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United States District Court, N.D. Illinois, Eastern Division

June 10, 2005.


The opinion of the court was delivered by: CHARLES KOCORAS, District Judge


This matter comes before the court for ruling on three disputed issues: objections by Plaintiff Robert Muzikowski to the February 25, 2005, report and recommendation of Magistrate Judge Levin and two motions by Defendants Paramount Pictures Corporation, SFX Tollin/Robbins, Inc., and Fireworks Pictures (collectively referred to herein as "Paramount"). Paramount's first motion seeks summary judgment in their favor on Muzikowski's complaint. The second is a motion to strike certain portions of Muzikowski's response to Paramount's statement of facts and his statement of additional facts for failure to comply with Local Rule 56.1. For the reasons set forth below, we overrule Muzikowski's objections, adopt Judge Levin's report and recommendation for imposition of sanctions in the amount of $50,915.25, deny Paramount's motion to strike, and grant its motion for summary judgment.


  Muzikowski is a securities broker and insurance agent. For several years, he has been active in organizing and running baseball leagues for young boys in Chicago and New York. Because of his efforts, he has been recognized by various organizations and in several publications and broadcasts around the United States.

  One of the publications in which Muzikowski has appeared is a nonfiction novel by Daniel Coyle, entitled Hardball: A Season in the Projects. In the book, Coyle describes the 1992 summer season of the Near North Little League, one of the leagues Muzikowski founded with another man named Al Carter. The book focuses on a team called the Kikuyus, who are supervised by at least five volunteer coaches during that summer: Bill, Brad, Kevin, Cort, and Feets. The novel also gives brief synopses of the backgrounds of Muzikowski and Carter, including a specific event in each of their lives before they became involved with the league.

  After purchasing the film rights for the book, Paramount produced and released the film Hardball. The film recounts the story of Conor O'Neill — an unemployed gambler who continually drives himself into substantial debt with bookies. He spends a great deal of time throughout the first portion of the film at a bar. He is pathetically self-destructive and self-absorbed at once, wallowing in the despair that results from his perpetual tendency to be his own worst enemy. He apparently has only one close friend, Ticky, who feeds O'Neill's unsavory habits and double-crosses him whenever it serves Ticky's ends. O'Neill is alienated from his religion, his family, and his community. He crashes through life aimlessly, with no direction and no goals. He trades on every angle he can find, from posing as his dead father to place bets to hitting up friends for thousands of dollars to pay off bookies from previous bad bets. He is depicted at various points as a liar and a quitter, sometimes bumbling and always negative. He is an extremely unlikely candidate for a role model.

  O'Neill begins his involvement with a Little League team as part of another scheme to pay off a large gambling debt when faced with physical threats from his bookies. The team, which plays outside a Chicago housing project, is called the Kekambas. He assumes that he will be an assistant coach but ends up with sole responsibility for the team when the man who finagled his assistance takes off to New York. As the story progresses, O'Neill begins to open his eyes to situations outside of his own experience and the difference that he can make in others' lives, primarily the boys he coaches. He begins to grow into his new role and even starts to enjoy behaving in a respectable manner, in spite of his best efforts to pretend that the team means nothing to him. Finally, O'Neill wins a bet that could allow him to settle all of his accounts. This forces him to make a choice: he can use the money to bet on another game or he can pay off his debts and take another direction. He chooses the latter. Although he no longer needs the money that he receives from coaching, O'Neill realizes not just that the team needs him but that he needs them. As he embraces his roles as coach and responsible adult, the team evolves from a ragtag bunch of infighters into a cohesive unit capable of defeating their most challenging opponents. Meanwhile, the other missing parts of O'Neill's life begin to fall into place. In his own words, O'Neill becomes "interested in anything [he is] supposed to be interested in." His passion for life ignites, he starts to teach the Kekambas valuable lessons, and they begin to believe in themselves because he believes in them. He and his team test their limits and find that they are capable of more than they ever thought possible.

  Then, in the face of the tragic death of one of the players, O'Neill is ready to give up again, give up the team's dream to go to the league championship, but his charges will not let him. He finally realizes the importance of "showing up" and living up to the expectations of the people who have come to depend on him.

  Based on preliminary information about the content of the film, Muzikowski filed suit in California, claiming that the character of O'Neill was actually a portrayal of Muzikowski. The complaint sought damages for defamation per se and per quod, as well as false light invasion of privacy. He voluntarily dismissed the California suit and refiled in this court before the film was released.

  In 2001, we dismissed Muzikowski's complaint for failing to state a claim upon which relief could be granted. Muzikowski v. Paramount Pictures Corp., 2001 WL 1519419 (N.D. Ill. Nov. 28, 2001). He appealed, and the Seventh Circuit reversed our decision with respect to his defamation per se and false light claims and remanded for further proceedings. Muzikowski v. Paramount Pictures Corp., 322 F.3d 918 (7th Cir. 2003). After the remand, Muzikowski amended his complaint to add claims for false advertising, false endorsement, commercial disparagement, intentional infliction of emotional distress, and unjust enrichment.

