Joan Crescenz v. Penguin Group (USA) Inc., et al

Filing

NOT PRECEDENTIAL OPINION Coram: AMBRO, FISHER and HARDIMAN, Circuit Judges. Total Pages: 14. Judge: HARDIMAN Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1242
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JOAN CRESCENZ,
Appellant
v.
PENGUIN GROUP (USA), INC.; MICHAEL CAPUZZO
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 11-cv-00493)
District Judge: Honorable Noel L. Hillman
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Argued November 20, 2013
Before: AMBRO, FISHER and HARDIMAN, Circuit Judges.
(Filed: March 26, 2014 )
Clifford E. Haines [Argued]
Danielle M. Weiss
Haines & Associates
1835 Market Street
Suite 2420
Philadelphia, PA 19103
Attorneys for Plaintiff-Appellant
Howard J. Schwartz [Argued]
Wolff & Samson
One Boland Drive
The Offices at Crystal Lake
West Orange, NJ 07052

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Nancy A. Del Pizzo
Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman
One Riverfront Plaza
Suite 800
Newark, NJ 07102
Attorneys for Defendant-Appellee
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OPINION
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HARDIMAN, Circuit Judge.
Joan Crescenz appeals the District Court’s summary judgment in favor of Penguin
Group (USA), Inc. and Michael Capuzzo. We will affirm, essentially for the reasons
stated by the District Court.
I
In August 2010, the Penguin Group published The Murder Room: The Heirs of
Sherlock Holmes Gather to Solve the World’s Most Perplexing Cases, a work of
nonfiction authored by Capuzzo. The book chronicled the history of the Vidocq Society,
an association of forensic professionals and private citizens who solved cold crimes.
A central figure in the book was Frank Bender, a founder of the Vidocq Society
and a renowned forensic artist. Well known for his “overt sexuality” and “self-professed
sexual exploits,” Bender had an “open” marriage with Jan Bender, his wife of more than
thirty years. 60A. Appellant Crescenz met Frank Bender in 1975, and worked as his

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artist’s assistant and bookkeeper for almost thirty years. She is married to Peter Crescenz,
her husband of more than twenty years, with whom she has three children.
The Murder Room contained several passages that suggested Crescenz had a
sexual relationship with Bender. On July 28, 2010, after reading a galley copy of the
book that Bender had provided her, Crescenz emailed William Shinker, the book’s
publisher, to complain that she had been portrayed inaccurately. Although Crescenz’s
email challenged specific facts in Capuzzo’s depiction, it did not deny that she had a
sexual relationship with Bender. For example, in response to a passage that Bender and
Crescenz “made love like clockwork” every Tuesday, Crescenz stated, “There’s no every
Tuesday like clockwork for anything.” 1018A. Similarly, Crescenz took issue with
Capuzzo’s description that she answered Bender’s door bottomless, and that she became
“jealous of the other girlfriends.” 1020A. To the latter statement, she clarified, “I did
NOT spend [the better half of my life] LUSTING after Frank Bender or his notarity [sic],
and waste time with unnecessary jealousy for anyone.” Id. Penguin published the book as
scheduled despite Crescenz’s concerns.
Crescenz brought suit against Penguin and Capuzzo in the District Court, alleging
defamation and false light invasion of privacy. In her complaint, Crescenz denied that she
had a sexual relationship with Bender. She also claimed Capuzzo never provided her an
advance copy of the book, and if he had, she would have corrected the false statements
about her. Crescenz also alleged that Penguin and Capuzzo were negligent and reckless in
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publishing the statements in light of her July 2010 email to Shinker. Defendants moved
for summary judgment, and Crescenz moved for partial summary judgment. Therein, she
urged the District Court to analyze her defamation claim under the negligence standard,
claiming that she was a private figure and the matter was of private concern. Defendants,
on the other hand, argued that the District Court had to find recklessness for liability to
attach, as Crescenz was a limited-purpose public figure and their statements were a
matter of public concern.
The District Court granted Defendants’ motion for summary judgment, and denied
Crescenz’s motion as moot. In a thorough opinion, the District Court assumed arguendo
that the lower negligence standard applied, but nevertheless found that Crescenz had not
created a genuine issue of material fact as to either Defendant’s negligence. It pointed to
fourteen uncontested facts to conclude that Capuzzo could have reasonably inferred a
sexual relationship: for example, Capuzzo’s personal observations of Bender and
Crescenz over seven years, Bender’s pre-publication statement to Capuzzo that he had a
long-term sexual relationship with Crescenz, and Jan Bender’s description of Crescenz as
Bender’s “second wife.” Next, the District Court held that Penguin had reasonably relied
on the veracity of Capuzzo’s work, finding that Penguin was not required under industry
custom to independently fact-check an author’s work. Because Crescenz failed to provide
sufficient evidence of negligence, the District Court found that Defendants were entitled
to judgment as a matter of law on her defamation claim. The District Court then noted
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that because claims for false light require the higher proof of recklessness, Crescenz’s
second claim failed a fortiori.
Crescenz timely appealed.1
II
We exercise plenary review over the District Court’s summary judgment. Slagle v.
Cnty. of Clarion, 435 F.3d 262, 263 (3d Cir. 2006). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and … the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); see Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). We make all reasonable inferences from the evidence in the light
most favorable to the nonmovant. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d
Cir. 2004). The case presents a genuine dispute “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party opposing summary judgment must do more than rest
upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260
F.3d 228, 232 (3d Cir. 2001). Rather, she must identify specific facts and affirmative
evidence that contradict those offered by the movant. Anderson, 477 U.S. at 256–57.
A

