1. STATE OF ILLINOIS
IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT
ROCK ISLAND COUNTY
HENRIETTA RATON, )
)
Plaintiff, )
)
-v- ) Case No. 15 L 00000
)
CLAUDE PIERRE, )
)
Defendant. )
MEMORANDUM IN SUPPORT OF
DEFENDANT’S MOTION TO DISMISS COMPLAINT
Introduction
Defendant Claude Pierre submits this memorandum in support of his motion
to dismiss Plaintiff Henrietta Raton’s Complaint alleging defamation per se.
Neither of the purported statements set forth in the Complaint fall within the per se
categories. The alleged statement that Raton is a “thief” fails to accuse her of a
crime because it does not indicate commission of a crime and is capable of an
innocent construction. The alleged statement that Raton “drinks every day” fails to
impute unfitness in her profession because it was not made in a professional
context. Because the allegations in the Complaint fail to state a cognizable cause
of action, Pierre respectfully requests the Court grant his motion to dismiss the
Complaint.

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Statement of Facts
Henrietta Raton commenced this action by filing a Complaint alleging
Claude Pierre made statements that are defamatory per se. (Compl. ¶ 17.) Raton
and Pierre are ex-spouses. (Compl. ¶ 4.) The Complaint alleges defamatory
statements caused harm to Raton’s personal and professional reputation. (Compl. ¶
18.) According to the Complaint, statements triggered a prospective employer to
breach Raton’s expectancy of an employment contract. (Compl. ¶ 13.) The
contract contemplated providing in home child-care services in return for Raton
living in her employer’s home and receiving a $40,000 annual salary. (Compl. ¶
7.) The contract had not yet begun. (Compl. ¶ 6.)
The Complaint alleges Pierre had a conversation with the bartender of the
Gin River Tavern. (Compl. ¶ 9.) Raton alleges Pierre specified his discontent with
the dissolution of their thirteen-year marriage (Compl. ¶ ¶ 4, 9.) According to the
Complaint, Pierre expressed to the bartender that his “lousy ex-wife” made off
with his “best stuff,” but that he felt, “better off without that thief.” (Compl. ¶ 9.)
Then, according to the Complaint, the bartender asked about Pierre’s ex-wife. (Id.)
In response to which, the Complaint alleges, Pierre stated Raton’s name and that
the bartender may be familiar with her because she “drinks everyday.” (Id.)
Raton alleges these statements were heard by others in the bar, including her
prospective employer, Clarice Yetti. (Compl. ¶ 10.) According to the Complaint,

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Yetti interrupted Raton’s expectance of contract performance when he notified of
his family’s intent to breach. (Compl. ¶ 12.)
Plaintiff alleges statements made at the Gin River Tavern directly caused her
unemployment. (Compl. ¶ 14.) Plaintiff brings a claim for defamation per se
regarding the word “thief” and statement she “drinks everyday.” (Compl. ¶ 17.)
The Complaint alleges the word “thief,” accuses Plaintiff of the commission of a
crime. (Id.) The Complaint further alleges the statement Plaintiff “drinks every
day,” prejudices her, imputing lack of ability in her profession. (Id.) Plaintiff
seeks exemplary damages of $200,000 and compensatory damages in excess of
$50,000. (Compl. ¶ 19.)
Argument
LegalStandard
Objections to pleadings must be brought by motion. 735 Ill. Comp. Stat.
Ann. 5/2-615 (West 2003). Upon deciding a motion to dismiss, the court must
accept as true all well-pleaded facts in the complaint and draw all reasonable
inferences in the light most favorable to the non-movant. See, e.g., Bryson v. News
Am. Publ’ns, Inc., 174 Ill. 2d 77, 86-88 (1996). Such a motion does not present an
affirmative defense, but rather alleges the complaint fails to establish facts
sufficient to secure a legal remedy. Id. at 86. Plaintiff’s cause of action should be