  During the course of discovery, disputes arose regarding Muzikowski's compliance with his obligations to respond to a contention interrogatory propounded by Paramount. In early June 2004, we granted a motion to compel his response. After several proceedings to address Muzikowski's subsequent actions, we referred the matter to Magistrate Judge Levin, who concluded that Muzikowski had not complied with our earlier order in good faith. Ultimately, Muzikowski filed a satisfactory response, but not until 4 months after he was ordered to do so.

  Thereafter, Paramount moved for sanctions under Fed.R. Civ. Proc. 37(b)(2). We granted the motion and again referred the matter to Judge Levin for determination of an appropriate amount of sanctions. After obtaining additional briefing, he recommended a figure of $50,915.25. Muzikowski has filed objections*fn1 to Judge Levin's recommendation, which we also consider herein.

  After the dust settled from the dispute over the interrogatory response, the parties completed discovery, and Paramount now moves for summary judgment on the entirety of the complaint.


  Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548 (1986). The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on issues on which the nonmovant bears the burden of proof at trial. Id. The nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence. Id. The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). With these principles in mind, we turn the motions before us.


  A. Objections to Magistrate Levin's Report and Recommendation

  As stated, Magistrate Judge Levin recommended in February 2005 that a sanction of $50,915.25 was appropriate for willful noncompliance with our June 2005 order. This amount represents the amount of fees Paramount paid its attorneys to review the documents Muzikowski supplied in connection with his interrogatory response in June, July, and August 2004. Despite the general rule that each party pays its own attorneys' fees, Fed.R. Civ. Proc. 37 allows a court to order that a party be reimbursed for fee expenditures necessitated by the willful misconduct of its opponent during discovery. See Maynard v. Nygren, 332 F.3d 462, 471 (7th Cir. 2003); Johnson v. Kakvand, 192 F.3d 656, 661 (7th Cir. 1999). Fed.R. Civ. Proc. 72(a) specifies that a district court may modify or set aside a magistrate judge's order on a nondispositive matter, such as discovery sanctions, only if it is clearly erroneous or contrary to law. An order is clearly erroneous under this standard only if the district court, upon review, has a firm and definite conviction that the magistrate has made a mistake. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Weeks v. Samsung Heavy Industries Co., Inc., 126 F.3d 926, 943 (7th Cir. 1997).

  When attorneys' fees are requested as a sanction or pursuant to a fee-shifting statute, a court must determine whether the amount requested reflects a reasonable hourly rate and a reasonable amount of time devoted to accomplishing a particular task. Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 1939 (1983). The party requesting the fees bears the initial burden of showing reasonableness. See id. In support of its motion for sanctions, Paramount submitted the declaration of its lead counsel and a summary of fees incurred. According to the summary, Paramount's attorneys spent 179.75 hours reviewing the various noncompliant responses Muzikowski offered, which gave rise to a figure of $50,915.25 when applicable rates and discounts were applied. The declaration states that Paramount was invoiced for that amount and that it paid the invoices in full. Judge Levin concluded that the rates employed and the hours worked were reasonable; Muzikowski challenges both conclusions.

  1. Reasonableness of Rate Charged

  First, Muzikowski argues that Paramount has not demonstrated that its rates are reasonable and reflective of the market value of its attorneys' services. The basis for his argument rests exclusively on the fact that the sole evidence proffered in support of the rate charged is the declaration of Paramount's lead counsel, Debbie Berman. Magistrate Levin relied upon its contents to determine the market rate. According to Muzikowski, the declaration is insufficient to establish market rate, the proper measure of the reasonableness of the rates employed. See Missouri v. Jenkins, 491 U.S. 274, 283, 109 S. Ct. 2463, 2469 (1989). He believes that the cases upon which he relies require Paramount to supply information about rates charged by other law firms before we can make any determination of the reasonableness of the fees claimed here. Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S. Ct. 1541 (1984); Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999). However, that type of exercise is necessary only where evidence of actual hourly rates is unavailable, which is not the situation here. See People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996). Moreover, despite Muzikowski's characterization, Berman's declaration is not "self-serving" in the way that would preclude its use as reliable evidence of market rate. See Visser v. Packer Engineering Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) (en banc). This is not a case where an attorney submits a statement saying, in essence, "here is what I believe my work to be worth." Rather, Berman claims personal knowledge of two events: Paramount was billed a certain amount for the work performed by its attorneys, and it paid that amount. From an evidentiary standpoint, there is nothing deficient about her ability to attest to those facts. Muzikowski has offered no countervailing evidence to impede a finding that Paramount was in fact billed $50,915.25 and that it in fact paid the same to its attorneys. Thus, Berman's declaration establishes the market rate for the services rendered, and we find no basis to deviate from the hourly rates Magistrate Judge Levin employed in his calculations.

