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MANCARI v. INFINITY BROADCASTING EAST

November 22, 2004.

FRANK MANCARI, an individual, MANCARI CHRYSLER JEEP, an Illinois corporation, MANCARI'S CHRYSLER JEEP OF CRESTWOOD, INC., MANCARI'S CHRYSLER JEEP OF ORLAND HILLS, INC., and MANCARI'S CHRYSLER JEEP OF DES PLAINES, INC., Plaintiffs,
v.
INFINITY BROADCASTING EAST, INC. d/b/a WBBM NEWSRADIO 780, Defendant.



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Frank Mancari and his suburban car dealerships, Mancari Chrysler Jeep, Mancari's Chrysler Jeep of Crestwood, Inc., Mancari's Chrysler Jeep of Orland Hills, Inc., and Mancari's Chrysler Jeep of Des Plaines, Inc., have sued Infinity Broadcasting East, Inc. d/b/a WBBM Newsradio 780 ("WBBM") for defamation and false light invasion of privacy based on a news broadcast that aired twice on April 21, 2003. WBBM seeks judgment on the pleadings as to all claims. For the reasons set forth here, the motion is granted.

BACKGROUND

  Frank Mancari is a resident of DuPage County, Illinois and owns five auto dealerships in Cook County, Illinois. (Cmplt. ¶ 1.) WBBM, a Delaware corporation with its principal place of business in New York, operates Newsradio 780 and broadcasts throughout the Chicago Metropolitan area and in portions of Indiana and Wisconsin.*fn1 (Id. ¶¶ 3, 4; Notice of Removal ¶ 4.) Mancari has paid in excess of $250,000 to advertise his auto businesses with WBBM over the past six years or so. (Id. ¶¶ 9, 10.)

  On April 21, 2003, WBBM aired the following news report at 6:07 a.m. and again at 7:22 a.m.:
Suburban car dealer, Bruno Mancari, is back in court this morning as jury selection begins in his trial for murder. The 52-year-old Mancari is charged with six counts of murder in the beating death of Joseph Russo in March of 1985.
Prosecutors allege Mancari had Russo killed over fears he would tell police about an illegal chop shop operation at the car dealerships.
Mancari is being held without bond and he could face life imprisonment if convicted.
(Id. ¶ 6.) Bruno is Frank Mancari's brother. He was in fact tried for (and later acquitted of) the murder of Joseph Russo. Bruno has no ownership interest in Frank's car dealerships, however, and neither Frank nor his dealerships has ever been involved in any chop shop operation. (Id. ¶¶ 11-13.)

  Frank Mancari and his dealerships filed suit against WBBM in the Circuit Court of Cook County, Illinois on April 20, 2004, alleging that WBBM committed defamation per se by falsely stating that Bruno Mancari was a "suburban car dealer" when it knew that Frank Mancari was the car dealer, and by suggesting that there was an illegal chop shop operation at the car dealerships. Mancari also alleges that WBBM's accusations of an illegal chop shop operation placed him in a false light. On May 24, 2004, WBBM timely removed the case to federal court on the basis of federal diversity jurisdiction. 28 U.S.C. §§ 1332, 1441. Three weeks later on July 16, 2004, WBBM filed this motion for judgment on the pleadings. WBBM claims that the broadcast in question is not "of and concerning" Frank Mancari as required for both a defamation per se and a false light claim, and is capable of an innocent construction as to all plaintiffs. DISCUSSION

  A motion for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c) is evaluated using the same standard applicable to Rule 12(b)(6) motions to dismiss for failure to state a claim. Guise v. BWM Mortgage, LLC, 377 F.3d 795, 798 (7th Cir. 2004). Under that standard, judgment on the pleadings should be granted "only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief. In evaluating the motion, [the court] accept[s] all wellpleaded allegations in the complaint as true, drawing all reasonable inferences in favor of the plaintiff." Thomas v. Guardsmark, Inc., 381 F.3d 701, 704 (7th Cir. 2004) (quoting Midwest Gas Servs., Inc. v. Indiana Gas Co., 317 F.3d 703, 709 (7th Cir. 2003)).

