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WENDLER & EZRA, P.C. v. AIG

August 3, 2005.

WENDLER & EZRA, P.C., Plaintiff,
v.
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 of AIG.

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.

  BACKGROUND

  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 of plaintiffs.

  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.

  DISCUSSION

  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 plaintiff's claims.

  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 presumed.
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 Illinois law,
 
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, 766 (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 ...


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