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Kelly Cartwright v. Dan Cooney

April 21, 2011

KELLY CARTWRIGHT, PLAINTIFF,
v.
DAN COONEY,
DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant's motion [17] to dismiss Plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)6) and for sanctions pursuant to Rule 11(c). For the reasons below, Defendant's motion is granted in part and denied in part.

I. Background*fn1

A French restauranteur named Jean-Denis Courtin and a spirits specialist named Christine Cooney became business partners in Top Shelf Imports, LLC. Top Shelf Imports sought to manufacture, produce, and distribute Qino One Vodka, a vodka made from the Andean quasicereal quinoa. A business dispute between Mr. Courtin and Ms. Cooney arose in 2008, and Mr. Courtin filed a lawsuit against Christine Cooney and her husband, Daniel Cooney ("Defendant") ("the Courtin-Cooney litigation"). From August 2008, when the case was filed, until September 2009, when it settled, attorney Kelly Cartwright ("Plaintiff") represented Mr. Courtin and Top Shelf Imports. Defendant and his wife were represented by various attorneys from August 2008 to March 2009, after which they litigated the case pro se.

On January 22, 2009, the Chicago Reader ("the Reader") published an article entitled "Seeds of Change" ("the article") about the genesis of Jean-Denis Courtin's vodka business venture. The article appeared on the Reader's website, and a space in which readers could write and publish comments was provided directly below the article.

On February 16, 2009, Defendant published a comment ("the February 16 comment") to the article in which he stated that he was an owner of Qino One Vodka. Defendant wrote that he had filed claims against Courtin for fraud, breach of contract, and unjust enrichment, and described at length the allegations underlying those claims. The February 16 comment's sole (presumed) reference to Plaintiff was that Courtin "conn[ed] a young socially-conscious freelance attorney into bleeding his [Courtin's] business partner [i.e., Christine Cooney] further, via endless, costly legal delays and ongoing Federal Court litigation." [1-2, at 4.]

On March 10, 2009, Plaintiff published a comment to the Reader article on the Reader's website ("Plaintiff's March 10 comment") that responded to Defendant's February 16 comment. Plaintiff wrote that she represented Courtin, disputed the allegations in Defendant's comment, and accused Defendant of acting "with malicious intent to cause harm to Mr. Courtin's reputation and business ventures in a desperate attempt to persuade Mr. Courtin to drop his lawsuit against Cooney." [1-2, at 4.] Plaintiff's comment also stated that "Mr. Courtin has amended his federal lawsuit to address this most recent tortious conduct advanced by [Defendant]" by adding a defamation claim to Courtin-Cooney litigation. [1-2, at 4.]

On March 16, 2009, Defendant published a responsive comment ("the March 16 comment"), in which he wrote:

I am glad to see Ms. Kelly Cartwright has decided to join the conversation After all, she has played such a major role in advancing Mr. Courtin's fraud scheme; one might even say (metaphorically?), 'they are partners in crime.' After six months of avoiding a meaningful conversation with me, my wife, our attorneys, or the court Ms. Cartwright finally returned my call last week, apparently believing she had something on us. * * * During my conversation with Kelly, I presented factual examples that showed her client had knowingly planned a get-rich-quick scam that involved selling American consumers a product that does not exist. She reacted as if she was hearing it for the first time. I am not at all sure her reaction was genuine as I find it difficult to believe anyone could be that ignorant of the facts while being such an integral part of the scam. While Ms. Cartwright claims Mr. Courtin does not have any money, it appears she has been working as his mercenary legal attack dog for over nine months. She must certainly believe there is something big waiting for her at the end of the rainbow if she can succeed in neutralizing us, the main obstacle to the scam. When I asked her if it wasn't important to know if her client was telling the truth before wasting so many people's time, her response was, 'the truth is irrelevant in this case.' [1-2, at 5-6.] The March 16 comment then recited numerous allegations regarding Mr. Courtin before closing on a final note about Plaintiff:

Mr. Courtin hired Kelly Cartwright to intimidate us * * *. While I respect Ms. Kelly Cartwright's freedom to practice being a lawyer, I resent the fact that she has displayed such little regard for the truth and for the destructive effects caused by her lack of due diligence. I hope that when the honorable Judge Bucklo finally rules on this case, she will weigh in on the significantly influential role Ms. Cartwright has played in manipulating and prolonging the effects of Mr. Courtin's fraudulent, malicious and destructive actions. [1-2, at 6.]*fn2

In addition to the February 16 and March 16 comments, Plaintiff alleges that Defendant filed a complaint concerning Plaintiff with the Illinois Attorney Registration and Disciplinary Committee ("ARDC") in which he falsely stated that Plaintiff had engaged in criminal activity in representing Mr. Courtin. Plaintiff alleges that the ARDC complaint was dismissed without a hearing. Finally, Plaintiff alleges that Defendant submitted an "ex parte settlement status memo" to Judge Bucklo -- the presiding judge in the Courtin-Cooney litigation -- in which he accused Plaintiff of making misrepresentations during settlement negotiations, stating falsehoods to the U.S. Patent and Trademark Office in seeking a patent for the quinoa vodka formulation, and representing Mr. Courtin despite having a conflict of interest.

The Courtin-Cooney litigation ultimately settled. Plaintiff filed the operative complaint in this case on March 16, 2010. Plaintiff asserts claims of defamation per se (Count I); tortious interference with contractual relations (Count II); and intentional infliction of emotional distress (Count III).

II. Analysis

Defendant argues that Plaintiff's complaint should be dismissed under Rules 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5), and 12(b)(6). In addition, Defendant moves for sanctions under Rule 11(c). The Court addresses the various arguments in turn.

A. Subject Matter Jurisdiction

Defendant first contends that this Court does not have subject matter jurisdiction, and thus Plaintiff's case must be dismissed under Rule 12(b)(1). Federal courts are courts of limited jurisdiction; "they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001) (internal quotation marks and citations omitted). Congress has provided that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between -- (1) citizens of different states * * *." 28 U.S.C. ยง 1332(a). The plaintiff has the burden of establishing jurisdiction. Transit Express, 246 F.3d at 1023. In evaluating a motion ...


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