1

The District Court had jurisdiction under 28 U.S.C. § 1332(a). We have
jurisdiction under 28 U.S.C. § 1291.
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Under New Jersey law,2 a “statement is defamatory if it is false, communicated to
a third person, and tends to lower the subject’s reputation in the estimation of the
community or to deter third persons from associating with him.” W.J.A. v. D.A., 43 A.3d
1148, 1153 (N.J. 2012) (citations omitted). To prevail on a defamation claim, the plaintiff
must demonstrate: (1) the statement was false; (2) the defendant communicated it to
another person; and (3) the defendant acted negligently or with actual malice when he
communicated that false statement. G.D. v. Kenny, 15 A.3d 300, 310 (N.J. 2011). If the
allegedly defamatory speech concerns a public figure or a matter of public concern, the
plaintiff must prove that the defendant acted with actual malice.3 See Senna v. Florimont,
958 A.2d 427, 443 (N.J. 2008). Otherwise, the plaintiff must merely prove that the
defendant was negligent as to the speech’s falsity. See id. at 444.
Crescenz contends that Capuzzo acted negligently when he failed to ask her to
verify the nature of her relationship with Bender. We disagree. In negligence suits,
professional writers are “held to the skill and experience normally possessed by members

2

Because this is a diversity suit, we apply New Jersey law in assessing the merits
of Crescenz’s defamation and false light claims. See Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938).
3

Penguin and Capuzzo maintain, as they did in the District Court, that Crescenz is
a limited-purpose public figure because she “thrust herself publicly into Bender’s affairs”
by participating in a 2004 Esquire article about Bender and by attending events with him.
Defendants Br. 23. They thus contend that the higher actual-malice standard applies. We
do not reach this issue because we agree with the District Court that summary judgment
on the lower negligence standard is appropriate.
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of that profession.” Restatement (Second) of Torts § 580B (1977). Accordingly, the court
considers how the author obtained the information at issue in the case, including whether
the author had public sources or made personal observations that substantiated the
information shared by those sources. See Berkery v. Kinney, 936 A.2d 1010, 1012 (N.J.
Super. Ct. App. Div. 2007).
Here, as the District Court found, Capuzzo had ample evidence to infer Bender’s
sexual relationship with Crescenz. For example, William Fleisher and Richard Walter,
who were co-founders of the Vidocq Society and Bender’s closest associates, told
Capuzzo during several interviews that they believed Crescenz and Bender were longterm sexual partners. In handwritten notes given to Capuzzo, Jan Bender stated that
Crescenz and Bender often spent “all night dancing and singing,” and that Crescenz was
“[a]lso know[n] as the other wife.” 965A. Furthermore, a 2004 Esquire magazine article,
which Capuzzo had read while working on his book, stated that Bender’s wife Jan knew
“all about” Bender’s many girlfriends, including “Joan [Crescenz], Frank’s assistant and
‘second wife.’” 254A. Perhaps most significantly, Bender himself told Capuzzo that he
regularly had sex with Crescenz, and Bender repeated through the course of this
litigation—in deposition, via affidavit, and in Crescenz’s presence—that they were sexual
partners.4 Having learned of the relationship from the proverbial horse’s mouth, it was

