UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION 

DALE PIERSON 

Plaintiff,

vs.

NATIONAL INSTITUTE FOR LABOR RELATIONS 

RESEARCH AND STAN GREER

Defendants.

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 Case No. 16 CV 00449

 Judge Philip P. Simon

 Magistrate Judge John E. Martin

 

 

 

 

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

PROCEDURAL POSTURE

Plaintiff initially filed his action for defamation in the Circuit Court of Cook County, Illinois, 

a jurisdiction with no relationship to the matter at issue, on September 11, 2015. The action was 

removed to the Northern District of Illinois on December 9, 2015. Immediately thereafter, the 

matter was dismissed by the Honorable Ruben Castillo on December 14, 2015, without prejudice to 

the filing of a timely motion to remand or a properly amended federal complaint. Plaintiff filed a 

motion to remand, which was denied. Plaintiff then filed an amended complaint. Defendants filed a 

motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). The Court 

granted the 12(b)(2) portion of the motion finding that it lacked personal jurisdiction. Thereafter, 

plaintiff re-filed the action in the Northern District of Indiana on October 18, 2016. He served 

Defendants on January 17, 2017, the final day on which service would be permitted under FRCP 4. 

Defendants now seek dismissal pursuant to 12(b)(6) for various reasons as set forth below. 

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RELEVANT ALLEGATIONS AND FACTS 

Dale D. Pierson (“plaintiff”) is a resident of Illinois and currently employed as General 

Counsel to Local 150 of the International Union of Operating Engineers, AFL-CIO, headquartered 

in Countryside, Illinois, where he has worked for almost 14 years. (Doc. No. 1, Compl. ¶ 2.) 

Plaintiff has practiced labor and employment law since 1982. Id. at ¶ 3. He taught labor law as an 

adjunct professor at Northern Illinois University Law School in 2004 and 2005, and frequently 

speaks on labor and employment law topics at professional conferences throughout the country. Id.

Defendant National Institute for Labor Relations Research (“NILRR”) is “a non-profit 

research facility analyzing and exposing the inequities of compulsory unionism.” NILRR maintains 

its principal office at 5211 Port Royal Road, Suite 510, Springfield, Virginia 22151. (Compl.¶ 4). 

NILRR maintains a website at www.nilrr.org. Id. 

According to plaintiff, shortly after Indiana passed its “Right-to-Work” law in 2012, he 

served as lead counsel in a lawsuit challenging its constitutionality entitled, Sweeney, et al. v. Daniels, 

Case No. 12 CV 00081, filed in this Court. (Doc. No. 1 Compl. at ¶ 6). The District Court 

dismissed the suit without prejudice to re-filing certain claims. Sweeney v. Daniels, 2013 WL 209047 

(N.D. Ind., Jan. 17, 2013). Id. The Sweeney plaintiffs (or “Union plaintiffs”) appealed the dismissal of 

their federal claims to the Seventh Circuit, which affirmed. Id. Meanwhile, the Union plaintiffs refiled their claims in Lake County, Indiana, in the case titled, Sweeney, et al. v. Zoeller, Case No. 45D01-

1305-PL-52. Id. ¶ 7. On September 5, 2013, the Lake County Superior Court denied the State of 

Indiana‟s Motion to Dismiss and found the Indiana Right-to-Work law unconstitutional. Id. 

Thereafter, the Indiana Attorney General appealed that decision to the Indiana Supreme Court in 

the case entitled, Zoeller v. Sweeney, No. 45S-1309-PL-00596 (“Underlying Appeal”). Id. 

According to plaintiff, throughout the Underlying Appeal and aforementioned litigation, the 

Union plaintiffs argued that “Right-to-Work” laws were fundamentally unfair. Id. ¶ 8. Plaintiff 

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advocates that federal law requires unions to represent fairly all employees in any given bargaining 

unit regardless of their membership in the union. Id. He alleges that Right-to-Work laws permit 

individual employees to refuse to pay their fair share of the costs, allowing such employees to ride 

for free on the work of the union paid for by their coworkers. Id. According to plaintiff, proponents 

of Right-to-Work laws argue that unions need not represent employees that do not pay, and that 

unions could represent only those employees who want such representation. (Doc. No. 1 Compl. ¶ 

9).

Plaintiff alleges that “[t]he „minority representation‟ argument is a fallacy”. Id. ¶ 10. 

