Muzikowski, Robert E v. Paramount Pictures ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4314
ROBERT E. MUZIKOWSKI,
Plaintiff-Appellant,
v.
PARAMOUNT PICTURES CORPORATION,
SFX TOLLIN ROBBINS INCORPORATED, and
FIREWORKS PICTURES,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 6721—Charles P. Kocoras, Chief Judge.
____________
ARGUED MAY 29, 2002—DECIDED MARCH 6, 2003
____________
Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Robert Muzikowski
has devoted years of his life to coaching Little League
Baseball teams in economically depressed areas of Chi-
cago—an activity for which he deserves great credit. His
commitment eventually attracted national attention,
which led to a book about the 1992 season of the league
Muzikowski co-founded, and later to a movie produced
by defendant Paramount Pictures entitled Hardball,
which was based on the book. Muzikowski regarded the
2 No. 01-4314
movie as defamatory, on the theory that one particular
character easily identifiable as himself (played by Keanu
Reeves) was portrayed in a negative way, and that this
amounted to disseminating falsehoods about him and
about his league. The district court granted Paramount’s
motion to dismiss the complaint. In so doing, however,
it relied not only on Illinois substantive law (which
was proper), but also on Illinois pleading rules (which
was not). We therefore reverse and remand for further
proceedings.
I
Since 1991, Muzikowski, a licensed securities broker and
insurance salesman, has been active in founding and
coaching inner-city Little League Baseball programs,
including the Near North Little League (NNLL) (centered
in Chicago’s Cabrini-Green area) and the Near West
Little League (NWLL), which Muzikowski founded in 1995
for children living on the near west side. Especially at
the time, both these neighborhoods were among Chi-
cago’s poorest. Muzikowski and his work have been fea-
tured nationally on programs such as ABC’s Nightline.
In 1991, author Daniel Coyle volunteered to coach
with the NNLL. The next season, 1992, Coyle took a leave
of absence from his job as an editor at Outside magazine
so that he could continue his work as an assistant coach
of one of Near North’s teams and at the same time
write a book about the experience. The end result was
Hardball: A Season in the Projects, which G.P. Putnam’s
Sons published in 1994. The book, which bills itself as a
work of non-fiction, focuses primarily on the children Coyle
coached, although it also devotes some attention to the
coaches. Prominent among those coaches is Muzikowski;
sprinkled throughout the book are passages mention-
ing Muzikowski and various personal details about
No. 01-4314 3
Muzikowski’s life. Paramount acquired the motion picture
rights to Coyle’s book in 1993 and seven years later pro-
duced the movie Hardball, which tells the story of a
coach named Conor O’Neill. No character in the movie
is named Robert or Muzikowski and there are no refer-
ences to Little League Baseball. The credits of Hardball
state, “While this motion picture is in part inspired
by actual events, persons and organizations, this is a
fictitious story and no actual persons, events or organ-
izations have been portrayed.”
Despite this disclaimer, Muzikowski contends that
O’Neill is in fact a portrayal of him. He focuses on numer-
ous facts revealed in Coyle’s book about his own life.
After his father died, Muzikowski dropped out of college
for lack of funds. He later became an alcoholic and illegal
drug user. One night Muzikowski was arrested for his
involvement in a bar fight, which left a permanent scar
on his hand. After being bailed out, Muzikowski began to
turn his life around. Later, he became active in Little
League. As a coach, Muzikowski drove a blue station
wagon, made frequent use of profanity, and sometimes
“los[t] it.” On one occasion, Muzikowski learned that one
of his players had been killed in a gang-related shooting.
He later spoke at the boy’s funeral.
The O’Neill character in the movie version of Hardball
experiences almost exactly the same things as the real
Muzikowski. The only differences, in Muzikowski’s opinion,
are unflattering and false as applied to the real man.
