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Black v. Wrigley

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

December 8, 2017

KATHERINE BLACK, Plaintiff,
v.
CHERIE WRIGLEY, MELISSA COHENSON, BRIAN A. RAPHAN, P.C., and PAMELA KERR, Defendants.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.

         Plaintiff Katherine Black (Katherine) and her husband, Bernard Black (Bernard), are law professors at Northwestern University. After Bernard's mother died in 2012, he became involved in acrimonious litigation proceedings with his family regarding the family members' respective inheritance claims. Defendant Cherie Wrigley is Bernard's cousin; she has been involved in proceedings related to the family inheritance in both Colorado and New York. Defendant Melissa Cohenson is an attorney who represented Wrigley in a New York proceeding regarding guardianship of Bernard Black's sister, Joanne Black. At the time she represented Wrigley, Cohenson was an associate at defendant Brian A. Raphan, P.C., a law firm in New York City. Defendant Pamela Kerr is a forensic accountant who was retained by one of the parties in a probate court proceeding in Colorado concerning the inheritance.

         Katherine asserts that Wrigley, Cohenson, and Kerr worked together to prevent her from testifying as a witness or providing evidence to courts in the underlying proceedings. She alleges that they did so by threatening or assisting in threatening the physical safety of her, her husband, and her children and by making defamatory statements about her to Northwestern. Katherine has asserted a series of tort claims under Illinois law against each defendant. She brings claims against Wrigley and Kerr for intentional infliction of emotional distress and against Cohenson for aiding and abetting intentional infliction of emotional distress. Against Wrigley, Kerr, and Cohenson, Katherine brings claims for defamation, aiding and abetting defamation, false light, aiding and abetting false light, publication of private facts, aiding and abetting publication of private facts, interference with contractual relations, and interference with prospective economic advantage. In addition, Katherine asserts claims against Kerr for intrusion upon seclusion and against Wrigley and Cohenson for aiding and abetting intrusion upon seclusion. For every claim brought against Cohenson, Katherine also asserts a claim against Cohenson's employer, Raphan, because she engaged in the allegedly tortious conduct while working under Raphan's supervision and control. Finally, Katherine asserts a claim against all defendants for civil conspiracy to engage in the substantive torts alleged.

         Defendants have moved to dismiss Katherine's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), arguing among other things that the alleged defamatory statements are privileged or otherwise non-actionable and that defendants' alleged conduct is not sufficiently extreme or outrageous to hold defendants liable for Katherine's emotional distress. The Court rules on defendants' motions in this decision.

         Background

         Except where otherwise noted, the Court takes the following facts from Katherine's amended complaint, documents attached to the motions to dismiss that she refers to in the complaint and that are central to her claim, and judicial proceedings of which the Court appropriately may take judicial notice on a motion to dismiss for failure to state a claim. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (courts ruling on Rule 12(b)(6) motions to dismiss "must consider the complaint in its entirety, as well as . . . documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.").[1]

         Though the complaint contains references to multiple litigation proceedings initiated after the death of Bernard's mother, Renata, Katherine provides few details about the specific nature of each proceeding. From court records, it appears that Bernard filed suit in Colorado state court seeking to be appointed as conservator of his mentally-ill sister, Joanne. See Order of Feb. 25, 2016, In re the Interest of: Joanne Black, Case No. 12 PR 1772 (Denver Probate Court) ("DPC Order of Feb. 2016"), Ex. A to Def. Wrigley's Mem. of Law, at 2; Black v. Black, Case No. 16 C 1763, Dkt. no. 27 at 2-3 (N.D. Ill. July 13, 2016) (Kendall, J.) ("Black v. Black Order"). In addition to that lawsuit, it appears that Bernard has filed suit in New York state court to be appointed as guardian of Joanne and her property. See Order to Show Cause with Temp. Restraining Order of Jan. 13, 2016, In the Matter of the Application of Cherie Wrigley for the appointment of a Guardian of the Person and Property of Joanne Black (N.Y. Sup. Ct., Richmond Cty.), Ex. 4 to Def. Kerr's Mem. in Supp. of Mot. to Dismiss, at 1; Black v. Black Order at 2. Bernard has also sued Wrigley and others in at least two federal courts in New York on matters relating to the distribution of his mother's assets. See Black v. Wrigley, Case No. 16 C 430, at *1 (E.D.N.Y. Sept. 30, 2017), Ex. 3 to Pl.'s Opp'n to Wrigley's Mot. to Dismiss; Black v. Dain, Case No. 16 C 1238 (E.D.N.Y.).[2]

         Katherine alleges that defendants' tortious conduct began when they became aware of her intention to testify or otherwise provide evidence against them in one or more of the court proceedings. Kerr first became involved in this dispute, according to Katherine, by working as an accountant "for one of the parties in litigation involving [Katherine's] extended family." Am. Compl. ¶ 49. (According to Kerr, she was retained in the Colorado probate proceeding as a forensic accountant for the Guardian ad Litem appointed for Joanne.) Katherine alleges that Wrigley's involvement in this dispute began as part of a scheme that she and her brother Anthony Dain developed to gain control over the Black family's assets following Renata's death. Cohenson became involved as an attorney representing Wrigley in New York state court.