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dismissed when it appears that no set of facts can be proven under which the
plaintiff is entitled to relief. Id. at 86.
I. Raton’s Complaint Fails to State a Claim for DefamationPerSe
Plaintiff’s Complaint fails to present facts sufficient to claim defamation per
se. Statements are considered defamatory per se when they so obviously and
naturally hurt a person’s reputation that it is not necessary to present evidence of
actual harm. Id. at 87. However, where a complaint fails to show the inherently
injurious nature of the statement, defamation per se is not a proper cause of action.
Id. In Illinois, statements are defamatory per se if they fall within one of five
categories. Moore v. People for the Ethical Treatment of Animals, Inc., 402 Ill.
App. 3d 62, 70 (5th Dist. 2010). The Complaint alleges that a statement regarding
Raton as a “thief,” accuses her of commission of a crime. (Compl. ¶ 17.) The
Complaint further alleges that stating Raton “drinks everyday,” imputes inability in
her profession. (Compl. ¶ 17.) The Plaintiff pleads an insufficient cause of action
for defamation per se, and Defendant Claude Pierre respectfully requests the Court
dismiss the Complaint.
A. The Alleged Statement that Raton is a “Thief” Does Not Impute the
Commission of a Crime and is Susceptible of an Innocent Construction
The alleged statement that Raton is a “thief” does not impute the
commission of a crime and is capable of an innocent construction. In order for an
accusation of a criminal offense to be cause for defamation per se, it must be an

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indictable crime involving moral turpitude, punishable by imprisonment or death.
Gardner v. Senior Living Sys., Inc., 314 Ill. App. 3d 114, 118 (5th Dist. 2000). The
statement does not have to include particularity or use terms of art. Id. However,
the words themselves, through factual assertions, must fairly impute the
commission of a crime to be actionable as defamation per se. Moore, 402 Ill. App.
3d at 68.
Even if the words fall within one of the defined categories of defamation per
se, they are not actionable if reasonably capable of an innocent construction.
Bryson, 174 Ill. 2d at 90. Evaluation of an allegedly defamatory statement under
the innocent construction rule requires the words be taken in context, giving any
implications their natural and obvious meaning. Id. Courts should not strain an
interpretation of alleged defamatory statements to find a non-defamatory meaning.
Id. at 93. However, if the statement’s innocent interpretation is equally or more
reasonable it cannot be actionable as defamation per se. Mittelman v. Witous, 135
Ill. 2d 220, 232 (1989).
Allegedly defamatory statements based on accusation of crime must be
plead with sufficient facts to impute the commission of a crime. Gardner, 314 Ill.
App. 3d at 118-19. An accusation of committing “‘a crime’” or “‘an unlawful
act’” absent positive factual statements was held not defamatory per se. Kirchner
v. Greene, 294 Ill. App. 3d 672, 680 (1st Dist. 1998). However, calling actions

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“‘illegal,’” combined with a specific allegation, like theft of trade secrets, allows a
holding of defamation per se. See, Gardner, 314 Ill. App. 3d at 119. Moreover, a
complaint absent positive factual statements prevents judicial review for lack of
sufficient pleading. Moore, 402 Ill. App. 3d at 71.
Illinois courts liberally apply an innocent construction to find statements do
not constitute defamation per se based on accusation of crime. Dictionary
definitions have been used to determine the meaning of a word. Bryson, 174 Ill. 2d
at 92-94. However, because every word has different meanings in context, the
more favored determination is the natural and obvious, common, meaning of the
word. Id. at 94. In Kirchner, referring to child rearing practices, “‘broke like a
dog’” did not accuse plaintiff of child abuse. Kirchner, 294 Ill. App. 3d at 681.
Rather, the court held an idiom more reasonably susceptible of flexible
construction than its literal translation. Id. Harrison determined that an accusation
of kidnapping, upon consideration of the relationship context between the mother
and father, was capable of an innocent construction. Harrison v. Chi. Sun-Times,
Inc., 341 Ill. App. 3d 555, 571 (1st Dist. 2003). By evaluating the import of the
newspaper article, the court found no defamation per se in the context of a custody
dispute. Id. Lastly, Jacobson held statements accusing plaintiff of having “‘helped
Stuart kill himself’” capable of an innocent construction and not an accusation of
crime. Jacobson v. Gimbel, 2013 IL App (2d) 120478, ¶ 32.

