Steven Graboff v. American Association of Orthop, et al

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, SHWARTZ and SCIRICA, Circuit Judges. Total Pages: 8. Judge: SHWARTZ Authoring.

Case: 13-2549

Document: 003111562907

Page: 1

Date Filed: 03/19/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 13-2549
______________
STEVEN R. GRABOFF, M.D.,
Appellant
v.
THE AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS;
AMERICAN ACADEMY OF ORTHOPAEDIC SURGEONS
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2-12-cv-05491)
District Judge: Hon. Joel H. Slomsky
______________
Submitted Under Third Circuit LAR 34.1(a)
January 7, 2014
______________
Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.
(Filed: March 19, 2014)
______________
OPINION
______________
SHWARTZ, Circuit Judge.

Case: 13-2549

Document: 003111562907

Page: 2

Date Filed: 03/19/2014

Dr. Steven R. Graboff appeals from the District Court’s dismissal of his second
lawsuit alleging that an article published by the American Association of Orthopaedic
Surgeons and the American Academy of Orthopaedic Surgeons (collectively “AAOS”)
tortiously placed him in a false light. The District Court dismissed Graboff’s successive
false light claim under the doctrine of res judicata. We will affirm.
I.
As we write principally for the benefit of the parties, we recite only the essential
facts and procedural history. Graboff was retained as an expert witness in a medical
malpractice case. Graboff v. The Colleran Firm, No. 10-1710, 2013 WL 1286662 (E.D.
Pa. Mar. 28, 2013). On December 7, 2005, he submitted a draft expert report to The
Colleran Firm, the law firm that had retained him. Id. at *1. The defendant in the
malpractice case filed a grievance against Graboff with AAOS, alleging that Graboff had
violated AAOS’s Standards of Professionalism on Orthopaedic Expert Witness
Testimony. Id. AAOS suspended Graboff’s membership for two years and published an
article describing Graboff’s suspension (the “Article”) in the September 2009 issue of
AAOS Now, a periodical freely available on the Internet through AAOS’s website. Id. at
*2. On April 16, 2010, Graboff filed a complaint against AAOS in the United States
District Court for the Eastern District of Pennsylvania, alleging, among other things, that
AAOS had tortiously placed him in a false light through its publication of the Article
(“2010 Complaint”). Id. On April 27, 2012, a jury found in Graboff’s favor, awarding
him $140,000 in damages for past loss of earnings, $0 in damages for future loss of
2

Case: 13-2549

Document: 003111562907

Page: 3

Date Filed: 03/19/2014

earnings, and $56,000 in noneconomic damages. This Court affirmed the order denying
AAOS’s post-trial motion for judgment as a matter of law and judgment notwithstanding
the verdict, holding that the jury’s findings established that AAOS was liable for false
light as well as for defamation. Graboff v. The Colleran Firm, No. 13-2229 (3d Cir. Feb.
20, 2014).
After the verdict, Graboff asked AAOS to remove the Article from its website.
AAOS allegedly refused to do so. As a result, on September 26, 2012, Graboff filed the
complaint in the case now before us, alleging that the Article continued to place him in a
false light, seeking an order directing AAOS to remove the Article from AAOS’s
website, and requesting compensatory and punitive damages and costs.1 On October 22,
2012, AAOS filed a motion to dismiss Graboff’s complaint under, among other things,2
Fed. R. Civ. P. 12(b)(6), arguing that Graboff’s claims were barred under the doctrine of

