The opinion of the court was delivered by: WILLIAM STIEHL, Senior District Judge
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 ...