O’Neill never breaks his drinking habit, while Muzikow-
ski has not taken a drink for 17 years. O’Neill, unlike
Muzikowski, scalps tickets and gambles. He commits
such crimes as battery, theft, criminal destruction of
property, disorderly conduct, and drinking on the public
way. From a professional standpoint, O’Neill falsely rep-
resents himself as a broker, even though he has no li-
4 No. 01-4314
cense. O’Neill uses his father’s death to deceive others
into giving him money, and he is portrayed as having
no interest in children or their well-being in contrast to
Muzikowski’s deep commitment to young people. In fact,
Muzikowski became involved in Little League solely
out of that genuine concern for children, while the
O’Neill character does so only to pay off a gambling debt.
In the spring of 2000, Paramount announced to the pub-
lic that it was going to make the movie Hardball. It
issued press releases and other information describing
the movie generally. Around the same time, Muzikowski
began getting telephone calls from all over the country
from friends and acquaintances telling him that Para-
mount was about to make a movie about him. Para-
mount’s publicity continued throughout the year; it made
it clear that Hardball was to be based on Coyle’s book
and that it was about an inner-city baseball team based
on a team located in the Cabrini-Green housing projects.
At least one news story about the up-coming film men-
tioned Muzikowski by name: an October 26, 2000, article
prepared by the Associated Press said that Keanu Reeves
“plays Bob Muzikowski, a former addict turned devout
Christian, who coaches a Little League baseball team.”
Most of the other advance publicity also emphasized
the fact that the movie was based on the true account
found in Coyle’s book.
Although a preview copy of Hardball was released in
January 2001, and reviews based on that exhibition
were disseminated around the country, the formal date
of release was set for September of that year. On May 10,
2001, Muzikowski filed a complaint in the Central Dis-
trict of California invoking the court’s diversity jurisdic-
tion and alleging libel and various other claims. Three
months later, Muzikowski sought a preliminary injunc-
tion to prevent Hardball’s release. On August 24 Muzikow-
No. 01-4314 5
ski voluntarily dismissed the California action and filed
this suit in the Northern District of Illinois, asserting
claims of defamation and false light invasion of privacy
under Illinois law. Muzikowski also moved for a temp-
orary restraining order to prevent release of the film,
which the district court denied. The film thus found its
way into the theaters as scheduled. On November 28,
2001, the district court granted Paramount’s motion to
dismiss based on FED. R. CIV. P. 12(b)(6).
II
Before we discuss the merits, we must consider an
issue of appellate jurisdiction. The district court dis-
missed Muzikowski’s claims without prejudice and “in
the usual case, such a dismissal does not qualify as an ap-
pealable final judgment because the plaintiff is free to re-
file the case.” Larkin v. Galloway, 266 F.3d 718, 721 (7th
Cir. 2001). An appeal is possible, however, if there is
no amendment Muzikowski could reasonably be expected
to offer to save the complaint, or if a new suit would
be barred by the statute of limitations. Id.We are satisfied that Muzikowski cannot amend and
re-file his complaint. In the first place, at this point any
new claim would be barred by the statute of limitations.
A dismissal without prejudice is treated for statute of
limitations purposes as if suit had never been filed. Elmore
v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000). Illinois
imposes a one-year statute of limitations on all defama-
tion actions that begins to run when the defamatory
statement was published. Buechele v. St. Mary’s Hosp.,
509 N.E.2d 744, 745-46 (Ill. App. Ct. 1987). Therefore,
any claim Muzikowski may have had expired no later
than September 14, 2002, one year after Paramount re-
leased Hardball.
6 No. 01-4314
Furthermore, the district court itself recognized that
Muzikowski might be able to amend the complaint in
some cases to itemize his damages more specifically,
but Muzikowski stated on the record that he wished to
forego that opportunity and bring an immediate appeal.
This is akin to a voluntary dismissal of his claims. While
a party cannot normally bring an appeal after a volun-
tary dismissal of some claims, see, e.g., West v. Macht,
197 F.3d 1185, 1187-88 (7th Cir. 1999), in this case
Muzikowski had already voluntarily dismissed his com-
plaint once before in the Central District of California.
Therefore, this second dismissal “operates as an adjudica-
tion upon the merits.” FED. R. CIV. P. 41(a)(1). From that
point of view as well, it is a final judgment from which
Muzikowski may appeal under 28 U.S.C. § 1291.
We also must address one other procedural issue.
