United States District Court, S.D. Illinois
August 3, 2005.
WENDLER & EZRA, P.C., Plaintiff,
AIG, INC., AMERICAN INTERNATIONAL GROUP DATA CENTER, INC., AMERICAN INTERNATIONAL GROUP, INC., and UNKNOWN DEFENDANTS, Defendants.
The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
MEMORANDUM & ORDER
Before the Court is defendants' motion to dismiss plaintiffs'
complaint for failure to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). Plaintiff is a law firm in
Madison County Illinois, consisting of attorneys Brian M. Wendler
and D. Jeffrey Ezra which specializes in personal injury
litigation. The complaint alleges that defendant AIG (also known
as American International Group) is an insurance company and
insurance underwriting company, specializing in industrial
insurance coverage, and that defendant American International
Group Data Center, Inc. is the wholly owned subsidiary and agent
The plaintiff law firm specializes in representing truck
drivers, known as "car haulers" who may be injured during the
process of loading and offloading automobiles from carrier
trailers. These potential clients are typically members of the
teamsters union and are employed by union carriers. Defendants
provide insurance coverage to many of the car hauler companies.
On or about July 18, 2002, an anonymous message was posted on a
website frequented by teamsters, www.teamster.net which included a newspaper
clipping that identified Brian M. Wendler, 41, as having been
arrested and taken to the Madison County Jail. The message posted
on the website allegedly stated: "Just sending along a newspaper
clip from our local newspaper those of you in the
Illinois/Missouri area. Don't make the same mistake me and my
husband did it's a waste of time and money." The complaint
further alleges that this message was traced to an IP address
registered to American International Group Data Center, Inc., and
that it was, therefore, not posted by a current or former client
The Complaint is framed in twelve counts. Counts I-III seek
recovery against the defendants based on defamation theories.
Count IV alleges tortious interference with advantageous economic
relations with current or future clients. Counts V and VI seek
recovery for negligence. Count VII seeks recovery for willful and
wanton conduct; Count VIII for civil conspiracy; Count IX for
violation of the Consumer Fraud Act; and Counts X and XI for
Negligent and Fraudulent Misrepresentation. Count XII, which
seeks damages for relaying the false information to one or more
of the named defendants, but is directed to "unknown defendants"
who are believed to reside in the States of Illinois or Missouri.
A party to a case may move for a dismissal of the complaint for
failure to state a claim. Fed.R.Civ.P. 12(b)(6). When
reviewing a Rule 12(b)(6) motion to dismiss, a court must assume
that all of the factual allegations in the plaintiff's complaint
are true and draw all reasonable inferences from those
allegations in the plaintiff's favor. MCM Partners v.
Andrews-Bartlett & Associates., 62 F.3d 967, 972 (7th Cir.
1995). A motion to dismiss for failure to state a claim should be
granted only if "it appears beyond doubt that the plaintiff can
prove no set of facts in support of [their] claim which would entitle
[them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The purpose of a motion to dismiss under Rule 12(b)(6) is to
review the adequacy of the pleadings, not the factual basis for a
claim. When ruling on a motion to dismiss, the court generally
should consider only the allegations of the complaint. Rosenblum
v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002).
Given this standard, the Court must determine if plaintiffs have
sufficiently put defendants on notice to allow them to respond to
COUNTS I-III Defamation Claims Under Illinois Law
Counts I-III seek recovery for defendant's alleged defamation.
The law of defamation is well-settled in Illinois:
A statement is considered defamatory if it tends to
cause such harm to the reputation of another that it
lowers that person in the eyes of the community or
deters third persons from associating with him.
Certain limited categories of defamatory statements
are deemed actionable per se because they are so
obviously and materially harmful to the plaintiff
that injury to the plaintiff's reputation may be
Van Horne v. Muller, 705 N.E.2d 898
, 903 (1998) (citations
omitted) (quoted in Parker v. House O'Lite Corp.,
756 N.E.2d 286
, 292 (Ill.App.Ct. 2001)). To support a claim for defamation
under Illinois law, a plaintiff must show that the defendant made
a false statement about the plaintiff, that there was an
unprivileged publication to a third party by the defendant, and
the publication damaged the plaintiff. Gibson v. Philip Morris,
Inc., 685 N.E.2d 638, 643 (Ill.App.Ct. 1997). See also;
Parker, 756 N.E.2d at 292. "Statements can be either defamatory
per quod, i.e., requiring extrinsic facts to explain the
defamatory character of the statements, or defamatory per se."
Gibson, 685 N.E.2d at 643 (citing Kolegas v. Heftel
Broadcasting Corp., 607 N.E.2d 201
, 206 (1992)). Here, there clearly was publication of the
statement when it was put on an internet website chat page. See
Jones v. Britt Airways, Inc., 622 F. Supp. 389
, 391-92 (N.D.