  2. Reasonableness of Hours Claimed and Staff Used

  Muzikowski's issues with the reasonableness of the hours claimed to have been worked are twofold. First, he argues that Judge Levin used an arbitrary number of pages to calculate the amount of work done. Second, he asserts that too many lawyers worked too many hours given the nature of the task involved.

  With respect to the first point, Judge Levin was familiar with the discovery dispute at issue and the underlying activities of the parties. His acquaintance therewith was the reason why we referred the determination of an appropriate amount of sanctions to him in the first place. Muzikowski makes much of the fact that Judge Levin estimated the number of pages Paramount's attorneys reviewed rather than attempting to arrive at a precise measurement. We disagree with his underlying assumption that the absence of such a rhadamanthine exercise renders the decision clearly erroneous. The number of pages involved here has varied, at different points in the case, from 90,000 to 1000. Whether the judge knew the number of pages reviewed with exactitude has no effect on his ability to gauge a reasonable expenditure of attorney time to determine compliance with the order in question. He examined potential scenarios, assessed their respective merit, and settled upon one that reasonably fit within the spectrum of possibilities. This exercise concluded in a rational, nonarbitrary result, neither clearly erroneous nor contrary to law.

  And so we turn to Muzikowski's second issue: the reasonableness of the staff used to perform the tasks for which Paramount was charged. The summary reveals that almost 75% of the review was done by associates, who bill at a lower rate than the partners who were involved. Moreover, the summary does not indicate, as Muzikowski asserts, that the partners were duplicating effort already expended by associates; otherwise the proportion of work performed would be divided more equally between the partners and associates. There is nothing unreasonable about initial review being done by more junior attorneys to separate the wheat needing partner consideration from the chaff that does not merit the attention of a more senior, and more expensive, attorney. By the same token, it is reasonable for the partners to spend some time in independent review of documents singled out by associates. Given the large number of documents involved and their importance to the case as the foundation of Muzikowski's claims, we agree with Judge Levin that the amount of time spent by these attorneys was reasonable.

  Furthermore, Muzikowski's contention that Judge Levin impermissibly shifted the burden of showing reasonableness from Paramount to him by considering the amount of time his own attorneys spent in reviewing the documents involved is incorrect. The opinion makes clear that Judge Levin considered Muzikowski's staffing decisions, but there is no indication that he expected Muzikowski to show that his own choices were unreasonable, thus indicating that Paramount's similar efforts unreasonable. The fact that both sides had similar staff resources dedicated to the task of reviewing the documents in question allows an inference that that level was necessary to perform the task at hand adequately and thus represented a reasonable staffing allocation.

  In sum, we find nothing clearly erroneous or contrary to law in Magistrate Judge Levin's ultimate conclusion or his methodology in arriving at it. Consequently, Muzikowski's objections are overruled and we adopt the $50,915.25 sanction recommended. Because there appears to have been some confusion as to whether the sanction was to apply to Muzikowski personally, his counsel, or both, we explicitly clarify that the sanction applies solely to his counsel. There is no indication that Muzikowski directed his attorneys to take the course of action they pursued, and discovery decisions are not ones that would normally be made by a client rather than an attorney. Because it was counsels' judgment that led to the sanctionable conduct, it would be patently unfair to lay the consequences of that judgment at Muzikowski's personal doorstep. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 763-64, 100 S. Ct. 2455, 2462-63 (1980).

  B. Motion to Strike for Noncompliance with Local Rule 56.1

  During the briefing of the pending motion for summary judgment, Paramount moved to strike portions of Muzikowski's response to its 56.1(a)(3) statement of material facts as well as his 56.1(b)(3)(B) statement of additional facts for failure to comply with Local Rule 56.1(b). This section of the rule provides that a party opposing a motion for summary judgment must concisely identify disagreements with the moving party's statement of material facts, with appropriate accompanying references to evidentiary materials. If a nonmovant wishes to assert additional facts that would support the denial, they must be delineated in a statement of short paragraphs founded on specified submitted evidence. Failure to comply with these requirements can lead to admission of the corresponding statement of the movant or striking of the noncompliant statement. See, e.g., Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1107-08 (7th Cir. 2004); Ammon v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817-18 (7th Cir. 2004). Paramount argues that Muzikowski's submissions are deficient in several ways: inclusion of legal argument, insufficient or inadmissible evidence cited in support of a statement, impermissible addition of facts, and inadequate denials. In total, Paramount objects to 923 statements or parts thereof and 37 exhibits.

