The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge
In December 2007, Plaintiffs, Deborah Nuzzi, Thomas Nuzzi, Diane Lynne Hurst, and Jayne Raef, filed a Complaint (#1) against Defendants, Loan Nguyen, Michelle Francis, and Brad Cosgrove, alleging violations of federal and state law. Federal jurisdiction is based on federal question pursuant to 28 U.S.C. § 1331. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.
In February 2009, Defendant Cosgrove filed a Motion for Summary Judgment (#45). In March 2009, Plaintiffs filed a Response to Motion for Summary Judgment of Defendant Brad Cosgrove (#53). Defendant subsequently filed a Reply to Response to Motion for Summary Judgment of Defendant Brad Cosgrove (#56). After reviewing the parties' pleadings and memoranda and the evidence presented, this Court GRANTS Defendant's Motion for Summary Judgment (#45).
The following facts are undisputed. At relevant times, Plaintiffs Deborah Nuzzi and Thomas Nuzzi held the positions of principal and superintendent, respectively, in the St. George School District. Plaintiff Raef was Thomas' administrative assistant. Plaintiff Hurst worked as a secretary to the school staff, including Deborah. Defendant Nguyen worked as the bookkeeper for the School District from September 2004 to February 2007 and as office financial manager from December 1, 2008, to the present. (Defendant's Undisputed Facts (#46) (hereinafter "DUF") ¶ 27.) Defendant Francis, who is Nguyen's daughter, formerly worked for the St. George School District as secretary to the superintendent and to the School Board. (DUF ¶¶ 28-29.) Defendant Cosgrove is an officer with the Illinois State Police.
In February 2007, the Federal Bureau of Investigation (hereinafter "FBI") contacted the Illinois State Police regarding a complaint made by Loan Nguyen and Michelle Francis that Thomas and Deborah Nuzzi were misappropriating School District funds by inappropriately increasing the salary of Deborah Nuzzi and seeking duplicate reimbursement for certain expenses. (DUF ¶¶ 7-8.) Defendant Cosgrove was assigned to investigate this case in conjunction with the FBI to determine whether any criminal activity had occurred. (DUF ¶ 9.) Beginning in February 2007, Defendant worked with FBI agents Kathleen Adams and Steven Evans to investigate Deborah and Thomas Nuzzi's alleged illegal activities. During the investigation, they interviewed School Board members, former School Board members, former staff, the former director of transportation, and the former principal. (DUF ¶¶ 10-11; Plaintiffs' Additional Facts (#55) (hereinafter "PAF") ¶¶ 49-50.) Defendant did not tell Plaintiffs that they were being investigated. (PAF ¶ 76.)
On March 28, 2007, FBI agents Steven Evans and Jerry Kuemmerle and Defendant Cosgrove interviewed Marcie Kolberg, a bookkeeper and former auditor for the School District. (Kolberg interview notes, #54-8, pp. 5-14.) Kolberg told them that Loan Nguyen was incompetent and that she did not see any impropriety with the management of the School District's finances. (#54-8, pp. 6, 8.) She stated that the issues with finances stemmed from Nguyen's incompetence. (#54-8, p. 8).
In April 2007, Deborah and Thomas Nuzzi went to State Police headquarters to file a complaint about threats to their family safety. (PAF ¶ 74.) The threats were posted on the internet in a weblog. (PAF ¶ 79.) Thomas Nuzzi stated in his affidavit that Nguyen and Francis admitted they had transmitted messages over the internet falsely alleging that Plaintiffs engaged in corruption, misconduct, theft, embezzlement, professional misconduct, and lack of professional ability. (T. Nuzzi aff., ¶ 22.) At State Police headquarters, FBI agent Adams and Defendant Cosgrove interviewed the Nuzzis. Adams told them several times that they could leave at any time. (Plaintiffs' response to DUF ¶ 34.) When questioning the Nuzzis, Defendant never advised them of their Miranda rights; he told them that they had to answer his questions in order to be able to file their complaint and he told them that they were going to leave the meeting in handcuffs. (PAF ¶¶ 75, 80.) Defendant questioned the Nuzzis about their school records concerning theft and embezzlement of school funds. (PAF ¶¶ 73-75.)
When the Nuzzis finally realized that they were the subjects of a criminal investigation, they told Defendant the names of witnesses who could establish their innocence. According to Plaintiffs, Defendant refused to interview key witnesses and he told Nuzzis that he would not explore what they were telling him. (PAF ¶ 77.) In his deposition, Defendant stated, "[w]e discussed with Board members we thought Ms. Nuzzi was being paid inappropriately. If they took that to be criminal behavior, then yes [we advised School Board members that the Nuzzis had engaged in criminal activity]." (PAF ¶ 69.)
