Osundairo v. Geragos

• Decision Date: 17 March 2020
• Docket Number: Case No. 19-cv-02727
• Citation: 447 F.Supp.3d 727
• Court: U.S. District Court — Northern District of Illinois
• Parties: Olabinjo OSUNDAIRO and Abimbola Osundairo, Individually, Plaintiffs, v. Mark GERAGOS, Tina Glandian, and Geragos & Geragos Law Firm, Defendants.

447 F.Supp.3d 727

Olabinjo OSUNDAIRO and Abimbola Osundairo, Individually, Plaintiffs,

v.Mark GERAGOS, Tina Glandian, and Geragos & Geragos Law Firm, Defendants.

Case No. 19-cv-02727

United States District Court, N.D. Illinois, Eastern Division.

Signed March 17, 2020

Gregory E. Kulis, Monica Ghosh, Gregory E. Kulis and Associates, Ltd., Brian M. Orozco, Dinizulu Law Group, Gloria Virginia Schmidt, The Gloria Law Group, James D. Tunick, Law Offices of James D. Tunick, Chicago, IL, Jorge Antonio Rodriguez, The Gloria Law Group, Waukegan, IL, for Plaintiffs.

Brendan J. Healey, Natalie Anne Harris, Baron Jarris Healey, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MARY M. ROWLAND, United States District Judge

Plaintiffs Olabinjo Osundairo and Abimbola Osundairo (the "Osundairos") filed suit against Mark Geragos, Tina Glandian, and Geragos & Geragos Law Firm ("Defendants") on claims of defamation and false light under Illinois law. Before this Court is Defendants' motion to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) and special motion to strike pursuant to California Code of Civil Procedure § 425.16. (Dkt. 23), in addition to Defendants' motion for sanctions under Rule 11 (Dkt. 27). For the following reasons, Defendants' 12(b)(2) motion is denied, Defendants' 12(b)(6) motion is granted in part and denied in part, Defendants' motion to strike is denied in part, and Defendants' motion for sanctions is denied.

FACTS

The following facts are taken from Plaintiffs' Complaint. On January 29, 2019, Chicago-based actor Justin "Jussie" Smollet reported to the Chicago Police Department ("CPD") that two men wearing ski masks attacked him in Chicago's Streeterville neighborhood while he was walking home. (Dkt. 1 at 2-3.) Smollet told police that the two men pulled a noose around his neck, poured an unknown liquid on his body, and assaulted him while yelling, "This is MAGA¹ country!" in addition to various racist and homophobic slurs. (Id. ) On February 15, 2019, as part of the CPD's investigation into the incident, the Osundairos were taken into custody and questioned. (Id. ) The Osundairos told police that the attack was a hoax entirely conceived and directed by Smollet. (Id. at 3-4.) On January 25, 2019, Smollet had approached the Osundairos, who were extras on Smollet's television show Empire , and asked them to help him stage an attack so that his employer and the public would notice and appreciate his success as an openly gay Black actor. (Id. at 4.) The Osundairos agreed and carried out the "attack" per Smollet's exact instructions. (Id. )

On February 20, 2019, the Osundairos testified before a grand jury regarding the true story of the January 29 attack. (Dkt. 1 at 4.) On March 7, 2019, the State of Illinois indicted Smollet with 16 felony counts of a false reporting. (Id. ) Defendants, Tina Glandian, Mark Geragos, and their firm, Geragos & Geragos Law Firm, represented Smollet on his criminal charges. (Id. at 1-2; 4.) On or around March 26, 2019, the state's attorney's office dropped Smollet's charges. (Id. at 5.)

On or around March 27, 2019, Defendant Glandian appeared on the television show Good Morning America and on or around March 28, 2019, she appeared on the Today show to discuss the case. (Dkt. 1 at 5.) During both appearances she maintained that Smollet was innocent and that the Osundairos criminally attacked him. (Id. at 6.) She further stated that the Osundairos may have been wearing "whiteface" when they attacked Smollet. (Id. )

On or around April 6, 2019, Defendants Glandian and Geragos discussed Smollet's criminal case on a podcast, Reasonable Doubt . (Dkt. 1 at 8; 13). At this time, Glandian stated that the Osundairos were involved in illegal Nigerian steroid trafficking and intimated that Plaintiff Abimbola Osundairo engaged in homosexual acts with Smollet. (Id. at 9.) Geragos accused the Osundairos of conspiring to criminally attack Smollet. (Id. at 13.)

On April 23, 2019, the Osundairos filed the current suit alleging defamation per se and false light based on Glandian's and Geragos' statements during their various media appearances.

