WILLIAM M. CONLEY, District Judge.
In his amended complaint, plaintiff Stephen D. Wesbrook, Ph.D., asserts a claim of tortious interference with his employment and defamation against defendants, former colleagues at Marshfield Clinic. Defendants responded with a renewed motion to dismiss, arguing that Wesbrook had failed to cure the deficiencies pointed out in the court's original order of dismissal. For the reasons set forth below, the court will deny the motion to dismiss as to defendants Karl Ulrich, M.D., and Edward Belongia, M.D., but will grant it and dismiss as to defendants Barbara Lee, Ph.D., and Ronald Martin, M.D.
On July 11, 2013, plaintiff filed a complaint against defendants Karl Ulrich, M.D., Edward Belongia, M.D., Barbara Lee, Ph.D., and Ronald Martin, M.D., claiming that they tortuously interfered with his employment at Marshfield Clinic, eventually causing his termination from a position as Deputy Director of the Marshfield Clinic Research Foundation ("MCRF"). The facts alleged in the original complaint were previously set forth in the court's order dated March 3, 2014 (dkt. # 25), and will not be repeated at length here. The court dismissed plaintiff's complaint without prejudice, holding that plaintiff failed to sufficiently plead an independent tort claim as required under Preston v. Wisconsin Health Fund, 397 F.3d 539 (7th Cir.2005), and Rule 12(b)(4).
As a result, the court dismissed the complaint without prejudice, while allowing plaintiff the opportunity to submit an amended complaint. On March 17, 2014, plaintiff did so (dkt. # 27), along with four attached documents: (1) a letter from former Congressman and Defense Secretary Melvin R. Laird to Dr. Humberto Vidaillet ("Vidaillet") (dkt. # 27-1); (2) a November 30, 2011, letter from Belongia to Ulrich
To survive defendants' renewed Rule 12(b)(6) motion, plaintiff must sufficiently plead that: (1) Marshfield Clinic did not benefit from defendants' alleged interference; and (2) the defendants' acts were independently tortious. Since plaintiff was already found to have sufficiently pled that Marshfield Clinic did not benefit from the alleged interference (see 3/13/14 Op. & Order (dkt. # 25) 9-10), the court's review of the amended complaint centers on whether plaintiff has sufficiently alleged defamation under Wisconsin law in compliance with Federal Rule of Civil Procedure 8.
"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief can be granted." Diamond Ctr., Inc. v. Leslie's Jewelry Mfg. Corp., 562 F.Supp.2d 1009, 1013 (W.D.Wis.2008). In "[e]valuating the sufficiency of the complaint, [the court] construes it in the light most favorable to the nonmoving party, accept[s] well-[pled] facts as true, and draw[s] all inferences in her favor." Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir.2013). To satisfy Rule 8, plaintiff need not provide detailed factual allegations, but must provide "just enough facts to raise [the claim] above the level of mere speculation." Riley v. Vilsack, 665 F.Supp.2d 994, 997 (W.D.Wis.2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'")). A plaintiff must provide enough facts to state a claim that is plausible on its face and allow the "court to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Complaints that merely provide vague and conclusory allegations are insufficient to state a claim for defamation; rather, the complaint must be sufficiently detailed "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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (quotation marks and ellipses omitted).
Under Wisconsin law, to successfully allege a claim for the independent tort of defamation, a plaintiff must allege that the defamatory statement: "[1] was spoken to someone other than the person defamed, [2] is false, [3] is unprivileged and [4] tends to harm the defamed person's reputation so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Torgerson v. Journal Sentinel, Inc., 210 Wis.2d 524, 534, 563 N.W.2d 472, 477 (1997); Hart v. Bennet, 2003 WI App 231, ¶ 21, 267 Wis.2d 919, 672 N.W.2d 306. Even if a defendant is not the original source of a defamatory statement, repeating or republishing defamatory statements made by others can still lead to liability for defamation. Hart, 2003 WI App 231 at ¶ 25 ("One who repeats or otherwise republishes defamatory matter is subject to
Here, since Ulrich, Belongia, Lee, and Martin allegedly all originated, repeated, or republished allegedly defamatory statements, each can potentially be held liable for defamation, regardless of whether or not they were the original source of information. However, repeated and republished statements must meet the same four elements of defamation for liability to attach, and all pleadings must still meet the requirements of Rule 8.
The court will grant the defendants' motion to dismiss regarding defendants Lee and Martin due to plaintiff's failure to present more than vague and conclusory allegations against them. Specifically, plaintiff's allegations against Lee are as follows:
(Am. Compl. (dkt. # 27).)
Plaintiff's allegations against Lee are still not sufficient to fulfill the requirements of Rule 8. As an initial matter, the allegations are too vague and conclusory as to the actual content of the alleged defamatory statements. For example, plaintiff's allegation in paragraph 130 that Lee called a number of retired physicians and "conveyed false and defamatory information to them about [plaintiff]" fails to meet the requirements of Rule 8. Indeed, the only change plaintiff makes to paragraph 130 in his amended complaint is to add the words "and defamatory." The closest thing to an alleged specific, defamatory statement by Lee is found at paragraph 126, but even there the statements is one made in a letter authored by Laird and published to Belongia and Ulrich.
