NEU v. LOBB et al
Filing
26
OPINION. Signed by Judge Noel L. Hillman on 4/6/2016. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAYMOND B. NEU,
Civil No. 15-3847 (NLH/KMW)
Plaintiff,
OPINION
v.
KENNETH LOBB, BALBOA PRESS
INC., HAYS HOUSE, INC., and
AUTHOR SOLUTIONS, INC.,
Defendants.
APPEARANCES:
Raheem S. Watson
Watson LLC
BNY Mellon Center
1735 Market Street, Ste. 3750
Philadelphia, PA 19103
Attorney for Plaintiff Raymond B. Neu
Kenneth Lobb
5820 Monocacy Drive
Bethlehem, PA 18017
Pro Se Defendant
Bruce S. Rosen
McCusker, Anselmi, Rosen & Carvelli, PC
210 Park Avenue, Suite 301
PO Box 240
Florham Park, NJ 07932
Attorney for Defendants Balboa Press, Inc., Hays House,
Inc., and Author Solutions, Inc.
HILLMAN, District Judge
This matter comes before the Court by way of the motion to
dismiss filed by Defendants Balboa Press, Inc., Hays House,
Inc., and Author Solutions, Inc. [Doc. No. 18].
Pro Se
Defendant Kenneth Lobb joins Defendants’ motion [Doc. No. 19].
The Court has considered the parties’ submissions, and for the
reasons that follow, Defendants’ motion will be granted and
Plaintiff’s Amended Complaint will be dismissed.
I.
BACKGROUND
This case concerns a book written by Defendant Kenneth Lobb
entitled “We Picked Up” based on a hitchhiking trip the author
took in 1971 with Plaintiff Raymond Neu. (Compl. ¶¶ 2, 7.)
Plaintiff alleges he is depicted under the alias “Otto” in the
book and that various false and defamatory statements are made
about him.
(Id. ¶¶ 12, 16.)
Specifically, Plaintiff alleges
his character engaged in larceny, promiscuous sexual activity,
and drug use.
(Id. ¶¶ 13-15.)
Plaintiff’s one-count Amended
Complaint alleges defamation against all Defendants.
Defendants
Balboa Press, Inc., Hays House, Inc., and Author Solutions,
Inc., Lobb’s publishers, argue that Plaintiff’s Amended
Complaint must be dismissed because it is untimely and fails to
state a claim for defamation.
II.
JURISDICTION
There is complete diversity between Plaintiff and
Defendants and, therefore, this Court exercises subject matter
jurisdiction pursuant to 28 U.S.C. § 1332.
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III. MOTION TO DISMISS STANDARD
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the claim as true
and view them in the light most favorable to the claimant.
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005); MCI
Telecommunications Corp. v. Graphnet, Inc., 881 F. Supp. 126,
128 (D.N.J. 1995).
It is well settled that a pleading is
sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).
Fed. R.
However, “[a]lthough the Federal Rules of
Civil Procedure do not require a claimant to set forth an
intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
A district court, in weighing a motion to dismiss, asks
“not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.”
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
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v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . .
.”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(“Iqbal . . . provides the final nail-in-the-coffin for the ‘no
set of facts’ standard that applied to federal complaints before
Twombly.”).
IV.
DISCUSSION
In New Jersey, every action for libel or slander must be
commenced “within 1 year next after the publication of the
alleged libel or slander.”
N.J. Stat. Ann. § 2A:14-3.
“New
Jersey follows the single publication rule for mass publications
under which a plaintiff alleging defamation has a single cause
of action, which arises at the first publication of an alleged
libel, regardless of the number of copies of the publication
distributed or sold.”
Churchill v. State, 378 N.J. Super. 471,
478, 876 A.2d 311, 316 (App. Div. 2005).
As long as the content
remains unchanged, internet publications are also subject to the
one-year statute of limitations which runs from the date of
publication of the alleged libel or slander.
Id. at 478.
“Thus, it does not matter how many copies of a single edition of
a book or newspaper are distributed or how many times a webpage
is viewed, all are treated as a single publication.”
Solomon v.