         Katherine alleges that she informed court-appointed personnel in two different courts that she was willing to provide evidence that Wrigley, Dain, and Wrigley's agent, Esaun Pinto, had engaged in criminal and civil misconduct. At that point, Katherine says, defendants initiated their tortious efforts to prevent her from testifying, providing evidence, or otherwise participating in any of the ongoing litigation. She alleges that Wrigley made express threats to her in person and through telephone calls and text messages. Specifically, she alleges that Wrigley repeatedly threatened to arrange for Katherine to be physically and sexually assaulted; hire her associate Pinto to burglarize Katherine's home; report damaging information to Northwestern to cause her to be fired; and file false police reports against her stating that she was abusing her young children. Katherine alleges that Wrigley bolstered her threat to file a false police report by explaining that she had experience advocating for abused children and knew how to write a strong police report so that Katherine "w[ould] not get [her] kids back for a year." Am Compl. ¶ 127.

         Katherine alleges that defendants' scheme to prevent her from testifying in court went beyond Wrigley's alleged threats. She avers that Wrigley, Kerr, and Cohenson each made defamatory statements about her to Northwestern in order to damage her career as a law professor. In January 2016, Katherine sent a letter, the heading of which included a Northwestern Law logo, to the judge in the New York state court proceeding. In the letter, Katherine requested a hearing to present evidence of Wrigley's and Dain's misconduct, and she expressed her willingness to testify against them. One day after Katherine submitted her letter to the court, Wrigley filed an "ethics complaint" with Northwestern against Katherine.[3] According to Katherine, the ethics complaint Wrigley submitted included a number of sealed court documents, including the letter Katherine sent to the judge in the New York state court case. She also alleges that the complaint included a number of defamatory statements about her, including that she (1) "lied to the court in the course of litigation, " id. ¶ 478; (2) "acted unethically in court proceedings, " id. ¶ 482; (3) falsely represented to the court that her employer was supporting her actions in litigation, " id. ¶ 484; and (4) was using Northwestern's official letterhead when communicating with the court, thereby enabling her to lie to the court more effectively. Katherine also alleges that Wrigley failed to specify whether Katherine's purportedly false statements to the court had been made under oath, thereby "creat[ing] a false impression that they were sworn . . . [and] that [Katherine] committed a criminal violation (perjury)." Id. ¶ 480.[4]

         On the same day that Wrigley submitted her ethics complaint, Kerr drafted a letter of her own, addressed to the dean of Northwestern Law School. Though Kerr drafted and signed the letter, Wrigley submitted it to Northwestern, attaching a copy of Katherine's letter to the judge in the New York proceeding. According to Katherine, Wrigley and Cohenson supplied Kerr with the letter Katherine had sent to the judge, as well as other sealed and confidential court documents. Katherine alleges that Kerr's letter to Northwestern defamed her by asserting that she: (1) lied under oath during testimony in Colorado state court, thereby committing perjury; (2) committed perjury in her letter to the judge by lying about Kerr's duties in the Colorado proceeding and making other false representations; (3) committed financial misconduct for which Kerr was investigating her; (4) "committed other [unspecified] criminal violations, vaguely related to financial misconduct, " id. ¶ 524; (5) lied to the court by claiming that Northwestern supported her in the litigation about her family inheritance; (6) used her employer's official letterhead; and (7) acted unethically in litigation. Katherine also emphasizes that Kerr contended that she had first-hand knowledge to substantiate her claims but decided to withhold the information from the letter.

         Kerr has attached the letter to her motion to dismiss. Because Katherine references the letter in her complaint and it is central to her claims, it is considered part of the pleadings for purposes of the present inquiry. See Wright v. Associated Ins. Companies Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). Defendants maintain that Katherine's description of the letter's contents is inconsistent with its actual text. In the letter, for example, Kerr does not say in so many words that Katherine committed perjury in the Colorado proceeding. Rather, Kerr expresses her belief that she has "never, in [her] entire professional career, listened to a less credible testimony than [Katherine's]." Kerr Letter, Ex. 2 to Def. Kerr's Am. Mem. of Law, at 2. Nor does Kerr state in her letter that Katherine lied under oath in the New York proceeding. Kerr's letter says that Katherine's letter to the judge in the New York case contained false statements, but it does not say, for example, whether the letter was submitted under oath. There is also no assertion in Kerr's letter that she was investigating Katherine or that Katherine committed crimes related to financial misconduct. Rather, Kerr says in her letter that the "Colorado court authorized [Kerr] to conduct an investigation into the actions of [Katherine's] husband." Id. at 1.