LEGAL STANDARDS

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(2) tests whether a federal court has personal jurisdiction over a defendant. When deciding a Rule 12(b)(2) motion Plaintiffs have the burden of making a prima facie showing of personal jurisdiction. Purdue Research Found. v. Sanofi–Synthelabo, S.A. , 338 F.3d 773, 782 (7th Cir. 2003). In assessing whether Plaintiffs have met their burden, this Court may consider affidavits and exhibits from both parties.² Id. All well-pleaded facts alleged in the complaint and any unrefuted facts in Defendants' affidavits and exhibits are taken as true with any factual disputes resolved in Plaintiffs' favor. Id. at 783.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint, not the merits of the case. Gibson v. City of Chicago , 910 F.2d 1510, 1520 (7th Cir. 1990). "To survive a motion to dismiss under Rule 12(b)(6), the complaint must provide enough factual information to state a claim to relief that is plausible on its face and raise a right to relief above the speculative level." Haywood v. Massage Envy Franchising, LLC , 887 F.3d 329, 333 (7th Cir. 2018) (internal quotations and citation omitted). A court deciding a Rule 12(b)(6) motion accepts plaintiff's well-pleaded factual allegations as true and draws all permissible inferences in plaintiff's favor. Fortres Grand Corp. v. Warner Bros. Entm't Inc. , 763 F.3d 696, 700 (7th Cir. 2014).

ANALYSIS

I. Personal Jurisdiction Over Geragos

Defendants assert that this Court lacks personal jurisdiction over Defendant Mark Geragos. A federal court with diversity jurisdiction "must apply the personal jurisdiction rules of the state in which it sits." Kipp v. Ski Enter. Corp. of Wisconsin, Inc. , 783 F.3d 695, 697 (7th Cir. 2015). Under the Illinois long-arm statute, Illinois courts may exercise personal jurisdiction over a nonresident defendant for the commission of certain enumerated acts and "on any other basis" that is "permitted by the Illinois Constitution and the Constitution of the United States." 735 ILCS 5/2-209(a) ; (c).

Relying on the enumerated list in 735 ILCS 5/2-209(a), the Osundairos advance two theories in support of this Court's specific personal jurisdiction³ over Geragos. First, they argue that Geragos' legal representation of Smollet constituted "[t]he transaction of business" in Illinois under 735 ILC 5/2-209(a)(1) and "[t]he making or performance of any contract or promise substantially connected to" Illinois under 735 5/2-209(a)(7). Second, they argue that Geragos' statements on his podcast Reasonable Doubt constituted "a tortious act" committed in Illinois under 735 ILCS 5/2-209(2).

When determining whether a party has transacted business in Illinois for the purposes of the long-arm statute, courts consider " ‘who initiated the transaction, where the contract was entered into, and where the performance was to take place.’ " Vilchis v. Miami Univ. of Ohio , 99 F. App'x 743, 745 (7th Cir. 2004) (citing Ideal Ins. Agency, Inc. v. Shipyard Marine, Inc. , 213 Ill.App.3d 675, 157 Ill.Dec. 284, 572 N.E.2d 353, 357 (1991) ). Illinois courts look to the same factors when determining whether a party has made or performed a contract in Illinois. See e.g., Viktron Ltd. P'ship v. Program Data Inc., 326 Ill.App.3d 111, 259 Ill.Dec. 706, 759 N.E.2d 186, 193-96 (2001) (adding a fourth factor—"where the contract was negotiated").

In the instant case, the record does not indicate which party initiated the legal representation, where that agreement was signed or entered, or where it was negotiated. The only conclusion this Court can reach is that performance was to take place in Illinois where Smollet was facing criminal charges. Based on the limited information, the Court concludes that Geragos' legal representation of Smollet likely constitutes transacting business or performing a contract under Illinois law.

In the alternative, this Court turns to an analysis of whether Geragos' legal representation of Smollet subjects him to personal jurisdiction under federal law. While both the state and federal constitutional requirements must be satisfied, the Seventh Circuit has been "unable to discern an operative difference between the limits imposed by the Illinois Constitution and the federal limitations on personal jurisdiction," such that, the inquiry is often collapsed into an analysis of federal due process. Illinois v. Hemi Grp. LLC , 622 F.3d 754, 756-57 (7th Cir. 2010) (internal quotations omitted); Matlin v. Spin Master Corp. , 921 F.3d 701, 705 (7th Cir. 2019).

Under federal law, "[s]pecific personal jurisdiction is appropriate where (1) the defendant has purposefully directed his activities at the forum state or purposefully availed himself of the privilege of conducting business in that state, and (2) the alleged injury arises out of the defendant's forum-related activities." Tamburo , 601 F.3d at 702 (citing Burger King Corp. v. Rudzewicz , 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ). "The exercise of specific personal jurisdiction must also comport with traditional notions of fair play and substantial justice as required by the Fourteenth Amendment's Due Process Clause." Id. (citing Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ).

On the first prong, the Seventh Circuit's holding in Klump v. Duffus , 71 F.3d 1368 (7th Cir. 1995) is instructive. In Klump , an Illinois resident sued a North Carolina-based attorney for malpractice in a lawsuit regarding a car accident in Illinois. The Seventh Circuit found personal jurisdiction over the out-of-state attorney because in "handl[ing] an Illinois lawsuit involving an automobile accident that occurred between two Illinois residents...