Fleming v. Kane County

• Decision Date: 27 May 1986
• Docket Number: No. 85 C 8641.,85 C 8641.
• Citation: 636 F. Supp. 742
• Parties: Robert FLEMING, Plaintiff, v. KANE COUNTY, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

636 F. Supp. 742

Robert FLEMING, Plaintiff, v. KANE COUNTY, et al., Defendants.

No. 85 C 8641.

United States District Court, N.D. Illinois, E.D.

May 27, 1986.

Heidi Katz, Fawell, James & Brooks, Naperville, Ill., for plaintiff.

Theodore G. Schuster, Casey & Krippner, Geneva, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Robert Fleming ("Fleming") sues Kane County ("County") and County's Highway Superintendent Nabi Fakroddin ("Fakroddin"), asserting claims under:

1. 42 U.S.C. § 1983 ("Section 1983") for violating Fleming's First Amendment rights; and

2. Illinois common law for committing the tort of retaliatory discharge.

Fakroddin has responded in part with a defamation counterclaim (the "Counterclaim").

Fleming has now moved under Fed.R. Civ.P. ("Rule") 12(b)(1) and 12(b)(6) to dismiss the Counterclaim. Fakroddin has again reacted, this time with a Rule 12(f) motion to strike two of Fleming's affirmative defenses to the Counterclaim. For the reasons stated in this memorandum opinion and order:

1. Fleming's motion is granted in part but denied in principal part.

2. Fakroddin's motion is granted.

3. Fleming's Affirmative Defense II is also stricken, in that instance sua sponte.

Facts¹

From January 1, 1968 to June 7, 1984 Fleming — a registered civil engineer— worked as County's Assistant Superintendent of Highways (Complaint ¶¶ 1, 7). In August 1983 County requested bids on a contract to improve County Highway 83 ("Orchard Road") by constructing an overpass over Illinois Highway 5 (id. ¶ 9). County's original bid specifications required the contractor to excavate "borrow" material, needed for the overpass foundation, from property owned by County's Forest Preserve District and located three miles from the construction site (id. ¶¶ 10-11). In response to inquiries from several prospective bidders, Fleming asked then Superintendent William Carter ("Carter") to change the borrow site (id. ¶ 12). Carter refused (id. ¶ 13).

County awarded the overpass construction contract to A.J. Maggio Co. ("Maggio") for $1,163,700 (id. ¶ 14). Maggio's bid on the borrow specification was substantially lower than quotes submitted on that item by other bidders (id. ¶ 15). After Maggio began construction in September 1983, County changed the borrow site and thereby reduced Maggio's costs in supplying borrow material (id. ¶ 16). Accordingly Fleming urged Carter either to relet the contract or to lower the price County paid for the borrow material (id. ¶¶ 17-18). Carter rejected both suggestions (id.).

Fleming then attempted unsuccessfully to meet with various members of County's Board of Commissioners to discuss possible bidding irregularities in the Orchard Road contract (id. ¶¶ 20-21). In January 1984 Fleming reported the borrow-pit switch to County's State's Attorney, the Illinois Attorney General and the FBI (id. ¶ 22).

In January 1984 Superintendent Carter resigned (id. ¶ 19). Fakroddin took the vacated Superintendency position March 1, 1984 (id. ¶ 23). Thereafter Fakroddin assertedly pursued a course of conduct designed to manufacture cause for Fleming's dismissal (id. ¶ 24), allegedly by:

1. keeping a diary of Fleming's activities and each of Fakroddin's conversations with Fleming;

2. polling Highway Department personnel to determine whether they would prefer to be supervised by Fleming or by "Others," and recommending they vote for "Others";

3. requiring Fleming to visit six universities in Illinois and Wisconsin to investigate enrolling in a management course; and

4. twice suspending Fleming without pay for one week.

On June 7, 1984 Fakroddin fired Fleming (id. ¶ 25). Fleming unsuccessfully appealed his dismissal to a grievance committee and then to the Executive Committee of County's Board of Commissioners (id. ¶¶ 26-27).

Before Fleming's dismissal, he and Fakroddin engaged in several arguments (id. ¶ 25). On April 24, 1984 and June 7, 1984 Fleming maliciously made the following false statements in the presence of several persons (Counterclaim ¶ 5):

1. Fakroddin "doesn't have the guts to fire."

2. Fakroddin "wouldn't make a pimple on a sic engineer's ass."

3. Fakroddin was a "liar," a "gutless bastard" and a "black son of a bitch."²

Those statements injured Fakroddin's personal and professional reputations (id. ¶ 7).