Ill. 1985) (applying Illinois law and holding that the
communication of interoffice reports within a corporation
constitutes a publication for defamation purposes). Under
four categories of statements . . . are considered
defamatory per se: (1) words that impute the
commission of a crime, (2) words that impute
infection with a loathsome communicable disease; (3)
words that impute an inability to perform or a want
of integrity in the discharge of duties of office or
employment; or (4) words that prejudice a party, or
impute lack of ability, in his or her trade,
profession, or business.
Myers v. Levy, 808 N.E.2d 1139
, 1147 (Ill App. Ct. 2004).
Clearly, this statement falls within the first and fourth
category of statements, i.e. "words that impute the commission of
a crime," "words that prejudice a party, or impute lack of
ability, in his or her trade, profession, or business." Id.
This type of statement, defamation per se, is considered so
obviously and materially harmful to the plaintiff that injury to
the plaintiff's reputation may be presumed. Bryson v. News
America Publ., Inc., 672 N.E.2d 1207, 1213 (Ill. 1996);
Harrison v. Chicago Sun-Times, Inc., 793 N.E.2d 760
(Ill.App. Ct. 2003).
Defendants contend that these statements consisted merely of
opinion, and therefore are not actionable. Even, where a
statement falls into one of the categories recognized to be
actionable per se, the statement will not be found to be
actionable if it is reasonably capable of an innocent
construction. Bryson, 672 N.E.2d at 1215; Harrison,
793 N.E.2d at 771. In applying the innocent construction rule, courts
consider the statement in context, giving the words and their
implications their obvious and natural meaning. Bryson,
672 N.E.2d at 1215-16. As construed, if 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, 672 N.E.2d at 1215. Determining whether a statement is reasonably susceptible to an
innocent interpretation is a question of law. Id.
Accordingly, the Court FINDS that the plaintiff has
sufficiently plead the defamation claims in Counts I-III to
withstand a motion to dismiss, and the motion as to these counts
COUNT IV Interference with Economic Advantage
Count IV alleges tortious interference with an advantageous
economic relation. In order to sustain this cause of action,
a plaintiff must plead and prove: (1) his reasonable
expectation of entering into a valid business
relationship; (2) the defendant's knowledge of the
plaintiff's expectancy; (3) purposeful interference
by the defendant that prevents the plaintiff's
legitimate expectancy from ripening into a valid
business relationship; and (4) damages to the
plaintiff resulting from such interference.
Larry Karchmar, Ltd. v. Nevoral, 707 N.E.2d 223
(Ill.App.Ct. 1999). "The Federal Rules do not require that [the
plaintiff's] complaint allege the specific third party or class
of third parties with whom he claims to have had a valid business
expectancy." E&J Gallo Winery v. Morand Bros. Beverage Co.,
247 F. Supp. 2d 979, 987 (N.D. Ill. 2003) (quoting Cook v.
Winfrey, 141 F.3d 322
, 328 (7th Cir. 1998)). Plaintiff
alleged that the law firm had a reasonable expectation of
entering into a valid business relationship with members of the
car haul industry; that defendant knew of this expectancy; that
the defendant purposefully interfered with plaintiff's
expectancy, preventing that expectancy from ripening into a valid
business relationship; and that plaintiff has sustained damage as
Given the federal pleading standards, this claim sufficiently
puts defendant on notice of the claim which must be defended, and therefore, the motion to
dismiss Count IV pursuant to Rule 12(b)(6) is DENIED.
COUNTS V AND VI Negligence Claims
Count V alleges that the defendant negligently submitted, and
failed to retract, the publication on the internet. Count VI
alleges several acts by defendants which allegedly breached a
duty owed to plaintiff, e.g. that defendants had a duty to
refrain from the dissemination of false information and that the
defendants negligently breached this duty by posting the message,
thereby proximately causing the injuries sustained by plaintiff.
These allegations sufficiently put the defendants on notice of
the claims against them and, the motion to dismiss these counts
COUNT VII Willful and Wanton Conduct
Count VII alleges that the defendants acted willfully and
wantonly by acting with "either a deliberate intention to harm
plaintiff or with an utter indifference to or conscious disregard
for the welfare of plaintiff." Again, this Count sufficiently
places the defendants on notice of the claim plaintiff is
asserting and the motion to dismiss is DENIED.
COUNT VIII Civil Conspiracy
Count VIII alleges that the defendants engaged in a civil
conspiracy, presumably under Illinois state law. "A civil
conspiracy involves two or more persons combining to accomplish
either a lawful purpose by unlawful means or an unlawful purpose
by lawful means." Vance v. Chandler, 597 N.E.2d 233, 236
(Ill.App. Ct. 1992). The elements of a civil conspiracy are "(1) an
agreement between two or more persons; (2) to participate in an
unlawful act, or a lawful act in an unlawful manner; (3) an
injury caused by an unlawful overt act performed by one of the parties; and (4) the overt act was done pursuant to and in
furtherance of the common scheme." Id. Although notice pleading
standards apply, a bare allegation of a conspiracy is not enough.
