Chi v. Loyola University Medical Center

Filing 41

MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 5/24/2011:(gcy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DR. ALEXANDER CHI,
Plaintiff,
vs.
LOYOLA UNIVERSITY MEDICAL
CENTER and DR. SUNEEL NAGDA,
Defendants.

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Case No. 10 C 6292

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Dr. Alexander Chi has sued Loyola University Medical Center (“Loyola”) and Dr.
Suneel Nagda asserting claims for defamation, tortious interference with prospective
economic advantage, and intentional infliction of emotional distress (“IIED”). The Court
previously granted defendants’ motion to dismiss Dr. Chi’s second amended complaint.
Chi v. Loyola Univ. Med. Ctr., No. 10 C 6292, 2011 WL 687334 (N.D. Ill. Feb. 16,
2011). The Court assumes familiarity with that decision. Dr. Chi has filed a third
amended complaint which defendants have moved to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). For the reasons stated below, the Court grants the motion
in part and denies it in part.
Discussion
1.

Choice of law
The parties dispute what law applies to Dr. Chi’s claims. Defendants argue that

Illinois law governs all of Dr. Chi’s claims. In particular, defendants assert that the

Illinois Citizen Participation Act (“ICPA”), 735 ILCS 110/15, requires dismissal of the
claims. Dr. Chi counters that Arizona law governs his defamation claim and that the
ICPA does not apply.
A district court sitting in diversity applies the choice-of-law rules of the state in
which the court sits. Malone v. Corr. Corp. Of Am., 553 F.3d 540, 543 (7th Cir. 2009).
In Illinois, courts use the “most significant contacts” test in resolving conflicts of law.
Auto-Owners Ins. Co. v. Websolv Computing, Inc., 580 F.3d 543, 547 (7th Cir. 2009).
In the tort context, “‘the law of the place of injury controls unless Illinois has a more
significant relationship with the occurrence and with the parties.’” Tanner v. Jupiter
Realty Corp., 433 F.3d 913, 916 (7th Cir. 2006) (quoting Esser v. McIntyre, 169 Ill. 2d
292, 298, 661 N.E.2d 1138, 1141 (1996)).
In assessing which state has the strongest relationship with the occurrence and
the parties, the Court looks to four factors: “‘(1) where the injury occurred; (2) where
the injury-causing conduct occurred; (3) the domicile of the parties; and (4) where the
relationship of the parties is centered.’” Id. The Court does not merely count contacts
but rather weighs them in light of the general principles outlined in section 6 of the
Restatement (Second) of Conflict of Laws, which are the relevant policies of the forum;
the relevant policies of the interested states; and those states’ relevant interests in
determining the particular issue; and the basic policies underlying the particular field of
law. See Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 169-70, 879 N.E.2d 893,
906-07 (2007).
Illinois also follows the doctrine of dépeçage, “which refers to the process of

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cutting up a case into individual issues, each subject to a separate choice-of-law
analysis.” Townsend, 227 Ill. 2d at 161, 879 N.E.2d at 901. In determining what law
applies to Dr. Chi’s claims, the Court will give each issue “‘separate consideration if it is
one which would be resolved differently under the local law rule of two or more of the
potentially interested states.’” Id. (quoting Restatement (Second) of Conflict of Laws §
145, cmt. d, at 417 (1971)).
a.

Defamation claim

The parties dispute whether Arizona or Illinois law applies to the defamation
claim. Dr. Chi asserts that “there are important differences between the law of Arizona
and the law of Illinois on the issue of defamation.” Pl.’s Resp. in Opp. to Defs.’ Mot. to
Dismiss at 10 (“Pl.’s Resp.”). In particular, the parties appear to agree that Illinois, but
not Arizona, applies the “innocent construction rule” to defamation claims. See Tuite v.
Coritt, 224 Ill. 2d 490, 502, 866 N.E.2d 114, 121 (2006). Defendants seek dismissal of
Dr. Chi’s defamation claim based on this rule, among other arguments.
Dr. Nagda drafted the allegedly defamatory statement in Illinois and sent it to
University Medical Center (“UMC”) in Arizona, where UMC officials read it, allegedly
causing Dr. Chi injury in that state. As such, the first factor from section 145 of the
Restatement favors application of Arizona law. For the same reason, Arizona law is
presumptively applicable to the claim. See Kamelgard v. Macura, 585 F.3d 334, 341
(7th Cir. 2009) (noting Illinois’s presumption in favor of applying the law of the place of
injury). Though defendants are apparently Illinois citizens, Dr. Chi is a citizen of
Arizona. The Court thus considers the third factor to be neutral. The second factor

