A. Defamation

To state a cognizable claim for defamation in Illinois, a plaintiff must allege a
defamatory statement, i.e., one that “tends to cause such harm to the reputation of
another that it lowers that person in the eyes of the community or deters third persons

from associating with [the plaintiff].” Bryson v. News America Publications, Inc., 174

Ill.2d 77, 87-88 (1996). The statement must be of and concerning the plaintiff and
cause damage to the plaintiff's reputation. Id.

As a preliminary matter, we note that the complaint does not claim that the film
and its contents tend to harm the reputation of NWLL,; it discusses only statements that
allegedly refer to Muzikowski. As such, the complaint does not make out a viable
claim of defamation as to NWLL. Thus, we direct our full attention to the coach’s
claims.

According to Muzikowski, the film actually is or could reasonably be considered
a depiction of him. He claims that O’Neill’s negative traits, especially his criminal
activity, consumption of alcohol, and motivations for becoming involved with boys’
baseball, are defamatory.

Defamation comes in two forms: per se (statements that are presumptively
harmful to a plaintiffs reputation) and per quod (statements that require extrinsic facts

either to show that they refer to the plaintiff or to explain their defamatory meaning).

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B. False Light Invasion of Privacy
Although we can find no definitive Illinois case on the issue of a nonhuman
entity’s standing to bring suit for false light invasion of privacy, we agree with the

reasoning set forth in Eberhardt v. Morgan Stanley Dean Witter Trust FSB, 2001 WL

111024, at *5 (N.D. Il. 2001). In Eberhardt, the court took the Illinois Supreme
Court’s reliance on the Restatement (Second) of Torts in defining the tort of false light
as an indication that it would adopt the Restatement view that only living individuals
can maintain an action for false light. Restatement (Second) of Torts § 6521. NWLL,
as a corporation, therefore does not have standing to pursue Count II.

Muzikowski, as a living person, does not face the same initial hardship as
NWLL. However, he must still demonstrate that he has pleaded a proper claim. A
viable cause of action for false light invasion of privacy requires the plaintiff to plead
that the defendant’s actions placed the plaintiff in a false light before the public, the
false light would be highly offensive to a reasonable person, and that the defendant
acted with actual malice, defined as knowledge of or reckless disregard for the falsity
of its statements. Kurczaba v. Pollack, 318 Ill. App. 3d 686, 696 (2000). For the
reasons stated in our discussion of defamation, Count II cannot pass the first hurdle
because Muzikowski cannot show that he and O’Neill are one and the same. He

correspondingly cannot show that the film places him in a false light. Even if

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However, a name is not the only thing that will immediately identify a plaintiff and
thus render a statement defamatory as to the plaintiff on its face. Bryson, 174 Ill.2d at
96-97; Coffey v. MacKay, 2 Ill. App. 3d 802, 807 (1972). Conversely, some very
common names, such as John Smith or Jane Jones, may not be enough to identify a
particular plaintiff without need for extrinsic evidence. In any event, in this case,
Muzikowski is not mentioned by name in the film. To maintain an action for
defamation per se, Muzikowski’s complaint therefore must provide another basis for
the conclusion that O’Neill is immediately identifiable as Muzikowski. Although
Muzikowski has alleged several similarities between himself and O’Neill (e.g., both
have deceased fathers, both cut their hands in bar fights, both have had problems with
alcohol consumption, both drove station wagons), he also points out several differences
(e.g., O’Neill is an active drinker, Muzikowski no longer consumes alcohol; O’Neill
is a compulsive gambler, Muzikowski is not; O’Neill uses his father’s death to
persuade others to lend him money, Muzikowski has not; O’Neill begins coaching to
pay off a gambling debt; Muzikowski got involved with children’s baseball for
philanthropic reasons). Based on the differences between O’Neill and Muzikowski and
the fact that the film is a work of fiction, which Muzikowski has not disputed, the

character could reasonably be construed to refer to someone other than Muzikowski


Bryson v. News America Publications, Inc., 174 Ill.2d 77, 103 (1996). At common
law, defamation per se fell into four categories: statements that imputed (1) infection
with a communicable disease, (2) commission of a crime, (3) inability to perform or
want of integrity to discharge duties of office or employment, or (4) lack of ability in
the plaintiff's trade, profession, or business. Id. at 88. Illinois by statute added another
category of per se statements: false accusations of fornication or adultery. 740 ILCS
145/1.