Muzikowski is proceeding on appeal pro se and purports
to represent both himself and the NWLL. However,
Muzikowski cannot represent the NWLL because he is
not a lawyer. Nor can the NWLL, a non-profit corpora-
tion, represent itself pro se. Rowland v. California Men’s
Colony, 506 U.S. 194, 201-02 (1993). Because NWLL has
not appeared by counsel, we dismiss it as a party to
this appeal. Mendenhall v. Goldsmith, 59 F.3d 685, 687
n.1 (7th Cir. 1995).
III
The parties agree that Illinois law applies to the sub-
stance of Muzikowski’s claim, and so (to the extent it
is pertinent) we will confine our discussion accordingly.
A defamatory statement is one that “tends to cause
such harm to the reputation of another that it lowers
that person in the eyes of the community or deters third
persons from associating with him.” Kolegas v. Heftel
Broad. Corp., 607 N.E.2d 201, 206 (Ill. 1992). An Illinois
No. 01-4314 7
defamation action may state a claim either for defamation
per se (statements so harmful to reputation that damages
are presumed) or defamation per quod (statements re-
quiring extrinsic facts to show their defamatory meaning).
Bryson v. News Am. Publ’ns, Inc., 672 N.E.2d 1207, 1214
(Ill. 1996). The district court found that Muzikowski had
not stated a claim for defamation per se because the
statements Paramount made were reasonably capable of
an “innocent construction” or of referring to somebody
other than Muzikowski. It dismissed the per quod claim
because, under FED. R. CIV. P. 9(g) (which applies to a
state law defamation case in federal court, Brown &
Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 269-
70 (7th Cir. 1983)), Muzikowski had not met the height-
ened pleading standard for special damages and pecuniary
loss.
A
We begin with the defamation per se claim. In a per se
action, Muzikowski may recover only if Paramount’s
statements fit into one of the limited categories of state-
ments or imputations that Illinois considers actionable
per se: (1) commission of a criminal offense; (2) infection
with a venereal disease; (3) inability to perform or want
of integrity in the discharge of duties of public office;
(4) fornication or adultery; or (5) words that prejudice a
party in her trade, profession, or business. Bryson, 672
N.E.2d at 1214-15.
Even if a statement falls into a recognized category, it
will not be actionable per se if the statement “may rea-
sonably be innocently interpreted or reasonably be inter-
preted as referring to someone other than the plaintiff.”
Chapski v. Copley Press, 442 N.E.2d 195, 199 (Ill. 1982).
In Illinois courts, this determination is made by the
judge and it is regarded as a question of law. Anderson
8 No. 01-4314
v. Vanden Dorpel, 667 N.E.2d 1296, 1302 (Ill. 1996).
Allocation of functions between judge and jury in federal
court, however, are a matter of federal law. Moreover, facts
beyond those that appear in a federal complaint may be
relevant to the reasonableness inquiry, which requires
that statements be read in their natural sense, not in
the light most favorable to the defendant. Chapski, 442
N.E.2d at 197-99. However, if a statement is capable of
two reasonable constructions, one defamatory and one
innocent, the innocent one will prevail. Anderson, 667
N.E.2d at 1302.
Paramount provides two reasons why it is reasonable to
construe the statements in question as referring to some-
one other than Muzikowski (namely O’Neill, an entirely
fictional character). First, it points to material differences
between Muzikowski and O’Neill, which Muzikowski
himself identifies in his complaint. Second, it contends
that because Hardball is a work of fiction, it cannot rea-
sonably be interpreted to refer to Muzikowski.
The second contention is more easily dispensed with
and so we turn to it first. “[S]imply because the story
is labeled ‘fiction’ and, therefore, does not purport to
describe any real person” does not mean that it may not
be defamatory per se. Bryson, 672 N.E.2d at 1219. In
Bryson, the plaintiff sued a magazine publisher over an
article appearing in its fiction section. The article fea-
tured a character who also had the last name of Bryson
(but not the plaintiff’s first name), and who was described
as a “slut.” The article was set in southern Illinois, where
both the plaintiff and the author of the article resided,
and the plaintiff alleged 25 other physical attributes and
life experiences she shared with the character. Under
these circumstances, the Illinois Supreme Court held
that the plaintiff should have the opportunity to prove
that the character bore “such a close resemblance to the
plaintiff that reasonable persons would understand that
No. 01-4314 9
the character was actually intended to portray the plain-
tiff.” Id. In light of Bryson, the mere fact that Paramount
labeled its movie “fictitious” is not enough to shield it
from an Illinois defamation action.