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cuts both ways: Dr. Nagda prepared the allegedly defamatory statement in Illinois but
knowingly sent it to Arizona. The fourth factor favors the application of Illinois law given
that the parties’ relationship was centered in Illinois, where Dr. Chi served as a medical
resident at Loyola.
After weighing these factors in light of the principles outlined in the Restatement,
the Court concludes that Illinois’s relationship with this case is not strong enough to
rebut the presumption in favor of applying the law of Arizona, the place of the alleged
injury. The Illinois Supreme Court has instructed courts not to take such presumptions
lightly. See Townsend, 227 Ill. 2d at 162, 879 N.E.2d at 902 (noting that courts and
practitioners “have undervalued the specific presumptive rules” applicable to choice-oflaw questions). Moreover, as comment e to section 145 of the Restatement notes, the
location of the injury “plays an important role in the selection of the state of the
applicable law” when “the injury occurred in a single, clearly ascertainable state.”
Restatement (Second) of Conflict of Laws § 145 cmt. e (1971). That is the case here.
Dr. Chi’s alleged injury occurred in Arizona, the state where Dr. Nagda’s allegedly
defamatory statement was published and where Dr. Chi is currently employed as a
physician.
To be sure, the Restatement does identify certain situations in which the place of
injury is less important, including “when the place of injury can be said to be fortuitous
or when for other reasons it bears little relation to the occurrence and the parties with
respect to the particular issue,” or when “the defendant had little, or no, reason to
foresee that his act would result in injury in the particular state.” Id. But these
circumstances are not present here, as Dr. Chi alleges that Dr. Nagda purposefully sent
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his allegedly defamatory statement to UMC in Arizona. As such, there was nothing
fortuitous or unforeseeable about the fact that Dr. Chi’s alleged injury occurred in
Arizona. To the contrary, the effects of Dr. Nagda’s statement likely would be felt only
in Arizona, since that is where Dr. Chi’s medical practice is located.
In sum, Arizona has a strong interest in protecting its citizens from conduct
directed at them in Arizona and causing injury there. The Court thus gives great weight
to the fact that Dr. Chi’s alleged injury occurred in Arizona and sees no compelling
reason to give increased weight to the location of initiation of the conduct causing the
injury or the place where the parties’ relationship was centered. Accordingly, the Court
concludes that Arizona law governs Dr. Chi’s defamation claim.
b.

Tortious interference and IIED claims

The parties have not addressed whether Arizona law also governs Dr. Chi’s
tortious interference and IIED claims. The states’ laws on these subjects do not
materially differ. Compare Neonatology Assocs. v. Phoenix Perinatal Assocs., 216 Ariz.
185, 187, 164 P.3d 691, 693 (Ariz. App. 2007) (tortious interference), and Citizen Publ’g
Co. v. Miller, 210 Ariz. 513, 516, 115 P.3d 107, 110 (2005) (IIED), with Anderson v.
Vanden Dorpel, 172 Ill. 2d 399, 406-07, 667 N.E.2d 1296, 1299 (1996) (tortious
interference), and Cangemi v. Advocate South Suburban Hosp., 364 Ill. App. 3d 446,
470, 845 N.E.2d 792, 813 (2006) (IIED). For this reason, and because Dr. Chi has
forfeited any contention that Arizona law governs these claims, the Court will apply
Illinois law. See Jean v. Dugan, 20 F.3d 255, 260 (7th Cir. 1994) (“Where there is no
disagreement among the contact states, the law of the forum state applies”).

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c.

