complaint has been properly pleaded. Vantassell-Matin v. Nelson, 741 F. Supp. 698, 707
(N.D. Il. 1990) (Nelson). The federal rules contain an in “haec verba” pleading rule that
Tequires defamation claims to set forth the alleged defamatory words published or spoken
by the defendant. Nelson, 741 F. Supp. at 707. The purpose of this requirement is to
provide defendants with general knowledge of the exact language alleged, to allow them
to form a responsive pleading. However, verbatim quotes are generally not required.
Nelson at 707-708. Because exact details may be unavailable, plaintiffs may be given an
opportunity to complete discovery before providing the exact language. Chisholm v.
Foothill Capital Corp., 940 F. Supp. 1273, 1285 (N.D. Ill. 1996) (Chisholm).

Wynne alleges that Stevenson, as an agent and/or employee of Berman, contacted
United regarding her debt, told United that she refused to pay her debt, and did not tell
United that her debt was disputed. Wynne does not provide the exact language used; but,
without the benefit of discovery, she has no means of knowing the exact language. Her
allegation is still specific enough for Stevenson and Berman to understand the specific
nature of the claim being made against them and to file a responsive pleading
accordingly. Wynne’s complaint against Stevenson and Berman, therefore, meets the
requirements for defamation pleading.

Accordingly, Berman and Stevenson’s Motion to Dismiss Count II is denied.

Wynne alleges that Defendants, LINA and RSI, made “false and malicious
statements” to someone at United regarding the debt and Wynne’s alleged lack of
“truthfulness and honesty” generally. While it is not necessary to state precisely which
defendant made a defamatory statement, or precisely to whom, without the benefit of
discovery, a plaintiff must nonetheless state her allegation with sufficient specificity,

4



of the complaint is denied. LINA’s and RSI’s Motions to Dismiss Count II of the

complaint are granted without prejudice.

Dated: /2 / 2Q74—

(ds W. DARRAH
ited States District Judge



918, 933 (N.D, Ill. 2000). Under Fed. R. Civ. P. 9(g), “items of special damages [must]
be specifically stated.”

Illinois courts recognize four categories of statements that are considered
defamatory per se: (1) words that impute the commission of a crime; (2) words that
impute infection with a loathsome communicable disease; (3) words that impute an
inability to perform or a want of integrity in the discharge of duties of office or
employment; or (4) words that prejudice a party, or impute lack of ability, in his or her
trade, profession or business.” Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 10
(1992).

The alleged defamatory statements made against Wynne do not fall into any of
these four categories. Thus, the Court must tum to the question of whether Wynne
successfully alleges defamation per quod.

A plaintiff alleging defamation per quod must set forth extrinsic facts showing
actual damage and pecuniary loss resulting from the defamatory statement. Dornhecker,
99 F.Supp.2d at 933. Plaintiff need not provide a specific figure of pecuniary loss at the
pleading stage but must allege a pecuniary loss that could be reduced to a dollar amount
and proven. See Action Repair, Inc. v. American Broadcasting Cos., 776 F.2d 143, 150
(7th Cir. 1985); Saenz v. Playboy Enterprises, Inc., 653 F. Supp. 552, 557 (N.D. Ill.
1987).

Wynne claims that Defendants’ alleged defamatory statements caused her “great

physical and mental harm, including emotional distress, damage to Plaintiff's name and

reputation, loss of employment, and loss of status in her community”. She alleges no



such that the defendants can form a responsive pleading. See Pelech v. Klaff-Joss LP,
828 F. Supp. 525, 534 (N.D. Ill. 1993). Wynne’s complaint does not inform LINA or
RSI of what in their alleged statements was defamatory. They are told only that it was
something “false and malicious,” related to the debt and Wynne’s alleged lack of
honesty. Wynne points to no specific factual allegation made by the Defendants that she
claims is false.

The claims made in the cases Wynne relies upon in her response to Defendants’
Motions to Dismiss are unlike the claims against LINA and RSI because, in each of the
cases cited, the plaintiff was able to point to specific factual allegations made by the
defendants in their alleged defamatory statements. See Chisolm, 940 F. Supp. at 1285
(alleged defamatory statement claimed that plaintiff was “double dealing” between two
companies); Pelech v, Klaff-Joss, LP, 828 F. Supp. 525 (N.D. Ill. 1993) (alleged
defamatory statement claimed that plaintiff stole a co-worker’s calculator, sold illicit
drugs, and conducted an affair with a married co-worker.)

Because Wynne can point to no specific factual allegations in the alleged
defamatory statements made by LINA and RSI, their Motions to Dismiss Count II are
granted.

Defendants also argue that Count II should be dismissed because Wynne fails to
plead facts in support of her claim of special damages.

