Pomerantz v. Taylor-Nations

CUNNINGHAM

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

JUSTICE CUNNINGHAM delivered the judgment of the court.

Presiding Justice Connors and Justice Delort concurred in the judgment.

¶ 1 Held: The circuit court's dismissal of the plaintiff's defamation per se claim in the original complaint is not properly before this court for review on appeal; the circuit court properly dismissed the plaintiff's fifth amended complaint with prejudice. ¶ 2 This appeal arises from the July 25, 2012 order entered by the circuit court, which dismissed with prejudice a fifth amended complaint filed by plaintiff Geoffrey Pomerantz (Geoffrey) against defendant Wendi Taylor-Nations (Wendi). On appeal, Geoffrey argues that: (1) the circuit court erred in dismissing with prejudice his claim of defamation per se in its February 9, 2011 order; and (2) the circuit court erred in dismissing his fifth amended complaint with prejudice in its July 25, 2012 order. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 4 The pleadings in the case at bar alleged the following: In September 1998, Geoffrey and Wendi were colleagues at a public relations firm, Hill and Knowlton. Subsequently, Geoffrey and his wife, Olga, became friends with Wendi and her family. In 2008, Geoffrey became unemployed and received Illinois unemployment insurance benefits. Wendi was aware of Geoffrey's unemployment status and offered to provide assistance to Geoffrey in securing new employment. ¶ 5 On January 15, 2010, Geoffrey and Olga became legally separated and ceased cohabitating by April 2010. On September 29, 2011, Geoffrey and Olga's divorce allegedly became finalized. Beginning in May 19, 2010, over the course of two days, Wendi emailed Geoffrey in which she told him to "be very scared. VERY." Wendi then made several postings on the online social networking site, Facebook, in which she allegedly made disparaging public statements about Geoffrey. It is alleged that Wendi's Facebook postings urged others to disassociate themselves from Geoffrey, that the postings stated that Geoffrey's behavior was inappropriate, and that they accused Geoffrey of "torturing" his wife and daughter, Arielle, and also accused him of not supporting Arielle during his divorce proceedings. It is alleged that Wendi's Facebook postings accused Geoffrey of "crimes of moral turpitude" and "a complete lack of integrity." At the time these statements were posted on Facebook, Wendi allegedly had over 300 Facebook "friends" who had access to the statements-many of whom either knew Geoffrey or shared the same profession as Geoffrey. In response, several of Wendi's Facebook friends commented on her postings by making their own statements on Facebook about Geoffrey's conduct. Allegedly, at least four of these commentators, who were Geoffrey's professional colleagues, "proactively dissociated [from] [him] based on [Wendi's] postings." It is further alleged that Wendi called Geoffrey and left a "harassing and disturbing message." ¶ 6 On October 4, 2010, Geoffrey filed a complaint against Wendi, alleging claims of defamation per se (count I), defamation per quod (count II), false light invasion of privacy (count III), and tortious interference with prospective business (count IV), in connection with Wendi's Facebook postings. Attached to the complaint were a timeline of Wendi's "cyberbullying" (Exhibit A) and a verbatim replica of Wendi's Facebook postings at issue and the ensuing comments made by her Facebook friends (Exhibit B). On November 24, 2010, Wendi filed a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2010)), arguing that Geoffrey's complaint was deficiently pled and failed to state a cause of action for his claims. ¶ 7 On February 9, 2011, the circuit court dismissed with prejudice the defamation per se claim (count I), finding that the postings did not charge Geoffrey with the commission of a crime, did not name him as the subject of the postings, and references to "torture" were "hyperbolic and [could] be innocently construed." The circuit court dismissed without prejudice the remaining claims, with leave to amend, finding that Geoffrey failed to properly allege special damages and allegations of extrinsic facts to support a claim of defamation per quod (count II), and that he failed to plead relevant factual allegations which would support all of the elements of the false light invasion of privacy claim (count III) and tortious interference with prospective business claim (count IV). Thereafter, counsel for Geoffrey was granted leave of court to withdraw from representing him. ¶ 8 On May 3, 2011, Geoffrey filed a pro se first amended complaint, alleging defamation per quod (count I), false light invasion of privacy (count II), and tortious interference with prospective business (count III). Attached to the first amended complaint was again a verbatim copy of Wendi's Facebook postings at issue (Exhibits C and D). On May 24, 2011, Wendi filed a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2010)), arguing that Geoffrey's pro se first amended complaint did not cure the deficiencies of the original complaint. In response, Geoffrey argued that the circuit court erred in dismissing his claim of