Medical Informatics Engineering v. Orthopaedics Ne.

Decision Date17 October 2006
Docket NumberNo. 1:06-CV-173.,1:06-CV-173.
Citation458 F.Supp.2d 716
PartiesMEDICAL INFORMATICS ENGINEERING, INC., Plaintiff, v. ORTHOPAEDICS NORTHEAST, P.C.; Tripractix, LLC; Raymond Kusisto; and Todd Plesko, Defendants. Orthopaedics Northeast, P.C.; Tripractix, LLC; Raymond Kusisto; and Todd Plesko, Defendants/Counterclaim Plaintiffs and Third Party Plaintiffs, v. Medical Informatics Engineering, Inc., Plaintiff/Counterclaim Defendant, and Doug Horner, Third Party Defendant.
CourtU.S. District Court — Northern District of Indiana

Matthew M. Hohman, D. Randall Brown, Barnes & Thornburg, LLP, Fort Wayne, IN, for Plaintiff/Counterclaim Defendant/Third Party Defendant.

Cathleen M. Shrader, Michael H. Michmerhuizen, Thomas Andrew Herr, Barrett & McNagny, LLP, James P. Fenton, Eilbacher Fletcher, LLP, Fort Wayne, IN, Lonnie D. Johnson, Patrick B. Omilian, Mallor Clendening Grodner & Bohrer, LLP, Bloomington, IN, for Defendants/Counterclaim Plaintiffs and Third Party Plaintiffs.

OPINION AND ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on the "Motion to Dismiss All Defamation Claims Against Medical Informatics Engineering, Inc. and Doug Horner" filed by Plaintiff/Counterclaim Defendant Medical Informatics Engineering, Inc. ("MIE") and Third Party Defendant Doug Horner ("Horner") on July 17, 2006. On August 9, 2006, Defendants/Counterclaim Plaintiffs and Third-Party Plaintiffs triPRACTIX, LLC ("TPX") and Todd Plesko ("Plesko") filed their response in opposition to the motion, and on that same day Defendants/Counterclaim Plaintiffs and Third-Party Plaintiffs Orthopaedics Northeast, P.C. ("ONE") and Raymond Kusisto ("Kusisto") filed their separate response. MIE and Horner replied on August 24, 2006.

For the reasons discussed in this Order, the Motion to Dismiss All Defamation Claims Against Medical Informatics Engineering, Inc. and Doug Horner will be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND1

ONE is a medical practice group specializing in orthopedic services. MIE sells and supports software products and provides a telecommunications network for the transmission of health information and medical practice data. On October 24, 2004, ONE and MIE entered into a License Agreement, which allowed ONE to use certain software known as "WebChart" that electronically stores medical records. On that same day, the parties also entered into a Maintenance and Support Agreement ("MSA") that obligated MIE to support WebChart for ONE.

Three months after entering into the agreements with MIE, ONE began constructing three wireless towers in Fort Wayne. Shortly thereafter, ONE began to evaluate different software packages in an effort to, among other things, improve its use and storage of medical records. By June 2005, ONE had evaluated twenty-three software packages, including WebChart. WebChart, however, was not ultimately selected by ONE.

Upon hearing that ONE had rejected WebChart, Horner, the President of MIE, contacted ONE to express his disappointment with MIE's loss of such a large and valuable customer. Numerous times thereafter, Horner requested additional meetings with various ONE physicians and managers to further express his disappointment. Horner's meetings and communications, however, were to no avail, as ONE did not change its decision. As a result, Horner became increasingly upset. Apparently, Horner's discontent was fueled by his belief that ONE, or certain employees thereof, were plotting to compete with MIE in the telecommunications industry.

Ultimately Horner, on behalf of MIE, sent a letter on August 15, 2005, to each of ONE's physicians, which accused Kusisto, ONE's Chief Executive Officer, of having "misled" the physicians and being "deliberately deceptive" in his employment. (Countercl. & Third-Party Claim of Orthopedics Northeast, P.C. & Raymond Kusisto Against Medical Informatics Engineering, Inc. & Doug Horner ("ONE Countercl.") ¶ 9.) In addition to the letter, Horner allegedly made "threats" to ONE, stating that he "intended to keep ONE's technology employee Todd Plesko and his crew busy supporting WebChart rather than trying to steal MIE's customers." (Defs., Orthopedics Northeast, P.C. & Raymond Kusisto's, Answer & Affirmative Defenses to Pl.'s Compl. for Injunctive Relief & Damages & Orthopedics Northeast, P.C.'s Countercl. ("ONE Answer") 34.)

On November 1, 2005, MIE terminated the MSA effective November 30, 2005. In light of the MSA's termination and Horner's "threats," ONE installed a firewall to prevent MIE and others from entering its computer network.