While plaintiff claims that Lee "assisted" in the preparation of Laird's "false letter," as in paragraphs 95 and 125, plaintiff provides no elaboration as to how Lee assisted, particularly as to the false information she provided. Similarly, in paragraphs 159-61, plaintiff provides no specificity as to what false information came from Lee. Contrary to plaintiff's assertions to the contrary, these allegations fail to provide Lee with sufficient notice as to the nature of plaintiff's defamatory claims alleged against her in particular.
Plaintiff's amended complaint also does little, if anything, to address the deficiencies in his claims against Martin previously noted by this court. In particular, plaintiff's allegations of fraud and defamation against Martin are still vague and conclusory and provide no specific statement that is capable of a defamatory meaning.
(Am. Compl. (dkt. # 27).)
Each allegation made against Martin lacks even the relatively low level of detail required by Rule 8. Throughout, plaintiff fails to provide more than vague allegations
Plaintiff also effectively waived his claims against Martin by failing to address the argument that the allegations against him were insufficient. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir.2011) (holding that plaintiff's failure to present legal arguments or cite relevant authority to substantiate a claim in response to defendants' motion to dismiss resulted in a waiver of that claim) (citing Lekas v. Briley, 405 F.3d 602, 614 (7th Cir.2005)). Regardless, plaintiff has again failed to sufficiently allege defamation against Martin with specificity.
Defendants concede that the amended complaint contains sufficient allegations of specific, false statements by defendants Ulrich and Belongia to proceed past the motion to dismiss stage. As a result, only two issues remain pertaining to those defendants: (a) whether plaintiff has sufficiently alleged that statements made by Ulrich and Belongia were unprivileged; and (b) whether plaintiff has sufficiently alleged that their statements were defamatory in nature.
Under the common interest privilege, defamatory statements are conditionally privileged if they "are made in furtherance of common property, business, or professional interests" — a privilege that extends to "partners, officers of a corporation for profit, fellow shareholders ... fellow servants ... [and] persons associated in professional activities." Restatement (Second) of Torts § 596 cmt. d (1977); see Zinda v. La. Pac. Corp., 149 Wis.2d 913, 923, 440 N.W.2d 548, 552 (1989). The common interest privilege exists unless the defendant abuses the privilege.
Defendants contend that all of the arguably actionable statements contributed to Ulrich and Belongia are barred from a claim of defamation by privilege. Though plaintiff fails to cite any case law in support, he principally responds that he need not negate defendants' assertion of conditional privilege at the pleading stage of this litigation. On this, plaintiff is correct. The Seventh Circuit and this court have both previously held that under Wisconsin law, a plaintiff need not anticipate the common interest privilege in his complaint by proffering evidence of abuse. See Quinn v. Overnite Transp. Co., 24 Fed.Appx. 582, 586 (7th Cir.2001) (unpublished) ("[C]onditional privilege is an affirmative defense ... [plaintiff] need not plead facts that defeat the privilege."); Emiabata v. Marten Trans., Ltd., 574 F.Supp.2d 912,
At the pleading stage, plaintiff needs only to sufficiently identify defendants' false statements and allege their communication to a third party. See Emiabata, 574 F.Supp.2d at 919 (holding plaintiffs' defamation pleading was sufficient regardless of common interest privilege because they sufficiently alleged that defendant made defamatory statements to a third party). While the court would be remiss not to point out that plaintiff appears to have a steep uphill battle in overcoming the common interest privilege, it declines to address defendants' assertion of conditional privilege without a full record.
Defendants also contend that none of the alleged statements made about plaintiff were defamatory. "Whether a particular communication is capable of a defamatory meaning is a question of law." Uebelacker v. Paula Allen Holdings, Inc., 464 F.Supp.2d 791, 800 (W.D.Wis.2006) (emphasis added) (citing Lathan v. Journal Co., 30 Wis.2d 146, 153, 140 N.W.2d 417, 421 (1966)). In other words, dismissal is warranted only if the alleged statements cannot be reasonably understood as defamatory. Hy Cite Corp. v. Regal Ware, Inc., No. 10-cv-168-wmc, 2011 WL 1206768, at *6 (W.D.Wis. March 15, 2011); see also Starobin v. Northridge Lakes Dev. Co., 94 Wis.2d 1, 10, 287 N.W.2d 747, 751 (1980).
