The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This case is before the court on the motion of CBS Broadcasting, Inc. ("CBS") for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, CBS's motion is granted with respect to any allegations based upon publication of the videotape at issue. However, the motion is denied as to the remainder of Counts I and III. As explained more fully below, with respect to Count I, plaintiffs' claim for intrusion upon seclusion, plaintiffs are given leave to amend their complaint to include allegations only as to the invasion of privacy that occurred as a result of the act of the videotaping itself. Any allegations of injury or damages suffered as a result of the publication of this material are dismissed and should not be included in an amended complaint.
Plaintiffs Jill and Robert Webb ("the Webbs") filed a four count complaint against CBS and several individual defendants in the Circuit Court of Cook County on September 26, 2008.
Defendant CBS then filed a timely notice of removal in this court on October 31, 2008 on the basis of diversity jurisdiction.
The Webbs' four-count complaint set forth allegations claiming the following: 1) intrusion upon seclusion, 2) false light, 3) intentional infliction of emotional distress, and 4) publication of private facts. The allegations in the complaint stemmed from an incident that occurred at the home of Jill Webb's brother, Craig Stebic ("Stebic") on July 6, 2007, and the subsequent publicity surrounding that incident. Stebic's wife, Lisa Stebic, mysteriously disappeared from her home on April 30, 2007. Cmplt. ¶ 17. Amy Jacobson ("Jacobson") was assigned by the National Broadcast Company ("NBC") to cover the story. Cmplt. ¶ 21. On July 7, 2007, Jacobson visited the Stebic's home to discuss the case. Cmplt. ¶ 29. Using a telephoto lens, a videotape was then shot from neighbor Tracy Reardon's home depicting the Webbs, Stebic, Jacobson, and some children in their bathing suits around the Stebic's backyard pool, which was allegedly surrounded by a seven foot privacy fence. Cmplt. ¶¶ 34-42. (While the Webbs allege that it was Reardon who shot the videotape, CBS's motion states that it was actually a CBS cameraman who shot the video footage). Cmplt. ¶¶ 34, 46; Mot. at 2 n.1.
The complaint then alleges that CBS aired an edited version of the videotape on July 10, 2007 and that the CBS broadcast "suggested that Amy Jacobson had made a social visit to the Stebic household and implied that Craig Stebic and Amy Jacobson were having a sexual affair..." Cmplt. ¶¶ 48-49. Further, the Webbs allege that CBS posted the raw footage of the videotape on the internet. Cmplt. ¶ 51-52. The Webbs allege that they are clearly visible on the videotape, and that video images of their children are also visible, although intentionally distorted. Cmplt. ¶ 53. The Webbs claim that the actions of CBS caused them "severe emotional distress" and "public humiliation." Cmplt. ¶¶ 57, 59.
Defendant CBS filed an answer to the complaint on October 31, 2008. On November 11, 2008, CBS filed a motion for judgment on the pleadings. Subsequently, individual defendant Michele Weldon was dismissed with prejudice by agreed order on November 13, 2008, and all but one of the other individual defendants were dismissed with prejudice by agreed order on January 7, 2009. Therefore, CBS and Tracy Reardon ("Reardon") are the only remaining defendants. However, Reardon has not yet been served.
CBS's motion for judgment on the pleadings originally sought a judgment in its favor on all four counts. In the Webbs' response to the motion they concede that Counts II and IV, false light and publication of private facts respectively, are barred by the applicable one year statute of limitations set forth in 735 ILCS 5/13-201. Resp. at 3. Accordingly, the only two remaining counts are Count I for intrusion upon seclusion and Count III for intentional infliction of emotional distress. We now turn to CBS's motion.
Pursuant to Federal Rule of Civil Procedure 12(c), a motion for judgment on the pleadings is subject to the same standard as a Rule 12(b)(b) motion to dismiss. Guise v. BMW Mortgage, LLC, 377 F.3d 795, 798 (7th Cir. 2004). Accordingly, in deciding a motion for judgment on the pleadings, the court must accept all well-pled allegations in the complaint as true and draw all reasonable inferences in a light favorable to the plaintiff. Jackson v. E.J. Branch Corp., 176 F.3d 971, 978 (7th Cir. 1999). A complaint must describe the claim with sufficient detail as to "give the defendants fair notice of what the...claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Further, the "allegations must plausibly suggest that the defendant has a right to relief raising that possibility above a 'speculative level.'" EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007)(quoting Twombly, 550 U.S. at 555).
While the court's analysis is limited to the pleadings, it may consider documents incorporated by reference in the pleadings in its analysis. Further, the court may take judicial notice of matters of public record. See United States v. Wood, 925 F.2d 1580, 1581-82 (7th Cir. 1991). Finally, "[a] court may grant judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) only if the moving party demonstrates that based on the pleadings, there are no material issues of fact to be resolved and it is entitled to judgment as a matter of law." Leonel & Noel Corp. v. Cerverceria Centro Americana, S.A., et al., No. 08 C 5556, 2009 U.S. Dist. LEXIS 30954, at *5-6 (N.D. Ill. April 13, 2009)(citing Bannon v. Univ. of Chi., 503 F.3d 623, 628 (7th Cir. 2007)).
I. Count I: Intrusion Upon ...