  A Rule 56.1 statement of facts is intended to elucidate facts material to the decision the court is asked to make. When properly done, it streamlines resolution of the sole issue that must be decided: whether any facts that are outcome determinative are genuinely disputed by the parties. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). In this case, both sides have provided far more information than is necessary to decide the relevant issues, thus failing to fulfill their obligation to identify with specificity only the evidence that would facilitate our assessment of the motion at hand. See id. at 920. Instead, they have attempted to conduct a paper trial, which is precisely what summary judgment is not. See id. Many of the statements that Paramount asks be stricken are either tangentially relevant ones by Muzikowski or responses to the same sort of statement within Paramount's submissions. These types of disputes have no bearing on the motion or its outcome. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. Accordingly, we decline to engage in the needless and wasteful exercise of examining nearly one thousand statements to resolve disputes unnecessary to our decision. See Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 528-29 (7th Cir. 2000).

  That being said, two aspects of Paramount's motion deserve further attention. The first involves Muzikowski's response to ¶ 48 of Paramount's statement of facts. Paramount contends that this response, which takes up 13 pages of text (complete with headings to delineate the various subsections) is an egregious violation of the local rule, in no small part because ¶ 48 consists of a single sentence. While we certainly agree that, at first blush, the respective lengths of the passages alone seem to justify the requested relief, a close look at the content of ¶ 48 goes a long way toward explaining the apparent discrepancy. It reads: "O'Neill is inspired by [the screenwriter's] own life and experiences." This assertion, which itself borders on impermissible argument, would defeat nearly all of Muzikowski's claims if not properly controverted. It is singularly unrealistic for Paramount to expect Muzikowski not to vehemently challenge such a statement. Though we agree that the response is not a model of professionally appropriate restraint, neither is it so uncalled-for that it deserves whole-scale deletion. That leaves Paramount's objections to the affidavits of James J. Doyle, Tobias Eng, James Milonas, William F. Seitz Jr., and James Tyler. Pl.'s Exhs. 73, 75, 77, 80, 82. The first objection goes to the affiants' competence to offer the factual assertions contained within the affidavits. According to Paramount, to be able to offer admissible testimony regarding the impressions they formed about the O'Neill character upon seeing the film, the affiants must have had actual knowledge of Muzikowski's past exploits that they could draw upon when concluding that O'Neill was Muzikowski in disguise. We disagree that such a basis is necessary under the circumstances of this case. What is at issue is not whether Muzikowski actually experienced the events or possessed the traits that the affiants believed he did. Instead, the significant inquiry is whether these viewers took O'Neill for Muzikowski based on the things they believed to be true about Muzikowski or, in Tyler's case, a real-life equivalent of O'Neill. Thus, the affidavits are not inadmissible for lack of foundation.

  Paramount also asserts that some of the affidavits should be stricken because the affiants were not identified during discovery. Apparently relying upon Fed.R. Civ. Proc. 37(c)(1), Paramount insists that the statements cannot be relied upon as evidence supporting denial of summary judgment. The rule provides that evidence not disclosed according to the rules governing discovery cannot be used in conjunction with a motion unless the failure to disclose is harmless. Commonwealth Ins. Co. v. Titan Tire Corp., 398 F.3d 879, 888 (7th Cir. 2004). The burden of showing that the failure was harmless falls on Muzikowski, the party advancing the evidence. Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996). Muzikowski was not invited to respond to the motion to strike, and he has not requested to be allowed to do so. Because he has not had full opportunity to controvert the claimed nondisclosure, justify it, or show that it works no harm on Paramount, we hesitate to impose the harsh sanction of exclusion. Indeed, as explained below, the affidavits are not sufficient to have an impact on the outcome of Paramount's motion, so whether they are included or not is ultimately of no moment. Thus, we deny the motion to strike in its entirety and turn our attention to Paramount's motion for summary judgment.

  C. Motion for Summary Judgment

  1. Defamation Per Se and False Light Claims

  In Counts I-IV of his complaint, Muzikowski alleges that the character of Conor O'Neill is a portrayal of Muzikowski. He bases his assertions on certain similarities between the character and the man. As a result of these shared attributes, he claims, reasonable viewers will perceive the aspects of O'Neill that he does not share to be truthful statements about Muzikowski. According to him, the transferred attributes, such as posing as a broker and scalping tickets, are so inherently harmful to his reputation that they are defamatory per se. In addition, he contends that the impressions of viewers who mistake him for O'Neill have put him in a false light. These claims are founded in Illinois state law, which provides the substantive rules that guide our analysis. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

