IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION DR. ALVIN TILLERY, ) ) Plaintiff, ) ) v. ) Case No.: 2016-L-010676 ) DR. JACQUELINE STEVENS, ) ) Defendant. ) PLAINTIFF S RESPONSE IN OPPOSITION TO DEFENDANT S MOTION TO DISMISS PLAINTIFF S AMENDED COMPLAINT PURSUANT TO 735 ILCS 5/2-615 and 2-619 Plaintiff DR. ALVIN TILLERY ( Dr. Tillery ), by and through his attorneys, Mudd Law Offices, files his Response in Opposition to Defendant DR. JACQUELINE STEVENS ( Defendant ) Motion to Dismiss Plaintiff s Amended Complaint Pursuant to 735 ILCS 2-615 and 2-619 1 ( Motion ), and states as follows: INTRODUCTION The Defendant has engaged in a course of conduct designed to damage and harm Dr. Tillery s professional reputation through the repeated publication of false statements that give rise to claims for defamation per se and false light. Despite the Amended Complaint containing properly and sufficiently alleged claims, the Defendant has filed a motion to dismiss raising 1 Pursuant to this Court s Standing Order, Paragraph 6 (eff. Apr. 6, 2017), [m]ovants wishing to dismiss a respondent s action under both 735 ILCS 5/2-619 and 735 ILCS 5/2-615, must file the 2-615 motion first, omitting any motion under 2-619.... The Defendant filed her Motion in violation of this rule. Accordingly, and pursuant to this Court s Order dated June 9, 2017, Dr. Tillery responds in opposition to only the portion of the Defendant s Motion that addresses dismissal under 735 ILCS 5/2-615. Thus, the Defendant s arguments with respect to substantial truth, actual malice, and qualified privilege will not be addressed here (although they clearly have no merit, as previously argued). Dr. Tillery reserves his right to respond to these 2-619 arguments if and when the Court states to do so.
arguments under 735 ILCS 2-615. As demonstrated below, the Defendant s arguments reflect a misunderstanding of the law, both substantive and procedural, from which they cannot succeed. Thus, the Court must deny her Motion. FACTUAL BACKGROUND Dr. Tillery and the Defendant both work as faculty for Northwestern University ( Northwestern ) in its Political Science Department ( Department ). Am. Compl. 21, 24. At the start of the 2015-2016 academic year, Dr. Tillery assumed the position of the Department s Associate Chair and, in this role, supervised the Defendant s course schedule. Id. 25-26. On or about March 8, 2016, Dr. Tillery met with the Defendant in his office to discuss her course schedule ( March 8th Meeting ). Am. Compl. 27. At all times during the March 8th Meeting, the door to Dr. Tillery s office remained open. Id. 28. At one point during the meeting, the Defendant suddenly erupted into an outburst. Id. 29. In doing so, she began to accuse Dr. Tillery of having engaged in illusory conduct. Id. In response, Dr. Tillery requested that the Defendant leave his office. Am. Compl. 30. After the Defendant departed, Dr. Tillery closed the door. Id. 31. He immediately reported the incident to his supervisor. Id. 32. On March 9, 2016, Dr. Tillery learned that the Defendant had filed a report with his supervisor claiming that he had verbally abused her and engaged in unprofessional conduct ( Report ). Am. Compl. 33. In the Report, the Defendant stated that Dr. Tillery yelled at her. Id. 34. She also stated that Dr. Tillery slammed the door toward her. Id. 36. The Defendant further stated that Dr. Tillery engaged in other unprofessional conduct. Id. 38, 41. Specifically, the Defendant wrote that Dr. Tillery s conduct was in tone and deed aggressive and beyond inappropriate for a work place. Am. Compl. 38. The Defendant s accusations in 2
