MEMORANDUM OPINION AND ORDER
SHADUR, District Judge.
Robert Fleming ("Fleming") sues Kane County ("County") and County's Highway Superintendent Nabi Fakroddin ("Fakroddin"), asserting claims under:
1. 42 U.S.C. § 1983 ("Section 1983") for violating Fleming's First Amendment rights; and
2. Illinois common law for committing the tort of retaliatory discharge.
Fakroddin has responded in part with a defamation counterclaim (the "Counterclaim").
Fleming has now moved under Fed.R. Civ.P. ("Rule") 12(b)(1) and 12(b)(6) to dismiss the Counterclaim. Fakroddin has again reacted, this time with a Rule 12(f) motion to strike two of Fleming's affirmative defenses to the Counterclaim. For the reasons stated in this memorandum opinion and order:
From January 1, 1968 to June 7, 1984 Fleming — a registered civil engineer— worked as County's Assistant Superintendent of Highways (Complaint ¶¶ 1, 7). In August 1983 County requested bids on a contract to improve County Highway 83 ("Orchard Road") by constructing an overpass over Illinois Highway 5 (id. ¶ 9). County's original bid specifications required the contractor to excavate "borrow" material, needed for the overpass foundation, from property owned by County's Forest Preserve District and located three miles from the construction site (id. ¶¶ 10-11). In response to inquiries from several prospective bidders, Fleming asked then Superintendent William Carter ("Carter") to change the borrow site (id. ¶ 12). Carter refused (id. ¶ 13).
County awarded the overpass construction contract to A.J. Maggio Co. ("Maggio") for $1,163,700 (id. ¶ 14). Maggio's bid on the borrow specification was substantially lower than quotes submitted on that item by other bidders (id. ¶ 15). After Maggio began construction in September 1983, County changed the borrow site and thereby reduced Maggio's costs in supplying borrow material (id. ¶ 16). Accordingly Fleming urged Carter either to relet the contract or to lower the price County paid for the borrow material (id. ¶¶ 17-18). Carter rejected both suggestions (id.).
Fleming then attempted unsuccessfully to meet with various members of County's Board of Commissioners to discuss possible bidding irregularities in the Orchard Road contract (id. ¶¶ 20-21). In January 1984 Fleming reported the borrow-pit switch to County's State's Attorney, the Illinois Attorney General and the FBI (id. ¶ 22).
In January 1984 Superintendent Carter resigned (id. ¶ 19). Fakroddin took the vacated Superintendency position March 1, 1984 (id. ¶ 23). Thereafter Fakroddin assertedly pursued a course of conduct designed to manufacture cause for Fleming's dismissal (id. ¶ 24), allegedly by:
On June 7, 1984 Fakroddin fired Fleming (id. ¶ 25). Fleming unsuccessfully appealed his dismissal to a grievance committee and then to the Executive Committee of County's Board of Commissioners (id. ¶¶ 26-27).
Before Fleming's dismissal, he and Fakroddin engaged in several arguments (id. ¶ 25). On April 24, 1984 and June 7, 1984 Fleming maliciously made the following false statements in the presence of several persons (Counterclaim ¶ 5):
Those statements injured Fakroddin's personal and professional reputations (id. ¶ 7).
Jurisdiction over the Counterclaim
Fleming first contends this Court lacks subject matter jurisdiction over the Counterclaim. That notion involves two steps:
Because the first proposition is really undisputed, only the second requires examination.