  In Illinois, claims of defamation per se and false light invasion of privacy require that the statements in question pertain to the plaintiff. Chapski v. Copley Press, 442 N.E.2d 195, 199 (Ill. 1982). The reason for this is apparent; a statement that is not about a particular person cannot harm that person's reputation. If statements can reasonably be construed to pertain to someone other than the plaintiff, they are said to be subject to an innocent construction. Id. Statements that can be innocently construed as not pertaining to the plaintiff cannot form the basis of claims of defamation per se or false light. Bryson v. News America Publications, Inc., 672 N.E.2d 1207, 1215 (Ill. 1996) (defamation per se); Schaffer v. Zekman, 554 N.E.2d 988, 993 (Ill.App.Ct. 1990) (false light).*fn2 The innocent construction need not be the only way to interpret the statement; if the statement is reasonably capable of being construed in a defamatory way and an innocent way, the innocent construction will prevail. Dubinsky v. United Airlines Master Exec. Council, 708 N.E.2d 441, 447 (Ill.App.Ct. 1999). There is no balancing of which construction is more plausible. Id. Whether a statement is susceptible to an innocent construction is a question of law in the first instance. See Anderson v. Vanden Dorpel, 667 N.E.2d 1296, 1302 (Ill. 1996). Only if the court concludes that the allegedly defamatory statement cannot be innocently construed will a jury be called upon to determine whether the statement in fact defamed the plaintiff. Chapski, 442 N.E.2d at 199.

  The innocent construction rule mandates that we give the allegedly defamatory statement its "natural and obvious meaning" and interpret it as it was used, according to the ideas that were intended to be communicated to the viewers. See Stratman v. Brent, 683 N.E.2d 951, 959 (Ill.App.Ct. 1997). A statement cannot be properly assessed in a vacuum; rather it must be considered in light of the context in which it arose. See Anderson, 667 N.E.2d at 1303.

  Though not completely dispositive, the fact that the context for the O'Neill character is a blockbuster movie, starring actors of worldwide fame and using many devices typical of a fictional story is very significant. It is settled that simply calling a statement fiction does not necessarily make it so. See, e.g., Bryson, 672 N.E.2d at 1219. However, in this instance, there is nothing to indicate that the film is a documentary, a biography, or even a dramatized account of actual events, thus undermining Muzikowski's contention that the film is not fictional. See Flip Side, Inc. v. Chicago Tribune Co., 564 N.E.2d 1244, 1252-54 (Ill.App.Ct. 1990). It would be unrealistic to presume that viewers of the film would be unfamiliar with these genres and their respective attributes in digesting the contents of the film. See id. Rather, reasonable viewers taking in the film as a whole would recognize the hallmarks of Hollywood make-believe and not mistake the characters depicted as historical reenactments of real stories of real people.

  Moreover, several undisputed aspects of the film and the O'Neill character support the reasonableness of a conclusion that O'Neill is not Muzikowski in disguise. The character does not share Muzikowski's name, nor is his name reminiscent of Muzikowski's. O'Neill's gambling habit is best described as a self-destructive addiction, which Muzikowski admits that he does not share. O'Neill drinks heavily at times in the film and frequents bars and taverns; Muzikowski kicked his drinking habit years before he became involved with the Little Leagues. Unlike Muzikowski, O'Neill is single with no children. O'Neill begins coaching to pay off a threatening bookie; Muzikowski became involved with boys' baseball for altruistic reasons. O'Neill only coaches, and that for a single team; Muzikowski co-founded and ran more than one league in addition to coaching his teams. Finally, O'Neill has no steady employment aside from his coaching; Muzikowski has been a securities broker and insurance salesman for many years. These dissimilarities, particularly in combination with the fact that the character appears in a film displaying many unmistakable features of a fictional account, indicate that O'Neill can reasonably be construed not to be Muzikowski, thus implicating the innocent construction rule.

  To be sure, there are similarities between O'Neill and Muzikowski. They both coach Little League teams in Chicago that are named after African tribes or languages. Both have been injured in bar brawls. Both use station wagons to transport their teams. Both have lost their fathers. Both have some connection to the securities industry and use of illegal drugs. Both eulogize players killed by gang-related violence. Both have been to bars named Duffy's, owned by men named Duffy. However, far from negating the effect of the differences detailed above in establishing an innocent construction of the film, these shared characteristics demonstrate only that reasonable viewers could see the connection Muzikowski detects between himself and the film's protagonist, not that they must. The same is true of the affidavits Muzikowski offers from persons who claim that they shared his conclusion. These statements may support the idea that Muzikowski's construction of the film is tenable, but they fall far short of indicating that it is the only reasonable construction, as is required to defeat a motion predicated on the innocent construction rule.*fn3 Muzikowski, 322 F.3d at 927.