According to the plaintiff, the National Labor Relations Act (NLRA) does not provide an alternative 

to majority status representation. Id. Plaintiff alleges that National Labor Relations Board (NLRB) 

jurisprudence makes it clear that “the essence of industrial democracy [in the United States], as 

contemplated and enforced by the [NLRA], is fundamentally based on majoritarian principles.” 

[citation not included]. Id. 

On September 4, 2014, the Indiana Supreme Court heard oral argument in the Underlying 

Appeal. Plaintiff made the aforementioned arguments to the Indiana Supreme Court. (Doc. 

No.Compl.¶ 11). A copy of the transcript of the hearing is attached hereto as Exhibit A.

1 On 

September 12, 2014, defendants posted an article on NILRR‟s website entitled “Operating 

Engineers Union Lawyer Flat-Out Lies to Indiana Supreme Court”. The entire post reads as 

follows:

Currently, the top bosses of two unions, the United Steelworkers (USW) and Local 150 of the 

International Union of Operating Engineers (IUOE), have cases before the Indiana Supreme Court 

in which they are trying to get Right to Work protections for Hoosier employees approved by state 

legislators two-and-a-half years ago judicially overturned.

In a petition filed with the National Labor Relations Board seven years ago, lawyers for one of 

these two unions, the USW, acknowledged without qualification that, under Section 7 of the 

 

1 In addition, the hearing can be viewed at the following address: https://mycourts.in.gov/arguments/

[Search by Keyword Zoeller]. An electronic copy has been purchased by the defendant and can be made 

available to the Court if necessary.

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National Labor Relations Act (NLRA), in any workplace where no union is recognized as 

employees‟ “exclusive” bargaining agent, employees‟ right to bargain with their employer through a 

union “remain[s] available and protected, though on a nonexclusive basis, thus applicable to union 

members only.”

As anyone who has a good understanding of federal labor statutes and court precedents knows, the 

union lawyers for the USW brass, along with the officers of six other AFL-CIO-affiliated unions 

who signed on to the petition (“In the Matter of Rulemaking Regarding Members-Only MinorityUnion Collective Bargaining”), were absolutely correct about the permissibility of members-only 

bargaining in 2007. And they are still correct today.

How can it be, then, that Dale Pierson, the top lawyer for the other union seeking to overturn 

Indiana‟s Right to Work law judicially, told the Indiana Supreme Court on September 4 that union 

officials‟ representing only those who join and pay dues “is not a legal possibility”? (A video of the 

oral arguments in which Pierson claimed again and again that “the law does not allow membersonly representation” is available at the end of the link below.)

The answer is, quite simply, that Pierson flat-out lied. Evidently, he and the IUOE bosses for 

whom he is working agree that, if the Indiana Supreme Court acknowledges the truth about the 

permissibility of members-only bargaining as an alternative to monopoly bargaining for union 

officials, their anti-Right to Work case must fail. And therefore last week Pierson simply denied a 

truth that even his fellow assailants on Indiana‟s Right to Work law, the USW union hierarchy, have 

openly acknowledged in public legal documents.

Because Thomas Fisher, the lead attorney representing Indiana as it defends its Right to Work law 

from the IUOE Local 150 brass, knows full well about the U.S. Supreme Court precedents, such as 

the 1938 Consolidated Edison v. NLRB ruling, that explicitly affirm that members-only bargaining 

is legal under the NLRA, and reminded the Indiana Supreme Court justices about them, it is 

unlikely that Pierson and his paymasters are going to get away with lying about federal labor law. 

But the fact that Pierson was willing to do it, and IUOE Local 150 kingpins were evidently willing 

to sign off on such a strategy, illustrates just how desperate they are to reinstate forced union dues 

and fees in Indiana. (A true and correct copy attached hereto as Exhibit B). 

According to plaintiff, the above post was false. 

Plaintiff alleges that the NILRR post also refers to “a petition filed with the National Labor 

Relations Board seven years ago.” (Doc. No. 1, Compl. ¶ 14). The post asserts that in the petition 

(“2007 petition”) lawyers for the Steelworkers union “acknowledged without qualification that, 

under Section 7 of the National Labor Relations Act (NLRA), in any workplace where no union is 

recognized as employees‟ „exclusive‟ bargaining agent, employees‟ right to bargain with their 

employer through a union „remain[s] available and protected, though on a non-exclusive basis, thus 

applicable to union members only.‟” Id.; 2007 Petition attached hereto as Exhibit C.