Based on the information acquired during the investigation, Defendant Cosgrove and the FBI forwarded the case to the United States Attorney's Office and the Kankakee County State's Attorney's Office, both of which declined to prosecute any individuals at the time. (DUF ¶¶ 12-13.) No charges have been brought against any Plaintiff as a result of Defendant's investigation and no statements the Nuzzis made during their meeting with Defendant have been used against Plaintiffs in a criminal proceeding. (DUF ¶¶ 31-32.) On April 10, 2008, the Kankakee County State's Attorney sent a letter to Defendant stating that they did not plan to prosecute the Nuzzis at that time. (#46-2, p. 4.)
The St. George School Board hired a law firm to perform an independent investigation regarding the School District finances. (T. Nuzzi dep., p. 133.) In August 2007, the independent investigator gave the School Board her results, which indicated that she found the superintendent, Thomas Nuzzi, guilty of paying the principal, Deborah Nuzzi, too much money.
(T. Nuzzi dep., p. 133, stating "she found us guilty of somehow, some way the superintendent paying the principal more money and so on and so forth.")
Deborah had an annual contract with the St. George School Board. (DUF ¶ 39.) She began working as principal of the St. George Elementary School in August 2006. (DUF ¶ 26.) The Board renewed her contract for the 2007-2008 school year. (DUF ¶ 39.) She was placed on medical leave from the School District in January 2008 and her job ended on June 30, 2008. (DUF ¶ 40.) The School Board did not renew her contract for the 2008-2009 school year. (DUF ¶ 18.) The School Board's Resolution Authorizing Issuance of Notice of Non-Renewal, dated April 3, 2008, states that it intended not to renew her employment contract because her evaluation described significant deficiencies in her job performance. (#54-7, p. 13.)
The School Board placed Thomas Nuzzi on leave in January 2008. In February 2008, the St. George School Board did not renew his contract for the 2008-2009 school year.
(T. Nuzzi dep., #54-4, pp. 20-21.) In July 2008, the School Board honorably discharged Raef and Hurst from their positions; the Board stated that it was due to a reduction in force. (Hurst dep., p. 7; Raef dep., p. 34.)
In their complaint, Plaintiffs allege that, beginning in February 2007, Defendants Nguyen and Francis transmitted messages over the internet about sexual and other activities allegedly engaged in by Plaintiffs. They also transmitted messages alleging that Plaintiffs engaged in corruption, misconduct, theft, professional misconduct, and lack of professional ability. At the time, Defendants knew that the information was untrue. Defendants also actively encouraged others to transmit over the internet this information about Plaintiffs' sexual and other unprofessional misconduct.
Plaintiffs' complaint also alleges that Defendant Cosgrove engaged in an unauthorized investigation relating to Plaintiffs Thomas and Deborah Nuzzi. In talking to various people during this investigation, Defendant made allegations that Plaintiffs were involved in illegal activity, even though he knew that Plaintiffs had not engaged in any illegal activity.
Plaintiffs' complaint alleges three counts. Count I alleges that Defendants Nguyen and Francis violated the Communications Decency Act (47 U.S.C. § 223(a)) by "making available and transmitting sexual comments, requests, suggestions, proposals, images, or other communications which are obscene and patently offensive by community standards knowing that the recipient of the communication may be under 18 years of age." (#1, ¶ 19.) Count II, against all Defendants, alleges defamation, based on Defendants' malicious and false statements, made with intent to defame Plaintiffs. Count III alleges that Defendant Cosgrove violated all Plaintiffs' rights under the Fifth Amendment to the United States Constitution when he advised Plaintiffs that they must give statements to him.
II. Summary Judgment Standard
The Court will grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must decide, based on admissible evidence, whether any genuine dispute of material fact exists that requires a trial. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). "Material facts" are those facts that under the applicable substantive law might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over material facts is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of showing that no such issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, when, as here, the non-movant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence that would support a reasonable jury verdict. Anderson, 477 U.S. at 267. The nonmoving party may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, she must go beyond the pleadings and support her contentions with proper documentary evidence. Celotex, 477 U.S. at 322-23; FED. R. CIV. P. 56(e). A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250. The plain language of Rule 56(c) mandates the entry of summary judgment against a party who fails to establish the existence of any element essential to that party's case, and on which ...