Paramount responds that its case is different from Bryson
because Robert Muzikowski is never referenced by name in
Hardball, and thus his pleading cannot be construed to
support a claim for defamation per se. Before the Illinois
Supreme Court decided Bryson, the Illinois Appellate Court
had issued conflicting opinions on this point. Compare
Barry Harlem Corp. v. Kraff, 652 N.E.2d 1077, 1080 (Ill.
App. Ct. 1995) (statement which does not mention plaintiff
by name cannot be defamatory per se as to her); Schaffer v.
Zekman, 554 N.E.2d 988, 991-92 (Ill. App. Ct. 1990) (same)
with Aroonsakul v. Shannon, 664 N.E.2d 1094, 1098 (Ill.
App. Ct. 1996) (statement that does not name plaintiff
actionable so long as third parties would reasonably
understand it to refer to her); Beresky v. Teschner, 381
N.E.2d 979, 981 (Ill. App. Ct. 1978) (same). Bryson clarified
matters to a degree by holding that “where a libelous article
does not name the plaintiff, it should appear on the face of
the complaint that persons other than the plaintiff and the
defendant must have reasonably understood that the article
was about the plaintiff and that the allegedly libelous
expression related to her.” Bryson, 672 N.E.2d at 1218(emphasis in original). This suggests that there is no
automatic ban on recovery if the plaintiff is not named, as
Barry Harlem and Schaffer had held, but that instead that
Illinois imposes a heightened pleading standard for com-
plaints basing claims on publications that do not literally
name the plaintiff.
That may be the Illinois pleading rule, but it of course
does not apply in a federal court. See Mayer v. Gary Part-
ners & Co., 29 F.3d 330 (7th Cir. 1994). Muzikowski’s
claim for defamation per se does not fall under the special
pleading regime of Rule 9, and thus he is entitled to
10 No. 01-4314
the usual rules for notice pleading established by Rule 8.
Even if Muzikowski’s complaint would not have met Illi-
nois’s heightened pleading standard, we are satisfied
that it was sufficient to put Paramount on notice of his
claim. In his complaint, he lists in great detail many
similarities between himself and O’Neill that could cause
a reasonable person in the community to believe that
O’Neill was intended to depict him and that Paramount
intended Hardball’s mischaracterizations to refer to him.
Notwithstanding those details, Paramount argues that
Muzikowski has failed to plead a category of speech that
is defamatory per se. Muzikowski in response asserts
that he fits within two of the five possible categories. First,
Muzikowski claims Paramount’s portrayal of O’Neill
has injured him in his profession or business (number 5).
Id. at 1215. In Hardball, O’Neill is lying when he tells
people that he is a licensed securities broker. As a mat-
ter of substantive Illinois law, alleging or implying that
a person is not a legitimate member of her profession
is defamatory per se. Lowe v. Rockford Newspapers, Inc.,
534 N.E.2d 549, 553 (Ill. App. Ct. 1989) (implication
that auto repossessor is really just a car thief). Paramount
is correct that some of Muzikowski’s other allegations,
such as his claim that he will be damaged because the
movie asserts that his motives for coaching were pecu-
niary and not philanthropic, are statements of opinion
which do not amount to defamation per se. Owen v. Carr,
497 N.E.2d 1145, 1148 (Ill. 1986). But the narrow accusa-
tion that O’Neill/Muzikowski is an unlicensed broker
fits squarely within the per se category.
Furthermore, Muzikowski has adequately alleged that
Paramount has imputed to him the commission of a
crime of moral turpitude (number 1). Bryson, 672 N.E.2d
at 1214. Such a crime cannot be a mere misdemeanor
but must be punishable by imprisonment. Gardner v.
