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Ousterhout v. Zukowski

United States District Court, N.D. Illinois, Eastern Division

September 26, 2014

DOUGLAS OUSTERHOUT, M.D., D.D.S. Plaintiff,
v.
MARK ZUKOWSKI, M.D. Defendant. MARK ZUKOWSKI, M.D., Counter-Plaintiff,
v.
DOUGLAS OUSTERHOUT, M.D., D.D.S., MIRA COLUCCIO, and SOUTHERN COMFORT CONFERENCE, INC., Counter-Defendants.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, District Judge.

Plaintiff Douglas Ousterhout, M.D., D.D.S., a California resident, has sued Defendant Mark Zukowski, M.D., an Illinois resident, for defamation per se (Count I), defamation per quod (Count II), and violations of the Illinois Uniform Deceptive Trade Practices Act, 815 Ill. Comp. Stat. 510/1 et seq. (Count III). Defendant has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c). For the reasons set forth herein, the Court grants in part and denies in part Defendant's motion.

Factual Background[1]

Plaintiff, a citizen of California, is a plastic surgeon who specializes in performing maxillofacial and craniofacial surgery on transgender individuals. Compl. ¶¶ 2, 15. Defendant, a citizen of Illinois, works in the same field as Plaintiff and has competed with him for clients within the transgender community since the late 1990s. Id. ¶¶ 3, 22. Plaintiff alleges that Defendant has been making false attacks on Plaintiff's professional abilities and reputation for many years, and details several incidents from 2000 to 2005 in which Defendant publicly criticized Plaintiff's work as a plastic surgeon. Id. ¶¶ 23-29. For example, Defendant allegedly told lecture attendees that he "did not like Ousterhout's rhinoplasty work" and implied to many patients and practitioners that Plaintiff makes regular surgical mistakes that Defendant has had to correct. Id. ¶¶ 24-29. Plaintiff claims that these various attacks consisted of false or misleading statements of fact designed to harm Plaintiff's reputation and business. Id. ¶¶ 62-65.

Additionally, Plaintiff describes in detail one particular incident that occurred at a panel discussion event in Boston, Massachusetts in January 2011. Id. ¶¶ 30-31. The panel discussion was attended by medical practitioners and potential patients, and one of Plaintiff's colleagues participated as a speaker on the panel. Id. ¶ 31. In the middle of the discussion, Defendant entered the room, interrupted the panel, and began to give a slide-show presentation. Id. ¶ 31-32. Defendant claimed that his slides "showed horrendously performed surgeries that represented the atrocities of Dr. Ousterhout in San Francisco.'" Id. ¶ 33. When Plaintiff's colleague took offense at Defendant's assertions and stated that Defendant was "misrepresenting the facts, " Defendant told the audience again that the slides were "a representation of [Ousterhout's] work." Id. ¶ 34.

Plaintiff alleges that the statements Defendant made at the panel discussion in Boston diminished his business reputation by imputing a want of ability and have had a negative impact on Plaintiff's medical practice and profits. Id. ¶¶ 36, 39. He also alleges that Defendant intended his statements to have these harmful effects and knew they were false, or at least was reckless or negligent as to their truth or falsity. Id. ¶¶ 37-38, 45.

Plaintiff has brought this suit alleging defamation per se and, in the alternative, defamation per quod, as well as violations of the Illinois Uniform Deceptive Trade Practices Act. Defendant now moves for judgment on the pleadings pursuant to Rule 12(c).

Legal Standard

A defendant may use a Rule 12(c) motion for judgment on the pleadings to raise various Rule 12(b) defenses as well as affirmative defenses on the merits. See Alexander, 994 F.2d at 336. When a Rule 12(c) motion is used to invoke a Rule 12(b)(6) defense, a court uses the same standard of review applicable to a 12(b)(6) motion. Id. That is, to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 555. Also, in reviewing a defendant's Rule 12(b)(6) defense, a court must accept as true all well-pleaded allegations in the complaint and draw all possible inferences in the plaintiff's favor. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).

When a Rule 12(c) motion is used to raise an affirmative defense to the underlying substantive merits of the case, "the appropriate standard is that applicable to summary judgment, except that the court may consider only the contents of the pleadings." Alexander, 994 F.2d at 336 (citing Nat'l Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1987)). In other words, the court must take all well-pleaded allegations in the plaintiff's pleadings as true, draw all reasonable inferences in the plaintiff's favor, and grant judgment on the pleadings only if no genuine issues of material fact exist and the defendant is entitled to judgment as a matter of law. Alexander, 994 F.2d at 336. Bearing these standards in mind, the Court now turns to consider the various defenses Defendant has raised in his Rule 12(c) motion.

Discussion

I. Counts I and II: Defamation

In Count I, Plaintiff alleges that Defendant has made statements constituting defamation per se. In Count II, he alleges in the alternative that these statements constitute defamation per quod. In this motion for judgment on the pleadings with respect to Counts I and II, Defendant argues that Plaintiff has failed to sufficiently state a claim for relief, that the statute of limitations bars Plaintiff's claims, and that the allegedly defamatory statements are unactionable statements of mere opinion, rather than actionable statements of fact. The Court will address each of these arguments in turn.

As a preliminary matter, however, the Court must determine which state's defamation law applies to the analysis of Defendant's arguments. The Court must use Illinois choice-of-law doctrines to make this determination, because a federal court sitting in diversity applies the choice-of-law rules of the state in which it sits. See Auto-Owners Ins. Co v. Websolv Computing, Inc., 580 F.3d 543, 547 (7th Cir. 2009). Under Illinois law, a court must undertake a choice-of-law analysis whenever there is a conflict of laws and the choice of law makes a difference in the outcome of a case. Townsend v. Sears, Roebuck & Co., 879 N.E.2d 893, 898-99 (Ill. 2007). Furthermore, under Illinois's doctrine of depeçage, a choice-of-law analysis must be performed for each individual ...


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