the Report are false. Id. 35, 37, 39-40, 42-46. Dr. Tillery did not yell at or verbally abuse the Defendant, did not slam his door, and did not engage in any conduct that was aggressive and beyond inappropriate for a workplace. Id. 35, 37, 39-40. On September 1, 2016, the Defendant published public posts to her blog located at the domain name http://brandnu.world/ ( September 2016 Posts ). Am. Compl. 47. The September 2016 Posts republished the gist of the false statements made in the Report. Id. 48-51. They also include additional false statements regarding the March 8th Meeting and the Defendant s Report. Id. 49. Specifically, the Defendant stated that a student witnessed Dr. Tillery yelling at her. Id. 50. The Defendant falsely described Dr. Tillery as exhibiting aggression. Am. Compl. 58, 60. He did not exhibit aggression. Id. 61. She also readily admitted that her false allegations constituted accusations that Dr. Tillery violated Northwestern policies. Id. 58. In that context, she also falsely stated that Dr. Tillery violated Northwestern s civility code. Id. 62. Dr. Tillery did not violate any Northwestern policies on March 8, 2016 and has not violated Northwestern s civility code. Am. Compl. 59, 64. She accused Dr. Tillery of threats, bullying, and retaliating. Id. 65. Dr. Tillery has not engaged in any threats, bullying, and retaliating. Id. 66. The Defendant falsely stated that Dr. Tillery lied about his recollection of the March 8th Meeting. Id. 67. Dr. Tillery has not lied about his recollection of the March 8th Meeting. Id. 68. Finally, the Defendant falsely maintained and, continues to maintain, that a student witnessed the March 8th Meeting and corroborated her false narrative. Am. Compl. 50-55. However, all other reported accounts (e.g. at least three faculty members with offices near and across from Dr. Tillery s office, the Defendant s graduate student who had been working in the Defendant s office, and the investigator retained by Northwestern to investigate the incident) reveal that no one in the vicinity heard any yelling or slamming and 3
that the Defendant coached the witness on what she maintains occurred. Id. 43, 52-55. Since the September 2016 Posts, the Defendant has continued to repeat old and make new false statements about Dr. Tillery such as falsely stating that Dr. Tillery discriminates against her based upon her status in a protected class. Am. Compl. 69-70. Dr. Tillery does not discriminate against the Defendant and certainly does not discriminate against the Defendant because of her status in a protected class of individuals. Id. 71-72. Because the Defendant s false accusations caused and continue to cause Dr. Tillery both personal and professional harm, Am. Compl. 81-82, Dr. Tillery filed his Complaint on October 28, 2016. In response, the Defendant filed a motion to dismiss pursuant to 735 ILCS 5/2-615 and 2-619. See generally Mot. On April 28, 2017, the Court granted Dr. Tillery leave to amend the complaint on 5/2-615 grounds and, specifically, directed Dr. Tillery to include and attach the Defendant s exact statements. See Order, Tillery v. Stevens, No. 2016-L-10676 (entered Apr. 28, 2017) (order granting Dr. Tillery leave to amend the Complaint). Dr. Tillery did so. See generally Am. Compl., Tillery, No. 2016-L-10676 (filed May 10, 2017). On May 31, 2017, the Defendant filed her Motion that significantly repeats the arguments of her prior motion to dismiss. 2 ARGUMENT The Defendant raises only two arguments under 735 ILCS 2-615 each of which fail to dismiss Dr. Tillery s claims. 3 To begin with, the Defendant s statements are not reasonably susceptible to an innocent construction. Next, Dr. Tillery has sufficiently pled the statements at 2 The Defendant concedes that there is a great deal of overlap between the original motion to dismiss and the instant motion. Mot., p. 1. 3 Here, Dr. Tillery has sufficiently alleged each required element to state claims for defamation per se and false light against the Defendant. Am. Compl. 83-128; 130-151; 153-174. The Defendant does not argue to the contrary. See generally Mot. 4
issue. For this reason and those articulated below, the Defendant s Motion must therefore be denied in its entirety. A. Section 2-615 Standard Illinois has a well-settled standard for deciding 2-615 motions to dismiss. Admitting the truth of all well-pleaded factual allegations, a 2-615 motion challenges the legal sufficiency of the complaint. Disc Jockey Referral Network v. Ameritech Publishing, 230 Ill. App. 3d 908, 912 (1st Dist. 1992). Illinois courts construe pleadings liberally seeking substantial justice between the parties. Id. No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet. 735 ILCS 5/2-612(b). Because Illinois is a fact-pleading jurisdiction, the plaintiff must allege facts sufficient to bring his or her claim within the scope of the cause of action asserted. Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 407 (1996). The key question is whether the complaint alleges sufficient facts that, if proven, would entitle the plaintiff to relief. Id. A 2-615 motion can only be granted if it is clear that plaintiff cannot prove any set of facts under the pleading that would entitle him to the relief requested. Disc Jockey Referral Network, 230 Ill. App. 3d at 912. B. Defendant s Innocent Construction Argument Unavailing The Defendant primarily argues that innocent construction protects her false statements. Mot., pp. 2-3. In doing so, it should be initially noted that, once again, the Defendant limits her innocent construction argument solely to the per se category imputing criminal conduct and ignores the remaining categories of per se defamation alleged in the Amended Complaint. Id. As to criminal conduct, the Defendant argues that her statements alleging verbal abuse and aggression, in the context of Dr. Tillery purportedly raising his voice, shouting Get out!, and 5
slamming the door, could be innocently construed as falling short of criminal conduct. Mot., p. 3. In so doing, the Defendant clearly omits and cherry picks the language at issue in the Amended Complaint to minimize the full nature of her statements. Indeed, the Defendant s statements that Dr. Tillery physically slammed the door toward her, abused her, exhibited aggression toward her, and engaged in threats, bullying, and retaliating, among other similar statements, explicitly seek to impute unlawful behavior. In this case, it imputes criminal conduct in the form of assault. See Am. Compl. 34, 36, 38, 50, 60, 65. In Illinois, [a] person commits assault when, without lawful authority, he or she knowingly engages in conduct which places another in reasonable apprehension of receiving a battery. 720 ILCS 5/12-1(a). To be sure, the Defendant perceived her allegations (false as they may be) to be serious enough to report to Northwestern and Dr. Tillery s supervisor. Am. Compl. 56-58, 62-63. As such, the Defendant s effort to now minimize the unlawful and criminal import of the statements falls short. See id. Moreover, the mere existence of the Defendant s minimalist interpretation of the statements does not compel an innocent construction. Indeed, courts interpret defamatory statements as they appeared to have been used and according to the idea they intend to convey to the reasonable reader. Bryson v. News. Am. Publs., 174 Ill. 2d 77, 93 (1996). Even if the statement could be construed in an apparent innocent manner, the possibility of an innocent construction does not protect a statement and a defendant where a defamatory meaning was clearly intended and conveyed or far more reasonable. Id. Courts need not strain to find an unnatural innocent meaning for a statement when a defamatory meaning is far more reasonable. Tuite, 224 Ill. 2d at 504-505; Giant Screen Sports v. Canadian Imperial Bank of Comm., 553 F.3d 527, 533 (7th Cir. 2009). Here, the severity of the statements in the context of the pleadings 6
and being viewed in a light most favorable to the Plaintiff foreclose any dismissal of the statements based on innocent construction. Bryson, 174 Ill. 2d at 93. The Defendant s appeal to Green v. Trinity Int l Univ., 344 Ill. App. 3d 1079 (Ill. App. Ct. 2nd Dist. 2003) and Green v. Rogers, 234 Ill. 2d 478 (2009) is misplaced. In Rogers, the Court found that the statements abuse and misconduct were reasonably capable of innocent construction because, based on the context (e.g. the defendant parent continuing to invite the plaintiff coach around his son), the statements could reasonably be construed as managerial misconduct rather than sexual misconduct. 234 Ill. 2d at 500-502. Here, the Defendant a subordinate of Dr. Tillery - very clearly described physical and verbal conduct that constitutes assault (e.g. aggression, threats, bullying, and so forth). See Am. Compl. 