Hadley v. Doe

• Decision Date: 08 May 2014
• Docket Number: No. 2–13–0489.,2–13–0489.
• Citation: 12 N.E.3d 75
• Parties: Bill HADLEY, Plaintiff–Appellee, v. Subscriber DOE, a/k/a Fuboy, Whose Legal Name is Unknown, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

12 N.E.3d 75

Bill HADLEY, Plaintiff–Appellee

v.Subscriber DOE, a/k/a Fuboy, Whose Legal Name is Unknown, Defendant–Appellant.

No. 2–13–0489.

Appellate Court of Illinois, Second District.

May 8, 2014.

Modified upon denial of rehearing June 10, 2014.

Robert M. Fagan, of Law Offices of Robert M. Fagan, Ltd., of Freeport, for appellant.

Andrew T. Smith and Ronald A. Barch, both of Cicero, France, Barch & Alexander, P.C., of Rockford, for appellee.

OPINION

Justice JORGENSEN

delivered the judgment of the court, with opinion.

¶ 1 Pursuant to Illinois Supreme Court Rule 224

(eff. May 30, 2008), the trial court granted the motion of plaintiff, Bill Hadley, requesting the court to direct Comcast Cable Communications, LLC, to provide the identity and last known address of defendant, subscriber Doe, a/k/a “Fuboy.” Hadley wished to pursue a defamation claim against Fuboy for statements posted on an Internet message board. Fuboy appealed the order that Comcast provide the information. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The backdrop of this Rule 224

case concerns Fuboy's allegedly defamatory remarks about Hadley, who was a candidate for the Stephenson County board (the Board). On December 28, 2011, the Freeport Journal Standard published an online newspaper article regarding Hadley's 2012 candidacy for the Board. The article discussed Hadley's fiscal positions. As is common with online articles, members of the public could read and anonymously post comments (after completing a basic registration process). On December 29, 2011, amidst four “on-topic” posts concerning Hadley's candidacy, Fuboy posted the following comment: “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door.”

¶ 4 Based on this comment, on January 10, 2012, Hadley filed in state court a defamation suit against the Freeport Journal Standard's parent company, Gatehouse Media. In part because Gatehouse was a New York company, the case was removed to federal court. In July 2012, following proceedings we will not detail here, Gatehouse was removed as the defendant, and the federal court dismissed the suit for lack of jurisdiction and directed Hadley to refile the case in state court.

¶ 5 Accordingly, on August 7, 2012, Hadley again filed his defamation suit in state court, this time against “Subscriber Doe, a.k.a. Fuboy, whose legal name is unknown.” That same day, in conjunction with the suit, Hadley issued a subpoena to Comcast, requesting Fuboy's legal identity. Comcast notified Fuboy. Fuboy hired an attorney, Robert Fagan, and, through Fagan, Fuboy sought to quash the subpoena.

¶ 6 On January 11, 2013, at a hearing with Hadley's and Fuboy's attorneys present, the trial court directed the parties that the subpoena and the motion to quash would be better addressed within the context of Rule 224

. That rule provides a mechanism for discovery to identify initial defendants before suit, and it states:

“(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.

(ii) The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought * * *. The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask for an order authorizing the petitioner to obtain such discovery. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name and address of each person to be examined * * *.” Ill. S.Ct. R. 224

(eff. May 30, 2008).

The court found instructive Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, 356 Ill.Dec. 284, 961 N.E.2d 380

, which set forth standards for applying Rule 224 to a defamation case. The Stone court held that a Rule 224 petitioner seeking to discover an individual's identity before suit has the burden to provide allegations in the proposed defamation case sufficient to overcome a motion to dismiss pursuant to section 2–615 of the Code of Civil Procedure (Code) (735 ILCS 5/2–615 (West 2012) ), regardless of whether the unidentified individual actually files such a motion to dismiss. Stone, 2011 IL App (1st) 093386, ¶ 18, 356 Ill.Dec. 284, 961 N.E.2d 380. The Stone court explained that this standard adequately balances the petitioner's interest in seeking redress for alleged defamation and the unidentified individual's first-amendment right to engage in nondefamatory anonymous speech. Id. Thus, the court here granted Hadley leave to file an amended complaint and a Rule 224 petition.