On November 11, TPX was formed. TPX is owned by certain shareholders of ONE and Plesko, the Chief Executive Officer of TPX and former Chief Information Officer of ONE. Apparently, ONE promptly became a customer of TPX, as TPX reported to third parties that it had transferred all of ONE's documents from Web-Chart to software that TPX was selling.

Eventually, Horner purportedly decided to make good on his "threats" to ONE. More specifically, between December 6, 2005, through January 16, 2006, MIE allegedly "undertook an unlawful campaign to access ONE's computer network for the purpose of disrupting ONE's network and business operations," which resulted in MIE allegedly accessing ONE's computer network on ten different occasions "without permission and without right to do so," causing deliberate damage on at least three of these occasions. (ONE Answer 34.) On each of these occasions, ONE secured TPX's assistance to remedy the computer network problems allegedly caused by MIE. These incidents ostensibly resulted in an FBI investigation of MIE.

Ultimately, MIE filed a complaint with this court against ONE, TPX, Plesko, and Kusisto on April 25, 2006, advancing claims of copyright infringement, breach of contract, criminal mischief, defamation, trade secret misappropriation, and tortious interference with a business relationship. Four days later, The Journal-Gazette published an article regarding the case. The article quoted the following statement made by Matthew Hohman, MIE's attorney: "the defendants caused the FBI investigation to be instituted under false pretense and for the defendants' own benefit...." (ONE Countercl. Ex. B; First Am. Countercl. & Third-Party Claim of TriPRACTIX, LLC and Todd Plesko Against Medical Informatics Engineering, Inc. & Doug Horner ("TPX Countercl.") Ex. A.)

On June 14, 2006, ONE and Kusisto filed a counterclaim against MIE and a third party complaint against Horner, alleging that the August 15, 2005 letter penned by Horner and the statements made by Hohman were defamatory.2 Specifically, ONE and Kusisto made the following allegations:

8. On or about August 15, 2005, Horner, on behalf of MIE, sent a letter to each of ONE's physicians, who were also Kusisto's employers ("Horner Letter")....

9. In his letter to Kusisto's employers, Horner stated that Kusisto has "misled" his employers and has been "deliberately deceptive" in his employment.

10. On or about April 29, 2006, Attorney Matthew Hohman, acting on behalf of MIE, told a reporter from the Fort Wayne Journal-Gazette, Michael Schroeder, that ONE and Kusisto caused the FBI to begin an investigation under "false pretenses" and for ONE and Kusisto's "own benefit." ...

11. The statements made by Horner and Hohman were defamatory....

14. The statements made by Horner and Hohman identified Kusisto and ONE as the subject of their statements.

15. The statements made by Horner and Hohman were of and concerning ONE and Kusisto....

19. The statements made by Horner and Hohman were known by them to be false and/or made with malice and in reckless disregard of the truth.

20. Even if not made with actual malice, the statements made by Horner and Hohman were negligently made.

(ONE Countercl. 2-3.)

TPX and Plesko filed their counterclaim and third party complaint on June 21, 2006, which they subsequently amended, claiming that Hohman's statements were defamatory and making the following allegations:

8. On or about April 29, 2006, Attorney Matthew Hohman, acting on behalf of MIE and Horner, told a reporter from the Fort Wayne Journal-Gazette, Michael Schroeder, that TPX and Plesko had caused the FBI to begin an investigation under "false pretenses" and for TPX and Plesko's "own benefit." 9. The statements made by Horner and Hohman were known by them to be false and/or made with malice and a reckless disregard of the truth....

12. Horner and Hohman's statements were made with malice, oppression, and/or gross negligence.

(TPX Countercl. 2.)

On July 17, 2006, MIE and Horner filed the instant motion to dismiss all the defamation claims asserted against them.

II. STANDARD OF REVIEW

A complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts which would support his claim for relief. Kelley v. Crosfield Catalysts, 135 F.3d 1202, 1205 (7th Cir.1998). In determining the propriety of dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must "accept as true all well-pled factual allegations in the complaint and draw all reasonable inferences therefrom in favor of the plaintiff." Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). The purpose of the motion to dismiss is to test the legal sufficiency of the complaint and not to decide the merits. Triad Assocs., Inc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir.1989), abrogated on other grounds by Bd. of County Comm'rs, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). "If it appears beyond doubt that plaintiffs can prove any set of facts consistent with the allegations in the complaint which would entitle them to relief, dismissal is inappropriate." Perkins, 939 F.2d at 466.

III. DISCUSSION

The defamation claims in this case revolve around two events: (1) the statements made by Hohman to The Journal-Gazette; and (2) the...

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