According to plaintiff, the NILRR post fails to acknowledge that the 2007 petition was 

denied by the NLRB on August 26, 2011. (Doc. No. 1, Compl. ¶ 15.) Plaintiff further alleges that 

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the 2007 petition asked the NLRB to adopt a rule that would require an employer “to bargain 

collectively with a labor organization that represents less than an employee-majority with regard to 

the employees who are its members, but not for any other employees.” Id. Plaintiff alleges the 

petitioners recognized that such “members only” bargaining was not recognized by the NLRB, and 

filed the petition, they said, so that employees would be “permitted to return to the exercise of the 

right to begin organizing and bargaining through unions that represent their members only.” Id. The 

Board denied the 2007 petition, in part, because it called for “a significant reinterpretation” of the 

NLRA, and necessarily a devotion of “substantial” Board resources which it was not prepared to 

make. Id. Though unclear, it appears that plaintiff is alleging that defendants‟ misinterpreted the 

intent behind the 2007 petition. Plaintiff does not appear to suggest that the position taken by the 

Union in the 2007 petition was misstated by Defendants in the post. Rather, plaintiff appears to be 

attempting to justify the inconsistency between the 2007 petition and his subsequent oral advocacy.

In any event, plaintiff cannot deny that, during oral argument before the Indiana Supreme 

Court, referenced in the complaint, he made the statement referenced in the post. Exh. A, pp. 28, 29 

and 32 (“that is a fallacy”), (“the law does not allow members only representation, that‟s the bottom 

line that is not an option”), (“a members only unit is not a legal possibility”). Likewise, plaintiff 

cannot deny that the 2007 petition, as referenced in the complaint and attached hereto, contains the 

language referenced in the post2. He also cannot deny that his statements that members-only 

bargaining is impermissible, a fallacy or legally impossible are not supported by legal statute or 

precedent. The Indiana Supreme Court did not rule in favor of the Union. Indeed, the Court 

expressly disagreed with the Union‟s argument: 

The Union responds that "[c]hoosing to represent members-only bargaining units is not 

an option under the [National Labor Relations Act]" because the "[National Labor 

Relations Board] will not process a representation petition by a union seeking a 

 

2 He also admits, during oral argument, that he has taken, on at least one occasion, a stance inconsistent with the 

position that members-only representation is a fallacy. Exh. B, pp. 29-30. 

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members-only bargain[ing]unit" and "a union that proposes to represent a minority of 

the bargaining unit has no remedy if the employer refuses to bargain with it." We 

disagree. Zoeller v. Sweeney, 19 N.E.3d 749, 2014 Ind. LEXIS 893 (Ind. 2014).

STANDARD OF REVIEW

In reviewing the sufficiency of a complaint under Federal Rule 12(b)(6), a district court must 

accept all well-pleaded facts as true and draw all permissible inferences in favor of the plaintiff. 

Agnew v. Nat'l Collegiate Athletic Ass'n, 683 F.3d 328, 334 (7th Cir. 2012).To satisfy the notice pleading 

standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must merely provide "a 

short and plain statement of the claim," which is sufficient to "give the defendant fair notice of what 

the ... claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S., 544, 555 

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but "a 

complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is 

plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) 

(quoting Bell Atl. Corp., 550 U.S. at 570). Thus, a plaintiff "must plead some facts that suggest a right 

to relief that is beyond the speculative level." Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 

2011).

ARGUMENT

I. DEFAMATION CLAIM SHOULD BE DISMISSED PURSUANT TO FRCP 12(b)(6). 

A. The statements made in the posting at issue are substantially true, precluding suit. 

Substantial truth is an absolute defense to a claim of defamation. Bull v. Bd. of Trs. of Ball 

State Univ., 2012 U.S. Dist. LEXIS 61342, at *24, 2012 WL 1564061, at *9 (S.D. Ind. May 2, 2012). 

“Under the Constitution, literal truth is not required; it is sufficient if the statement is substantially 

true.”Heeb v. Smith, 613 N.E.2d 416, 421 (Ind. Ct. App. 1993). Thus, it “is sufficient that the 

substance, „the gist‟ or „the sting‟ of the statement is true. The test for determining whether a 

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statement is substantially true is whether any inaccuracies caused the statement to produce a 

different effect on the audience than would have been produced had the literal truth been 

spoken.”Id. (citations omitted). The First Amendment enshrines“the national commitment to the 

free exchange of ideas.”Journal Gazette Co. v. Bandido’s, Inc., 712 N.E. 2d 446, 456 (Ind. 1999).

