Moore v. University of Notre Dame

• Decision Date: 12 June 1997
• Docket Number: No. 3:97 CV 0143 AS.,3:97 CV 0143 AS.
• Citation: 968 F.Supp. 1330
• Parties: Joseph R. MOORE, Plaintiff, v. The UNIVERSITY OF NOTRE DAME, Robert Davie, and Fan Action, Inc., owner and publisher of The Blue and Gold Illustrated, Defendants.
• Court: U.S. District Court — Northern District of Indiana

Page 1330

968 F.Supp. 1330

Joseph R. MOORE, Plaintiff, v. The UNIVERSITY OF NOTRE DAME, Robert Davie, and Fan Action, Inc., owner and publisher of The Blue and Gold Illustrated, Defendants.

No. 3:97 CV 0143 AS.

United States District Court, N.D. Indiana, South Bend Division.

June 12, 1997.

As Corrected July 1, 1997.

COPYRIGHT MATERIAL OMITTED

R. William Jonas, Jr., Hammerschmidt Amaral and Jonas, South Bend, IN, Richard E. Lieberman, Timothy C. Klenk, Mary Margaret Moore, Ross and Hardies, Chicago, IL, for Joseph R. Moore.

Gerald F. Lutkus, John D. LaDue, Barnes and Thornburg, South Bend, IN, William P. Hoye, University of Notre Dame, Notre Dame, IN, for University of Notre Dame.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This cause is before the court on Defendants' Motion to Dismiss Plaintiff's Defamation Claims Alleged in Count III of Plaintiff's Complaint. During a pre-trial conference, held before this court on May 16, 1997, the parties presented oral arguments regarding this motion. Appropriate briefs and replies have been filed. The court, having considered the pleadings, now rules as follows.

JURISDICTION

The federal charges alleged in the complaint are brought under the Age Discrimination in Employment Act of 1967, as amended. 29 U.S.C. § 621, et seq., (ADEA). The defamation claims are brought under the common law of the State of Indiana. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, Federal question jurisdiction; § 1343(a)(4), Civil Rights claims; § 1367, supplemental jurisdiction; and 29 U.S.C. § 626(c), civil action for ADEA.

PROCEDURAL HISTORY

Plaintiff timely filed charges with the Equal Employment Opportunity Commission (EEOC) claiming a violation of ADEA. He received his right to sue letter on February 24, 1997. Defendants Notre Dame and Davie answered Plaintiff's complaint by filing a response to the complaint, a Motion to Strike Count II and a Motion to Dismiss Count III pursuant to Rule 12(b)(6). They also filed several affirmative defenses claiming that the plaintiff failed to exhaust administrative remedies and failed to take reasonable actions to mitigate damages. Additionally, they asserted that the disputed statements were protected by First Amendment privilege, protected by qualified privilege under Indiana defamation law and were not defamatory per se or per quod.

Defendant Fan Action answered that the statements are not defamatory. In the alter-native, Fan Action claims that the statements are privileged under Indiana law as well as under the First and Fourteenth Amendments.

Defendants' Motion to Strike was denied on May 16, 1997. The Motion to Dismiss pursuant to Rule 12(b)(6) is now before the court.

FACTUAL BACKGROUND

The defendant, University of Notre Dame (Notre Dame) is a corporation organized under the laws of the State of Indiana, and has its principal place of business in Notre Dame, Indiana. Defendant, Robert Davie (Davie), is a resident of Granger, Indiana. Davie is currently employed by Notre Dame as the head football coach. Defendant, Fan Action, Inc., is a corporation, organized under the laws of the State of Indiana. It has its principal place of business in Mishawaka, Indiana. Fan Action is the owner and publisher of a publication entitled "Blue and Gold Illustrated" which has a nationwide circulation.

Plaintiff, Joseph R. Moore, is now 65 years old. He was the offensive line football coach for Notre Dame from 1988 to 1996. Under Moore's tutelage, the Notre Dame offensive line was ranked among the top ten in the country. In spite of his satisfactory job performance, Notre Dame terminated Moore's employment in December, 1996. Moore alleges that Davie told him he was fired because he was "too old" and would not be able to continue to coach for another full five-year period. The official reason Notre Dame later gave Moore's attorneys was that Moore was fired because he did not measure up to the standards of Notre Dame. Notre Dame claimed that Moore had intimidated, abused and made offensive remarks to players.

In Count I of his complaint, Moore challenges that the reasons given for his firing are pretextual and that, in fact, he was discriminated against due to his age. Count II alleges retaliation by Notre Dame. Count III alleges defamation against Davie and Notre Dame. Moore claims Davie published several defamatory statements that have injured his reputation. The gist of these statements is that Moore could only coach another year or two due to his age and that Moore and Davie had agreed it was best for Moore to leave coaching. Davie apparently made these comments on more than one occasion and was quoted in the "Blue and Gold" as stating that Moore "could only coach one or two more years." Count IV of the complaint alleges defamation against Fan Action for their publication of Davie's comments and for an article that stated "[A]t age 64, Moore no longer was physically capable of putting in the hours of his coaching cohorts, and he had long ago abandoned an `all for one, one for all' approach."