Senior Living Sys., Inc., 731 N.E.2d 350, 354 (Ill. App. Ct.
No. 01-4314 11
2000). Muzikowski describes numerous crimes that the
O’Neill character commits, some of which (such as ticket
scalping and drinking on the public way) are not punish-
able by imprisonment. Some of them, however, are more
serious, such as the crime of theft, which has been held
to be defamatory per se. Id.In the end, the most serious hurdle Muzikowski faces
is the question whether he has in essence pleaded him-
self out of court, by showing that the federal trier of
fact (whether judge or jury) would be compelled to find
an innocent construction of the movie. Compare Chapski,
442 N.E.2d at 199. Paramount argues that this is the
case, and in support of its position it points to a number
of differences between the real and the fictional man
that are apparent on the face of the complaint. Hardball
focuses on how O’Neill, a down-and-out gambler, finds
redemption by coaching an inner-city baseball league.
Muzikowski, in contrast, found redemption long before
he became involved in Little League. O’Neill drinks al-
cohol, while Muzikowski no longer does. O’Neill gambles
while Muzikowski does not, and O’Neill begins coaching
only to pay for his gambling addiction while Muzikowski
co-founded multiple inner-city leagues out of a genuine
concern for children.
In our view, Muzikowski might be able to produce
evidence showing that there is in fact no reasonable inter-
pretation of the movie that would support an innocent
construction. He may be able to show that no one could
think that anyone but him was meant, and the changes
to “his” character, far from supporting an innocent con-
struction that O’Neill is a fictional or different person, only
serve to defame him in the ways already discussed. We
conclude that Muzikowski’s allegations, read in the light
most favorable to him, entitle him to the chance to prove
his claim under a defamation per se theory. As the case
develops further, of course, it is entirely possible that
12 No. 01-4314
Paramount will be able to produce enough facts to sup-
port its “innocent construction” argument. At this stage,
however, we believe it was premature to reject Muzikow-
ski’s case.
B
Muzikowski also urged that his complaint stated a
claim for defamation per quod. In such an action,
Muzikowski could have complained about any state-
ments that caused him actual damage, not just those fit-
ting into the narrow per se categories. In his opening
brief before this court, however, Muzikowski raises no
arguments contesting the district court’s dismissal of his
defamation per quod count and has therefore waived
the claim. Anderson v. Hardman, 241 F.3d 544, 545
(7th Cir. 2001). Even if we were to overlook this fact,
Muzikowski concedes in his reply brief that he did not
itemize his losses or plead specific damages of actual
financial injury. This is a required element of a per quod
claim. See Fed. R. Civ. P. 9(g); Anderson, 667 N.E.2d at
1303-04. Because Muzikowski did not specifically state
his damages, we affirm the judgment for Paramount on
the per quod claim.
C
All that remains is Muzikowski’s claim for the tort of
false light invasion of privacy. To prevail, Muzikowski
must show that the publicity at issue is “of and concern-
ing” him, that it placed him before the public in a false
light, and that there was actual malice. Schaffer, 554
N.E.2d at 993 & n.2. If the action is based on statements
that are not defamatory per se, special damages too must
be pleaded. Id. at 994.
No. 01-4314 13
Our analysis of the false light claim tracks our assess-
ment of the claim for defamation per se. Muzikowski has
not asserted special damages, and so the claim can suc-
ceed only on the statements to the effect that O’Neill (and
hence, Muzikowski) is a thief and an unlicensed broker.
The “of and concerning” requirement is basically the same
as the innocent construction rule. Id. at 993 n.2. If the
statements can reasonably be construed as referring to
somebody other than Muzikowski, then they are not “of
and concerning him,” and cannot state a false light claim.
Harte v. Chicago Council of Lawyers, 581 N.E.2d 275, 280
(Ill. App. Ct. 1991). On this complaint, however, for the
reasons we have already set forth, Muzikowski is entitled
to introduce facts showing that these statements cannot
reasonably be construed as pertaining to anyone other
than himself. Paramount, once again, will be entitled to
contest that proposition.
IV
For the foregoing reasons, the judgment of the district
court is REVERSED and the case is REMANDED for further
proceedings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-6-03