The rule of substantial truth is based on recognition that falsehoods which do no 

incremental damage to the plaintiff's reputation do not injure the only interest that the law of 

defamation protects. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993). In Haynes, the 

Court found that a news report that contains a false statement is actionable only when significantly 

greater opprobrium results from the report containing the falsehood than would result from the 

report without the falsehood. Id. Even when the plaintiff in a defamation suit is not a public figure, 

the Supreme Court insists in the name of the First Amendment that, unless the author is deliberately 

lying or is recklessly indifferent to the truth or falsity of what he says, the plaintiff must prove actual 

harm in order to recover damages. Id. Falsehoods that do not harm the plaintiff‟s reputation more 

than a full recital of the true facts about him would do are thus not actionable. Id. 

The defense of substantial truth has been applied in numerous cases involving the publishing 

of an article. See, Journal-Gazette [supra]. Likewise, courts in the Seventh Circuit have considered the 

specific term “lied” in various contexts, finding that it can be deemed substantially true. See, Bone v. 

City of Layfayette, 919 F.2d 64, 67 (7th Cir. 1990) (defendant “might have picked a kinder, gentler and 

more informative phrase” than “she lied”, but it was substantially true.); Greene v. City of Neillsville, 

2009 U.S. Dist. LEXIS 65489, 2009 WL 2341807 (W.D. Wis. July 29, 2009) (statement that plaintiff 

lied on time cards was substantially true as “slight inaccuracies of expression” do not make a 

statement defamatory).

Here, the statements made by Greer in the posting are substantially true. It is important to 

appreciate that Greer is not attacking plaintiff in his posting, but rather pointing out an inconsistent 

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position that has been maintained by Unions in their various advocacy efforts. Arguably, the post 

read in its entirety, as it should be, reflects that the statements are not really directed at the plaintiff 

but rather at the entire opposition, including the union “bosses for whom [plaintiff] is working”,

“USW brass”, “fellow assailants”/ “paymasters”, and “Local 150 kingpins” who signed off on the 

“strategy.” The title refers to the “Union Lawyer”, not Dale Pierson. Though his name is 

referenced, his personal information and place of business are never identified. Viewed in its 

entirety, the “lies” or “untruth” comments are not directed at plaintiff the individual, but rather at 

the legal “strategy” of those who benefit from the position, a “strategy” that the “Local 150 

kingpins” evidently “sign[ed] off on” lest their “anti Right to Work case . . . fail.” 

In addition, the posting does not attack plaintiff as a person but rather criticizes one specific 

action taken by plaintiff. Again, the focus is really on the plaintiff as agent of the Union. Greer uses 

the term “lies” referring to a specific occasion and pointing to specific contradictory positions taken

on a highly contentious issue that support his assessment. Greer does not call the plaintiff a liar. At 

most, the post, specifically the alleged defamatory statements, refers to a singular action of the 

plaintiff (notably acting at the behest of his Union); it does not define or attempt to define a 

character trait of the plaintiff (i.e. plaintiff is a “liar”).

Importantly, plaintiff never denies the content of the 2007 petition and his oral statement

and/or that this content was somehow misconstrued in the posting. Plaintiff never denies, nor can 

he, that he stated that it is a “legal impossibility” for a Union to represent only those who join and 

pay dues, i.e., its members. He admits that the 2007 Petition maintained a position to the contrary. 

Exhibit C, pp. 30-31. He cannot deny that legal precedent does not bolster the position he took 

during the oral hearing. Indeed, even the Indiana Supreme Court expressly questioned and disagreed 

with plaintiff‟s statements made at oral argument regarding the legal impossibility. Zoeller v. Sweeney, 

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19 N.E.3d 749, 753, 2014 Ind. LEXIS 893 (2014). Further, case law calls into question plaintiff‟s 

statements made to the Indiana Supreme Court.