4

As the District Court noted, Bender’s deposition and affidavit about his
relationship with Crescenz is irrelevant here, as this case involves Capuzzo’s state of
mind and Penguin’s knowledge before publication. However, the deposition and affidavit
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reasonable for Capuzzo not to seek further verification from Crescenz. Indeed, Capuzzo
had no reason to disbelieve Bender’s account of his sexual relationship, especially in light
of corroborating statements made by those who knew Bender best.5 Cf. Vanderberg v.
Newsweek, Inc., 507 F.2d 1024, 1028 (5th Cir. 1975) (finding, in an actual-malice case,
that it is nonetheless reasonable for an author, “without a high degree of awareness of
[the facts’] probable falsity, [to] rely on statements made by a single source even though
they reflect only one side of the story . . . .”) (internal quotation marks and citation
omitted). Nor does the record show that Capuzzo was ever informed during his research
and writing that Crescenz and Bender were not in a sexual relationship.
Capuzzo’s own observations also bolstered his conclusion. During the seven years
he worked on The Murder Room, he witnessed Crescenz accompanying Bender to
various social functions. Capuzzo was aware that the two shared hotel rooms with single
beds on multiple occasions, which led to the reasonable inference that they had a sexual
relationship. Indeed, in her deposition, Crescenz herself admitted it would be reasonable
to conclude a man and woman were having a sexual relationship if they stayed together

could be used to rebut Crescenz’s claim that the book’s characterization of the
relationship was false. See Fed. R. Evid. 804(6). The issue of whether Capuzzo’s
statement is false would have been one for the jury if Crescenz survived summary
judgment. See Anderson, 477 U.S. at 248.
5

Crescenz contends that Capuzzo admitted doubt about Bender’s credibility.
Crescenz Br. 35 (citing 409–11A). This is a mischaracterization: in the very passage
Crescenz cites for this proposition, Capuzzo stated that Bender “honored little” in his
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in a hotel room. Despite her awareness that “other people were thinking [they] were
having sex,” she continued to share a room with Bender. 212A. Crescenz neither
provided evidence to contradict these sources of information nor raised any reason to
question their veracity.
In response to Capuzzo’s arguments, Crescenz cites four facts that she contends
render summary judgment inappropriate. First, she points out that she sent an email to
Penguin days before the book’s publication, which raised potential inaccuracies about her
characterization. As the District Court found, however, Crescenz’s email neither
explicitly denied a sexual relationship nor provided evidence, other than her personal
concerns, to discredit Capuzzo’s reporting. Second, Crescenz notes that The Murder
Room contained two factual misstatements—that detective Keith Hall attended a specific
meeting with Richard Walter, and that the book mistakenly attributed the practice of
Chinese foot binding as “Japanese”—which call into question Capuzzo’s accuracy and
care as a writer. But as the District Court held, these stray facts have no bearing on
Capuzzo’s conclusion that Crescenz and Bender were sexually involved, and “do not cast
a net of unreasonableness over the undisputed facts upon which Capuzzo based his
depiction of Bender’s relationship with Crescenz.” 44A. Third, Crescenz submits that Jan
Bender’s handwritten notes did not specify that Bender had sex with Crescenz. This

personal life, but had “complete honesty about his [sexual] affairs.” 411A. Accordingly,
he refused to “characterize [Bender] . . . as not trustworthy in a universal sense.” Id.
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argument, too, is unavailing, as the notes stated that Crescenz was “[a]lso know[n] as the
other wife,” and that Crescenz and Bender often drank and danced all night after Jan had
gone to bed. 965A. Although Jan’s notes did not explicitly state that Crescenz and Bender
were sexual partners, they hardly constituted a denial. Finally, Crescenz notes that
another biography of Bender, The Crooked Nose by Ted Botha, did not mention that she
and Bender were sexually involved. This is due to the fact, she contends, that Botha
asked her about a sexual relationship, which she denied.6 Botha’s decision not to report
the relationship or to focus on other areas of Bender’s life does not condemn Capuzzo’s
statements. Similarly, Botha’s choice to interview Crescenz does not render Capuzzo’s
failure to do so negligent—especially given the wealth of information Capuzzo
possessed.
We acknowledge, as Crescenz correctly notes, that summary judgment in
negligence cases is generally “rare as a blue rose,” De Palma v. Dorn, 91 A.2d 261, 262
(N.J. Super. Ct. App. Div. 1952), because “the issue of a defendant’s state of mind does
not readily lend itself to summary disposition.” Maressa v. N.J. Monthly, 445 A.2d 376,
387 n.10 (N.J. 1982) (internal quotation marks and citation omitted). In some situations,
however, “[p]ublic policy considerations favor the use of summary judgment motions to
eliminate baseless defamation claims.” Feggans v. Billington, 677 A.2d 771, 777 (N.J.

