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Gerald S. Mccarthy v. Omega Psi Phi Fraternity

June 30, 2011

GERALD S. MCCARTHY,
PLAINTIFF-APPELLEE,
v.
OMEGA PSI PHI FRATERNITY, INC.; AND TENTH DISTRICT, AN UNINCORPORATED ASSOCIATION,
DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 03 M1 0018637 The Honorable Pamela E. Hill Veal, Judge Presiding.

The opinion of the court was delivered by: Justice Lampkin

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Hall and Justice Rochford concurred in the judgment and opinion.

OPINION

After a bench trial, defendants Omega Psi Phi Fraternity, Inc., and Tenth District were found liable for defamation per se of plaintiff, Gerald McCarthy. Although defendants raised a number of issues on appeal, the dispositive issue is whether plaintiff's amended complaints adding defendants were barred by the statute of limitations. The resolution of this issue depends on whether plaintiff made a mistake concerning the identity of the proper party, so that plaintiff's fourth and fifth amended complaints related back to his timely filed complaint. Based on the following, we reverse the judgment the trial court entered in favor of plaintiff.

BACKGROUND

Omega Psi Phi is a national fraternity composed of undergraduate and graduate members both on and off college campuses. The fraternity is divided into districts and is run by elected and appointed officials. The Tenth District oversees Chicago. The Sigma Omega chapter of the fraternity is located in Chicago.

Plaintiff became a member of the fraternity in 1982. Plaintiff has held various elected and appointed positions within the organization. During the time at issue, plaintiff was the first vice district representative of the Tenth District. Outside of the fraternity, plaintiff is an attorney and a certified public accountant.

Plaintiff campaigned for the position of Tenth District representative in the April 11, 2003 election. Plaintiff ran against the incumbent, Dwight Pointer. Pointer became a member of the fraternity in 1976 and has held various elected and appointed positions within the organization. Plaintiff ultimately lost the election and withdrew from the fraternity shortly thereafter. Plaintiff's defamation claim is based on a belief that defendants encouraged Pointer to disseminate false information regarding plaintiff's involvement in illegal hazing activities in order to sabotage plaintiff's campaign for district representative. We summarize the relevant events necessary to decide this case.

In the summer of 2001, allegations were raised regarding hazing incidents that took place in January 2001. Although not the focus of the allegations, plaintiff's name was mentioned as having been involved in the illegal activities. Following an investigation, the allegations were deemed unfounded as to plaintiff. The investigations, however, did result in sanctions to some fraternity members. In relevant part, Maceo Rainey and John Spellers were expelled from the fraternity.

On March 29, 2003, Pointer, in his "office" as district representative, received a videotape from a fellow fraternity member, Johnny Lynch,*fn1 in relation to the January 2001 "illegal intake process." According to a letter written by Lynch and sent to Pointer, Lynch ran into Rainey in June 2002 and Rainey said he was innocent of the charges that caused his expulsion. Nearly nine months later, Rainey sent Lynch the videotape allegedly documenting the illegal intake proceedings at issue. The videotape seemingly depicted a party following a nonsanctioned intake ceremony that took place on January 13, 2001. Plaintiff appeared on the videotape. Along with the videotape, Rainey and Spellers included a memorandum describing the events at issue. In the memorandum, Rainey and Spellers claimed they were introduced to a group of men interested in joining the fraternity outside the sanctioned channels of initiation and were involved in the planning of pledge sessions because "if they did not have a pledge process, they would be missing out on chapter history and would be deprived of basic frat knowledge, just in case they ran into real Ques, who pledged underground." According to the memorandum, plaintiff was kept abreast of the pledges' progress and set the date for their intake as January 13, 2001, at 1 a.m.

After receiving the information, Pointer contacted national officials, namely, the grand counselor and the grand basileus, who recommended that the Sigma Omega chapter be suspended pending an investigation. Pointer also sought the advice of a past district representative, who agreed with the recommendation.

On April 1, 2003, Pointer, as district representative, suspended plaintiff and 11 other fraternity members, along with the Sigma Omega chapter, pending an investigation into the "illegal intake process." An e-mail was sent to Glen Brewer, the basileus of the Sigma Omega chapter, indicating the same. Notice of the suspension was also sent to "all Fraternity officials needing to know ***, i.e., all Chapter Presidents, Members of the District Council, and Grand Officers." Someone on the circulation list released the suspension information to the publisher of "Que-Nections," a newsgroup for fraternity members. An investigative committee was formed to address the allegations. Review of the videotape demonstrated that the contents depicted actually took place during two separate events, one being the illegal intake party on January 13, 2001, and the other being an unrelated party from January 30, 2000. The tape lasted approximately 41/2 minutes and was of extremely poor quality. Rainey admitted to the committee that he combined two different events on the tape.

Following the investigation, on April 7, 2003, plaintiff's suspension was lifted. Plaintiff was notified by Pointer via letter on Omega Psi Phi stationery. The letter was signed by Pointer as Tenth District representative. The letter indicated that carbon copies were sent to the grand basileus, the grand counselor, and the district counselor.

On July 9, 2003, plaintiff filed an initial complaint for slander, libel, and defamation per se against Maceo Rainey and John Spellers, alleging they maliciously and wrongfully doctored evidence and gave false statements regarding plaintiff's involvement in fraternity hazing activities. Plaintiff alleged Rainey and Spellers caused the false statements to be published in an e-mail newsletter. Plaintiff alleged that his reputation was greatly injured by the publication of the false statements. Rainey and Spellers filed a joint pro se motion to dismiss the complaint contending the lawsuit was "frivolous," had "no legal basis," and failed to "show any evidence of slander or defamation" on the part of Rainey and Spellers. Although the trial court's order does not appear in the record, the court seemingly denied the motion to dismiss because Rainey and Spellers filed a joint pro se answer to plaintiff's complaint on October 21, 2003.
On November 12, 2003, plaintiff requested leave to amend his complaint to add an additional defendant. Leave was granted. On November 26, 2003, plaintiff filed an amended complaint for slander, libel, and defamation per se against Rainey, Spellers, and Pointer. The underlying allegations remained the same as in the initial complaint with the additional claim that Pointer conspired with Rainey and Spellers to "maliciously injure the plaintiff in his good name and reputation, by doctoring evidence and giving false statements of the plaintiff['s] involvement in hazing activities" thereby leading to plaintiff's suspension from "the Omega Psi Phi Fraternity." In the amended complaint, plaintiff added facts such that Pointer was the district representative of the Tenth District of Omega Psi Phi and, at the time of the offense, Rainey and Spellers had been expelled from the fraternity for alleged participation in illegal intake or hazing activities.

Pointer filed a joint motion to dismiss the amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2002)) arguing that plaintiff failed to state a cognizable cause of action and an affirmative matter, namely, conditional privilege, defeated the claim. Rainey and Spellers jointly filed a pro se motion to dismiss pursuant to section 2-615 of Code (735 ILCS 5/2-615 (West 2002)) for failing to state a cognizable ...


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