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In this case, the alleged statement indicating Raton is a “thief” and took
belongings from Pierre does not fairly impute crime. Theft is punishable by
imprisonment when a party exercises, “unauthorized control over property of the
owner and intends to deprive the owner permanently of the use or benefit of the
property.” 720 Ill. Comp. Stat. Ann. 5/16-1(a)(1)(A) (West 2003) (emphasis
added). Distinct from Gardner, the alleged defamatory statement “thief,” is not an
allegation of criminal conduct when made without positive factual statements.
Gardner, Ill. App. 3d at 119. Rather, akin to Jacobson, allegedly calling his ex-
wife a “thief” for “[taking] all my best stuff,” does not indicate unauthorized
control with precision and particularity, as is required by Illinois law. (Compl. ¶
9.) (alteration in original) 2013 IL App (2d) 120478, ¶ 32. The Complaint fails to
set forth factual assertions sufficient to claim defamation per se based on the
imputation of a crime.
The Complaint alleges the word “thief” means the commission of a crime.
(Compl. ¶17.) Yet, “thief” is capable of an innocent construction. Analogous to
Harrison, the relationship between Raton and Pierre is paramount to understanding
the word’s meaning in context. 341 Ill. App. 3d at 571. In conversation about
dissolution of marriage and separation of belongings, the word “thief” does not
denote a criminal meaning. Rather, akin to Kirchner, the word is a form of idiom
and is subject to a more flexible non-criminal interpretation in context. 294 Ill.

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App. 3d at 681. Common understanding of the word, as the Complaint alleges it to
have been said, does not convey the idea that Pierre believed his ex-wife indictable
of a felonious crime. More reasonably, it appears the word is innocently used as an
exclamatory idiom to comment on the resolution of divorce. The word “thief” is
capable of a reasonable innocent construction. The Complaint prevents judicial
review for defamation per se, because “thief” does not impute commission of a
crime and is capable of an innocent construction.
B. The Alleged Statement that Raton “Drinks Everyday” Lacks Professional
Context
The alleged statement that Raton “drinks everyday” does not impute
inability in her profession for lack of professional context. Illinois courts place
emphasis on contextual analysis when holding statements do not impute
professional inability. If professional context is not apparent on the face of the
Complaint, defamation per se cannot be held.
Where a statement does not regard professional action, courts have found no
appropriate context to hold defamation per se based on imputing professional
inability. See, e.g., McKay v. Town & Country Cadillac, Inc., No. 97 C 2102, 2002
WL 1611578 (N.D. Ill. July 17, 2002). In Welch, a written statement explaining
former employee’s termination was found defamatory per se when “‘alcoholism’”
was included. Welch v. Chi. Trib. Co., 32 Ill. App. 3d 1046, 1052 (2nd Dist. 1975).
The statement was a reflection of conduct in a professional setting and imputed

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“‘alcoholism’” affected professional performance. Id. at 1053. Similarly, in the
context of a referral, a former employer’s character reference that plaintiff had a
drinking problem was defamatory per se. Buchanan v. Serbin Fashions, Inc., 698
F. Supp. 2d 731, 733 (1988). The statement imputes inability, as the former
employer’s knowledge of a party’s professional conduct is understood. However,
in McKay, where an employer gave no indication that being “‘a drunk’” affected
the employee’s professional performance, the court held no defamation per se.
Mckay, 2002 WL1611578, at *9.
In the present case, Plaintiff alleges the statement that she “drinks everyday”
imputes inability in her profession. (Compl. ¶ 17.) Distinct from Welch, the
alleged statement was not made in a professional context or with regard to
professional conduct. 32 Ill. App. 3d at 1056. Rather, akin to McKay, the
Complaint fails to indicate “drinking everyday” had any relation to Raton’s
professional conduct. McKay, 2002 WL 1611578, at *9. Pierre is not a former
employer of Raton nor would have any knowledge of her professional character.
698 F. Supp. 2d at 733. The Complaint fails to indicate imputation of professional
inability for lack of any professional context. Plaintiff fails to establish a sufficient
claim for defamation per se. The word “thief” does not accuse the commission of
a crime and is capable of an innocent construction. Further, the statement “drinks

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everyday” does not impute professional inability when made absent from a
professional context.
Conclusion
For the foregoing reasons, the Defendant respectfully requests that his
motion to dismiss the Complaint be granted.
Respectfully Submitted,
Attorney # 1400
36 E. High Street
Tinytown, IL 45056
317-748-7658
Date: February 20, 2015