Quilici v. Second Amendment Foundation

Decision Date09 September 1985
Docket NumberNo. 84-2255,84-2255
Citation769 F.2d 414
Parties12 Media L. Rep. 1744 Victor D. QUILICI, Plaintiff-Appellant, v. SECOND AMENDMENT FOUNDATION, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Patrick A. Barton, Forest Park, Ill., for plaintiff-appellant.

Anne G. Kimball, Wildman Harrold Allen & Dixon, Chicago, Ill., for defendants-appellees.

Before ESCHBACH and FLAUM, Circuit Judges, and GIBSON, Senior Circuit Judge. *

FLOYD R. GIBSON, Senior Circuit Judge.

The plaintiff, Victor D. Quilici, appeals from the district court's grant of summary judgment upon the defendants', collectively referred to as the Second Amendment Foundation, motion to dismiss under Fed.R.Civ.P. 12(b)(6). We affirm.

I.

The plaintiff was one of three attorneys who delivered oral arguments before this court on appeal of a district court decision upholding the constitutionality of a handgun ban passed by the Village of Morton Grove. See generally Quilici v. Village of Morton Grove, 532 F.Supp. 1169 (N.D.Ill.1981), aff'd, 695 F.2d 261 (7th Cir.1982) (Coffey, J., dissenting), cert. denied, --- U.S. ----, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983). The defendants publish a newsletter, "The Weekly Bullet." In its June 7, 1982, issue, The Weekly Bullet commented on the oral argument in the handgun ban case before this court. The June 7th article, in pertinent part, with emphasis added, is as follows:

MORTON GROVE APPEAL HEARD IN CHICAGO

On Friday, May 28, a three-judge panel of the U.S. Court of Appeals: Seventh Circuit, heard the oral arguments of the pro-gun appeal to Judge Decker's onerous decision which upheld the Morton Grove handgun ban. Decker's decision had been handed down last December. Pro-gun attorney Victor Quilici, the Second Amendment Foundation and the National Rifle Association all filed appeals to overturn it in March.

The oral arguments were heard Friday morning in Chicago at the Federal Building. Second Amendment Foundation attorney Don B. Kates, Jr., noted criminologist and pro-gun scholar, and NRA attorney Dan Moran of the Chicago law firm Peterson and Houpt, made presentations to the judges on behalf of the individual plaintiffs supported by their respective organizations. Quilici represented himself....

Unfortunately, the presentation by the pro-gun side was beset with problems, leading one observer to remark that the appeal may be seriously jeopardized by the manner in which the oral arguments were made.

Greg McDonald, SAF executive director, attended the hearings in Chicago and agreed with the assessment. McDonald said, "I was pleased by the way in which our attorneys and the NRA attorneys cooperated. But quite frankly, I felt that the presentation made by Victor Quilici was poor. It may have sunk our appeal."

Because three cases were filed challenging the Morton Grove ordinance by three separate parties, the federal court consolidated the cases into one. This has meant that three groups of attorneys have had to work together in the preparation of briefs and oral presentations. So far this working relationship has fared well, despite some strains.

However, apparently Quilici was very uncooperative during the preparation of the oral presentations for the appeal. The pro-gun side was given thirty minutes by the Court to present the appeal. The NRA and SAF attorneys had worked to divide the responsibilities for presentation of the arguments. Quilici was supposed to have gone first, presenting several arguments relating to the Illinois Constitution and using no more than 6 minutes. The NRA was to follow, presenting additional Illinois constitutional arguments and then present arguments to the Court asking it to abstain until the Illinois State Supreme Court issued a ruling. The NRA was to have taken about 5 minutes.

Finally, SAF attorney Don Kates was to present a 4 to 5 minute argument explaining that the Second Amendment to the U.S. Constitution prohibited Morton Grove-type gun bans.

Unfortunately, Victor Quilici took 13 minutes to make his presentation, using up nearly half the total time allocated to the pro-gun side. Even worse, his presentation was rambling and often pointless. The ultimate outcome was that the pro-gun side ran out of time in the middle of the Second Amendment presentation. Moreover, all time reserved for rebuttal to the Morton Grove response had been used up by Quilici. Despite that, the Court permitted NRA attorney Moran to make a one minute rebuttal to the anti-gun Morton Grove presentation.

The outcome may be known within a few weeks. But the disastrous problems caused by Quilici may have severely damaged chances for a favorable ruling.