If an alleged defamatory statement is actionable per se, a plaintiff need not meet
any special pleading requirement; if the alleged statement is actionable per quod, the

plaintiff must plead special damages. Dornhecker v. Ameritech Corp., 99 F. Supp. 2d


debt but rather to Wynne’s alleged refusal to pay the debt — the truth of which Wynne
clearly does not concede.

Accordingly, Stevenson and Berman’s Motion to Dismiss on this ground is
denied.

Because Wynne does not allege any defamatory statements made by the other
defendants with sufficient specificity, it is impossible to address the question of these
statements’ substantial truth.

Last, the Defendants assert that Wynne’s complaint should be dismissed because
the alleged defamatory statements are, in part, opinion. The question of whether a
statement is fact or mere opinion is a question of law. To determine whether a statement
is fact or opinion, a court should look at the totality of the circumstances and whether the
statement is objectively verifiable as true or false. Piersall v. SportsVision of Chicago,
230 Ill. App. 3d 503, 510 (1st Dist, 1992). Here it is argued that the defendants’ alleged
statement that Wynne is not truthful or honest is a mere opinion. However, Stevenson’s
alleged statement was given in the context of Wynne’s alleged refusal to pay her debt.
Because, in a motion to dismiss, all inferences reasonably drawn from the factual
allegations must be construed in the light most favorable to the plaintiff, it must be
inferred that Stevenson’s alleged statement about Wynne’s alleged lack of truthfulness
and honesty was made in the specific context of her alleged refusal to pay her debt. The
truth or falseness of the claim of dishonesty related to Wynne’s debt and her willingness
to pay it is likely to be objectively verifiable. Accordingly, Stevenson and Berman’s
Motion to Dismiss on this ground is denied.

For the foregoing reasons, Stevenson and Berman’s Motion to Dismiss Count II

8


‘Minute Order Form (06/97)

.

4

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge If Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 02 C 5263 DATE 12/12/2002
CASE Emily Wynne vs. Louis Stevenson, et al.
TITLE
[In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
- DOCKET ENTRY:

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

(2) oO Brief in support of motion due

(3) Qo Answer brief to motion due. . Reply to answer brief due .

(4) Oo Ruling/Hearing on set for at

(5) | Status hearing held and continued to 1/23/2003 at 9:00 A.M..

(6) oO Pretrial conference[held/continued to] {set for/re-set for] on set for at :

(7) Qa Trial(set for/re-set for] on at

(8) Qo [Bench/Jury trial] [Hearing] held/continued to at

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

OOFRCP4(m) OLocalRule 41.1 OFRCP41(ayX1) O FRCP41(a)(2).

(10) I  (Otherdocketentry) Stevenson and Berman’s motion to dismiss count II of the complaint is denied.
LINA’s and RSI’s motion to dismiss count II of the complaint are granted without prejudice. Enter
memorandum opinion and order.

(al) @ [For further detail see order attached to the original minute order.]

a | Nonotices required, advised in open court.

No notices required. umber of rotices
Notices mailed by judge’s staff. DEC 13 2002
Notified counsel by telephone. doe 4
Docketing to mail notices.
Mail AO 450 form, 103 LOWLsid “sn in y
Copy to judge/megistrate judge. BR: ws

courvoom gst He 21 930 Psa

SLB deputy's )
initials Cae gO aL +
at ime
central Clerk's Office maling deputy ital



specific facts in support of her claims for damages except that United “terminated [her]
employment on the basis of the intentional and malicious dissemination, by each of the
Defendants, of false information.” Thus, the only claim for special damages that is
sufficiently pled is her claim for damages based upon her loss of employment because it
is the only one supported by an extrinsic factual allegation (i.e., that the information
about her debt resulted in her loss of employment). Her other special damage claims are
mere conclusory statements, unsupported by any specific facts, and dismissal of such
claims is appropriate. See, e.g., Grzelak v. Calumet Publishing Co., 543 F.2d 579, 583
(7th Cir. 1975) (allegations that plaintiff was “injured in her reputation and good standing
in the community” and “suffered and continues to suffer severe mental and emotional
pain and agony” without additional facts are insufficient).

Next, Defendants argue that the alleged defamatory statements are not actionable
because they are, in part, substantially true and, in part, opinion.

“Substantial truth” is a defense to a defamation action. Wynne v. Loyola Univ. of
Chicago, 318 Ill. App. 3d 443, 451 (Ist Dist. 2000). While substantial truth is usually a
question of fact for the jury, it is a question of law where no reasonable jury could find
that substantial truth had not been established. Hollymatic Corp. v. Daniels Food
Equipment Inc., 39 F. Supp. 2d 1115, 1118 (N.D. Ill. 1999).