34, 36, 38, 50, 60, 65; see also 720 ILCS 5/12-1(a). Thus, Rogers is distinguishable and not applicable for the purposes the Defendant seeks to use it. See 234 Ill. 2d at 500-502. Likewise, in Trinity, the Court found the defendant students complaints to their university about the plaintiff faculty member could reasonably be construed to mean that the plaintiff did not fit in with the University rather than imputing lack of skill or integrity. 344 Ill. App. 3d at 1094. In contrast, the Defendant s statements about Dr. Tillery describe serious conduct she used in an effort (albeit unsuccessful) to have him sanctioned by Northwestern. Am. Compl. 56-58, 62-63. She did not simply describe conduct that suggests Dr. Tillery might not fit with Northwestern. Id. Thus, Trinity is also distinguishable. See 344 Ill. App. 3d at 1094. But, even, assuming, arguendo, the statements do not impute criminal conduct, they still impute lack of ability and integrity as well as prejudice Dr. Tillery in his profession. Am. Compl. 124-126. In her Motion, the Defendant fails to address or contest these independent bases for Dr. Tillery s defamation per se claim. Nonetheless, even if she had, the claim would 7
survive. Indeed, by falsely accusing Dr. Tillery of physically slamming the door, abus[ing] her, exhibiting aggression, and engaging in threats, bullying, and retaliating, all toward a fellow professor under his supervision, the Defendant s statements impute a lack of integrity in the discharge of Dr. Tillery s duties as an Associate Chair. Am. Compl. 124; see also Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 12-14 (Ill. 1992); Swick v. Liautaud, 169 Ill. 2d 504 (Ill. 1996). The Defendant s statements also impute a lack of ability in Dr. Tillery s profession and otherwise prejudice Dr. Tillery as a professional academic and Associate Chair at Northwestern. Id. 125-126. In fact, the Defendant herself concedes that the allegations in her Report constitute violations of Northwestern s policies and civility code, specifically stating that she filed the complaint accurately pointing out my colleague s unprofessional conduct and [h]ere was a specific allegation of specific violations of NU policies. Am. Compl. 56-58, 62-63, 92, 106-109; see Tuite, 224 Ill.2d at 501-502. Based on the foregoing, the Defendant s appeal to innocent construction fails. Accordingly, the Defendant s Motion must be denied as to this argument. See Tuite, 224 Ill. 2d at 504-505. C. Amended Complaint Does Not Contain Impermissibly Vague Allegations In her second and final argument, the Defendant suggests that five of the allegations in the Amended Complaint are impermissibly vague. Mot., pp. 3-5; see Am. Compl. 69-72, 94. The Defendant is mistaken. To begin with, the allegations that the Defendant complains are vague, Mot., pp. 3-5, Am. Compl. 69-72, 94, simply represent the Defendant s continued republication of her original false narrative and defamatory statements described in detail and quoted in the Amended Complaint. Am. Compl. 33-40. This includes: that she falsely stated Dr. Tillery yelled at her; 8
that Dr. Tillery slammed his door; that Dr. Tillery engaged in conduct beyond inappropriate for a work place ; that Dr. Tillery exhibited aggression ; that Dr. Tillery lied about the incident; that Dr. Tillery engaged in threats, bullying, and retaliation ; that a student supposedly witnessed the incident; and, that by engaging in the foregoing conduct, Dr. Tillery acted in violation of Northwestern policies. 4 See Am. Compl. 34, 36, 38, 41, 48, 50, 50-55, 56-58, 62-63, 92, 106-109. By incorporating these allegations, Dr. Tillery does not seek to introduce any new statements, but rather demonstrate the Defendant s continued defamatory, and harmful conduct exhibited by her consistently propounding a false narrative that Dr. Tillery abused her. See Am. Compl. 34, 36, 38, 41, 48, 50, 50-55, 56-58, 62-63, 92, 106-109. Next, the Defendant complains that Dr. Tillery does not identify the full context of the Defendant s oral statements concerning him. Mot., p. 5. Dr. Tillery had learned from third parties that the Defendant falsely accused him of discriminat[ing] against her based upon her status in a protected class. Am. Compl. 