ICPA defense

Finally, defendants argue that Dr. Chi’s claims were filed as part of a so-called
“strategic lawsuit against public participation” (“SLAPP”) and should be dismissed
based on Illinois’s anti-SLAPP statute, the ICPA. Dr. Chi responds that Arizona law
applies to this issue and therefore the ICPA does not apply.
Arizona also has an anti-SLAPP statute. See A.R.S. § 12-752. This law,
however, does not “[c]reate any privileges or immunities or otherwise affect, limit or
preclude any privileges or immunities authorized by law.” A.R.S. § 12-752(E)(3). By
contrast, the ICPA creates conditional immunity for “[a]cts in furtherance of the
constitutional rights to petition, speech, association, and participation in government.”
735 ILCS 110/15. Because the two laws differ in this critical respect, the Court must
determine which state’s statute applies.
The fact that Arizona law governs Dr. Chi’s defamation claim is not dispositive of
this question. “The issue of whether a statement is defamatory or invades the right to
privacy is distinct from the issue of whether that statement is privileged.” Global Relief
Found. v. New York Times Co., No. 01 C 8821, 2002 WL 31045394, at *10 (N.D. Ill.
Sept. 11, 2002); see also Vantassell-Matin v. Nelson, 741 F. Supp. 698, 704 (N.D. Ill.
1990) (noting in choice-of-law context that “the threshold question [of defamation] and
the defenses are different issues and call for different analyses”).
Though the place of injury is a central factor in determining what law governs a
tort claim, in the anti-SLAPP context this factor is less important. The purpose behind
an anti-SLAPP law is to encourage the exercise of free speech—indeed, Illinois’s stated

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policy in enacting the ICPA was to “encourage[] and safeguard[] with great diligence”
the “constitutional rights of citizens and organizations to be involved and participate
freely in the process of government.” 735 ILCS 110/5. In light of this policy goal, the
place where the allegedly tortious speech took place and the domicile of the speaker
are central to the choice-of-law analysis on this issue. A state has a strong interest in
having its own anti-SLAPP law applied to the speech of its own citizens, at least when,
as in this case, the speech initiated within the state’s borders.
Defendants are citizens of Illinois, and their allegedly defamatory speech
originated here. Illinois thus has a strong interest in having its own anti-SLAPP statute
applied to the issue of whether defendants are immune from liability for defamation. Cf.
Global Relief, 2002 WL 31045394, at *11 (applying Illinois law to defamation claim, but
California law to anti-SLAPP defense: “California has a great interest in determining
how much protection to give California speakers . . . . Thus California law has the most
significant relationship and the law of California will apply to defenses to defamation”).
The Court therefore will apply Illinois law, and specifically the ICPA, to the question of
whether defendants are immune from liability on Dr. Chi’s claims, assuming that he is
able to state a claim on any of the counts in his complaint.
2.

Failure to state a claim
Having determined that Arizona law applies to Dr. Chi’s defamation claim and

Illinois law applies to his remaining claims, the Court next addresses whether Dr. Chi’s
complaint states a claim under Rule 12(b)(6). In doing so, the Court accepts the facts
stated in Chi’s complaint as true and draws reasonable inferences in his favor. Parish

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v. City of Elkhart, 614 F.3d 677, 679 (7th Cir. 2010). Though a complaint need not
contain “detailed factual allegations, . . . a formulaic recitation of the elements of a
cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Rather, the complaint must contain “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. A complaint fails to state a claim “where the wellpleaded facts do not permit the court to infer more than the mere possibility of
misconduct.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
a.

