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Black v. Wrigley

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

September 23, 2019

KATHERINE BLACK, Plaintiff,
v.
CHERIE WRIGLEY and PAMELA KERR, Defendants.

          KATHERINE BLACK Pro se

          PLAINTIFF'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT UNDER F.R.C.P. 50(A)

          HONORABLE MATTHEW F. KENNELLY JUDGE.

         Plaintiff, Katherine Black ("Katherine"), acting pro se, hereby moves this Court, under Federal Rule of Civil Procedure 50(a), for judgment notwithstanding the verdict (JNOV). A judgment should be entered in Katherine's favor on the Claims Two (Defamation Per Se, against Kerr), Three (Aiding and Abetting Defamation, against Wrigley), and Four (Conspiracy, against Wrigley and Kerr) because no reasonable jury could have found as it did based upon the evidence and the instructions the jury was given. The evidence proved each element of those claims, and that it was unreasonable for the jury to find otherwise.

         1. Claim Two: Defamation Per Se (against Kerr)

         I. The Jury Instructions Given

         In her second claim, Ms. Black alleges that Ms. Kerr committed defamation per se against her. Under the instructions given to the jury, Ms. Black was required to prove each of the following propositions by a preponderance of the evidence:

1. Ms. Kerr caused a statement of fact about Ms. Black to be made to Northwestern Law School.
2. Ms. Kerr's statement was false.
3. Ms. Kerr knew the statement was false, or she believed the statement was true but lacked reasonable grounds for this belief.
4. It was apparent from the words of the statement that it prejudiced Ms. Black in her profession.

         The jury was further instructed that if it found that Ms. Black had proven each of these propositions by a preponderance of the evidence, it:

must go on to consider Ms. Kerr's defense that the statement was substantially true. This does not require every detail of the statement to be accurate. To succeed on this defense, Ms. Kerr must prove by a preponderance of the evidence that the "gist" or the "sting" of her statement about Ms. Black was true.

         II. No Reasonable Jury Could Find that Kerr Did Not Cause a Statement of Fact about Ms. Black to be Made to Northwestern Law School.

         A. "Statement of Fact" - Indisputably Met

         Under this Court's decision on the motion to dismiss, the "statement of fact" in question here is the following:

Page 15 of Ms. Litvak's letter states:
"...and the Colorado Judge Found those Allegations credible Enough to Authorize an Investigation of Pinto 's Conduct by a Forensic Accountant.”
Not only is this a 100% false statement... I would not have disclosed this information if Ms. Litvak had not filed this document with the New York Court with this completely false statement included.

         The relevant statements, which this Court already held to be statements of fact, not opinion, are Kerr's assertions that Katherine's quoted phrase is a "100% false statement" and a "completely false statement." These statements are the basis for the claim of defamation per se.

         B. "Made to Northwestern Law School" - Indisputably Met

         It is undisputed that Kerr's signed letter, containing this statement was made to Northwestern Law School. Kerr emailed her letter to Defendant Cherie Wrigley, who submitted it through the Northwestern EthicsPoint system.

         C. But-For Causation in Making this Statement - Indisputably Met

         These Jury Instructions require the jury to determine whether Kerr's actions were a but-for cause for the submission of Kerr's statements to Northwestern. Not the sole cause, only a but-for cause. No reasonable jury could find that it was not. If Kerr had not written her letter, or had not made the defamatory statement of fact in her letter, or had not sent this letter to Wrigley, or had taken precautions to ensure this letter would not be forwarded to Northwestern, this statement would never have been made to Northwestern.

         Kerr's defense attempted to confuse the jury by claiming that Kerr did not intend for her letter to be forwarded to Northwestern. However, the Jury Instructions contain no mental state requirement here, Kerr's intent is irrelevant. The defense further attempted to confuse the jury by claiming that Wrigley uploaded Kerr's letter to Northwestern by mistake. But Wrigley's intent is also irrelevant. The only thing that the jury could legally consider is whether but-for Kerr's actions, the statement of fact would have been made to Northwestern. The answer is clearly no.

         In sum. all elements of point 1 of the instructions are clearly met, and no reasonable jury could have found otherwise.

         III. No Reasonable Jury Could Find that Kerr's Statement to Northwestern Law School Was Not False.

         Kerr's statement of fact - that the language she quoted from Katherine's letter is "100% false" and "completely false”, it unquestionably false.

         A. Court Authorized a Forensic Accountant to Investigate Pinto's Conduct - Undisputable

         In the proceedings referenced in Ms. Black's letter, the Colorado court issued the following order: [Pl. Exh. 30; Mot. Exh. 4] (emphasis added)

The parties have stipulated to a forensic accounting of the Conservatorship estate... - in short, a complete review of all funds and assets related to Joanne Black both before and after the disclaimer, by Pamela Kerr, CPA...
8. Mr. Pinto shall provide a complete accounting with documentation of all funds that were held under his control to Ms. Kerr...

         If Pinto was ordered by the court to turn over "a complete accounting with documentation of all funds that were held under his control to Ms. Kerr", them Kerr was at least "authorized" to inspect them. There is no other purpose to order someone to turn over all documentation to a forensic accountant than to at least authorize said forensic accountant to investigate this documentation and the conduct that it reflects.

         Further, Kerr was required to perform "a complete review of all funds and assets related to Joanne Black." This included the "funds that were held under [Pinto's] control, " Kerr's assigned task - a complete review - thus included those funds. Once again, Kerr was at least ''authorized” to investigate Pinto's handling of those funds.

         Kerr's defense attempted to confuse the jury by claiming that:

(1) the investigation of Pinto was not the only, or even the main, purpose of the Colorado court order (irrelevant);
(2) that Kerr was originally engaged by the Guardian-ad-Li tern, and only later appointed by the court (irrelevant);
(3) that Kerr spent limited time investigating Pinto (irrelevant);
(4) that Kerr did not submit any reports or recommendations regarding Pinto (irrelevant).

         None of this is relevant to the question of whether Kerr was authorized to investigate Pinto's conduct, as part of her assigned tasks.

         B. Kerr in Fact Performed Extensive Investigation of Pinto's Conduct and Reported Her Preliminary Findings – Undisputable

         The jury saw in evidence the letter from Kerr to several parties, including Bernard Black and Cherie Wrigley, Guardian-ad-Litem and several attorneys. In that letter, Kerr summarized the results of her extensive investigation of Pinto's conduct, requested more documents from several parties, and concluded that Pinto diverted at least $41, 000 to himself. [Pl. Exh. 44, Mot. Exh. 11] The excerpts below give the flavor for how detailed Kerr's investigation of Pinto was:

• I absolutely need receipts for all of the Flight. Hotel/Motel, Rental Car, Gas, Motel, Storage, etc. etc. Since Joanne is a Protected Person and her funds are under jurisdiction of the Court, every expense has to be properly documented. I need receipts for all of these expenses in columns G through P. I have not included the column for tolls, but what are those for? Did Esaun actually go to see Joanne? The charges just say $39/week or along those lines. ...

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