The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge
Before the Court is Defendants' Motion to Dismiss, filed on June 30, 2008 (Doc. 5). Plaintiff responded to the motion on July 17, 2008 (Doc. 12). For the reasons stated below, the Motion to Dismiss is GRANTED, in part, and DENIED, in part.
On April 25, 2008, Plaintiff Kevin Gerrard filed a three-count complaint in the McLean County Circuit Court of Illinois, alleging defamation against his employer Garda and two other Garda employees, Jerry Sargent and Christina Mansfield (collectively "Defendants").*fn1
According to the Complaint, starting in October 2007 and continuing through the time of filing, Defendants defamed Plaintiff "by publishing to customers, employees, and former employees of Garda, statements and comments regarding Plaintiff's professional reputation." (Compl. ¶ 5). The Complaint states that "Jerry Sargent and Christina Mansfield made statements regarding Plaintiff's lack of business capabilities, including but in no way limited to, that Plaintiff was incompetent, had no business expertise, had intimidated and threatened employees, [and] had violated the Company's policies on sexual harassment . . . ." (Compl. ¶ 6).
Plaintiff further alleges that Mr. Sargent told "executives, subordinates, employees and customers of [Garda] . . . that Plaintiff was verbally abusive towards his employees and [that he] was inept at his business practice." (Compl. ¶ 18). The Complaint states that Ms. Mansfield made similar statements, beginning in October 2007, to Garda executives. (Compl. ¶ 24). The Complaint also states that Mr. Sargent "produced a report without Plaintiff's knowledge [which Mr. Sargent] placed in Plaintiff's personnel file[,] detailing that Plaintiff was disciplined for sexual harassment of a former employee. Said report was false." (Compl. ¶ 19). Plaintiff alleges that, as a result of the statements made by Defendants, "customers and other business associates of Plaintiff [and Garda] have all been given the idea that Plaintiff is not a good person to work with and that Plaintiff has operated his business life in an unfit manner." (Compl. ¶ 14).
Defendants removed this case to federal court on June 23, 2008 on the basis of diversity jurisdiction, under 28 U.S.C. §§ 1332, 1441, & 1446 (Doc. 1). Defendants now seek to dismiss the entire Complaint. Defendants argue that the statements to which Plaintiff refers in the Complaint are not defamatory because they are merely statements of opinion. Accordingly, Defendants argue, Plaintiff fails to state a claim upon which relief can be granted, and dismissal is warranted under Federal Rule of Civil Procedure 12(b)(6). (Def.'s Mem. at p. 1).
When considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must view the complaint in the light most favorable to the plaintiff, and the complaint's well-pleaded factual allegations must be accepted as true. Williams v. Ramos, 71 F.3d 1246, 1250 (7th Cir. 1995). Therefore, a complaint can only be dismissed if a plaintiff cannot prove any set of facts upon which relief can be granted. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th Cir. 1996). However, the Court is not bound by a plaintiff's legal conclusions. Nelson v. Monroe Regional Medical Center, 925 F.2d 1555, 1559 (7th Cir. 1991). The province of a Rule 12(b)(6) motion is to question the availability of a legal formula justifying relief on the alleged facts. Maple Lanes, Inc. v. Messer, 186 F.3d 823, 824-25 (7th Cir. 1999).
There are three preliminary matters to resolve. First, the Court denies Defendants' request for oral argument on the motion. Second, the Court finds that Illinois law of defamation applies to this action because Plaintiff is domiciled in Illinois. See Cook v. Winfrey, 141 F.3d 322, 329 (7th Cir. 1998) (noting that Illinois choice of law rules point to the victim's domicile in a multi-state defamation action). The third matter is whether a Rule 12(b)(6) motion is the appropriate vehicle by which to raise the issue that Defendants have raised here. Defendants' only argument, in the instant motion, is that the statements alleged in the Complaint do not constitute actionable defamation because they are statements of mere opinion. This argument involves a question of law for the Court to decide. Hopewell v. Vitullo, 701 N.E.2d 99, 102 (Ill. App. Ct. 1998). The crux of the issue is whether there is a legal remedy available to Plaintiff if his allegations are proven true. Accordingly, Rule 12(b)(6) is the appropriate device. See Cochran v. NYP Holdings, Inc., 58 F. Supp.2d 1113, 1120 (C.D. Cal. 1998) ("Although the existence of defamatory meaning is 'generally a question of fact for the jury,' . . . a court may properly determine whether a statement is fairly susceptible of a defamatory meaning when presented with a motion to dismiss.") (emphasis added).
Under Illinois law, a statement can be the basis for a defamation suit only if it can be reasonably interpreted as stating actual facts about the plaintiff. Hopewell, 701 N.E.2d at 103 (citing Bryson v. News America Publications, Inc., 672 N.E.2d 1207 (Ill. 1996)). "[A]ll opinions imply facts; however, the question of whether a statement is actionable is one of degree . . . . The [more vague] and . . . generalized the opinion[,] the more likely the opinion is non-actionable as a matter of law." Id. at 105. To determine whether an opinion can reasonably be viewed as stating actual facts, Illinois courts use a three part test: (1) whether the language used has a precise and readily understood meaning; (2) whether the context in which the statement was made suggests that the statement has factual content; and (3) whether the statement is capable of being verified as true by objective measure. Id. at 103. The emphasis is on the third factor. Id.
Here, it is alleged that Defendants made statements regarding Plaintiff's lack of business capabilities; specifically, that Plaintiff was incompetent, had no business expertise, and was inept at his business practice. Defendants cite Doherty v. Kahn for the proposition that the alleged statements regarding Plaintiff's incompetence are non-actionable. 682 N.E.2d 163, 172 (Ill. App. Ct. 1997), abrogated on other grounds, 817 N.E.2d 1105 (Ill. App. Ct. 2004). In Doherty, the Illinois Appellate Court considered a defendant's statements that the plaintiff was "'lazy," "dishonest," that he "[could not] manage a business," that he was "incompetent," and that he "lack[ed] the ability to perform ...