In its June 21, 1982, issue, The Weekly Bullet published an article entitled, "In Defense of Mr. Quilici." The June 21st article, in its entirety, is as follows:

It was mentioned in TWB (V7, R19) that pro-gun attorney Victor Quilici used more than the allocated time for presentation of his case during the recent Morton Grove appeals hearing in Chicago. TWB wishes to point out that Quilici was faced with a panel of judges continually interrupting his oral arguments with questions, and that in answering these, Quilici exceeded his time limit. In addition, constant interruptions during an oral presentation make it extremely difficult to maintain a cohesive and organized delivery, especially on such a complex subject.

In no way should the earlier comments in TWB be considered as reflecting on Mr. Quilici's competence in the legal or any other field. SAF feels confident with Mr. Quilici and has contributed substantial financial support to him.

SAF is well aware of all the hard work and long hours Quilici devoted to the Morton Grove case. Every gun owner in America owes him a debt of gratitude for his vigilance and determination in filing the first lawsuit against the infamous Morton Grove ban.

Following the publication of these articles, the plaintiff filed this action in federal court based on the court's diversity jurisdiction. 28 U.S.C. Sec. 1332. In count one of his amended complaint, the plaintiff alleged that the June 7th article contained false, malicious, defamatory, and libelous statements about him. In the second count of the complaint, the plaintiff made the same allegations about the June 21st article. In both counts the plaintiff sought five million dollars in general and ten million dollars in punitive damages. The parties do not dispute that Illinois law controls this case. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941) (in diversity actions a federal court is to apply the choice of laws rules of the forum state); accord Pittway Corp. v. Lockheed Aircraft Corp., 641 F.2d 524, 526 (7th Cir.1981) (applying Illinois' "most significant relationship" choice of laws test in a diversity action); see also Ingersoll v. Klein, 46 Ill.2d 42, 47, 262 N.E.2d 593, 596 (1970) (adopting the Restatement (Second) Conflict of Laws "most significant relationship" test); Snead v. Forbes, 2 Ill.App.3d 22, 26-7, 275 N.E.2d 746, 748-49 (1st Dist.1971) (in multistate defamation cases the state with the most significant relationship to the case is usually the state in which the plaintiff resides).

II.

The plaintiff argues, first, that the trial court erred in granting the defendants' motion to dismiss because it was not clear that the plaintiff would be unable to prove a set of facts in support of his claim. In support of this contention, the plaintiff alleges that the June 7th article contained a misstatement of fact, i.e., that the plaintiff's oral argument took thirteen minutes. Apparently, the argument is that if the plaintiff does prove that this was a misstatement of fact, he will be entitled to recover. Also, plaintiff's complaint averred that the allegedly false statements published by the defendants "were made with knowledge that they were false or with reckless disregard of the truth, i.e., with malice." Because this allegation was a question of fact, the plaintiff argues, dismissal was inappropriate.

A complaint should not be dismissed on a Rule 12(b)(6) motion unless it appears beyond doubt that the plaintiff would be unable to prove a set of facts which would warrant relief. Hishon v. King & Spalding, 467 U.S. 69, ----, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984), citing, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Altman v. Hurst, 734 F.2d 1240, 1242 n. 2 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 385, 83 L.Ed.2d 320 (1985). A motion to dismiss admits well pleaded allegations, and the court reviews those allegations in the light most favorable to the plaintiff. Richardson v. Dunbar, 95 Ill.App.3d 254, 255, 50 Ill.Dec. 756, 758, 419 N.E.2d 1205, 1207 (3d Dist.1981) (quoting Brooks v. Village of Wilmette, 72 Ill.App.3d 753, 756, 28 Ill.Dec. 934, 936-37, 391 N.E.2d 133, 135-36 (1st Dist.1979)). For purposes of the motion, then, the defendants admitted that the June 7th article incorrectly stated the amount of time that the plaintiff had used during oral argument, and the plaintiff was not required to prove the inaccuracy of the statement.

We note also that the plaintiff does not aver that he suffered any special damages. Thus, his right to recover depends upon whether the statements in question were libelous per se. Fried v. Jacobson, 99 Ill.2d 24, 26, 75 Ill.Dec. 398, 400, 457 N.E.2d 392, 394 (1983); Meyer v. Allen, 127 Ill.App.3d 163, 82 Ill.Dec. 136, 137, 468 N.E.2d 198, 199 (4th Dist.1984); Costello v. Capital Cities Media, Inc., 111 Ill.App.3d 1009, 1010, 67 Ill.Dec. 721, 723, 445 N.E.2d 13, 15 (5th Dist.1982). Whether the articles constituted libel per se was a question of law, to be decided in the first instance by the trial court. Pruitt v. Chow, 742 F.2d 1104, 1107 (7th Cir.1984) (quoting Chapski v. Copley Press, 92 Ill.2d 344, 352, 65...

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