70-72. The Defendant contends he needs to identify the protected class referred to in the statement. At this juncture, Dr. Tillery cannot do so because the Defendant s statements about him were made orally and his information about them 4 For an additional example, in her September 19, 2016 post, the Defendant attacks her graduate student s testimony about the March 8 Meeting and supposed witness, stating, [t]he undergraduate already clearly had indicated by his response in the hall getting up, walking toward me, initiating the conversation by asking if I was okay and what happened that he heard Tillery yelling. I later asked him to memorialize what he saw (nothing, it turns out) and heard (enough to show Tillery lied). Am. Compl., Ex. B, p. 58. In her September 20, 2016 post, the Defendant states, [n]otice that Tillery has no evidence of any sort about conduct by me that would lead a rational person to fear for his safety, while I produced a signed statement from a student corroborating my account that Tillery yelled and[sic] me and slammed a door, yet I am the one banished away from my colleagues, not the individual who yelled, slammed the door, and lied about this ). Am. Compl. Ex. B, p. 64. The foregoing excerpts contribute to the same false narrative about which Dr. Tillery complains. See Am. Compl. 34, 36, 38, 41, 48, 50, 56-58, 62-63, 92, 106-109. Rather than continuing to toy with Dr. Tillery and this Court, the Defendant should be ordered to answer the Amended Complaint. 9
at the pleading stage was and remains naturally limited. 5 Moreover, the Defendant acknowledges that she belongs to several protected classes. Mot., p. 5. Given that Dr. Tillery never discriminated against her, Am. Compl. 71-72, he has no idea to which protected class the Defendant referred to when she orally defamed him. To be sure, Dr. Tillery sufficiently alleges the required facts to state a claim for defamation and survive a 2-615 motion. Indeed, a plaintiff should not be penalized because at the pleading stage he does not have access to all facts in the possession of the Defendant and third parties. See Bogenberger v. Pi Kappa Alpha Corp., No. 1-15-0128, 2016 Ill. App. LEXIS 361, *24-25 (Ill. App. Ct. 1st Dist. 2016) ( at the pleading stage a plaintiff will not have the benefit of discovery tools ). Am. Compl. 83-128. Accordingly, the Defendant s argument fails. 6 See id. The Defendant also erroneously argues that Dr. Tillery s inclusion of Defendant s various blog posts made through September and October is impermissibly vague. Mot., p. 5. Dr. Tillery includes the Defendant s blogs pursuant to this Court s instruction that the Amended Complaint attach the blog posts that contain the Defendant s statements. See Order, Tillery, No. 2016-L-10676 (entered Apr. 28, 2017). Lastly, as to the summary of blog posts referenced in Paragraph 94, Dr. Tillery proceeds thereafter to isolate certain sections of the posts and defamatory language contained therein. Am. Compl. 95-109. For instance, the Defendant s representation that Dr. Tillery does not identify defamatory language in the Sept. 2 post, Mot., p. 5, is simply wrong. See Am. Compl. 5 As Defendant s counsel must understand, oral statements are actionable as defamation. See Bryson v. News. Am. Publs., 174 Ill. 2d at 89 ( [l]ibel and slander are now treated alike and the same rules apply to a defamatory statement regardless of whether the statement is written or oral ). 6 Importantly, even if this Court is inclined to strike the five paragraphs about which the Defendant complains, Dr. Tillery s claims for defamation per se and false light based on the Defendant s written statements survive as a matter of law. See Am. Compl. 83-128; 130-151; 153-174. 10
108 (quoting the Defendant s statement that [h]ere was a specific allegation of specific violations of NU policies, but no one bothered to follow up on my claim about being exposed to Slammer s aggression ). For these reasons, the Defendant s Motion must be denied as to this argument. CONCLUSION For the foregoing reasons, this Court must deny the Defendant s Motion to Dismiss Pursuant to 735 ILCS 2-615 in its entirety. PLAINTIFF, DR. ALVIN TILLERY Dated: September 8, 2017 By:_Tatyana L. Ruderman One of His Attorneys Tatyana L. Ruderman (6318021) Mudd Law Offices 3114 West Irving Park Road, Suite 1W Chicago, Illinois 60618 773.588.5410 Phone 773.588.5440 Facsimile tlr@muddlaw.com 11