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
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
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 ...