1

Count One alleges that the Article portrays Graboff in a false light. The portion
of the complaint labeled as Count Two sets forth remedies he seeks, but does not set forth
a separate cause of action. See Hindes v. FDIC, 137 F.3d 148, 157 (3d Cir. 1998)
(interpreting separate “count” in complaint as simply “seek[ing] declaratory and
injunctive relief in addition to the relief requested in” other counts).
2
AAOS also sought to dismiss the complaint based upon a lack of personal
jurisdiction and improper venue. The District Court declined to reach those arguments
because it dismissed the complaint on other grounds. Although AAOS repeats its
personal jurisdiction arguments on appeal, we also need not reach them because we will
affirm the dismissal on res judicata grounds. Because dismissal on res judicata grounds
does not require us to reach the merits, see Comm’r v. Sunnen, 333 U.S. 591, 597 (1948)
(“If the doctrine of res judicata is properly applicable . . . , the case may be disposed of
without reaching the merits of the controversy.”), we need not resolve the jurisdictional
issue. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31
(2007) (holding that jurisdictional issues generally must be resolved before reaching the
merits).
3

Case: 13-2549

Document: 003111562907

Page: 4

Date Filed: 03/19/2014

res judicata and that Graboff’s request for an order directing AAOS to remove the article
from its website was precluded under Pennsylvania law. On May 2, 2013, the District
Court granted AAOS’s motion to dismiss on both grounds. Graboff appeals.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s grant of
AAOS’s motion to dismiss pursuant to Rule 12(b)(6) is plenary. Gelman v. State Farm
Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). “To survive a motion to dismiss,
a complaint must contain sufficient factual allegations, taken as true, to ‘state a claim to
relief that is plausible on its face.’” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d
Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.
Here, the District Court dismissed the complaint on the ground that it was barred
by the judgment entered on the 2010 Complaint under the doctrine of res judicata. The
doctrine of res judicata “protect[s] litigants from the burden of relitigating an identical
issue with the same party or his privy and of promoting judicial economy by preventing
needless litigation.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979). The
law governing whether a federal judgment in one case has preclusive effect depends upon
the basis for the federal court’s subject matter jurisdiction in that case. Generally, “[f]or
judgments [entered] in diversity cases, federal law incorporates the rules of preclusion
applied by the State in which the rendering court sits.” Taylor v. Sturgell, 553 U.S. 880,
4

Case: 13-2549

Document: 003111562907

Page: 5

Date Filed: 03/19/2014

891 n.4 (2008); see Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508-09
(2001) (explaining that “nationwide uniformity . . . is better served by having the same
claim-preclusive rule (the state rule) apply whether the dismissal has been ordered by a
state or a federal court,” unless “state [preclusion] law is incompatible with federal
interests”); Houbigant, Inc. v. Fed. Ins. Co., 374 F.3d 192, 205 (3d Cir. 2004) (“In a
diversity action, we apply the preclusion rules of the forum state, unless they are
incompatible with federal interests.”).
Here, the District Court had diversity jurisdiction over the 2010 Complaint and the
causes of action were based on Pennsylvania law. Accordingly, Pennsylvania preclusion
rules apply. Under Pennsylvania law, “[a]ny final, valid judgment on the merits by a
court of competent jurisdiction precludes any future suit between the parties or their
privies on the same cause of action,” Balent v. City of Wilkes-Barre, 669 A.2d 309, 313
(Pa. 1995), even if different or additional relief or grounds for relief are sought in the
later case. Dempsey v. Cessna Aircraft Co., 653 A.2d 679, 682 (Pa. Super. Ct. 1995)
(“Res judicata may bar a second action based upon the same transaction even if
additional grounds for relief are presented.” (citing Larsen v. Larsen, 141 A.2d 353, 354
(Pa. 1958)). For res judicata to apply, Pennsylvania courts require the two actions to
share the following characteristics: “(1) the thing sued upon or for; (2) the cause of
action; (3) the persons and parties to the action; and (4) the capacity of the parties to sue
or be sued.” Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir.
2006) (citing Bearoff v. Bearoff Bros., Inc., 327 A.2d 72, 74 (Pa. 1974)).
5

