCP's relationship with Cody. (Compl. ¶¶ 25-27.) As a result, CCP refused to advance Cody Page 4 payments that were due to him under their agreement. Cody alleges that termination of the payments were pretext to push Cody out of his agreement with CCP and that CCP wished to extinguish the agreement because of pressure exerted by Crawford Studios.

  Cody then brought the present complaint alleging: 1) that the statements made by Harris at WPWX staff meetings about Cody constituted defamation per se; 2) that the statements made by Harris to Inside Radio regarding the WPWX website incident constituted defamation per quod and defamation per se; 3) that Harris and Dontron intentionally interfered in Cody's contract with CCP; and 4) that Dontron intentionally interfered in Cody's contract with WVON-AM. The defendants responded with the present motion to dismiss the complaint in its entirety.

  ANALYSIS

  We are presented here with a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. "The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (quoting Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)). In considering a motion to dismiss, we must accept all well-pled allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. See id. at 1520-21; MCM Partners, Inc. v. Andrews-Bartlett & Assoc., Inc., 62 F.3d 967, 972 (7th Cir. 1995), aff'd 161 F.3d 443 (7th Cir. 1998), cert. denied 528 U.S. 810 (1999). Therefore, a complaint should not be dismissed "unless it appears beyond all 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, 78LS.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

 A. Counts I & II: Defamation Per Se for Statements Made at Staff Meetings

  In Counts I and II, Cody alleges that Harris and Dontron (on the theory of respondeat superior) committed defamation per se by making statements at WPWX staff meetings accusing Cody of posting Page 5 the offensive material on www.WPWX.com. Specifically, Cody alleges that Harris stated that Cody "would not get away with it" and that Crawford Studios "was going to get him," The defendants ...


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