The statements made by Greer are substantially true. While there may have been more artful 

ways to point out the contradictory/questionable statements made by plaintiff, (perhaps use of 

plaintiff‟s term “fallacious”), “lied” is substantially true and highlights the irritation Greer felt at the 

blatantly contradictory positions maintained by the Unions. Regardless, plaintiff cannot show, as 

required by Haynes [supra], that had Greer been slightly more generous in his assessment of the 

plaintiff/union‟s actions at the oral hearing (perhaps using terms like inconsistent, contradiction or 

disingenuous) a significantly lesser degree of opprobrium or harm would have been done to him

and/or it would have produced a different effect upon the audience. As explained above, it is 

difficult to ascertain any harm that has resulted to the plaintiff (See Section C). Plaintiff‟s complaint 

does not and cannot overcome these deficiencies. 

B. The statements in the posting are at most rhetorical hyperbole constitutionally 

protected opinion. 

Neither an opinion that does not misstate actual facts, Milkovich v. Lorain Journal Co., 497 U.S. 

1, 20, 110 S. Ct. 2695 (1990) nor rhetorical hyperbole, Hamilton v. Prewett, 860 N.E. 2d 1234, 1244 

(Ind. Ct. App. 2007) constitute defamation. Naylor v. Rockford Park Dist., 1999 U.S. Dist. LEXIS 

12664, 1999 WL 626762, at *4 (N.D. Ill. July 14, 1999) (noting that statement calling someone a liar 

can be non actionable opinion); Skolnick v. Correctional Med. Servs., 132 F. Supp. 2d 1116 (N.D. Ill. 

2001)(letter accusing plaintiff of misrepresentation and “deliberate deception” found to consist of 

“strong language that is mere rhetoric and hyperbole” thus not defamatory); Paterson v. Little, Brown 

& Co., 502 F. Supp. 2d 1124, 1135 (W.D. Wash. 2007) ("snitch," "squealer," and "liar," may be 

considered "abusive opinion," but not actionable as defamation). Whether a statement qualifies as 

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constitutionally protected speech under the First Amendment is a matter of law for the court to 

decide. Milkovich at 17.

Indiana courts have consistently found statements such as the one at issue rhetorical 

hyperbole and, as such, non actionable. Shepard v. Schurz Communs., Inc., 847 N.E.2d 219, 223, 225

(Ind. Ct. App. 2006) (statement made by opposing counsel that other counsel “is a liar” and “His 

statement is false” deemed rhetorical hyperbole incapable of being proved true or false by 

newspaper); Eversole v. Spurlino Materials of Indianapolis, LLC, 804 F. Supp. 2d 922, 937 (S.D. Ind. 

2011) (commenting about several cases holding defamation claims to be deficient, including calling 

the employee a "deadbeat and a crook," a "stupid son of a bitch," a "big fat oaf," and a "damn liar."); 

Levee v. Beeching, 729 N.E.2d 215, 220, 2000 Ind. App. LEXIS 812 (Ind. Ct. App. 2000) (union 

representative calling school principal a “liar” and stating that she “favored some staff” not 

defamatory per se). 

Here, plaintiff and defendants have divergent views in a heated debate regarding a matter of 

public concern that has been and continues to be in the political and public arena. Colburn v. Trustees 

of Indiana University, 973 F.2d 581, 586 (7th Cir. 1992) (noting that "right to work" legislation is 

matter of public concern); Harris v. Quinn, 134 S. Ct. 2618, 2658 (2014) (dissent) (“[f]or many 

decades, Americans have debated the pros and cons of right-to-work laws... All across the country 

and continuing to the present day, citizens have engaged in passionate argument about the issue 

and have made disparate policy choices.”)(emphasis supplied); See Dilworth v. Dudley, 75 F.3d 307, 

310 (7th Cir. 1996) (describing the plaintiff as a "crank" is "basically just a colorful and insulting way 

of expressing disagreement with his master idea, and it therefore belongs to the language of 

controversy rather than to the language of defamation"); Saenz v. Playboy Enterprises, Inc., 653 F. Supp. 

552, 567 (N.D. Ill. 1987) ("A reader of criticism expects rhetorical hyperbole and vivid metaphor, so 

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the use of lively language is understood as hyperbole and metaphor, not as fact"), aff'd,841 F.2d 1309 

(7th Cir. 1988).