¶ 7 On January 24, 2013, based on the trial court's direct instructions, Hadley filed an amended two-count complaint. In the first count, Hadley reiterated his defamation claim against Fuboy (as the sufficiency of that pleading would control the trial court's Rule 224

decision). In the second count, Hadley named Comcast as the respondent and sought, pursuant to Rule 224, for Comcast to provide him with the identity and last known address of Fuboy. Fuboy, through his attorney, participated in the Rule 224

proceedings and the court rejected Hadley's argument that Fuboy did not have standing to do so.

¶ 8 After hearing argument, the trial court took the matter under advisement. On April 11, 2013, it entered a written order. In the order, the court recapped that it had ordered Hadley to proceed under Rule 224

. It then stated that it performed a Rule 224 analysis in evaluating Hadley's discovery request. The court, citing Stone and Maxon v. Ottawa Publishing Co., 402 Ill.App.3d 704, 341 Ill.Dec. 12, 929 N.E.2d 666 (2010), granted Hadley's requested relief pursuant to Rule 224 and directed Comcast to release Fuboy's identity and address. The court noted that, while anonymous speech is a constitutionally protected right, there is no constitutional right to defame someone. The complained—of comment—“Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire from his front door”—imputed the commission of a criminal offense and was, therefore, defamatory per se. The court explained:

“The reference to Sandusky as being a Penn State coach convicted of being a sexual abuser of young boys is obvious to any reasonable person. So is the reference to Empire Grade School located in Freeport, Illinois. * * * In the Court's view, this is not capable of innocent construction, nor is it capable of being considered an opinion. It is a statement of fact.”

The court found that, as a matter of law, neither of two potential bars precluded Hadley from pursuing a defamation claim, as: (1) the statement was not reasonably capable of an innocent construction; and (2) the statement could reasonably be interpreted as stating an actual fact (not opinion). The trial court referred to Fuboy's objections as motions to quash subpoenas, and it denied those motions.

¶ 9 At a very brief hearing that same day, the trial court referred back to its written order, stating:

“The Court has entered a written ruling in which I have denied the motion to quash the subpoena and ordered that Comcast Cable be directed to provide the plaintiff's counsel with the identity and last known address of the account number with the specified IP address.”

¶ 10 On May 6, 2013, the trial court conducted a hearing on Fuboy's motion to reconsider, which he brought, in part, “to solidify the basis for [appeal].” Fuboy asked the court whether this was a standard Rule 224

order, which would be immediately appealable, or whether this was an order on one count of a two-count complaint, which would require a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Hadley explained that Rule 224 orders are considered final and appealable (citing to Beale v. EdgeMark Financial Corp., 279 Ill.App.3d 242, 246, 215 Ill.Dec. 905, 664 N.E.2d 302 (1996) (Rule 224 orders finally adjudicate the rights of the parties in an independent action)). The court stated:

“ * * * [T]he court believes that there must be some avenue by which the defendant can seek relief without disclosure from a higher court than this one. And, thus, the real issue before the Court in my view is how to best accomplish that.

[The order] is a bit different than a normal Rule 224

order because * * * it was brought as [part of] a civil complaint. And then because of my rulings and with the [c]ourt's direction or, at least, allowance, that 224 petition was filed.

So from my standpoint, it's how [do] we best get this matter before the Appellate Court * * *. * * * And, in terms of that * * * I think it is a final ruling under Rule 303 [ (Ill. S.Ct. R. 303

(eff. June 4, 2008)) ] for the disposition of the Rule 224 petition because of what it does is [that] it orders the disclosure of the Rule 224.”

Fuboy again reminded the court of the pending defamation claim. Fuboy, Hadley, and the court further discussed the proper vehicle for appeal. The court continued to “believe it [was] a final order under Rule 303

.” However, to ease the parties' concerns, it stated that it would enter a written Rule 304(a) finding as an alternative jurisdictional basis for appeal. That same day, it entered the written order as promised. This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 As a threshold matter, Hadley argues that Fuboy did not have standing to challenge the Rule 224

discovery request, because the subpoena was issued to Comcast. We disagree. In Stone, the court noted that an unidentified defendant is not required to challenge a Rule 224 discovery request. Stone, 2011 IL App (1st) 093386, ¶ 18, 356 Ill.Dec. 284, 961 N.E.2d 380. Rather, it remains the petitioner's burden to show that his proposed...