  I. Defamation and False Light Invasion of Privacy

  A statement is defamatory if it "impeaches a person's reputation and thereby lowers that person in the estimation of the community or deters third parties from associating with that person." Schivarelli v. CBS, Inc., 333 Ill. App. 3d 755, 759, 776 N.E.2d 693, 696 (1st Dist. 2002) (citing Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 10, 607 N.E.2d 201, 206 (1992)). To be defamatory per se, a statement must be "so obviously and naturally harmful to the person to whom it refers that injury to his reputation may be presumed." Id., 776 N.E.2d at 697 (citing Kolegas, 154 Ill.2d at 10, 607 N.E.2d at 206). Under Illinois law, five categories of statements are considered defamatory per se: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a loathsome communicable disease; (3) those imputing an inability to perform or want of integrity in the discharge of duties of office or employment; (4) those that prejudice a party, or impute lack of ability, in his or her trade, profession or business; and (5) those imputing adultery or fornication. Id. (citing Van Horne v. Muller, 185 Ill.2d 299, 307, 705 N.E.2d 898, 903 (1998)). Plaintiffs claim that WBBM's broadcast implicates categories (1) and (4) because the use of the last name Mancari "clearly tied Frank Mancari to the criminal implications associated with the phrase `chop shop operation'" and "prejudiced . . . Frank Mancari and his dealerships in his profession and trade as a suburban car dealer." (Cmplt. ¶¶ 17, 18, 20.)

  The tort of false light invasion of privacy protects a person's interest in being let alone from false publicity. Brennan v. Kadner, 351 Ill. App.3d 963, 971, 814 N.E.2d 951, 959 (1st Dist. 2004). To state a false light claim, a plaintiff must establish that (1) he was placed in a false light before the public as a result of the defendant's action; (2) the false light in which he was placed would be highly offensive to a reasonable person; and (3) the defendant acted with actual malice. Id. As noted, Plaintiffs allege that WBBM placed Frank Mancari in a false light by "falsely accus[ing] him of a chop shop operation at his suburban dealership." (Cmplt. ¶ 26.)

  WBBM argues that Frank Mancari's defamation per se and false light invasion of privacy claims fail because the broadcast can be innocently construed as referring to someone other than Frank. WBBM similarly seeks dismissal of the defamation per se claim as to the Mancari dealerships on the basis that the statements regarding an illegal chop shop operation are capable of an innocent construction. The court addresses each argument in turn.

  II. Frank Mancari's Claims

  In determining whether a plaintiff has stated a cause of action for defamation per se, the court "must consider written or oral statements in context, giving the words and their implications their natural and obvious meaning." Green v. Trinity Int'l Univ., 344 Ill. App. 3d 1079, 1093, 801 N.E.2d 1208, 1219 (2d Dist. 2003) (citing Anderson v. Vanden Dorpel, 172 Ill.2d 399, 412, 667 N.E.2d 1296, 1301-02 (1996)). "If, so construed, a statement `may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff, it cannot be actionable per se.'" Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 90, 672 N.E.2d 1207, 1215 (1996) (quoting Chapski v. Copley Press, 92 Ill.2d 344, 352, 442 N.E.2d 195, 199 (1982)); Schivarelli, 333 Ill. App. 3d at 765, 776 N.E.2d at 701-02 ("[a]n essential element of a defamation per se [and a false light] . . . claim is that the challenged statement be `of and concerning the plaintiff' . . . i.e., that the alleged defamatory statement be identifiably about the plaintiff") (internal citation omitted). See also Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 927 (7th Cir. 2003) (stating that "of and concerning" requirement for false light claims is "basically the same as the innocent construction rule"). Given the presumption of damages in per se actions, the innocent construction rule "favors defendants . . . in that a nondefamatory interpretation must be adopted if it is reasonable." Anderson, 172 Ill.2d at 412-13, 667 N.E.2d at 1302; Muzikowski, 322 F.3d at 925 ("if a statement is capable of two reasonable constructions, one defamatory and one innocent, the innocent one will prevail"). Whether a statement is reasonably susceptible to an innocent interpretation is a question of law for the court. Bryson, 174 Ill.2d at 90, 672 N.E.2d at 1215.

  WBBM asserts that no reasonable listener could have construed the broadcast as referring to Frank Mancari because it correctly stated that Bruno Mancari was on trial for murder and never directly or indirectly mentioned Frank. (Def. Mem., at 4-5)*fn2 (citing Schivarelli, 333 Ill. App. 3d at 765, 776 N.E.2d at 702.) In Schivarelli, plaintiff Peter Schivarelli was the majority owner of plaintiff H.D. Stands a/k/a Demon Dogs. The broadcast at issue was a 30-second promotional announcement for a television news investigative report into unsanitary conditions at certain unnamed restaurants. In one segment, investigative reporter Pamela Zekman interviewed Schivarelli at an outdoor location in front of a white wall with blue paneling and a picnic table. 333 Ill. App. 3d at 758, 776 N.E.2d at 696. Plaintiffs claimed, among other things, that the segment was defamatory per se and placed H.D. Stands in a false light. The court dismissed both claims, holding that the announcement was not "of and concerning" H.D. Stands or Demon Dogs. Neither H.D. Stands ...


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