Jurisdiction over the Counterclaim

Fleming first contends this Court lacks subject matter jurisdiction over the Counterclaim. That notion involves two steps:

1. Fakroddin's defamation claim lacks an independent federal jurisdictional basis.

2. Fakroddin's Counterclaim is permissive under Rule 13 and hence falls outside this Court's ancillary jurisdiction as well.

Because the first proposition is really undisputed, only the second requires examination.

Rule 13 reads in relevant part:

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

* * * * * *

(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

That dichotomy between "compulsory" and "permissive" counterclaims is framed by our Court of Appeals in terms of a "logical relationship" test. As Valencia v. Anderson Bros. Ford, 617 F.2d 1278, 1291 (7th Cir.1980), rev'd on other grounds, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981) (citations omitted) put it:

We have observed that whether a particular counterclaim should be considered compulsory depends not so much on the immediacy of its connection with the plaintiff's claim as upon its logical relationship to that claim.... This test is to be applied flexibly in order to further the policies of the federal rules in general and Rule 13(a) in particular.

In turn those "policies" underpinning the "logical relationship" concept have been succinctly stated (though by another Court of Appeals) in Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir.1961):

The phrase "logical relationship" is given meaning by the purpose of the rule which it was designed to implement. Thus, a counterclaim is logically related to the opposing party's claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts. Where multiple claims involve many of the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties, fairness and considerations of convenience and of economy require that the counterclaimant be permitted to maintain his cause of action.

Here the Counterclaim plainly bears the requisite "logical relationship" to Fleming's claim. Fleming alleges County and Fakroddin fired him in retaliation for whistleblowing activity protected by the First Amendment. Fleming describes a series of events, from March 1984 to June 1984, during which Fakroddin allegedly harassed Fleming, seeking to fabricate a reason to fire him. Fakroddin counters with the charge Fleming slandered him during that same course of events. Certainly the claims derive from the same factual matrix and bear on the same issues — indeed, at least some of the complained-of language was uttered on the day Fleming was fired, and Fakroddin's responsive Mem. 9-10 announces his intention to point directly to Fleming's asserted slander as a basis of Fleming's dismissal. Appletree v. City of Hartford, 555 F.Supp. 224, 229-30 (D.Conn. 1983) found just such a relationship satisfies Rule 13(a):

The similarity of facts in dispute when a counterclaim is based on a libelous publication contemporaneous with the transaction complained of in the original dispute is sufficient to meet the "logical relationship" test.

Accordingly the Counterclaim is "compulsory" under the literal language of Rule 13(a) and the cases announcing the relevant standard, and this Court may properly exercise ancillary jurisdiction over the Counterclaim. Fleming's Rule 12(b)(1) jurisdictional motion to dismiss is denied.

Rule 12(b)(6) Motion

Turning to Rule 12(b)(6), Fleming moves to dismiss the Counterclaim for two reasons:

1. Fleming's alleged defamatory remarks do not constitute libel per se.

2. Fakroddin has not adequately alleged malice.

Neither contention succeeds, for the reasons next discussed.

1. Per Se Libel?

Fakroddin alleges no special damages.³ Hence his "right to recover rests on whether the allegedly defamatory statements are actionable per se." Meyer v. Allen, 127 Ill.App.3d 163, 164, 82 Ill.Dec. 136, 137, 468 N.E.2d 198, 199 (4th Dist.1984). Fried v. Jacobson, 99 Ill.2d 24, 27, 75 Ill.Dec. 398, 400, 457 N.E.2d 392, 394 (1983) (citations omitted) is the most recent definitive statement of that ancient-vintage doctrine:

An action for defamation based on libel per se requires that the words used are in and of themselves so obviously and naturally harmful that proof of special damages is unnecessary.... In Illinois, under the common law, four classes of words, if falsely communicated, give rise to a cause of action for defamation without a showing of special damages. They are:

"1. Those imputing the commission of a criminal offense;

2. Those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;

3. Those imputing inability to perform or want of integrity in the discharge of duties of office or employment;

4. Those prejudicing a particular party in his profession or trade."

And Chapski v. Copley Press, 92 Ill.2d 344, 352, 65 Ill.Dec. 884, 888, 442 N.E.2d 195, 199 (1982) had just one year earlier restated the "rule of innocent...