Defamation claim

In count one, Dr. Chi contends that Dr. Nagda’s written statement that he “cannot
recommend” Dr. Chi was defamatory. Defendants argue that Dr. Nagda’s remark was
a non-actionable statement of opinion. “‘To be defamatory, a publication must be false
and must bring the defamed person into disrepute, contempt, or ridicule, or must
impeach plaintiff’s honesty, integrity, virtue, or reputation.’” Turner v. Devlin, 174 Ariz.
201, 203-204, 848 P.2d 286, 288-89 (1993) (quoting Godbehere v. Phoenix
Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989)). “[W]hether, under all
of the circumstances, a statement is capable of bearing a defamatory meaning” is a
question of law for the Court to decide. Yetman v. English, 168 Ariz. 71, 79 81 P.2d
323, 331 (1991).
The parties disagree over what legal standard the Court should apply to this
issue. Defendants argue that a statement must be “provable as false” to give rise to a
defamation claim. Defs.’ Mem. in Supp. of Mot. to Dismiss at 7 (citing Milkovich v.
Lorain Journal Co., 497 U.S. 1, 19-20 (1990)) (“Defs.’ Mem.”). Dr. Chi counters that the

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“provable as false” standard applies only to statements on matters of public concern
and that the proper standard is whether the statement merely “impl[ies] a basis in fact.”
Pl.’s Resp. at 10 (citing Yetman, 168 Ariz. 71, 81 P.2d 323). The parties appear to
agree that this case does not involve speech relating to a public figure or a matter of
public concern.
The Court concludes that the “provable as false” standard does not govern Dr.
Chi’s defamation claim. As the Arizona Supreme Court has recognized, Milkovich
established this standard for statements that relate to a matter of public concern.
Turner, 174 Ariz. at 205, 848 P.2d at 290 (“A statement regarding matters of public
concern must be provable as false before a defamation action can lie”) (emphasis
added); see also Milkovich, 497 U.S. at 19 (holding that “a statement on matters of
public concern must be provable as false before there can be liability under state
defamation law, at least in situations, like the present, where a media defendant is
involved”) (emphasis added). The Supreme Court in Milkovich expressly reserved
judgment on whether this standard applies to non-media defendants. Id. at 19 n.6.
The Court is unaware of any Arizona Supreme Court case adopting this standard
for defamation claims outside of the public figure/public concern context. “If the state’s
highest court has yet to rule on an issue, decisions of the state appellate courts control,
unless there are persuasive indications that the state supreme court would decide the
issue differently.” Thomas v. H & R Block E. Enters., Inc., 630 F.3d 659, 663 (7th Cir.
2011) (internal quotation marks omitted). The Arizona court of appeals does not
appear to have explicitly adopted defendants’ proposed standard. In fact, the court

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recently recognized a lack of clarity as to this standard’s applicability outside of the
“public concern” context. See Dube v. Likins, 216 Ariz. 406, 419, 167 P.3d 93, 106 n.4
(Ariz. App. 2007) (quoting 2 Dan B. Dobbs, The Law of Torts § 420, at 1186 (2001 &
Supp. 2006) (“[W]e need not decide whether a private figure must show that allegedly
defamatory statements not involving matters of public concern are provable as false. It
is not clear whether this requirement applies to statements ‘not involving public issues
(or mere invective or hyperbole)’”) (emphasis added).
By contrast, the court in Dube acknowledged that Dr. Chi’s proposed standard is
the one that governs in the private defamation context. Dube, 216 Ariz. at 420, 167
P.3d at 107 (“The requirement that rhetoric or epithet cannot be actionable unless it
implies a factual assertion, unlike the requirement that a statement be provable as
false, appears to apply even to cases in which the matter is not one of public concern”)
(emphasis added). This position finds support elsewhere. See, e.g., Restatement
(Second) of Torts § 566 (“A defamatory communication may consist of a statement in
the form of an opinion, but a statement of this nature is actionable only if it implies the
allegation of undisclosed defamatory facts as the basis for the opinion”) (emphasis
added).
Defendants cite the Arizona Supreme Court’s decision in Turner in arguing that
the “provable as false” standard applies. But in that case, the court expressly found
that the defendant’s allegedly defamatory comments involved matters of public concern
and “therefore[] must be provable as false before a defamation action can lie.” Turner,
174 Ariz. at 205, 848 P.2d at 290. In a footnote, the court acknowledged that it was

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extending the rule from Milkovich beyond the media context but concluded that doing
so was appropriate “when the plaintiff is a public official and the speech is of public
concern.” Id. at 205, 848 P.2d at 290 n.8. Notably, the court later recognized that Dr.
Chi’s proposed standard applies to statements of opinion. Id. at 208, 848 P.2d at 293
(citing Milkovich, 497 U.S. at 18-19) (“We recognize, of course, that statements of
opinion are actionable when they ‘imply a false assertion of fact.’”).
For these reasons, the Court concludes that the “provable as false” standard
does not apply to the Court’s determination of whether Dr. Nagda’s statement is
actionable under Arizona law. The Court will therefore assess whether his statement
implies an assertion of fact. In doing so, the Court will not “stop at literalism,” but will
also “consider the impression created by the words used as well as the general tenor of
the expression, from the point of view of the reasonable person.” Yetman, 168 Ariz. at
76, 811 P.2d at 328 (internal quotation marks and emphasis omitted).
Dr. Chi argues that Dr. Nagda’s statement that he “cannot recommend” Dr. Chi
“can be reasonably interpreted to constitute an assessment of Dr. Chi’s skills as a
physician.” Pl.’s Resp. at 11. The Court agrees. Dr. Nagda supervised Dr. Chi during
his residency at Loyola and made his statement to UMC in that capacity as part of an
“overall evaluation” of Dr. Chi. Defs.’ Mem., Ex. C at 3.1 Moreover, Dr. Nagda’s

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In his complaint, Dr. Chi specifically referenced the forms submitted to UMC by
Dr. Nagda. Because defendants attached these documents to their motion to dismiss,
the Court may consider their contents without converting the motion to dismiss into a
motion for summary judgment. See Cont’l Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727,
731 n.2 (7th Cir. 2005) (“Documents that a defendant attaches to a motion to dismiss
are considered part of the pleadings if they are referred to in the plaintiff’s complaint
and are central to the claim”).
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statement was not simply that he could not recommend Dr. Chi. He also attached and
referenced a separate form on which he wrote that Dr. Chi “had difficulties in
interpersonal communication throughout his residency.” Id. at 2. These comments can
be reasonably understood as implying a statement of fact about Dr. Chi’s possession of
a trait that is important to a physician’s competency—namely, strong interpersonal
communication skills. The Court therefore declines to dismiss count one.
Defendants have also argued that Dr. Chi’s defamation claim should be
dismissed because Dr. Nagda’s statement is reasonably susceptible of an innocent
construction. As discussed earlier, however, Arizona’s law on defamation applies to
this claim, and the parties agree that Arizona does not follow the innocent construction
rule. The Court is unaware of any authority suggesting otherwise. Accordingly, this
argument does not warrant dismissal of Dr. Chi’s defamation claim.
b.

Tortious interference claim

In count two, Dr. Chi contends that defendants tortiously interfered with his
business relationship with UMC and thereby caused him to suffer monetary, emotional
and reputational injuries. Defendants counter that Dr. Chi’s allegations, taken as true,
do not satisfy the elements of tortious interference.
To state a claim for tortious interference with prospective economic advantage
under Illinois law, a plaintiff must allege “‘(1) a reasonable expectancy of entering into a
valid business relationship, (2) the defendant’s knowledge of the expectancy, (3) an
intentional and unjustified interference by the defendant that induced or caused a
breach or termination of the expectancy, and (4) damage to the plaintiff resulting from

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the defendant’s interference.’” Evans v. City of Chicago, 434 F.3d 916, 929 (7th Cir.
2006) (quoting Anderson, 171 Ill. 2d at 406-407, 667 N.E.2d at 1299).
Dr. Chi alleges that he had accepted a position with UMC that included a
guarantee of two years’ employment. He further asserts that defendants’ interference
“reduced the term of the credentials required to work there by a year” and limited his
practice at UMC in various other ways. Third Am. Compl. ¶ 56-58. He does not allege,
however, that defendants were aware of his expectation of two years’ guaranteed
employment. Rather, he asserts that defendants were aware only of his expectancy of
“commencing employment with [UMC].” Id. ¶ 55.
Dr. Chi argues that defendants need not have been specifically aware of the twoyear guarantee, but that is the expectancy he alleged in his complaint. Even assuming
that Dr. Chi’s expectancy was merely commencing employment with UMC and not the
two-year guarantee specifically, he has not alleged that his employment was terminated
as a result of defendants’ actions. In fact, Dr. Chi’s complaint makes clear that he
continued to work at UMC despite Dr. Nagda’s statement. Accordingly, Dr. Chi has
failed to state a claim for tortious interference with prospective economic advantage.
c.

IIED claim

Finally, Dr. Chi alleges in count three that defendants’ course of conduct
throughout his residency at Loyola, culminating with Dr. Nagda’s statement to UMC,
caused him extreme emotional distress. Defendants argue that Dr. Chi has failed to
allege conduct that is sufficiently “outrageous” to state a claim for IIED.
The Illinois Supreme Court has “set forth three requirements necessary to

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demonstrate the intentional infliction of emotional distress: (1) the conduct involved
must be truly extreme and outrageous; (2) the actor must either intend that his conduct
inflict severe emotional distress, or know that there is at least a high probability that his
conduct will cause severe emotional distress[;] and (3) the conduct must in fact cause
severe emotional distress.” Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing
McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809 (1988)). “[T]he tort does not
extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialties.’” McGrath, 126 Ill. 2d at 86, 533 N.E.2d at 809 (quoting Restatement
(Second) of Torts § 46, cmt. d, at 73 (1965)). Rather, “the conduct must go beyond all
bounds of decency and be considered intolerable in a civilized community.” Honaker,
256 F.3d at 490.
Dr. Chi alleges that his superiors and other Loyola employees targeted him for
mistreatment in a number of different ways. He alleges that his co-workers made racial
slurs in his presence; spread false rumors about him; falsely accused him of mistakes
and gossiped about him and his mental health; and did not stop doing these things
despite Dr. Chi’s complaints to various supervising authorities at Loyola. It is only under
two circumstances, however, that “a co-employee’s intentional tort is attributable to the
employer: (1) where the employer specifically commands or expressly authorizes the
co-employee to commit the intentional tort, and (2) where the co-employee acts as the
alter ego of the employer.” Whitehead v. AM Int’l, Inc., 860 F. Supp. 1280, 1290 (N.D.
Ill. 1994) (citing Meerbrey v. Marshall Fields & Co., 139 Ill. 2d 455, 464, 564 N.E.2d
1222, 1226 (1990)). Though Dr. Chi alleges that he reported some of this misconduct

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without avail, he does not allege that defendants commanded or authorized their
employees to mistreat Dr. Chi or that the employees did so as defendants’ alter egos.
Dr. Chi’s remaining allegations concern the actions of his superiors, who were
directors of his residency program and department at Loyola. He alleges that these
individuals placed him on academic probation without identifying any specific
deficiencies; reprimanded him undeservedly and hypercritically on various occasions;
admitted to trying to intimidate and scare him; and interfered with his professional
development by unfairly denying him the opportunity to attend certain conferences and
failing to follow through on filing paperwork with Illinois’s medical licensing board.
Though these allegations are unsettling and reflective of an unpleasant work
environment, this does not render them actionable. In fact, courts “often hesitate to find
that a plaintiff has stated a claim for intentional infliction of emotional distress in
employment situations” in light of their “concern that everyday job stresses should not
give rise to a cause of action for” IIED. Vickers v. Abbot Labs., 308 Ill. App. 3d 393,
410, 719 N.E.2d 1101, 1115 (1999). As such, courts in Illinois have dismissed
employees’ IIED claims under circumstances arguably more abusive than those
presented by Dr. Chi. For example, in Welsh v. Commonwealth Edison Co., 306 Ill.
App. 3d 148, 713 N.E.2d 679 (1999), plaintiffs alleged that “they were demoted,
transferred, forced to perform ‘demeaning’ and ‘humiliating’ tasks, harassed,
intimidated, and threatened with termination” in retaliation for having expressed
concerns about the safety conditions at their workplace. Id. at 153, 713 N.E.2d at 684.
The court recognized that these actions, though perhaps even violative of federal law,
were not “of such an outrageous character that no reasonable person could be
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expected to endure it.” Id.
The Court reaches a similar conclusion with respect to Dr. Chi’s claims. Dr. Chi’s
allegations would, if proven, demonstrate that he was subjected to an unfair and
perhaps even abusive work environment, but they are not so extreme and outrageous
that they exceed all bounds of human decency. For this reason, the Court concludes
that count three fails to state a claim for IIED.
3.

Dismissal based on the ICPA
Defendants contend that Dr. Chi’s defamation claim is subject to dismissal

because Dr. Nagda’s statement to UMC is protected by the ICPA. Though Dr. Chi’s
current response brief does not address the ICPA, he argued in his response to
defendants’ first motion to dismiss that the ICPA does not preclude his claim because
(1) it is a procedural statute and is thus trumped by the Federal Rules of Civil Procedure
under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), and (2) Dr. Nagda’s statements
were not “genuinely aimed at procuring [a] favorable government action, result, or
outcome,” as required by the ICPA. 735 ILCS 110/15.
a.

Erie issue

The Court first addresses Dr. Chi’s argument that the ICPA is procedural and
thus inapplicable in federal court. Generally speaking, a federal court sitting in diversity
applies state substantive law and federal procedural law. See Hanna v. Plumer, 380
U.S. 460, 465 (1965). Whether the ICPA is considered substantive or procedural thus
bears directly on whether it bars Dr. Chi’s claim. “A substantive law is one motivated by
a desire to influence conduct outside the litigation process, such as a desire to deter

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accidents, while a procedural law is one motivated by a desire to reduce the cost or
increase the accuracy of the litigation process, regardless of the substantive basis of
the particular litigation.” Gacek v. Am. Airlines, Inc., 614 F.3d 298, 302 (7th Cir. 2010).
This argument presents an issue of first impression, as no court appears to have
considered whether the ICPA is “procedural” for Erie purposes. The Court concludes,
however, that the ICPA provisions at issue here are substantive and thus applicable in
federal court. Though the ICPA is located in the civil procedure chapter of the Illinois
Compiled Statutes, its operative provisions are not merely procedural in nature.
Specifically, the ICPA created a new category of conditional legal immunity against
claims premised on a person’s “[a]cts in furtherance of” his First Amendment rights.
735 ILCS 110/15. It also provides for a mandatory award of reasonable attorney’s fees
and costs to “a moving party who prevails in a motion under th[e] Act.” 735 ILCS
110/25.
These portions of the ICPA are plainly meant to affect conduct outside of the
litigation process, such as a person’s decision to exercise his First Amendment rights
without fear of retaliation. In fact, the ICPA itself makes clear that it is intended to
promote free speech, not merely to increase efficiency in litigation. See 735 ILCS
110/5 (noting that the “purpose of this Act” is, in part, “to protect and encourage public
participation in government to the maximum extent permitted by law”). Other courts
have reached the same result when considering similar anti-SLAPP provisions enacted
by other states. See, e.g., Containment Techs. Grp., Inc. v. Am. Soc’y of Health Sys.
Pharmacists, No. 07-cv-0997-DFH-TAB, 2009 WL 838549, at *8 (S.D. Ind. Mar. 26,
2009) (holding that anti-SLAPP law provisions “provid[ing] a complete defense to
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defamation and . . . the remedy of attorney fees” were “substantive provisions of
Indiana law that govern in this diversity jurisdiction case”); Kearney v. Foley and
Lardner, 553 F. Supp. 2d 1178, 1182 (S.D. Cal. 2008) (“Because attorneys’ fees are
mandatory and therefore, a substantive right under the anti-SLAPP statute, the timing
for filing a fee application is governed by California law rather than federal procedural
law”). The Court therefore rejects Dr. Chi’s argument that the ICPA is inapplicable on
Erie grounds.
b.

