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Manjarres v. Nalco Co.

March 9, 2010

DAVID MANJARRES, PLAINTIFF,
v.
NALCO COMPANY, STEPHEN N. LANDSMAN, AND LAURIE MARSH, DEFENDANTS.



The opinion of the court was delivered by: David H. Coar United States District Judge

JUDGE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Plaintiff David Manjarres ("Manjarres" or "Plaintiff") filed a ten-count complaint against Defendants Nalco Company ("Nalco"), Stephen N. Landsman ("Landsman"), and Laurie Marsh ("Marsh") (collectively "Defendants")*fn1 on June 23, 2009. Count X alleges defamation against Landsman and Marsh. Currently before the Court is Defendants' motion to dismiss Count X (Defamation) pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons given below, Defendants' motion to dismiss is GRANTED.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff's complaint and accepted as true for the purposes of this motion. From April 2005 until October 2008, Plaintiff worked as an attorney for Defendant Nalco. (Compl. ¶¶ 1-2.) Plaintiff alleges that, at various times during his employment, including at least during 2007 and 2008, Defendants Marsh and Landsman made defamatory statements to staff employees that caused Plaintiff mental anguish, injured his professional reputation, and impaired his ability to earn a living. (Id. at ¶¶ 6-7.) Plaintiff alleges that Defendants' statements included comments that Plaintiff "is unprofessional," "is incompetent," "is unethical," and that "we've had other attorney's go crazy, maybe that is what is happening to him," and that neither Marsh nor Landsman had a legitimate business reason for making such statements to staff employees. Id.

LEGAL STANDARD

On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court accepts all well-pleaded allegations in the plaintiff's complaint as true and draws all possible inferences in favor of the plaintiff. Fed. R. Civ. P. 12(b)(6); Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted). Accordingly, to survive a motion to dismiss, a complaint must simply "state a claim that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face if it demonstrates "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949. The plaintiff's factual allegations need not be "detailed," but they must include more than "labels and conclusions" in order to "give the defendant fair notice of what . . . the claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47(1957)) (internal quotation marks omitted).

ANALYSIS

Defendants contend that Plaintiff's claim should be dismissed because the allegedly defamatory statements are statements of opinion protected by the first amendment. To state a claim for defamation under Illinois law, "a plaintiff must present facts showing that the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages." Solaia Tech., LLC v. Specialty Publ'g Co., 852 N.E.2d 825, 839 (Ill. 2006) (citing Krasinski v. United Parcels Serv., Inc., 530 N.E.2d 468 (Ill. 1988)). Statements are considered defamatory per se when the words are "so obviously and inevitably hurtful to the plaintiff that damage to his reputation may be presumed." Mittelman v. Witous, 552 N.E.2d 973, 982 (Ill. 1989) (internal citations omitted). Accordingly, where these types of words are at issue, a plaintiff "need not plead or prove actual damage to her reputation to recover." Bryson v. News Am. Publ'ns, Inc., 672 N.E.2d 1207, 1214 (1996) (citing Owen v. Carr, 497 N.E.2d 1145, 1147 (1986)). Illinois recognizes five categories of statements that are considered defamatory per se: (1) words that impute a person has committed a crime; (2) words that impute a person is infected with a loathsome communicable disease; (3) words that impute a person is unable to perform or lacks integrity in performing her or his employment duties; (4) words that impute a person lacks ability or otherwise prejudices that person in her or his profession; and (5) words that impute a person has engaged in adultery or fornication. Van Horne v. Muller, 705 N.E.2d 898, 903 (Ill. 1998) (citing Bryson, 672 N.E.2d at 1214-15).

Even if it is defamatory per se, a statement "still may enjoy constitutional protection as an expression of opinion." Solaia, 852 N.E.2d at 581. Such statements are not actionable, and the court may make this determination as a matter of law. Hopewell v. Vitullo, 701 N.E.2d 99, 102 (Ill. App. Ct. 1998) (citing Doherty v. Kahn, 682 N.E.2d 163, 172 (Ill. App. Ct. 1997)). The test is "restrictive: a defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as stating actual fact." Solaia,852 N.E.2d at 840 (citing Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 208 (Ill. 1992)). Further, "mixed expressions of opinion and fact may also be actionable." Barakat, M.D. v. Matz, M.D., 648 N.E.2d 1033, 1041 (Ill. App. Ct. 1995) (citing Mittelman, 552 N.E.2d at 983). "There is no artificial distinction between opinion and fact: a false assertion of fact can be defamatory even when couched within apparent opinion or rhetorical hyperbole." Solaia, 852 N.E.2d at 840. However, because "all opinions imply facts," 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." Gerrard v. Garda, No. 08-cv-1146, 2009 WL 269028, at *3 (C.D. Ill. Jan. 30, 2009) (citing Hopewell, 701 N.E.2d at 105).

Courts consider several factors "to determine whether a statement reasonably presents or implies the existence of facts about the plaintiff." Hopewell,701 N.E.2d at 103. In Hopewell, the Illinois Appellate Court explained:

First, we consider whether the language of the statement has a precise and readily understood meaning, while bearing in mind that the first amendment protects overly loose, figurative, rhetorical, or hyperbolic language, which negates the impression that the statement actually presents facts. Second, we consider whether the general tenor of the context in which the statement appears negates the impression that the statement has factual content. Lastly, we consider whether the statement is susceptible of being objectively verified as true or false.

Id. (internal citations omitted). While courts assess the totality of the circumstances to determine whether a statement constitutes opinion, "the emphasis is on whether the statement is capable of objective verification." Rose v. Hollinger Int'l, Inc., 889 N.E.2d 644, 648 (Ill. App. Ct. 2008) (internal citations omitted). In making this determination, courts consider whether the statements were made in a "specific factual context." Id. at 649 (citing Schivarelli v. CBS, Inc.,776 N.E.2d 693, 698 (Ill. App. Ct. 2002)). Without specific, underlying facts, statements are non-actionable opinion. Piersall v. SportsVision of Chicago, 595 N.E.2d 103, 106-7 (Ill. App. Ct. 1992) ("there are no specific facts at the root of [plaintiff's] statement, complete or incomplete, capable of being objectively verified as true or false").

Plaintiff alleges that Defendants Marsh and Landsman made defamatory statements to Nalco employees, including that Plaintiff "is unprofessional," "is incompetent," "is unethical," and that "we've had other attorney's go crazy, maybe that is what is happening to him." Plaintiff argues that these statements are defamatory per se, and Defendants do not dispute this characterization. Instead, Defendants argue that the statements are ...


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