Gannett Co., No. A-6160-11T4, 2013 WL 3196946, at *2 (N.J.
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Super. Ct. App. Div. June 26, 2013).
The single publication
rule prevents the constant tolling of the statute of
limitations, prevents the potential harassment of defendants
through a multiplicity of suits, and is more consistent with
“modern practices of mass production and widespread distribution
of printed information than the multiple publication rule.”
Churchill, 378 N.J. Super. at 479 (citation omitted).
Plaintiff does not dispute that the book was published on
June 6, 2014.1
Rather, Plaintiff argues it was republished on
1
Plaintiff and Defendants do not dispute that the first
publication date was June 6, 2015. Defendants have submitted
the declaration of Eugene Hopkins, Global Director-Author
Satisfaction for Author Solutions, Inc., Lobb’s publisher, who
avers that the book was published on June 6, 2014. (Hopkins
Decl. ¶¶ 3-4). The book was also published in hard copy on the
same date, June 6, 2014 by Amazon.com. (Id. at ¶ 5.)
Amazon.com published a soft copy of the book on June 9, 2014.
(Id. at ¶ 6.) Hopkins also avers that there were no “separate
editions” of the book and the material provided to resellers was
“identical in form.” (Suppl. Hopkins Decl. ¶¶ 5-6). A court in
reviewing a Rule 12(b)(6) motion must only consider the facts
alleged in the pleadings, the documents attached thereto as
exhibits, and matters of judicial notice. S. Cross Overseas
Agencies, Inc. v. Kwong Shipping Grp. Ltd., 181 F.3d 410, 426
(3d Cir. 1999). A court may consider, however, “an undisputedly
authentic document that a defendant attaches as an exhibit to a
motion to dismiss if the plaintiff's claims are based on the
document.” Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). If any other matters
outside the pleadings are presented to the court, and the court
does not exclude those matters, a Rule 12(b)(6) motion will be
treated as a summary judgment motion pursuant to Rule 56. See
Fed. R. Civ. P. 12(d). While the Court is citing to a
declaration not attached to the pleadings, it is not using the
declaration to resolve factual disputes as the parties do not
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June 9, 2014, which would fall within the statute of limitations
since his complaint was filed on June 9, 2015.
The Court finds
there is no republication under these circumstances.
Plaintiff argues that in Barres v. Holt, Rinehart &
Winston, Inc., the New Jersey Superior Court case which adopted
the single publication rule, the court noted that other
jurisdictions recognize exceptions to the single publication
rule where “there has been a separate edition, or continued
massive printing and distribution, after the general release
date.”
131 N.J. Super. 371, 383, 330 A.2d 38, 45 (Ch. Div.
1974), aff'd, 141 N.J. Super. 563, 359 A.2d 501 (App. Div.
1976), aff'd, 74 N.J. 461, 378 A.2d 1148 (1977).
In Barres,
three months after the general release date of a book,
subsequent hard copies were printed.
The court concluded that
the general release date controlled because the second printing
was “sufficiently close to the first printing to be considered
as part of it and not a second publication or a republication.”
Barres, 131 N.J. Super. at 390-91.
dispute that the first publication date was June 6, 2015 or that
the same book was published. Rather, the parties dispute
whether a later publication may be considered a "republication"
under New Jersey law.
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For the same reasons, the Court finds there is a single
publication here.
A soft copy publication of the same book
three days after the general release is even closer to the first
publication than the three month gap in Barres.
material was identical in content.
Further, the
See Churchill, 378 N.J.
Super. at 484 (technical updates including altering the means of
visitor access to a report published on the internet, but which
did not change the substance of the report, did not constitute a
“republication” and holding so would defeat the purpose of the
single publication rule).
As such, the facts of this case fall
squarely within the single publication rule and Plaintiff’s
claims are barred by New Jersey’s one year statute of
limitations.
Accordingly, the Court need not reach the merits
of Plaintiff’s claims and will dismiss Plaintiff’s amended
complaint.
V. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
[Doc. No. 18] will be granted.
An Order consistent with this
Opinion will be entered.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:
April 6, 2016
At Camden, New Jersey
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