         In addition to the statements contained in Wrigley's complaint and Kerr's letter, Katherine alleges in her complaint that Kerr, Wrigley, and Cohenson made other, yet similar, defamatory statements in telephone calls and voicemail messages to individuals at Northwestern. According to Katherine, Cohenson reported to Northwestern that Katherine had represented to the New York state court that she was acting with Northwestern's imprimatur and that she had used official Northwestern letterhead in her communications to the court, which allowed her to lie and mislead the court with greater effectiveness. Katherine also alleges generally that Cohenson stated that she acted unethically during court proceedings and engaged in criminal conduct.

         Katherine alleges that Kerr's oral defamatory statements were similar. She avers that Kerr orally made false representations that Katherine lied to the court, committed perjury and other crimes, was under investigation for financial misconduct, used Northwestern letterhead in communications to the court, acted unethically in litigation, and otherwise engaged in conduct that was unfit for a law professor. Katherine alleges that Kerr also stated that she was privately aware of facts about Katherine that would be damaging to her reputation and career.

         Katherine makes similar allegations about Wrigley's oral representations. According to Katherine, Wrigley informed a Northwestern employee that she had personally observed Katherine acting unethically during legal proceedings, that Katherine had lied to the court, and that Katherine was unfit to work as a law professor. Wrigley allegedly explained that she was privately aware of facts that provided a basis for her claims that Katherine had lied to the court, acted illegally or unethically, and was unfit to be a law professor.

         Katherine alleges that Cohenson, Wrigley, and Kerr assisted each other in their attempts to defame her, including by exchanging documents with each other and coordinating the timing and content of their communications with Northwestern. According to Katherine, Cohenson also assisted Kerr and Wrigley by providing them with information about Northwestern's policies that she collected during a telephone call, information that Kerr and Wrigley allegedly used to make their defamatory statements more effective and harmful. Wrigley assisted Cohenson's alleged defamation, according to Katherine, by providing Cohenson with factual background and documents that made the allegedly defamatory statements more powerful. Katherine alleges that Kerr also provided helpful factual background information for Cohenson and provided her purported expertise in drafting defamatory statements.

         Katherine alleges that defendants' conduct has caused her significant emotional, physical, and economic harm. She says she developed severe anxiety, fear, and depression as a result of their alleged threats and defamatory statements. The anxiety and fear, she says, has led to insomnia and nightmares, a racing heartbeat, extreme fatigue, sweating, and panic attacks, and has cause her to lose nearly sixty pounds. She alleges that the extreme weight loss has also resulted in significant back and shoulder pain. Katherine also asserts that defendants' conduct caused her to incur significant expenses related to monitoring her children's safety, protecting her home, and obtaining legal assistance. In addition, Katherine alleges that her anxiety hindered her job performance and that defendants' defamation resulted in a loss of opportunities for professional growth and promotions, as well a loss of prestigious work assignments and opportunity for influence at work.

         Discussion

         To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In determining whether a plaintiff has plausibly stated a claim to relief, a court accepts as true all well-pleaded facts in the complaint and draws all reasonable inferences in favor of the plaintiff. Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016).

         A. Defamation and false light

         Katherine asserts claims against all defendants for defamation, false light, and aiding and abetting defamation and false light. Defamation and false light are similar torts. To a state a claim for defamation under Illinois law, a plaintiff must allege "facts showing that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages." Green v. Rogers, 234 Ill.2d 478, 491, 917 N.E.2d 450, 459 (2009). A defamatory statement is one that "harms a person's reputation to the extent it lowers the person in the eyes of the community or deters the community from associating with her or him." Id. If a statement's harm is obvious and apparent on its face, it is defamatory per se. Id. In Illinois, only five categories of statements 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.

Id. at 491-92, 917 N.E.2d at 459. A statement that falls into one of those categories is not actionable per se, however, if the statement is "reasonably capable of an innocent construction." Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (interpreting Illinois law). Whether or not a statement falls into one of the five defamation per se categories, a false statement that casts a person in a negative light before the public may provide the basis for a false light invasion of privacy claim. To state a claim for false light, a plaintiff must allege that (1) she was placed in a false light before the public as a result of the defendants' actions, (2) the false light she was placed in would be highly offensive to a reasonable person, and (3) the defendants acted with actual malice, "that is, with knowledge that the ...


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