Muzikowski alleges that the film should be considered defamatory per se as to
him because O’Neill engages in illegal activity and the depiction of O’Neill’s behavior
and motivations casts aspersions on Muzikowski’s professional integrity and ability as
a securities broker and insurance agent. In response, Paramount looks to the so-called
innocent construction rule. Under this rule, if an allegedly defamatory statement can
reasonably be construed to refer to someone other than the plaintiff or to have a
nondefamatory meaning, the statement cannot be defamatory per se. Chapski v.
Copley Press, 92 I1l.2d 344, 352 (1982). Paramount also contends that because the
fictional character does not bear Muzikowski’s name, the film by definition cannot be
defamatory per se. Barry Harlem v. Kraff, 273 Ill. App. 3d 388, 390 (1995); Homerin
v. Mid-Ilinois Newspapers, 245 Ill. App. 3d 402, 405 (1993); Schaffer v. Zekman, 196

Ill. App. 3d 727, 732 (1990); Moore v, Streit, 181 Ill. App. 3d 587, 597-98 (1989).

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unexplained dollar amount meet the specificity requirement of Rule 9(g). Paul v.

Premier Electrical Construction Co., 581 F. Supp. 721, 724-25 (N.D. Ill. 1984).

Muzikowski’s complaint centers on anticipated harm that he believes will be the
natural result of the film. He claims that corporate sponsors of his leagues will be
reluctant to contribute, it is unlikely that volunteers will continue to donate their time,
his securities and insurance clients will have reason to believe that Muzikowski
misrepresents himself, his sales in the form of renewals and referrals could reasonably
be impacted, and he will become a target of gangs in the areas where he coaches.
Neither this court nor Muzikowski can see into the future to divine whether these
events will happen, if they will occur as a result of the film, and how much damage
they would cause Muzikowski if they did come to pass. Paragraph 126 of the
complaint arguably describes past harm, stating that Muzikowski has spent time that
would normally be used for sales calls trying to mitigate the harm to his reputation.
Nowhere in that paragraph or anywhere else in the complaint does he describe how the
time he has spent resulted in the $3,000,000 of damages he seeks in his prayer for
relief. Accordingly, we conclude that Muzikowski has not adequately alleged the
special damages needed to support a claim of defamation per quod. Because the
complaint does not make out a proper claim for defamation per se or per quod, we

dismiss Count I.


Minvte Grder Form (06/97)

th \eeCbrates District Court, Northern District of Illinois

Name of sean Dae Charles P. Kocoras Sitting Judge if Other
or Magistrate\Judg than Assigned Judge
CASE NUMBER 01 C 6721 DATE 11/28/2001
CASE Muzikowski et al vs. Paramount Pictures Corp. et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) o Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) im) Answer brief to motion due___. Reply to answer briefdue___.

(4) Qo Ruling/Hearingon__——sset for___—_att

(5) a Status hearing[held/continued to] [set for/re-set for]on____setfor.__at

(6) o Pretrial conference{held/continued to] [set for/re-set for]on__setfor__—at__—.
(7) a] Trial[set for/re-set for]on___at

(8) a [Bench/Jury trial] [Hearing] held/continued to__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

DOFRCP4(m) (General Rule21 CFRCP41(a)(1) CFRCP41(a)(2).

ao [Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: We grant defendants’
motion (Doc 11-1) and dismiss the complaint without prejudice. All other pending motions are moot.

(il) ff (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
eat umber of notices

Notices mailed by judge’s staff.

NOV 2.9. 20m

Notified counsel by telephone,

wv | Docketing to mail notices.

| Mail AO 450 form. Q
Copy to. sen judge. . Wah
me om jad ft GY
irtroom wig 25 nid v3
ScT ‘deputy’s
initials
Date/time received in
central Clerk’s Office railing deputy initials



Muzikowski could get past the first element, given that he has not alleged that the film
is nonfiction, false light and its requirement of actual malice seem singularly
inapplicable under the circumstances of this case. In short, it is difficult to imagine how
a production company could produce a work of fiction without knowledge ofits falsity.
Accordingly, we dismiss Count II.

CONCLUSION

For the foregoing reasons, we grant Paramount’s motion and dismiss the

complaint without prejudice.