Both parties have monitored the issue closely and have passionate positions. Greer has 

followed it so closely that he was able to identify an inconsistent position taken by the Union in the 

statements made by plaintiff and in the 2007 petition (again an inconsistency never denied by 

plaintiff and only unconvincingly argued away). Greer uses the terms “lies”, “denies a truth” and 

“kingpins”, while plaintiff alleges that the opposing view is “fallacious” and states that certain 

persons are “free-riders”. Regardless of diction and whether it could be more artful, the language 

between the parties is equally charged. With regard to the allegations in the matter sub judice, Greer‟s 

statement is one of rhetoric imputed not solely to plaintiff, but to the strategy of the opposition - a 

strategy that he believes is disingenuous, unsupported by the law and even inconsistently applied by 

the Unions. Arthur v. Offit, 09-CV-1398, 2010 U.S. Dist. LEXIS 21946, *12 (E.D. Va. Mar. 10, 

2010)(“she lies” rhetorical hyperbole as nature of debate was “rough and tumble” and involved an 

“emotional and highly charged debate about an important public issue” in which parties had 

“diametrically opposed views” and readers could expect “emphatic language”); Farber v. Jefferys, 33 

Misc. 3d 1218(A), 941 N.Y.S 2d 537, 2011 WL 5248207, at 13 (1st Dept. 2011) (“liar” deemed 

rhetoric in the context of “a heated public debate” and attempt to “discredit rival”).

Likewise, plaintiff‟s inability to avoid arguing his own impassioned opinion through 

allegations in the complaint – even when the allegations offer no substance to his claim - only 

reinforces the intense nature of the debate. Against this contextual backdrop, Greer‟s declaration 

that the plaintiff, at the bequest of the Union, “lied" or “denied a truth” is not a fact or a personal 

criticism, but rather an outpouring of exasperation and intellectual outrage directed at the clearly 

contradictory positions taken by – not plaintiff – but rather the Unions at the oral argument and in 

the previously filed 2007 petition. See, Steinhilber v. Alphonse, 68 NY2d 283, 294, 501 N.E.2d 550 

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(1986) ("[e]ven apparent statements of fact may assume the character of statements of opinion, and 

thus be privileged, when made in public debate, heated labor dispute... in which an audience may 

anticipate epithets, fiery rhetoric or hyperbole."). Such statements are protected.

C. Plaintiff has not pleaded actual damages or a pecuniary injury. 

To establish defamation under Indiana law, a plaintiff must prove the following elements: (1) 

a communication with defamatory imputation; (2) malice; (3) publication; and (4) damages. Sheets v. 

Birky, 54 N.E.3d 1064, 1070, 2016 Ind. App. LEXIS 155, at *9, 2016 WL 2902735 (Ind. Ct. App. 

2016). Indiana is a defamationper se state. Id. However, Indiana courts have indicated that calling 

someone a "liar" is not, by itself, defamatory per se as it is not "so obviously and naturally harmful 

that proof of [its] injurious character can be dispensed with." Levee v. Beeching, 729 N.E.2d 215, 220 

(Ind. Ct. App. 2000). Greer did not call plaintiff a liar in the post, rather he indicated that plaintiff 

“flat out lies” in a specific instance. The term “flat out lies,” in the context used, would not be 

defamatory per se pursuant to Levee.

Thus, plaintiff will have to plead and prove special damages. Gibson v. Kincaid, 140 Ind. App. 

186, 190 (1966); Tacket v. Delco Remy, 937 F.2d 1201, 1205 (7th Cir. 1991) (“libel per quod under 

Indiana law requires that both extrinsic defamatory facts and special damages be pleaded and 

proved”). Humiliation and embarrassment alone are not sufficient to plead a prima facie case of 

defamation. Martino v. W. & S. Fin. Group, 715 F.3d 195, 207 (7th Cir. 2013). Rather, special 

damages are pecuniary in nature and "are not assumed to be necessary or inevitable but must be 

shown by allegation and specific proof to have been actually incurred as a natural and proximate 

consequence of the wrongful act”. Foxworthy v. Buetow, 492 F. Supp. 2d 974, 987 (S.D. Ind. 2007) 

citing Lovings v. Thomas, 805 N.E. 2d 442 (Ind. Ct. App. 2004).

Indiana is clear that the statements at issue are not defamation per se. Thus, plaintiff must 

plead actual damages of a pecuniary nature. Here, plaintiff has not set forth any specific pecuniary 

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injury in his complaint at law for his claim to survive. Indeed, it is difficult to infer what pecuniary 

injuries plaintiff could have possibly sustained. He alleges that he is General Counsel for the

Operating Engineers Union. His position, and secondary work, clearly reflects advocacy solely for 

unions. It is hard to infer how criticism from an entity taking a contradictory position to labor 

unions harms his reputation with said unions and, in turn, results in financial injury. If anything, 

ability to spark the ire of the opposition would be deemed an asset or at least a testament to his 

union credentials. 