6

According to Crescenz’s deposition, Botha never asked her whether she had a
sexual relationship with Bender; rather, “[h]e was hemming and hawing, was there a
relationship between [Crescenz] and Frank, other than professional.” 445A.
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Super. Ct. App. Div. 1996); see also Costello v. Ocean Cnty. Observer, 643 A.2d 1012,
1018 (N.J. 1994) (“Summary judgment is . . . an important tool for disposing of nonmeritorious libel lawsuits.”); Sisler v. Gannett Co., 516 A.2d 1083, 1104 (N.J. 1986)
(Garibaldi, J., concurring) (“[M]any commentators agree that a motion for summary
judgment should be no less available under a negligence standard than under the [actualmalice] standard.”).
Here, we agree with the District Court that summary judgment is appropriate
because Capuzzo possessed overwhelming evidence of a sexual relationship between
Bender and Crescenz, and because Crescenz has failed to refute that evidence. Even if a
jury could credit Crescenz’s testimony and find the allegations of a sexual relationship
false, no reasonable jury could find that Capuzzo was negligent in ascertaining the truth
of his statements. Accordingly, the District Court did not err in granting summary
judgment to Capuzzo on Crescenz’s defamation claim.
B
Crescenz also challenges the District Court’s finding that Penguin acted
reasonably in relying on Capuzzo’s work. Specifically, she contends that her email
informing Shinker of inaccuracies in the book triggered a duty for Penguin to
independently fact-check the book before publication. Again, we disagree.
As the District Court noted, publishers do not customarily employ fact-checking
staff for non-fiction books, but rely instead on their authors to warrant the truth of the
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words they write. See Restatement (Second) of Torts § 580B (“Customs and practices
within the profession are relevant in applying the negligence standard, which is, to a
substantial degree, set by the profession itself, though a custom is not controlling.”). In
his deposition, Shinker testified that none of the four publishers for whom he had worked
employed fact-checking staff, and that it would be unsustainable, given the hundreds of
manuscripts Penguin published each year, for it “to contact every source and confirm
every fact in a 120,000-word book manuscript.” 159A. Additionally, Penguin took
further steps in accordance with industry norms: it voluntarily provided galley copies of
The Murder Room to Bender’s daughter and two of his close associates in the Vidocq
Society, none of whom took issue with the depiction of Bender and Crescenz’s sexual
relationship, and it also had the book vetted by seasoned outside counsel prior to
publication. Crescenz does not dispute that Penguin followed industry practice, but rather
contends that her pre-publication concerns required Penguin to follow-up on the alleged
inaccuracies. She does not, however, provide evidence that such a duty exists in the
publishing industry. Further, as noted before, her email to Shinker was vague, failed to
deny a sexual relationship, and was devoid of corroborating evidence.
Crescenz maintains that Penguin had a duty to take further investigatory steps after
her email, as at that point it “had, or should have had, substantial reasons to question the
accuracy of the articles or [the author’s] bona fides . . . .” Geiger v. Dell Pub. Co., 719
F.2d 515, 518 (1st Cir. 1983) (internal citation omitted). But Penguin had no reason to
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doubt Capuzzo’s work; Capuzzo was a well respected journalist and best-selling author,
who had been nominated several times for a Pulitzer Prize. As discussed above,
Capuzzo’s extensive research, the culmination of seven years of personal observation and
interviews, supported his conclusion that Bender and Crescenz were sexual partners.
Crescenz, on the other hand, has been able to identify only two factual inaccuracies in the
course of this litigation, neither of which is relevant to her relationship with Bender.
Accordingly, like the District Court, we find no dispute of material fact as to
whether Penguin acted reasonably in following industry custom and relying on
Capuzzo’s warranties. Penguin acted like any other conscientious publisher in releasing
The Murder Room: it did not have a duty to independently investigate the book’s facts,
relied on a reputable author, and had the book vetted by experienced outside counsel.
Thus, Penguin is entitled to summary judgment on Crescenz’s defamation claim as a
matter of law.
C
Under New Jersey law, a plaintiff may recover for “publicity that unreasonably
places [her] in a false light before the public” upon showing two elements: (1) the false
light would be highly offensive to a reasonable person; and (2) the defendant had
knowledge or acted in reckless disregard of the statement’s falsity. Romaine v. Kallinger,
537 A.2d 284, 289–90 (N.J. 1988). Here, because Penguin and Capuzzo were not
negligent, it follows a fortiori that Crescenz could not establish the higher standard of
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recklessness. Cf. Marcone v. Penthouse Int’l Magazine For Men, 754 F.2d 1072, 1089
(3d Cir. 1985) (negligence is a lower standard of fault than recklessness). Accordingly,
Crescenz’s claim for false light fails.
III
For the reasons stated, we will affirm the judgment of the District Court.

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