defamation per se in its February 9, 2011 ruling, and that all three counts of the first amended complaint were sufficiently pled. ¶ 9 On August 12, 2011, the circuit court granted the motion to dismiss the first amended complaint, finding that it continued to have the same deficiencies as that contained in the original complaint. The circuit court declined to entertain Geoffrey's arguments relating to the February 9, 2011 dismissal of his defamation per se claim, finding that he had failed to file a timely motion to reconsider the February 9, 2011 ruling and that it was "inappropriate to seeks [sic] reconsideration of a prior order in the response to [Wendi's] motion as to a newly filed pleading." The circuit court then allowed Geoffrey to file a second amended complaint. ¶ 10 On September 2, 2011, Geoffrey filed a pro se second amended complaint, alleging defamation per quod (count I), false light invasion of privacy (count II), and tortious interference with prospective business (count III). Geoffrey attached numerous exhibits to the second amended complaint, including, again, the Facebook postings at issue (Exhibit F). On September 23, 2011, Wendi filed a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2010)), and an amended motion to dismiss on October 3, 2011, arguing that the second amended complaint should be dismissed with prejudice for failing to state a cause of action for defamation per quod, false light invasion of privacy and tortious interference with prospective business. ¶ 11 On December 9, 2011, the circuit court dismissed the second amended complaint, but granted Geoffrey leave to file a third amended complaint. ¶ 12 On December 30, 2011, Geoffrey filed a pro se third amended complaint, alleging defamation per quod (count I), false light invasion of privacy (count II), and tortious interference with prospective business (count III). Geoffrey again attached numerous exhibits to the third amended complaint, including the Facebook postings at issue in this case (Exhibit F). On January 20, 2012, Wendi filed a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2010)), arguing that the third amended complaint was deficiently pled. Rather than file a response, on January 26, 2012, Geoffrey filed a pro se fourth amended complaint, which realleged the same claims but did not contain any exhibits regarding the Facebook postings. On January 30, 2012, Wendi filed another section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2010)), arguing that the fourth amended complaint was deficiently pled and that it should be dismissed with prejudice. ¶ 13 On April 11, 2012, the circuit court granted the motion to dismiss, finding that the allegations in the fourth amended complaint remained deficient and did not state a cause of action for Geoffrey's claims. The circuit court remarked that it had already given Geoffrey five opportunities "to attempt to state a cause of action," and that, under the facts and circumstances, it was unlikely that he would be able to properly do so. Nonetheless, the circuit court granted Geoffrey one last opportunity to amend the pleading as a fifth amended complaint. ¶ 14 On May 2, 2012, Geoffrey filed a pro se fifth amended complaint, alleging defamation per quod (count I), false light invasion of privacy (count II), and tortious interference with prospective business (count III). Neither the Facebook postings nor any other documents were attached as exhibits to the pleading. On May 23, 2012, Wendi filed a section 2-615 motion to dismiss (735 ILCS 5/2-615 (West 2010)), which was later amended on May 30, 2012, arguing that the fifth amended complaint was substantially similar to the fourth amended complaint and that it did not cure the deficiencies in the fourth amended complaint. On June 27, 2012, Geoffrey filed a response to Wendi's motion to dismiss the fifth amended complaint by reiterating that his claims were sufficiently pled. The response stated that the Facebook postings at issue and other pertinent documents were attached as exhibits to the response. However, these exhibits were not included in the record before this court. On July 11, 2012, Wendi filed a reply to Geoffrey's June 27, 2012 response, noting that "there were no exhibits attached to either the [f]ifth [a]mended [c]omplaint or the response hand delivered to [d]efense counsel." ¶ 15 On July 25, 2012, the circuit court dismissed the fifth amended complaint with prejudice, finding that Geoffrey failed to state a cause of action for his claims. Specifically, the court found that Geoffrey again failed to allege extrinsic facts and special damages to support a claim of defamation per quod, that the new allegations were irrelevant and conclusory, and that he failed to set forth "specific, relevant factual allegations which support all the elements of the claims of false light invasion of privacy and tortious interference with prospective business." In dismissing the fifth amended complaint with prejudice, the circuit court noted that this was Geoffrey's sixth unsuccessful attempt to state a cause of action for the claims and that it was unlikely that he would ever be able to properly do so under the circumstances. ¶ 16 On August 24, 2012, Geoffrey filed a notice of appeal.