D. Plaintiff has not pleaded actual malice

In addition to actual damages, plaintiff must plead actual malice. In Indiana defamation

actions, the court applies the actual malice standard for matters of general or public concern, 

irrespective of whether the allegedly defamed plaintiff was a public or private individual. JournalGazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 452, 1999 Ind. LEXIS 409 (Ind. 1999). "If a matter is 

subject [sic] of public or general interest, it cannot suddenly become less so merely because a private 

individual is involved, or because in some sense the individual did not 'voluntarily' choose to 

become involved. The public's primary interest is in the event; the public focus is on the conduct of 

the participant and the content, effect, and significance of the conduct, not the participant's prior 

anonymity or notoriety." Id. Malice cannot be deduced by mere publication alone. Journal-Gazette, 

712 N.E. at 462. The actual malice element required by the United States Supreme Court and 

Indiana state courts is not to be confused with the ordinary definition of "malice" as an evil intent or 

motive arising from spite or ill-will. Shine v. Loomis, 836 N.E.2d 952, 954 (Ind. Ct. App. 2005). Actual 

malice, as an element of the tort of defamation, exists when the defendant publishes a defamatory 

statement with knowledge that it was false or with reckless disregard of whether it was false or not. 

Id. "Reckless disregard" of whether a statement is false or not is more than mere negligence. Id.

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Bare allegations that a defendant acted maliciously are not sufficient; the plaintiff must allege 

facts from which actual malice may be inferred. Hoffman v. Roberto, 578 N.E.2d 701, 709, 1991 Ind. 

App. LEXIS 1563, at *20-21 (Ind. App. 1991); Lee v. Radulovic, 1994 U.S. Dist. LEXIS 12887, at *6, 

1994 WL 502844 (N.D. Ill. Sept. 12, 1994). Indiana law requires "clear and convincing evidence" of 

actual malice. Bull v. Bd. of Trs. of Ball State Univ., 2012 U.S. Dist. LEXIS 61342, at *24, 2012 WL 

1564061 (S.D. Ind. May 2, 2012); Journal Gazette [supra] at 456 (“judges as expositors of the 

constitution have a duty to independently decide whether the evidence in the record is sufficient to 

cross the constitutional threshold that bars the entry of judgment that is not supported by clear and 

convincing proof of actual malice”). Significantly, Indiana courts specifically acknowledge that a 

plaintiff does not speak with actual malice when the statements had "a substantial basis in the truth". 

Brandom v. Coupled Prods., LLC, 975 N.E.2d 382, 390, 2012 Ind. App. LEXIS 476, at *21, 2012 WL 

4320221 (Ind. App. 2012).

Here, plaintiff, an attorney for the Union who works in high profile settings and, as alleged 

in his complaint, “frequently speaks on labor and employment topics at professional conferences 

throughout the country” (Doc. No. 1 ¶ 3), has defined himself as a public, even national, figure at 

least for the limited purpose of labor law. Indeed, he has sought publicity for this issue. Regardless 

of his status as a public figure, plaintiff cannot deny that the posting and the alleged defamatory 

speech concerns a matter of public concern – i.e., the Right to Work law being argued before a 

public body. Plaintiff has not pleaded any allegations showing that the statements at issue were made 

with actual malice, nor can he given that the post correctly reports on his oral argument as set forth 

above. 

E. The statements made in the posting are protected by qualified/ common interest 

privilege. 

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A qualified privilege rebuts the element of malice and protects "communications made in 

good faith on any subject matter in which the party making the communication has an interest or in 

reference to which he has a duty, either public or private, either legal, moral, or social, if made to a 

person having a corresponding interest or duty." Bals v. Verduzco, 600 N.E.2d 1353, 1356 (1992).The 

privilege exists because of "the necessity for full and unrestricted communication on matters in 

which the parties have a common interest or duty." Kelley v. Tanoos, 865 N.E.2d 593, 597-98 (2007).

The question of whether a statement is protected by the qualified privilege is a matter of law. 

Chambers v. American Trans Air, Inc., 577 N.E.2d 612, 615 (Ind. App. 1991).

The posting at issue clearly speaks to a matter of public issue, in which author Greer and his 

organization had an invested interest, as alleged by plaintiff. The qualified privilege is applicable. 