Rule 13 reads in relevant part:
That dichotomy between "compulsory" and "permissive" counterclaims is framed by our Court of Appeals in terms of a "logical relationship" test. As Valencia v. Anderson Bros. Ford, 617 F.2d 1278, 1291 (7th Cir.1980), rev'd on other grounds, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981) (citations omitted) put it:
In turn those "policies" underpinning the "logical relationship" concept have been succinctly stated (though by another Court of Appeals) in Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631, 634 (3d Cir.1961):
Here the Counterclaim plainly bears the requisite "logical relationship" to Fleming's claim. Fleming alleges County and Fakroddin fired him in retaliation for whistleblowing activity protected by the First Amendment. Fleming describes a series of events, from March 1984 to June 1984, during which Fakroddin allegedly harassed Fleming, seeking to fabricate a reason to fire him. Fakroddin counters with the charge Fleming slandered him during that same course of events. Certainly the claims derive from the same factual matrix and bear on the same issues — indeed, at least some of the complained-of language was uttered on the day Fleming was fired, and Fakroddin's responsive Mem. 9-10 announces his intention to point directly to Fleming's asserted slander as a basis of Fleming's dismissal. Appletree v. City of Hartford, 555 F.Supp. 224, 229-30 (D.Conn. 1983) found just such a relationship satisfies Rule 13(a):
Rule 12(b)(6) Motion
Turning to Rule 12(b)(6), Fleming moves to dismiss the Counterclaim for two reasons:
Neither contention succeeds, for the reasons next discussed.
1. Per Se Libel?
Fakroddin alleges no special damages.
And Chapski v. Copley Press, 92 Ill.2d 344, 352, 65 Ill.Dec. 884, 888, 442 N.E.2d 195, 199 (1982) had just one year earlier restated the "rule of innocent construction" used in applying the per se test:
Fleming contends none of the alleged defamatory statements:
He is partly right and partly wrong.
As to the pejoratives "gutless bastard" and "black son of a bitch," the reasoning of Irving v. J.L. Marsh, Inc., 46 Ill.App.3d 162, 166, 4 Ill.Dec. 720, 722, 360 N.E.2d 983, 985 (3d Dist.1977) (citation
Fakroddin's professional abilities are similarly not implicated by calling him a "gutless bastard" and "black son of a bitch."
But "liar" stands on a different footing. That does suggest a lack of integrity in the discharge of Fakroddin's duties. Wade v. Sterling Gazette Co., 56 Ill.App.2d 101, 205 N.E.2d 44 (3d Dist.1965) — sought to be adduced by Fleming in his own support — does not hold "liar" can never be libelous per se. Instead Wade, id. at 107-08, 205 N.E.2d at 48-49 held calling someone a liar in a particular instance did not amount to libel per se. However, Wade clearly suggested using "liar" to imply a person is generally dishonest can meet the per se test. Here the Counterclaim carries the reasonable construction that, in context, Fleming used "liar" to impugn Fakroddin's character as a professional. That allegation therefore withstands Fleming's motion to dismiss.
Fleming finally contends the two remaining alleged defamatory statements— Fakroddin "doesn't have the guts to fire" and "wouldn't make a pimple on a [sic] engineer's ass" — are mere statements of opinion and so non-libelous as a matter of law under such cases as Naked City, Inc. v. Chicago Sun Times, 77 Ill.App.3d 188, 190, 32 Ill.Dec. 661, 662, 395 N.E.2d 1042, 1043 (1st Dist.1979):
But Chapski, 92 Ill.2d at 352, 65 Ill.Dec. at 888, 442 N.E.2d at 199 emphasizes:
Here the plain meaning of the alleged statements is to cast aspersions on Fakroddin's abilities as a civil engineer and as County's Highway Superintendent. This Court cannot say as a matter of law that Fleming's statements were mere expressions of opinion, and they too survive dismissal.
Because Fakroddin is a public official, under the Constitution he must prove Fleming acted with actual malice. Woods v. Evansville Press Co., 791 F.2d 480, 483-484 (7th Cir.1986) (our Court of Appeals' most recent adherence to the New York Times v. Sullivan "public official" standard). Fleming Mem. 12 and R. Mem. 5 then argue Fakroddin's Counterclaim does not sufficiently allege malice. But Counterclaim ¶ 5 alleges Fleming acted:
Fleming invokes Illinois law to urge Fakroddin must allege facts supporting an inference of actual malice. But that misperceives the source of pleading requirements in federal courts. Hernas v. City of Hickory Hills, 507 F.Supp. 103, 104-05 (N.D.Ill. 1981) articulates the flaw in Fleming's position:
This Court need not look far to locate the applicable federal pleading standard. Rule 9(b) provides:
Here the Counterclaim clearly meets that easy test.