In determining whether a statement is capable of a defamatory meaning, the court must examine the plain language of the statement "in the context of the communication as a whole." Hy Cite, 2011 WL 1206768 at *6 (citing Westby v. Madison Newspapers, Inc., 81 Wis.2d 1, 6, 259 N.W.2d 691, 693 (1977); Frinzi v. Hanson, 30 Wis.2d 271, 276, 140 N.W.2d 259, 261 (1966)). To be defamatory, a statement's plain meaning must tend to harm the plaintiff's reputation "so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him." Hart, 2003 WI App 231 at ¶ 21 (citing Mach v. Allison, 2003 WI App 11, ¶ 12, 259 Wis.2d 686, 656 N.W.2d 766). Generally, statements of opinion are not defamatory. Rigsby v. AM Cmty. Credit Union, 2014 WI App 45, ¶ 9, 353 Wis.2d 553, 846 N.W.2d 33. A defamatory statement must: (1) assert or imply a fact that is capable of being proven false; or (2) it must assert an opinion that directly implies the assertion of an undisclosed defamatory fact. Mach, 2003 WI App 11 at ¶ 12 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)). More particularly, statements of opinion are not actionable if they merely express "a subjective view, an interpretation, a theory, conjecture, or surmise," unless the defendant claims or purports to possess specific and objectively verifiable facts supporting
After construing the amended complaint in a light most favorable to plaintiff and assuming all allegations of fact to be true, the court finds that plaintiff has sufficiently plead that alleged statements made by Ulrich and Belongia were defamatory in nature. The court takes up each of the two remaining defendant's alleged statements in turn below.
Plaintiff sufficiently alleges two instances where Ulrich made or published statements that could have a defamatory meaning. Plaintiff first alleges that Ulrich created a memo to the file containing a chronology of events, which includes a number of false and defamatory statements relayed by other individuals. Since there is dispute between the parties as to the categorization of the chronology in the amended complaint, the court focuses on the attached memo itself. Uebelacker, 464 F.Supp.2d at 804 ("Although courts do not presume that a plaintiff means to adopt every word in its exhibits, attachments trump contradictory allegations."). Ulrich states in the memo that individuals involved with MCRF had called plaintiff's management style "retaliatory," "coercive," "threatening," "abusive," and "contentious," as well as asserts that plaintiff had engaged in "oppressive management" and "retaliatory conduct." (Dkt. # 27-2 at 2-3.)
Taken as a whole, such statements are arguably capable of a defamatory meaning if intended to be relied upon by others.
Relying primarily on Kerrigan v. Otsuka America Pharmaceutical, Inc., 560 Fed. Appx. 162 (3d Cir.2014) (unpublished), defendants contend that Ulrich's statements in the memo were purely opinion, and thus not capable of being defamatory. (Defs.' Reply 4-5 (dkt. # 34).) Unlike the alleged defamatory statements in Kerrigan, Ulrich's statements resulted from a systematic method of data collection, purporting to rely on the testimony of MCRF employees. Given the nature of Ulrich's memo, it is reasonable to conclude at this point that Ulrich's statements are not pure opinion, but at least reference: (1) statements by others, which are capable of being confirmed, albeit perhaps not for the truth of the matter asserted; and (2) undisclosed, verifiable defamatory facts (e.g., plaintiff made threats to employees and engaged in retaliatory, coercive, and abusive conduct).
Plaintiff has also sufficiently alleged defamation against Ulrich regarding phone conversations with board members. Specifically, the amended complaint alleges:
(Am. Compl. (dkt. # 27) ¶ 163.)
Here, too, plaintiff sufficiently pleads defamation against Ulrich, at least to the extent that particular statements in Ulrich's communications are proved false. Similarly, plaintiff's allegations that Ulrich communicated false information about a climate of fear and intimidation and administrative and leadership failures arguably are obviously capable of a defamatory meaning, since both create a poor working environment for employees and indicate a deficient management style, which could easily harm one's professional reputation. Considering Ulrich is alleged to have communicated this information to the Board, his statements could inhibit confidence in plaintiff, damage his reputation, and potentially lead to his firing.
Further, as with the statements in Ulrich's memo, see discussion, supra, at p. 811, Ulrich's conversations with board members rise above the level of pure opinion. The first two allegations in paragraph 163 of the amended complaint reference a "climate of fear and intimidation" and restate "leadership and administrative failures" discussed in Ulrich's memo, in addition to other, undisclosed defamatory facts. In the same paragraph, defendants allege plaintiff's failure to comply with a performance improvement plan, which if nothing else casts doubt on plaintiff's ability to fulfill his duties at MCRF.
Plaintiff has also sufficiently alleged defamation against Belongia by reference to statements in his November 30 letter.
(Am. Compl. (dkt. # 27) (internal quotations omitted).)
Although Belongia's statements that plaintiff caused resignations and destroyed years of program development may be purely predictive opinion, his other statements are verifiable facts or imply an objective fact, which could harm plaintiff's reputation, such that they arguably are defamatory in nature. First, Belongia's statement that other scientists had filed complaints against plaintiff constitutes a factual statement. Such a statement when made to Ulrich, and certainly when published to the Board, could harm plaintiff's reputation in the eyes of those who control his fate and cause the Board to consider ending its association with him. Thus, Belongia's statement regarding complaints from scientists could be defamatory.
Second, again contrary to defendants' assertions, Belongia's statements that other scientists feared coming forward with complaints about plaintiff for fear of retaliation and that plaintiff used coercion and intimidation towards those who disagreed with him or question his decisions are not purely opinion. Like Ulrich's statements in the memo, Belongia's statements resulted from a systematic data collection effort based on MCRF employee testimony that distinguishes Belongia's statements from pure opinion. Thus, plaintiff has sufficiently pled defamation against Belongia.
IT IS ORDERED that:
