Huon v. Breaking Media et al

Filing 178

MOTION by Defendants John Lerner, Breaking Media, Breaking Media, LLC, David Lat, Breaking Media, Inc., David Minkin, Elie Mystal to dismiss Plaintiff's Fourth Amended Complaint (Mandell, Steven)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS – EASTERN DIVISION
)
)
)
)
) Case No. 11-cv-03054
)
) District Judge John J. Tharp, Jr.
)
) Magistrate Judge Jeffrey T. Gilbert

MEANITH HUON,
Plaintiff,
v.
BREAKING MEDIA, LLC et al.,
Defendants.

ATL DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S FOURTH AMENDED COMPLAINT
Defendants Breaking Media, Inc. (formerly known as Breaking Media, LLC), David Lat,
Elie Mystal, John Lerner, and David Minkin (the “ATL Defendants”) respectfully request that
the Court dismiss Plaintiff’s claims against them in the Fourth Amended Complaint, with
prejudice. In support of their motion, the ATL Defendants state as follows:
1.

Plaintiff Meanith Huon alleges nine claims against the ATL Defendants based on

a post on the website AboveTheLaw.com (the “Post”): (I) defamation per se, (II) defamation per
quod, (III) false-light invasion of privacy, (IV) intrusion upon seclusion, (V) intentional
infliction of emotional distress, (VI-VII) conspiracy, (VIII) tortious interference with economic
advantage, and (IX) cyberstalking and cyberbullying.
2.

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint

that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
These motions challenge whether a plaintiff has alleged facts sufficient to “state a claim to relief
that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

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3.

The Court should dismiss Plaintiff’s defamation claims because the statements

(a) are privileged as fair reports of judicial proceedings, (b) are non-actionable opinion and
rhetorical hyperbole, (c) can be innocently construed, (d) would not tend to harm Plaintiff’s
reputation, (e) are not about Plaintiff, and/or (f) are not actually contained in the Post. Plaintiff
also fails to plead special damages for the defamation per quod claim.
4.

The Court should dismiss Plaintiff’s claim for false-light invasion of privacy for

the same reasons set forth supra in paragraph 3.
5.

The Court should dismiss Plaintiff’s claim for intrusion upon seclusion because it

is barred by the First Amendment and has not been adequately alleged.
6.

The Court should dismiss Plaintiff’s claim for intentional infliction of emotional

distress because the statements at issue are subject to the fair report privilege and are nonactionable opinion and rhetorical hyperbole. In addition, Plaintiff has not alleged extreme and
outrageous conduct.
7.

The Court should dismiss Plaintiff’s claim for tortious interference with economic

advantage because Plaintiff has not pled intent or adequately alleged any of the tort’s elements.
8.

The Court should dismiss Plaintiff’s claim of conspiracy because he has no

underlying tort claim and has not adequately alleged a conspiracy.
9.

The Court should dismiss Plaintiff’s claim of cyberstalking and cyberbullying

under 720 ILCS 5/12-7.5 because that statute does not provide a private cause of action, the
statute does not apply to the Post, and Plaintiff’s claim is based on constitutionally-protected fair
reports of governmental proceedings.
10.

The ATL Defendants are submitting a memorandum of law in further support of

this motion.

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WHEREFORE, the ATL Defendants respectfully request that the Court dismiss the
claims against them in Plaintiff’s Fourth Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) with prejudice, and grant such further relief as is just.

Dated: January 7, 2013

Respectfully submitted,
BREAKING MEDIA, INC. f/k/a BREAKING
MEDIA, LLC, DAVID LAT, ELIE MYSTAL,
JOHN LERNER, AND DAVID MINKIN
By: /s/ Steven P. Mandell
One of their attorneys

Steven P. Mandell (ARDC #6183729)
Steven L. Baron (ARDC #6200868)
Elizabeth A.F. Morris (ARDC #6297239)
MANDELL MENKES LLC
One North Franklin, Suite 3600
Chicago, IL 60606
Telephone: [phone]
Facsimile: [phone]

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CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that a true and correct copy of the foregoing
ATL DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED
COMPLAINT has been served on January 7, 2012 via the Court’s CM/ECF system on all
counsel of record who have consented to electronic service.
Any other counsel of record will be served by electronic mail and regular mail.

/s/ Steven P. Mandell

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