Charles P. Kocoras
United States District Judge

Dated: November 28, 2001

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or to no actual person at all. We therefore conclude that the innocent construction rule
prevents us from finding that the film is defamatory per se.

Muzikowski could still set forth a viable defamation claim if the film can be
considered defamatory per quod. Statements defamatory on their face that do not fall
into one of the per se categories and statements that are not defamatory on their face
but that can be shown defamatory by extrinsic facts are designated defamation per
quod. Bryson, 174 Ill.2d at 88, 103. Because this type of defamation does not involve
presumptively harmful statements, to properly plead a claim, a plaintiff must allege
special damages resulting from the defamatory statement. Id. at 87-88. Under Fed. R.
Civ. P. 9(g), allegations of special damage are not subject to the relaxed requirements
of notice pleading; rather they must be specifically stated. In diversity cases, whether
an allegation of special damages is sufficiently specific is a matter of federal, not state
law. Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 269-70 (7th Cir.
1983). Allegations that a plaintiff was damaged and will continue to be damaged as
the natural result of an allegedly defamatory statement do not satisfy the heightened

pleading standard for special damages. American Needle & Novelty, Inc. v. Drew

Pearson Marketing, Inc., 820 F. Supp. 1072, 1076 (N.D. Ill. 1993). Neither will a

general claim that the plaintiff's business has been damaged accompanied by an


LEGAL STANDARD
The purpose of a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is to test the legal sufficiency ofacomplaint. Triad Associates, Inc. v. Chicago

Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to dismiss, the

court must construe the allegations of the complaint in the light most favorable to the
plaintiff, and all well-pleaded facts and allegations in the complaint must be accepted

as true. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993).

The allegations of a complaint should not be dismissed for failure to state a claim
“unless it appears beyond a doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46
(1957). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege
facts sufficiently setting forth the essential elements of the cause of action. Lucien v.

Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). With these principles in mind, we turn

to Paramount’s motion.
DISCUSSION
Muzikowski’s complaint is framed in two counts: one for defamation and one
for false light invasion of privacy. As we sit in diversity on this case, we apply the

substantive law of Illinois. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).


Little League® (“NWLL”). Because of his efforts, Muzikowski has been recognized
by Little League, Inc., the governing body of all Little League programs, and he has
been featured in several publications and broadcasts around the country.

In 1994, an assistant coach in the Near North Little League® authored a
nonfiction account of his coaching experience entitled Hardball: A Season in the
Projects. The book mentions Muzikowski several times and discusses his life and
background, as well as his work with the Near North teams. Defendant Paramount
Pictures purchased the film rights for the novel and in September 2001 released the
film Hardball, produced by Defendant Tollin/Robbins Productions and distributed by
Defendant Fireworks Pictures (collectively referred to as “Paramount”). The film, a
work of fiction, recounts the story of Conor O’Neill, a hard-drinking gambling addict
who coaches an inner-city baseball team of young boys to pay off a debt to a bookie.
At various points in the film, ONeill is portrayed as violent, self-centered, and
engaged in illegal activities such as ticket scalping.

Based on preliminary reviews of the film, Muzikowski filed suit first in
California and then in this court, seeking an injunction of the film’s release and
$11,000,000 in damages for defamation and false light invasion of privacy. Paramount

moves to dismiss the complaint in its entirety.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT E. MUZIKOWSKI, an individual,

)
NEAR WEST LITTLE LEAGUE, INC., an ) re p
Illinois not-for-profit corporation, ) ue ‘
) NOV 2 9 2001
Plaintiffs, )
)
vs. ) 01 C 6721
)
PARAMOUNT PICTURES CORPORATION, ,)
SFX TOLLIN/ROBBINS, INC. and }
FIREWORKS PICTURES, )
)
Defendants. )
MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on a motion to dismiss by Defendants
Paramount Pictures, SFX Tollin/Robbins Productions, and Fireworks Pictures. For the
reasons set forth below, the motion is granted.

BACKGROUND

Plaintiff Robert Muzikowski (“Muzikowski”) is a securities broker and
insurance agent who has been active for the last 10 years in organizing and running
baseball leagues for young boys in Chicago and New York. Muzikowski has founded

several leagues, among them the Near North Little League® and Plaintiff Near West

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