  Furthermore, we note that Muzikowski's contention that viewers will inevitably associate him with O'Neill is seriously undermined by contentions he made during the course of the suit filed in California. In conjunction with his complaint, Muzikowski filed a document entitled "Notification of Identifying Material in Script Which Is Further Evidence that Film Hardball Is `Of and Concerning' Plaintiff Robert Muzikowski." In it, Muzikowski claims that no fewer than three of the characters in the film could be construed to be him: Conor O'Neill, James Fleming (the broker — sponsor who first enlists O'Neill's participation in coaching), and Matt Hyland (the coach of the BuaWas, a team against whom the Kekambas play two games). According to the notification, no matter which of these characters viewers believe is Muzikowski, he will come off as "a bad person." Although these statements were made based on a script that does not match line for line the finished film, all three characters remain in the movie, and the resemblances Muzikowski relied upon are in the final product. Thus, even Muzikowski's own impressions of the film do not support the position that he and O'Neill are essentially mirror images of each other; rather, it appears that Muzikowski is bound and determined that people will see him in the film, no matter where they look or what they know about him.

  As stated, if a statement can be innocently construed, the nondefamatory construction must be accepted even if the statement can also reasonably be construed defamatorily. When viewed in context, the character of O'Neill is easily and naturally construed to represent a collection of a set of experiences and attributes that are the creation of the screenwriter's imagination, with particular events occurring to further the larger story told by the film as a whole. The allegedly defamatory portrayal can be construed as not referring to Muzikowski or to any real person at all. Consequently, the claims made in Counts I through IV are subject to the innocent construction rule; the film is not defamatory per se nor does it cast Muzikowski in a false light under Illinois law.*fn4 Because the rule applies, no issues remain for a jury to decide with respect to these claims, and Paramount is entitled to summary judgment on them. 2. False Advertising Claims

  The complaint next takes aim at the advertisements and promotional materials Paramount disseminated that described the film as being based on or inspired by a true story. According to Muzikowski, these descriptions constituted false advertising in violation of the Lanham Act, the Illinois Uniform Deceptive Trade Practices Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act. A claim of false advertising has several elements. First, the defendant must make a false statement of fact, or a statement that is literally true but that conveys a false impression, in a commercial advertisement about a product. See Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819-20 (7th Cir. 1999).*fn5 Second, the statement must either tend to or actually deceive a substantial portion of consumers viewing the ad. See id. Third, the deception must be material to the purchasing decision of a substantial portion of the consuming public. See id. Fourth, the plaintiff must show that injury resulted either via diversion of sales from the plaintiff to the defendant or loss of goodwill in connection to the product in question. See id. This case is before us on a request for summary judgment. Paramount has demonstrated that no issue of material fact exists whether the statement "based on a true story" or "inspired by a true story" is literally true; neither party disputes that the film is based on a true story. The fight rages over what true story is referenced. Paramount insists that the statement refers to the story of the Kikuyus, the team featured in Coyle's book. Muzikowski contends that the ads lead viewers to believe that the story is his, but that the events of his life are so altered that the story told can no longer be classified as true, thus rendering the initial impression misleading. For this argument to defeat Paramount's motion, Muzikowski must put forth evidence that a reasonable factfinder could conclude that the statement misled viewers in such a way. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (calling summary judgment the "put up or shut up" moment for a plaintiff).

  Muzikowski attempts to satisfy his obligation through sixteen affidavits. Pl.'s Exhs. 64, 65, 73-84, 86-88. The parties have not submitted any measurements of how many people have seen the film, but it is undisputed that it grossed more than $40 million in the United States alone. Based on that figure, the sixteen affiants Muzikowski offers cannot constitute a substantial segment of the viewing audience. Thus, Muzikowski's proffered evidence falls far short of demonstrating a triable issue of fact on the second element. Looking to the third element, we note that none of the affiants save James Tyler claims that the representation of the movie as being based on a true story was a material factor in the decision to watch the film. Pl.'s Exh. 82. Needless to say, this single affidavit does not establish a triable issue of fact on the issue of whether the alleged misrepresentation swayed a substantial number of potential audience members to view the film when they otherwise would not have. Paramount is accordingly entitled to summary judgment on Muzikowski's claims of false advertising.

  3. False Endorsement Claims

  Paramount next requests summary judgment on Muzikowski's claims that the film and its promotional and advertising materials were likely to confuse moviegoers that he sponsored, endorsed, or approved of the film and its contents. Because the allegedly tortious acts occurred within the context of a work of creative expression, Paramount asserted the First Amendment as a defense to all of them and argued the point in connection with earlier motions to dismiss.

  The merits of an affirmative defense, which presuppose the existence of a legally viable cause of action, are typically not pertinent to consideration of a motion to dismiss for failure to state a claim. See U.S. Gypsum Co. v. Indiana Gas Co., 350 F.3d 623, 626 (7th Cir. 2003). In recognition of this fact, we declined to entertain Paramount's arguments when they were previously presented. Now, however, the parties are at issue and have fully developed the record. The rationale for our deferral of these issues is no longer present, despite Muzikowski's mistaken belief that we had concluded that they must be presented only to a jury.

