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MUZIKOWSKI v. PARAMOUNT PICTURES CORPORATION

June 10, 2005.

ROBERT E. MUZIKOWSKI, Plaintiff,
v.
PARAMOUNT PICTURES CORPORATION, SFX TOBBINS/ROBBINS, INC., and FIREWORKS PICTURES, Defendants.



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

MEMORANDUM OPINION

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.

BACKGROUND

  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.

  LEGAL STANDARD

  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.

  DISCUSSION

  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 ...


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