Etheridge-Brown et al v. America Media, Inc. et al

Filing 17

OPINION AND ORDER re: 5 MOTION for Summary Judgment filed by America Media, Inc. For the foregoing reasons, Defendant American Media's motion for summary judgment is DENIED without prejudice. The Clerk of Court is directed to close the motion at Docket Entry No. 5. (Signed by Judge J. Paul Oetken on 3/31/2014) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
:
ALICIA ETHEREDGE-BROWN and
:
:
ROBERT BROWN,
Plaintiffs, :
:
-v:
:
:
AMERICAN MEDIA, INC., and
DERRICK HANDSPIKE,
:
Defendants. :
------------------------------------------------------------ X

13 Civ. 1982 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
This is a defamation action filed by Bobby Brown (“Brown”) and his wife, Alicia
Etheredge (“Etheredge”), arising from an article published by the National Enquirer in March
2012, shortly after the death of Whitney Houston (“Houston”). The article contained statements
asserting that Brown and Houston had reestablished an intimate relationship before her death and
were planning to re-marry. The lawsuit names as defendants American Media, Inc. (“AMI”),
which owns and operates the National Enquirer, and Derrick Handspike (“Handspike”), an
individual who is quoted in the article.
Defendant AMI has filed a motion for summary judgment, arguing that this lawsuit is
time-barred under the one-year statute of limitations applicable to defamation claims. For the
reasons that follow, AMI’s motion is denied.
I.

Discussion
A.

Jurisdiction

Subject matter jurisdiction of this action is based on diversity of citizenship pursuant to
28 U.S.C. § 1332(a)(1). The complaint alleges that Plaintiffs are residents of the State of
California; that Defendant AMI “has a business address” in New York; and that Defendant

Handspike is a resident of Georgia. The Court assumes that the allegations intend to state that
AMI’s principal place of business is in New York. The complaint does not allege in which state
AMI is incorporated. Assuming that it is not incorporated in California, there appears to be
complete diversity for purposes of § 1332(a)(1). Plaintiffs request an award of damages “in
excess of one million dollars,” and therefore the amount-in-controversy requirement is satisfied.
B.

Summary Judgment Standard

Summary judgment is appropriate when “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. A fact is
material if it “might affect the outcome of the suit under the governing law,” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is genuine if, considering the record as a
whole, a rational jury could find in favor of the non-moving party, Ricci v. DeStefano, 557 U.S.
557, 586 (2009) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
The initial burden of a movant on summary judgment is to provide evidence on each
element of his claim or defense illustrating his entitlement to relief. Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). If the movant makes this showing, the burden
shifts to the non-moving party to identify specific facts demonstrating a genuine issue for trial,
i.e., that reasonable jurors could differ about the evidence. Fed. R. Civ. P. 56(f); Anderson, 447
U.S. at 250-51. The court should view all evidence “in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor,” and a motion for summary
judgment may be granted only if “no reasonable trier of fact could find in favor of the
nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation omitted). At the
same time, the non-moving party cannot rely upon mere “conclusory statements, conjecture, or

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speculation” to meet its burden. Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996) (citing
Matsushita, 475 U.S. at 587).
C.

Statute of Limitations

New York imposes a one-year statute of limitations on defamation claims. CPLR
§ 215(3). 1 Under the “single publication” rule, the statute of limitations ordinarily begins to run
at the time of the “first publication”—that is, “the earliest date on which the work was placed on
sale or became generally available to the public.” Van Buskirk v. N.Y. Times Co., 325 F.3d 87,
89 (2d Cir. 2003).
The paper version of the National Enquirer edition with the challenged article bore a
cover date of “April 2, 2012.” It is settled, however, that the “cover date” is not dispositive;
what matters is the date on which the publication actually went on sale to the public. See, e.g.,
Suss v. N.Y. Media, Inc., 69 A.D.3d 411, 411-12 (1st Dep’t 2010); Khaury v. Playboy Publ’ns,
Inc., 430 F. Supp. 1342, 1344-45 (S.D.N.Y. 1977).
AMI has submitted an affidavit from its Senior Vice President for Operations stating that
(1) copies of this edition of the National Enquirer were printed and shipped to wholesalers
beginning on March 20, 2012; (2) copies were mailed to subscribers on March 21, 2012; (3)
copies were delivered to newsstands beginning on March 21, 2012; and (4) all copies of the
edition were distributed by March 23, 2012. Thus, AMI contends, the article “was published on
March 23, 2012, at the latest.” (AMI Mem., Dkt. No. 8, at 5.)