Moore claims that as a result of these allegedly defamatory statements, his career is ruined. He is unemployable in the college coaching arena and his earning capacity has been irreparably injured. He also claims he has suffered mental anguish, loss of reputation, personal humiliation.

DISCUSSION

The only issue presently before this court is the defamation allegation set forth in Count III of Moore's complaint. Defendants Davie and Notre Dame have filed a Rule 12(b)(6) Motion for failure to state a claim upon which relief can be granted.

I. Motions to Dismiss

It is well settled that a complaint may not be dismissed for failure to state a claim upon which relief may be granted, unless it appears to a certainty on the face of the compliant that the complaining party is not entitled to any relief. See Fed.R.Civ.P. 12(b)(6); Ind. Rules of Procedure, Trial Rule 12(b)(6); Bienz v. Bloom, 674 N.E.2d 998 (Ind.Ct.App. 1996), reh'g denied; Hanover Logansport, Inc. v. Robert C. Anderson, Inc., 512 N.E.2d 465 (Ind.Ct.App.1987). Courts view motions to dismiss for failure to state a claim with disfavor because such motions undermine the policy of deciding causes of action on their merits. Action Repair, Inc. v. American Broadcasting Cos., Inc., 776 F.2d 143 (7th Cir.1985); Bienz, 674 N.E.2d at 1001; Hill v. Beghin, 644 N.E.2d 893 (Ind.Ct.App.1994), trans. denied. Therefore, for purposes of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), all well-pleaded allegations are presumed to be true. Whirlpool Financial Corp. v. GN Holdings, Inc., 67 F.3d 605 (7th Cir.1995); McTigue v. City of Chicago, 60 F.3d 381 (7th Cir.1995); Richmond v. Nationwide Cassel L.P., 52 F.3d 640 (7th Cir.1995). Furthermore, a court must view those allegations in the light most favorable to the plaintiff, Richmond, 52 F.3d at 644; Gould v. Artisoft, Inc., 1 F.3d 544 (7th Cir.1993), and accept as true all reasonable inferences to be drawn from those allegations. Whirlpool Financial Corp., 67 F.3d at 608; McTigue, 60 F.3d at 382. Dismissal of a complaint for failure to state a claim is granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Richmond, 52 F.3d at 644 (quoting, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); Chaney v. Suburban Bus Div. of the Reg'l. Transp. Auth., 52 F.3d 623, (7th Cir.1995); Lockhart v. United States, 961 F.Supp. 1260, 1263-64 (N.D.Ind.1997). Additionally, the court may only look to the complaint, and well-pleaded material must be taken as admitted. Id. (emphasis added). A Rule 12(b)(6) motion to dismiss is properly utilized to test the legal sufficiency of the complaint or, stated differently, to test the law of the claim, not the facts that support it. Borgman v. Aikens, 681 N.E.2d 213, 216 (Ind.Ct. App.1997); Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49 (Ind.Ct.App.1993), trans. denied.

In the present case, defendants Notre Dame and Davie move this court to dismiss plaintiff's defamation claims, alleging that the statements are not defamatory as a matter of law, that the statements are opinions and therefore protected by the First Amendment, and that the statements are incapable of defamatory interpretation. As a result, defendants contend that Moore has failed to state a claim upon which relief may be granted. Viewing plaintiff's allegations in the light most favorable to him, the court reviews the defamation claims.

II. Defamation

Whether an article or statement could possess a defamatory meaning or implication is initially a question of law for the trial court. Cochran v. Indianapolis Newspapers, Inc. 175 Ind.App. 548, 372 N.E.2d 1211, (1978). If a statement is clearly defamatory on its face, it is per se defamation. See generally, Rambo v. Cohen, 587 N.E.2d 140 (Ind.Ct.App.1992), trans. denied; Gibson v. Kincaid, 140 Ind.App. 186, 221 N.E.2d 834 (1966). In such a situation, the words, themselves, without reference to extrinsic circumstances, injure the reputation of the person to whom they are applied. Tacket v. Delco Remy Div. of General Motors Corp., 937 F.2d 1201 (7th Cir.1991), reh'g denied. In comparison, if the reader must know extrinsic facts for the libelous understanding to be conveyed, the statement is defamation per quod.¹ See e.g., Tacket; Schrader v. Eli Lilly & Co., 639 N.E.2d 258 (Ind.1994), reh'g denied. The decisive question is what the person or persons to whom the communication was published understood as the meaning intended to be expressed. Schrader, supra.

A. Defamation Per Se

A communication is defamatory per se if it imputes, among other things, criminal or sexual misconduct. Rambo, supra. However, the test for defamation does not turn on its offensiveness to the plaintiff. Statements are only defamatory per se when they constitute "a serious charge of incapacity or...