Case: 13-2549

Document: 003111562907

Page: 6

Date Filed: 03/19/2014

Res judicata bars Graboff’s present suit. First, in both cases, Graboff lodged tort
claims based upon AAOS’s publication of the Article. Second, each case included a
cause of action for casting Graboff in a false light. Third, Graboff and AAOS are parties
in both cases. Fourth, there is no dispute that Graboff has the capacity to sue and AAOS
can be sued. Fifth, final judgment was entered on the 2010 Complaint, finding AAOS
liable and awarding Graboff damages. The fact that Graboff’s second complaint
requested injunctive relief in addition to damages does not change the fact that the second
suit is barred by the first case. See Dempsey, 653 A.2d at 682.
Graboff contends, however, that his successive false light claim is not barred
because the Article has been “repeatedly republished” by virtue of its continued presence
on AAOS’s website and “[e]ach republication of that story constitutes a separate count of
false light invasion of privacy.” Appellant Br. 21. Pennsylvania’s “single publication
rule” forecloses this argument.
Under Pennsylvania law, “it is the original printing of the defamatory material and
not the circulation of it which results in a cause of action.” Graham v. Today’s Spirit,
468 A.2d 454, 457 (Pa. 1983) (interpreting Uniform Single Publication Act);3 see

3

The Pennsylvania Uniform Single Publication Act provides in pertinent part:

(b) General rule. No person shall have more than one cause of action for
damages for . . . invasion of privacy, or any other tort founded upon any
single publication . . . .
(c) Bar by judgment. A judgment . . . for or against the plaintiff upon the
substantive merits of any action for damages founded upon a single
6

Case: 13-2549

Document: 003111562907

Page: 7

Date Filed: 03/19/2014

Andrews v. Time, Inc., 690 F. Supp. 362, 365 (E.D. Pa. 1988) (noting the “statute
replaced the common law rule which provided that each separate communication – i.e.,
each separate copy of an allegedly defaming magazine – gave rise to a separate cause of
action”). The posting of an article on the Internet is the act of publication. Its continuous
availability to be viewed does not constitute republication.4 If continuous availability
constituted the act of republication, then “[a] publisher would remain subject to suit for
statements made many years prior, and ultimately could be sued repeatedly for a single
tortious act the prohibition of which was the genesis of the single publication rule.” In re
Phila. Newspapers, LLC, 690 F.3d 161, 174-75 (3d Cir. 2012) (noting that “Pennsylvania
courts ha[d] not considered whether the single publication rule applies to Internet
publication” but concluding that adding a link to or making a technical change without
altering the substance of an article posted on the Internet is not republication).
Under Pennsylvania’s single publication rule, the Article’s continuous posting on
the Internet does not constitute separate acts of republication. Graboff had only one
cause of action with respect to the initial publication of the Article that placed him in a
false light. Accordingly, because Graboff’s second false light claim is based on the

publication . . . shall bar any other action for damages by the same plaintiff
against the same defendant founded upon the same publication . . . .
42 Pa. Cons. Stat. § 8341.
4
Republication of defamatory material, for example in a new edition of a book or
in an edited and reissued form, is “[a]n exception to the single publication rule . . . .” In
re Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012). Such republication resets
the statute of limitations and can support a cause of action. Id. at 173-75.
7

Case: 13-2549

Document: 003111562907

Page: 8

Date Filed: 03/19/2014

publication of the Article that was the subject of the 2010 Complaint, and because the
single, continuous publication of the Article does not give rise to separate claims, and
because the single claim has been decided on the merits, the second complaint is barred
under the doctrine of res judicata and dismissal was appropriate.5
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.

5

The District Court also dismissed Graboff’s request for an injunction compelling
AAOS to remove the Article from its website because he seeks a remedy not permitted
under Pennsylvania law. See Kramer v. Thompson, 947 F.2d 666, 678-79 (3d Cir. 1991)
(holding Pennsylvania Supreme Court precedent “quite clearly reflects its continuing
adherence to the adequate [legal] remedy rationale for denying injunctive relief” and
stating the Pennsylvania Supreme Court would be unlikely to permit injunctions even
following “a jury determination of the libelous nature of specific statements”). Because
res judicata justifies dismissal of the complaint, we need not evaluate whether the remedy
sought is available.
8