1

California law also applies a one-year statute of limitations to defamation claims. Cal. Code P.
§ 340(c). The parties appear to treat New York law as applicable here, and the Court will
assume that New York law applies for purposes of this motion.
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The complaint in this case was file-stamped March 25, 2013. (See Dkt. No. 1.) If that is
the date of filing, and if March 23, 2012 (or earlier) is the date of publication, then this action is
time-barred.
Counsel for Plaintiffs, however, has submitted his own affidavit, averring (1) that he
mailed the complaint to the Clerk’s Office of this Court on Wednesday, March 20, 2013
(apparently from Boston, and apparently by regular mail rather than certified or registered mail);
and (2) that he spoke by telephone on Friday, March 22, 2013 with two individuals in the Clerk’s
Office and was informed that the documents had been received on that date.
A complaint is “filed” when it is delivered into the “actual custody” of the Clerk, not
when it is mailed. Greenwood v. State of NY Office of Mental Health, 842 F.2d 636, 639 (2d Cir.
1988). A filing is presumed to be made on the date file-stamped by the Clerk; indeed, that is the
purpose of file-stamping papers. Id. However, clerical errors by the Clerk’s Office are not
inconceivable.
The Court concludes that it is unnecessary to decide, at this stage, whether the complaint
was filed on March 22 or March 25, 2013, because summary judgment should be denied on an
alternative ground. The parties appear to agree that the online version of the article first
appeared on the National Enquirer’s website, www.nationalenquirer.com, on March 26, 2013.
Plaintiffs argue that this constitutes a “republication” of the article, re-triggering the statute of
limitations.
Courts have held that, notwithstanding the single publication rule, the publication of a
work may constitute a “republication”—giving rise to a new cause of action and re-starting the
statute of limitations—in circumstances where the new publication arises from a conscious act
that is undertaken in order to reach a new audience. See Rinaldi v. Viking Penguin, Inc., 101

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Misc. 2d 928, 422 N.Y.S.2d 552 (S. Ct. N.Y. Co. 1979), aff’d as modified, 73 A.D.2d 43, 425
N.Y.S.2d 101 (1st Dep’t 1980), aff’d, 52 N.Y.2d 422 (1981); Cusano v. Klein, 264 F.3d 936, 949
(9th Cir. 2001). See generally Robert D. Sack, Sack on Defamation § 7:2 (4th ed. 2012).
One of the classic examples of republication is the new offering of a hardback book in
paperback format. The New York courts in Rinaldi and the Ninth Circuit in Cusano have held
that, at least in the circumstances of those cases, the initial publication of the paperback edition
re-started the statute of limitations on a defamation claim. In Rinaldi, the court observed that the
publisher’s “decision to release [the book] in paperback was a conscious attempt to reach an
entirely new market of readers through a different format at a different price.” 422 N.Y.S.2d at
556, 101 Misc. 2d at 934.
Research has not revealed cases addressing the precise question presented here: whether
the initial online website release of an article that was previously published in a paper format
constitutes a republication, re-triggering the statute of limitations. Of course, courts have
overwhelmingly held, as the New York Court of Appeals held in Firth v. State, 98 N.Y.2d 365,
371-72 (2002), that the mere continued availability of material on a website does not constitute
an ongoing “republication.” Sack on Defamation § 7:2.2 & notes 26-29. But that is a different
question. The closest case may be the later decision by the Third Department in a subsequent
case, Firth v. State, 306 A.D.2d 666, 667, 761 N.Y.S.2d 361, 362 (3d Dep’t 2003), in which the
court held that the plaintiff’s allegation that the challenged report had been “moved to a different
Internet address” was sufficient to state a claim for “republication to a new audience akin to
repackaging a book from hard cover to paperback.”
In any event, Plaintiffs have at least a plausible argument that the initial online
publication of the article on the National Enquirer’s website on March 26, 2012—several days

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after the paper edition had been sent to subscribers’ homes and sold at newsstands and
supermarkets—was a republication. 2 It is common for publishers to make online content
available (often for free) only after some period of time in which the content is sold in paper
format (usually for a price). It is plausible to infer that this is done as part of a conscious effort
to reach a new audience.
There has been no discovery on these issues. And as the non-movants, Plaintiffs are
entitled to all reasonable inferences on this motion. Because it is not beyond genuine dispute
that this action is time-barred, summary judgment on statute of limitations grounds is premature.
However, the Court may entertain a subsequent summary judgment motion on the republication
issue, or other statute of limitations issues, if the circumstances warrant such a motion.
II.

Conclusion
For the foregoing reasons, Defendant American Media’s motion for summary judgment

is DENIED without prejudice.
The Clerk of Court is directed to close the motion at Docket Entry No. 5.

SO ORDERED.
Dated: March 31, 2014
New York, New York

2

The question whether the initial Internet publication of the allegedly defamatory article
constitutes a republication is a question of fact, at least in part. See Firth v. State, 12 A.D.3d
907, 907, 785 N.Y.S.2d 755, 756 (3d Dep’t 2004) (“This Court previously determined that
questions of fact exist regarding whether publication of the report on a different Web site
constituted republication.”).
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