“Favorable government action” issue

Dr. Chi also argued in his previous response brief that although UMC is a
governmental entity, dismissal under the ICPA is not warranted because Dr. Nagda’s
statements were not genuinely aimed at procuring favorable government action.
As noted earlier, the ICPA creates only a conditional immunity for actions taken
in furtherance of a party’s First Amendment rights. Specifically, these acts “are immune
from liability, regardless of intent or purpose, except when not genuinely aimed at
procuring favorable government action, result, or outcome.” 735 ILCS 110/15
(emphasis added). The statute further provides that a responding party may avoid
dismissal if “the court finds that the responding party has produced clear and convincing
evidence that the acts of the moving party are not immunized from, or are not in
furtherance of acts immunized from, liability by this Act.” 735 ILCS 110/20(c).
Though the Illinois Supreme Court does not appear to have addressed the
standard to be applied in making this determination, the Illinois Appellate Court recently
held that in enacting section 15 of the ICPA, the Illinois legislature intended to adopt the

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“sham” exception to the Noerr-Pennington doctrine outlined in City of Columbia v. Omni
Outdoor Adver., Inc., 499 U.S. 365 (1991). Sandholm v. Kuecker, 405 Ill. App. 3d 835,
942 N.E.2d 544, 566 (2010). In applying this principle to the issue of whether a person
intended to procure favorable government action within the meaning of the ICPA, the
court in Sandholm concluded that a court must “first consider whether objective persons
could have reasonably expected to procure a favorable government outcome” by way of
the allegedly immunized act. Id. at 568. If so, then “the court need not consider the
subjective intent of” the actor. Id. at 569. By contrast, “if the answer [to the first
question] is no, then the court would consider whether [the actor’s] subjective intent was
not to achieve a government outcome that may interfere with plaintiff but rather to
interfere with plaintiff by using the governmental process itself.” Id.
Applying this standard to the present case, the Court concludes that Dr. Nagda’s
statements to UMC were not genuinely aimed at procuring favorable government
action, as required by the ICPA under Sandholm. No objective person in Dr. Nagda’s
shoes could have reasonably expected to procure a favorable government outcome by
filling out the forms he sent to UMC. These forms did not request any action on UMC’s
part, nor did they even contemplate a response from UMC. Rather, by completing
them, Dr. Nagda merely shared his own experience working with Dr. Chi and provided
an overall assessment of Dr. Chi based on that experience. He did so as Dr. Chi’s
former superior at Loyola, not as a citizen seeking a benefit or other favorable action
from UMC or the government of Arizona.
Defendants have not suggested what favorable government action they may

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have expected to receive as a consequence of Dr. Nagda sending these forms to UMC.
By contrast, other cases applying the ICPA involved an effort by the moving party to
obtain a favorable government action. See, e.g., Shoreline Towers Condominium
Assoc. v. Gassman, 404 Ill. App. 3d 1013, 1022, 936 N.E.2d 1198, 1207 (2010)
(administrative complaints and lawsuit filed by defendant regarding religious
discrimination by condominium association constituted “acts of petition, speech,
association and participation . . . in pursuit of a favorable government action”);
Sandholm, 405 Ill. App. 3d 835, 942 N.E.2d at 570 (in lobbying school leaders to
remove plaintiff as high school athletic director, defendants acted with aim of procuring
favorable government action for purposes of the ICPA).
For these reasons, the Court concludes that Dr. Chi’s complaint and the forms
submitted by Dr. Nagda provide clear and convincing evidence that Dr. Nagda’s
statements to UMC were not genuinely aimed at procuring favorable government
action. The ICPA therefore does not warrant dismissal of Dr. Chi’s defamation claim.
Because the Court has dismissed Dr. Chi’s other claims under Rule 12(b)(6), it need
not consider whether they are subject to dismissal under the ICPA.
Conclusion
For the reasons stated above, the Court grants defendants’ motion to dismiss
plaintiff’s third amended complaint in part and denies it in part [docket no. 32]. Counts
two and three are dismissed for failure to state a claim. The Court denies the motion as
to count one and directs defendants to answer that claim by no later than June 7, 2011.
Rule 26(a)(1) disclosures are to be made by June 14, 2011. The case is set for a

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status hearing on June 21, 2011 at 9:30 a.m. for the purpose of setting a discovery
schedule. Counsel are directed to confer prior to that date so that they can propose a
schedule to the Court.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: May 24, 2011

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