Motion To Strike
Fakroddin has moved to strike two of Fleming's affirmative defenses to the Counterclaim. He prevails on each, though for different reasons.
Here is the first affirmative defense:
Fakroddin contends that defense raises the "fair comment" privilege, which cannot protect Fleming because his statements show actual malice as a matter of law.
However, Fleming R. Mem. 5 expressly disclaims reliance on Illinois' fair comment privilege. Instead Fleming says his first affirmative defense simply contests the sufficiency of Fakroddin's pleading of malice. Indeed, Fleming Mem. 11-12 treats
Fakroddin also attacks what Fleming calls his third "affirmative defense":
Were that a true affirmative defense, it would survive dismissal in light of the century-old (but, it seems, still-viable, 33A I.L.P. Slander and Libel § 73) expression of Illinois law in Miller v. Johnson, 79 Ill. 58, 60-61 (1875):
Fakroddin does say Fleming must also allege a retraction of the slander to avail himself of the defense of provocation in mitigation of damages. But Fakroddin points to no Illinois cases imposing such a requirement. And Knoxville Pub. Co. v. Taylor, 31 Tenn.App. 368, 215 S.W.2d 27 (1948) — cited by Fakroddin — provides no support for his position. Provocation and retraction constitute separate grounds for mitigation of damages.
But all that is really beside the mark for current purposes. Under federal law an affirmative defense admits the allegations in a complaint but nevertheless asserts facts that would defeat recovery. See Bobbitt v. Victorian House, Inc., 532 F.Supp. 734, 736-37 (N.D.Ill.1982). As Illinois law makes clear, however, proof of provocation would not bar recovery here— it would simply enter into the calculation of damages. Accordingly Fleming's third "affirmative defense" is not a "matter constituting an avoidance" under Rule 8(c), and it is stricken.
Affirmative Defense II
Fleming asserts as his Affirmative Defense II a paragraph captioned "ABSENCE OF MALICE," said to be in mitigation of damages. Fakroddin had filed (unbidden) a "Reply of Counter-Plaintiff," which this Court struck by an April 16 order as unauthorized by Rule 7. Because the "affirmative defense" is also ill-conceived, it too is stricken sua sponte.
As this opinion has already said, Fakroddin's public-official status makes malice an essential element of his defamation claim. Absence of that element defeats all recovery, and Counterclaim ¶ 5 properly assumes Fakroddin's burden of proving that element. Hence Fleming's denial of that malice allegation in his Counterclaim Answer ¶ 5 puts the matter at issue. Moreover, the Reply's reaffirmation of Fleming's actual malice simply repeats an allegation already in the Counterclaim— cluttering up the pleadings needlessly.
What that posture of the pleadings demonstrates is that so-called Affirmative Defense II is likewise inaccurately labeled, for it too does not accept the truth of the Counterclaim's allegations but explain why — even so — no liability exists. Bobbitt,
Fleming's motion to dismiss is granted as to the words "gutless bastard" and "black son of a bitch" and denied in all other respects. Fakroddin's motion is granted in its entirety, and Fleming's first and third affirmative defenses are stricken. Fleming's second affirmative defense is stricken sua sponte.
Fakroddin asserts no basis whatever for the $50,000 figure, so he fails Rule 9(g)'s standard. See Action Repair, Inc. v. American Broadcasting Cos., 776 F.2d 143, 149-50 (7th Cir.1985). Fakroddin seems to concede that point, for his briefs focus exclusively on establishing libel per se.
In any event, Fakroddin has come up with no "modern" authority to support his position.