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Lyssenko v. International Titanium Powder

March 25, 2010


The opinion of the court was delivered by: Judge Robert W. Gettleman


Taras Lyssenko has filed a six-count Fourth Amended Complaint against his former employer, International Titanium Powder ("ITP"), asserting claims for breach of contract (Count I), promissory estoppel (Count II), and defamation per se (Counts III, IV, V, and VI). Plaintiff has also sued ITP's CEO, Stanley Borys, for defamation per se (Counts III, IV, V, and VI). Defendants ITP and Borys have moved to dismiss Counts IV, V, and VI of the Fourth Amended Complaint under Fed. R. Civ. P. 12(b)(6). For the reasons stated below, defendants' motion is granted as to Counts IV and V and denied as to Count VI.


The facts alleged in the complaint are taken as true for purposes of the instant motion. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Plaintiff alleges that he entered into an oral agreement with ITP in 2002, under which he would seek government funding for ITP projects relating to the development of a process to produce low-cost titanium and titanium alloys. ITP agreed to pay him 5% of the funds received as a result of his efforts. From 2002 to 2004, plaintiff contacted members of Congress and representatives of various government agencies in pursuit of funding for ITP and engaged in business development activities that were outside the scope of his agreement with ITP.

In or around February 2004, after ITP received funding from the government, the parties modified their agreement. According to plaintiff, the obligations remained the same under the modified agreement (i.e., plaintiff would continue to seek government funding on ITP's behalf, and ITP was still obligated to compensate plaintiff in an amount of 5% of the funding he obtained), but additional provisions were agreed upon. Specifically, plaintiff would receive installment payments in the form of a monthly salary of $9000, health insurance, and FICA, to pay down the total amount owed to plaintiff under the original agreement. Although plaintiff claims that ITP failed to pay the full amount owed to him, he does not claim that ITP failed to pay the agreed-upon monthly salary or provide benefits during the period from February 2004 through the termination of his employment in August 2007.

The parties' relationship soured. Plaintiff claims that although he continued to be successful in obtaining funds for ITP from a number of government sources, Borys and others at ITP began criticizing him and seeking ways to avoid payment under the original agreement.

Plaintiff was terminated in August 2007. He claims that, in addition to refusing to pay the remaining amount owed him, Borys and others at ITP have been defaming and disparaging plaintiff since his termination. Specifically, plaintiff alleges that during ITP board meetings on December 17, 2007, and January 10, 2008, Borys made false and defamatory statements in an attempt to prevent plaintiff from receiving compensation for his efforts on behalf of ITP. Further, plaintiff alleges that, in October 2007, Borys told Dr. Vladimir Moxson of ADMA Products, Inc. that ITP terminated plaintiff for "overpromising what [ITP] can deliver," "overpromising [the] company['s] ability," and/or "damaging ITP['s] reputation by moving too fast and promising too much," and that, although Dr. Moxson had considered plaintiff for a government relations consultant position, he did not subsequently hire plaintiff.


Legal Standard

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court accepts all well-pleaded allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor. McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). Nevertheless, the complaint must plead sufficient facts to suggest plausibly that the plaintiff is entitled to relief. Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). Because both parties rely on facts outside the complaint, the parties apparently agree to have the motion treated as one for summary judgment under Rule 56, and the court will treat the instant motions under that rule. Count IV (Defamation Per Se December 17, 2007)

Plaintiff alleges that, during a board meeting on December 17, 2007, Borys stated to ITP board members and guests (Wayne Nyberg, Tracy Huber, Scott Temple, Craig Ibsen) that plaintiff had "violat[ed] his employment conditions" at ITP, "remov[ed] and/or destr[oyed] ITP business records," engaged in "protracted hostility towards other ITP employees," and engaged in an "unauthorized diversion of the expected DOD Defense Appropriations line item from the Army to the Title III program," among other statements. Plaintiff claims that these statements, which are taken almost verbatim from the December 17, 2007, board meeting minutes, constitute per se defamation because they prejudice him in his profession and because they suggest an inability to perform his employment duties and a lack of integrity. See, e.g., Hopewell v. Vitullo, 299 Ill. App. 3d 513, 517 (1998) (recognizing five categories of statements that constitute defamation per se). The portion of the December 17, 2007, ITP board meeting minutes regarding plaintiff reads:

(9.2) T. Lyssenko bonus determination (Borys)

Mr. Taras Lyssenko has ceased to be employed with the company as of 8/3/07. Notwithstanding, the Board of Directors did consider whether he was eligible for a bonus for 2007. Discussion was held, which included but was not limited to the following considerations: (1) Mr. Lyssenko's violations of his employment conditions, (2) Mr. Lyssenko's removal and/or destruction of ITP business records upon his departure, (3) Mr. Lyssenko's protracted hostility toward other ITP employees, and (4) Mr. Lyssenko's unauthorized diversion of the expected DOD Defense Appropriations line item from the Army to the Title III program.

After thorough discussion, the Board unanimously voted not to award Mr. Lyssenko a bonus payment for 2007.

Arguing that the one-year statute of limitations bars this claim, defendants have moved to dismiss Count IV, which was filed on August 27, 2009, in the Second Amended Complaint. Plaintiff argues that the discovery rule applies, and the limitations period did not begin to run until the August 21, 2009, deposition of Tracy Huber, who attended the board meeting. Defendants respond that plaintiff had notice of the statements from board meeting minutes that were produced as part of a 242-page production on August 22, 2008, and thus the limitations period began to run on that date, if the discovery rule applies.*fn1

A one-year statute of limitations governs defamation actions in Illinois. 735 ILCS 5/13-201. The discovery rule governs limitations in Illinois and "postpone[s] the starting of the period of limitations until the injured party knows or should have known of his injury." City Nat'l Bank of Fla. v. Checkers, Simon & Rosner, 32 F.3d 277, ...

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