Defendants argue that Wynne fails to state a claim upon which relief can be
granted because the alleged defamatory statements are, in part, substantially true, as
established by Wynne’s own allegations, because they relate to a debt, the existence of
which, Defendants argue, Wynne concedes in her complaint. However, the defamatory
nature of the alleged statement by Stevenson does not relate only to the existence of the

1



Wynne repeatedly told Stevenson not to call her and to instead take whatever
legal action he deemed necessary. Stevenson continued to call. Stevenson also
frequently told Wynne that he was an attorney, although he is not an attorney licensed to
practice in Illinois.

Stevenson’s comment that United was angry with her gave Wynne the impression
that Berman and/or Stevenson had communicated with United concerning the debt and
her alleged refusal to pay. Wynne claims to have subsequently leamed that “someone
had sent an e-mail to United regarding the disputed debt” but adds that she “does not
know the contents of that e-mail or who created and then disseminated it to United
Airlines.” She claims, “Upon information and belief, it was an agent and/or employee of
Berman, Stevenson, [LINA], Cigna, or RSI.” Wynne further states that Stevenson
contacted United conceming her debt, including her alleged refusal to pay the debt,
without mentioning that the debt was disputed, and told United that she lacks
“truthfulness and honesty”. Wynne also claims that RSI contacted United about the debt
without mentioning that the debt was disputed. Wynne states also that “persons yet to be
identified,” who are believed to be an agent and/or employee of one of the defendants,
made “false and malicious” statements to United regarding both the disputed debt and
Wynne’s “alleged lack of truthfulness and honesty”.

Defendants Stevenson, Berman, LINA, and RSI argue that Wynne’s defamation
claim should be dismissed for failure to plead the alleged defamatory statement(s) with
the requisite specificity.

Because rules to the sufficiency of pleadings are procedural rather than
substantive, this Court looks to the federal rules of pleading to determine whether the

3



A reading of Wynne’s complaint supports the following summary of the alleged
conduct of the parties.

From March 5, 1989, through November 6, 2001, Wynne was employed by
United Airlines (“United”) as a flight attendant. In approximately March of 1998,
Wynne became disabled and was unable to perform her job duties. Through United,
Wynne was contractually entitled to long-term disability benefits with LINA and/or
CIGNA. She received these benefits through August 2000.

In approximately October 2000, Wynne contested a debt allegedly owed to LINA,

her long-term disability carrier, for overpayment of benefits. Nonetheless, she entered
into an agreement with Ms. Dean Webley, apparently an agent of LINA, to repay the debt
over time at a rate of $50.00 per month, beginning in January 2001.

On or about June 21, 2001, Wynne received a letter, written on the letterhead of
Eric M. Berman, P.C., a foreign company engaged in the business of debt collection in
Illinois. The letter, which was signed by Stevenson, alleged that Wynne owed LINA
$12,772.95 for the overpayment of benefits, Berman and Stevenson denied that Wynne
had ever entered into a repayment agreement with LINA, although a number of her
$50.00 payments had already been accepted.

From late June 2001 through August 2001, Stevenson called Wynne almost daily
and harassed her about the alleged debt. Allegedly, Stevenson “was extremely nasty”
and made such remarks as, “You don’t know how angry United is—things will get really
ugly for you if you do not pay back the money,” and, “We will get the money back no
matter what.” Stevenson also spoke to Wynne’s six-year-old daughter on the phone to

ask about Wynne’s activities.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

pocnersn

EMILY WYNNE, pec 13 2002

Plaintiff,

v. NO: 02 C 5263
LOUIS STEVENSON; ERIC M.
BERMAN, P.C.; ERIC M. BERMAN; LIFE
INSURANCE COMPANY OF NORTH
AMERICA; CIGNA; and RSI,

Judge John W. Darrah

www wer wer wer

Defendants.

MEMORAND! OPINION AND ORDE

Plaintiff, Emily Wynne (“Wynne”), filed a multi-count complaint against
Defendants, Louis Stevenson (“Stevenson”), Eric M. Berman, P.C. and Eric M. Berman
(collectively “Berman”), Life Insurance Company of North America (“LINA”), CIGNA,
and RSI. Presently pending before the Court are Stevenson and Berman’s, LINA’s, and
RSI’s Motions to Dismiss Count II of the complaint, which asserts a claim for
defamation.

In considering a motion to dismiss, the court reviews all facts alleged in the
complaint and any inferences reasonably drawn therefrom in the light most favorable to
the plaintiff. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th
Cir. 2000). Dismissal is warranted only if the plaintiff can prove no set of facts in
support of its claims that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46

(1957).