See, Ryan v. Mary Immaculate Queen Center, 188 F.3d 857, 860
(7th Cir. 1999) (holding that bare allegations of conspiracy
without defining the form or scope of the conspiracy will not
satisfy the notice pleading standards); Belkow v. Celotex
Corp., 722 F. Supp. 1547, 1551 (N.D. Ill. 1989). Here the
plaintiff has only claimed a conspiracy, but has not specified
the parties involved, where the conspiracy took place, its
purpose or plan. Accordingly, defendants' motion to dismiss Count
VIII is GRANTED, and Count VIII is DISMISSED for failure to
state a conspiracy claim.
COUNT IX Consumer Fraud Act
Count IX alleges that the defendants violated the Consumer
Fraud Act by their actions. The Consumer Fraud Ace is subject to
the heightened pleading requirements of Fed.R.Civ.P. 9(b) and
must be "stated with particularity." In order to comply with this
standard, "a plaintiff must state the identity of the person
making the misrepresentation, the time, place, and content of the
misrepresentation, and the method by which the misrepresentation
was communicated." Gallagher Corp. v. Mass. Mut. Life Ins. Co.,
940 F. Supp. 176, 180 (N.D. Ill 1996). Given that plaintiff has
incorporated prior counts, plaintiff has met this heightened
pleading requirement. There is sufficient information in the
count to identify that the person making the misrepresentation is
alleged to have been an agent or employee of the company, that
the misrepresentation occurred on July 18, 2002 on an Internet
website, and the exact content of the statement is included in
the complaint. Accordingly, the Court DENIES defendants' motion
to dismiss Count IX. COUNTS X AND XI Negligent and Fraudulent Misrepresentation
Counts X alleges negligent misrepresentation. To make a claim
for negligent misrepresentation under Illinois law, plaintiff
(1) a false statement of material fact; (2)
carelessness or negligence in asserting the truth of
the statement by the party making it; (3) an
intention to induce the other party to act; (4)
action by the other party in reliance on the truth of
the statement; (5) damage to the other party
resulting from such reliance; and (6) . . . the party
making the statement is under a duty to communicate
Fox Assoc's., Inc. v. Robert Half Intern., Inc.,
777 N.E.2d 603, 606 (Ill.App.Ct. 2002). The only difference between
fraudulent and negligent misrepresentation is the state of mind
required by the defendant. Bd. of Educ. of City of Chicago v.
A.C. and S., Inc., 546 N.E.2d 580, 591 (Ill. 1989). Fraudulent
misrepresentation, as alleged in Count XI requires, "knowledge or
belief of the falsity of the statement by the party making it."
Id. The Seventh Circuit requires that the plaintiff "have
relied on the misrepresentation of which he is complaining."
Great Cent. Ins. Co. v. Ins. Serv's Office, Inc., 74 F.3d 778,
785 (7th Cir. 1996). Further, "[t]here is no authority for
maintaining a suit for negligent misrepresentation on the ground
that other people . . . were deceived by the misrepresentation
and as a consequence injured the plaintiff." Id.
Here, plaintiff has only alleged that potential, unidentified
clients, relied on the statement, not that plaintiff relied on
the statement. Therefore, defendants' motion to dismiss Counts X
and XI is GRANTED and Counts X and XI are DISMISSED for
failure to state a claim.
COUNT XII Unknown Defendants
Count XII re-alleges all prior claims against unknown
defendants. Given that plaintiff has not included sufficient
detail of those potential unknown defendants this claim cannot
stand. As the court stated in Hastings v. Fidelity Mortg. Decisions
Corp., 984 F. Supp. 600, 605 (N.D. Ill. 1997), although there is
not a general prohibition against suing "unknown defendants"
nevertheless, the "pleadings must be sufficiently detailed so as
to provide notice to opposing parties of the claims against
them." Id. (dismissing as insufficient, a claim against unknown
defendants who were identified as corporate officers or managers
who were "personally knowledgeable and responsible for the
fraudulent practices described in the Complaint." Id. at 605).
Here, plaintiff seeks to include anyone involved without further
identification which does not provide sufficient notice to
those potential defendants of possible claims against them.
Accordingly, defendants' motion to dismiss Count XII is
GRANTED, and Count XII is DISMISSED.
Accordingly, the Court GRANTS in part and DENIES in part
defendants' motion to dismiss. The Court GRANTS defendants
motion to dismiss as to Counts VIII, X, XI and XII and they are
DISMISSED pursuant to Fed.R.Crim.P. 12(b)(6). The Court
DENIES the remainder of defendants' motion.
IT IS SO ORDERED.
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