Given the substantial truth of the statement and the limited context in which it was made (i.e., a 

specific position taken by a Union), this Court should find the statements made by Greer privileged 

as a matter of law. See, Williams v. Tharp, 914 N.E.2d 756, 766 (Ind. 2009) (applying privilege to

person not “so obviously mistaken as to support a reasonable inference that he had lied”); Gagan v. 

Yast, 966 N.E.2d 177, 181-182, 2012 Ind. App. LEXIS 162, *11, 2012 WL 1134033 (Ind. Ct. App. 

2012) (applying qualified privilege in context where alleged defamer called plaintiff a "liar," a 

"manipulator," and an "evil person” as defendant felt actions of plaintiff were improper).

F. Indiana Code 34-7-7-1 et. seq., the Indiana Anti-SLAPP Statute, mandates that this 

action be dismissed and that defendants receive their attorney fees. 

The anti-SLAPP statute, Indiana Code Section 34-7-7-1(a) provides in relevant part: 

“This chapter applies to an act in furtherance of a person's right of 

petition or free speech under the Constitution of the United States or the 

Constitution of the State of Indiana in connection with a public issue or an 

issue of public interest that arises after June 30, 1998.”

Section 2 specifies that an "act in furtherance of a person's right of petition or free speech 

under the Constitution of the United States or the Constitution of the State of Indiana in connection 

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with a public issue" includes free speech conduct "in connection with a public issue or an issue of 

public interest." A "person" is an individual or "any other legal entity." Ind. Code § 34-7-7-4.

Section 5 sets forth the "conditions under which rights of petition or free speech may be 

used as [a] defense, and provides:

It is a defense in a civil action against a person that the act or omission complained 

of is:

(1) an act or omission of that person in furtherance of the person's right of petition 

or free speech under the Constitution of the United States or the Constitution of 

the State of Indiana in connection with a public issue; and

(2) an act or omission taken in good faith and with a reasonable basis in law and 

fact.

Indiana Code Section 34-7-7-7, entitles the prevailing defendant to attorney fees. Ind. Code § 

34-7-7-7; Poulard v. Lauth, 793 N.E.2d 1120 (Ind. Ct. App. 2003). Substantively, Indiana Code 

Section 34-7-7-9 does not supplant the Indiana common law of defamation, but provides that the 

movant must establish that his or her speech was "lawful." Ind. Code § 34-7-7-9(d); Shepard v. Schurz 

Communs., Inc., 847 N.E.2d 219, 224, 2006 Ind. App. LEXIS 864, 35 Media L. Rep. 1091 (Ind. Ct. 

App. 2006) (dismissing claim pursuant to Anti-SLAPP when paper published statement that plaintiff 

was a liar).

For the reasons set forth above, plaintiff‟s claim has no merit, and is clearly an attempt to 

retaliate against defendants for their political beliefs and their participation in the governmental 

process and reporting on said process. This is exactly the type of suit for which the Indiana AntiSLAPP was designed. This Court should dismiss plaintiff‟s claim and award defendants their 

attorney‟s fees and costs. 

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Respectfully Submitted,

/s/ John J. Murphy

John J. Murphy

NIELSEN, ZEHE & ANTAS, P.C.

55 West Monroe – Suite 1800

Chicago, Illinois 60603

312.734.1005 (direct)

312.322.9977 (fax)

Jmurphy@nzalaw.com

USDC IN/ND case 2:16-cv-00449-PPS-JEM document 7 filed 02/07/17 page 17 of 18
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing 

Defendants‟ Memorandum in Support of Their Motion to Dismiss has been electronically filed 

with the Clerk of the United States District Court for the Northern District of Indiana, 

Hammond Division,by using the CM/ECF system which will send notification of such filing via 

electronic delivery to attorneys of record on February 7, 2017. 

/s/ John J. Murphy

John J. Murphy

NIELSEN, ZEHE & ANTAS, P.C.

55 West Monroe – Suite 1800

Chicago, Illinois 60603

312.734.1005 (direct)

312.322.9977 (fax)

Jmurphy@nzalaw.com

Paul Bozych

John J. Murphy

NIELSEN, ZEHE & ANTAS, P.C.

55 West Monroe – Suite 1800

Chicago, Illinois 60603

312.734.1005 (direct)

312.322.9977 (fax)

pbozych@nzalaw.com

Jmurphy@nzalaw.com

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