  Muzikowski also argues that a case such as this one can be resolved on summary judgment only if the title of the work at issue is the sole reference to the plaintiff. Unfortunately, he both misreads the cases on which he relies and misunderstands the principles they advance. ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915, 926-38 (6th Cir. 2003); Parks v. LaFace Records, 329 F.3d 437, 450-59 (6th Cir. 2003); Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 901-02 (9th Cir. 2002). These cases stand for the proposition that, when a plaintiff's name or mark appears in the title of a work, consumers will expect that the work itself will also reference, as part of the expression, ideas conveyed by the name or mark. If the body of the work is devoid of such reference, there is a significant likelihood that potential consumers will be misled or confused by the appearance in the title. In such a circumstance, the First Amendment interest in protecting free expression is not strong enough to outweigh the Lanham Act interest in preventing consumer confusion since the artist's ability to express ideas is minimally impacted by a requirement that the title not include the name or mark. Parks, 329 F.3d at 452-53; American Dairy Queen Corp. v. New Line Productions, Inc., 35 F. Supp. 2d 727 (D. Minn. 1998). On the flip side, when the use of the plaintiff's persona or mark is artistically relevant to the expressive work, First Amendment concerns trump Lanham Act protections. See, e.g., Rogers v. Grimaldi, 875 F.2d 994, 999-1000 (2d Cir. 1989). These matters of law are perfectly appropriate to resolve on summary judgment.

  In support of his contention that the Lanham Act should triumph here, Muzikowski analogizes himself to the successful plaintiffs in White v. Samsung Electronics America and Allen v. National Video. He argues that he has developed a "unique and positive public image" over which he should exercise sole dominion. According to Muzikowski, Paramount has appropriated this image in the character of O'Neill and capitalized on the association of that image with the film. In White, Vanna White of "Wheel of Fortune" fame sued Samsung for using a robot that was intended to resemble her in a print advertisement for VCRs. 971 F.2d 1395, 1396 (9th Cir. 1992). In Allen, film icon Woody Allen sued a video rental company over a magazine ad that featured an actor who was a look-alike of Allen as well as videocassettes of some of Allen's films. 610 F. Supp. 612, 617-18 (S.D.N.Y. 1985).

  Muzikowski ignores the fact that these cases differ from the one at hand in a fundamental way: the speech in question was commercial advertising, intended solely to produce a profit through sale of a commercial good or service. See White, 971 F.2d at 1401 n. 3; Allen, 610 F. Supp. at 618. Paramount's film is creative expression, not commercial expression, despite the fact that viewers paid to see the film. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S. Ct. 777, 780-81 (1952). It is beyond any debate that films are works of artistic expression and thus fully safeguarded by the First Amendment. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S. Ct. 2176, 2181 (1981). Although the protections of the amendment are by no means absolute, many legally cognizable interests must sometimes yield when their enforcement would stifle the ability of an another to express an idea or communicate a thought. See, e.g., 17 U.S.C. § 107 (codifying fair use exception to copyright infringement); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S. Ct. 876 (1988) (holding that First Amendment precluded advanced claims for invasion of privacy and intentional infliction of emotional distress); New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S. Ct. 710, 720 (1964) (noting applicability of First Amendment protections to causes of action such as defamation, insurrection, contempt, and obscenity). Thus, White and Allen are inapposite here. For situations where the Lanham Act and the First Amendment lock horns, the line of cases originating with Rogers v. Grimaldi supplies the prevalent*fn6 analytical framework. 695 F. Supp. 112 (S.D.N.Y. 1988) ("Rogers I"), aff'd, 875 F.2d 994 (2d Cir. 1989) ("Rogers II").*fn7

  After the release of a film by Federico Fellini entitled "Ginger and Fred," actress and dancer Ginger Rogers brought a Lanham Act claim against the producing studio, contending that the film unlawfully implied that she had endorsed or sponsored its content. Rogers II, 875 F.2d at 996. The film's main characters, two Italian cabaret performers, were nicknamed "Ginger" and "Fred" during the height of their careers. The nicknames undisputedly alluded to Rogers and her partner Fred Astaire. Id. at 996-97. She claimed that the film and its title misled potential viewers into believing that the film either was about her or that she had endorsed the story it contained. Id. at 997. The district court concluded that because the film was a work of artistic expression, its contents and its title were subject to the full protection of the First Amendment, which defeated Rogers' claims as a matter of law. Rogers I, 695 F. Supp. at 124. The Second Circuit affirmed the district court's grant of summary judgment in its entirety but elaborated on the application of First Amendment protections to the titles of artistic works. See Rogers II, 875 F.2d at 997. The appellate court opined that, to accommodate the tension between consumers' interest in receiving artistic expression and in not being misled by the isolated information conveyed by a title, the First Amendment would trump the Lanham Act unless the title was explicitly misleading or had no artistic relevance to the underlying work. Id. at 999, 1000.

  Like the claims in Rogers, Muzikowski's contentions illustrate the significant tension created by an attempt to control the ability of another to use certain life events or possessed attributes as a metaphor for an abstract concept or a vehicle to communicate an idea. When a writer develops a character, it will almost of necessity share some characteristics with living people. As the California Supreme Court trenchantly observed in considering a case involving a film incorporating a character reminiscent of silent film star Rudolph Valentino, "[n]o author should be forced into creating mythological worlds or characters wholly divorced from reality." Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 869 (Cal. 1979). No matter how valuable Muzikowski's persona may be, it cannot outweigh society's interest in access to the imagery used within the film, such as coaches as role models, finding inspiration in unlikely places, and the tenacity of the human spirit in the face of adversity. Even if we consider Muzikowski's contention to be that the combination of the similarities between him and O'Neill is unique to him and therefore he should be able to recover for their use in defining a character, we would cross an impermissible line of limiting artistic expression. Whatever slight chance that consumers would be misled into thinking that Muzikowski has endorsed any character that bears some resemblance to him pales by comparison to the importance of the ability to relate a story of emotional growth and development through involvement in one's community, the vital importance of believing in others, and the message that negative spawns negative and positive begets positive. The Rogers courts, in a similar situation to that presented in this case, declined to allow Ginger Rogers to monopolize the use of her ability to symbolize a particular entertainment era and genre, even when her name and persona were specifically invoked in the process. Here, there is even less to commend the claim of right, since the film makes no reference specific and unique to Muzikowski or his life, and, as Muzikowski himself acknowledged in the notification filed in the California case, he shares features with more than one character. If we were to allow Muzikowski to exercise exclusive dominion over the aspects of his life that O'Neill shares, we would remove significant metaphorical vehicles from the lexicon of the artist and society as a whole would be the worse for Muzikowski's sole benefit. The First Amendment does not permit such a result. Hustler, 485 U.S. at 50-51, 108 S. Ct. at 879 (calling protection of the free flow of expressive ideas "fundamental[ly] importan[t]").

  In light of these considerations, we conclude that the undisputed evidence in this case demonstrates that Paramount's right to engage in expressive activities and society's interest in access to artistic ideas outweigh Muzikowski's countervailing concerns. As a result, summary judgment is warranted in Paramount's favor on Counts V, VI, and IX.

  4. Commercial Disparagement and Intentional Infliction of Emotional Distress

  Muzikowski's complaint also contends that the film's depiction of O'Neill disparaged the services that he (Muzikowski) provides as an insurance and securities broker and intentionally inflicted emotional distress on him. Despite the fact that these claims are stated in terms of causes of action other than defamation, their content makes it clear that each pertains to either Muzikowski's reputation or state of mind, thus implicating First Amendment considerations under the facts here. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 671, 111 S. Ct. 2513, 2519 (1991); Hustler, 485 U.S. at 56, 108 S. Ct. at 882; Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1355 (7th Cir. 1995); Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990) (commercial disparagement). The above analysis regarding the First Amendment implications at play in this case thus apply with equal force and identical effect to these causes of action. Accordingly, Paramount's requested relief is similarly warranted on Counts VII, VIII, and X.

  5. Unjust Enrichment

  Lastly, Muzikowski avers that Paramount was unjustly enriched by the details of the stories that he told Coyle that he claims formed the basis of aspects of O'Neill's character. Muzikowski's only viable claim for unjust enrichment lies in showing that he has a better claim to the control over access to the details of his life than Paramount does. This argument simply cannot stand in the face of the First Amendment considerations at play. To allow Muzikowski to assert a legally superior claim to the details of his life in a situation such as this, where Paramount at worst uses those tidbits in assembling a composite character to communicate ideas and images that have nothing to do with Muzikowski, would enrich him at the expense of society as a whole. That, not the injury Muzikowski claims, would be the greater injustice. As Muzikowski has not demonstrated that Paramount benefitted in any other way than to be able to construct a character who bore passing resemblance to him, summary judgment is warranted for Paramount on Count XI.


  Based on the foregoing, we adopt Judge Levin's report and recommendation and order Muzikowski's counsel to reimburse Paramount for attorneys' fees in the amount of $50,915.25. Paramount's motion to strike is denied and its motion for summary judgment is granted. JUDGMENT IN A CIVIL CASE

  ? Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.

  ? Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS HEREBY ORDERED AND ADJUDGED that Muzikowski's counsel is to reimburse Paramount for attorneys' fees in the amount of $50,915.25. Summary judgment is entered in favor of the defendants and against plaintiff. Plaintiff to take nothing. All matters in controversy having been resolved, final judgment is entered in favor of the defendants and against plaintiff.

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