Puello v. Crown Heights Shmira, Inc. et al

Filing 6

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 7/7/14. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JORGE ANIBAL TORRES PUELLO,:
:
Plaintiff

CIVIL ACTION NO. 3:14-0959
:

v.
:
CROWN HEIGHTS SHMIRA, INC.,
et al.,

(MANNION, D.J.)
(MEHALCHICK, M.J.)

:
:

Defendants
:
MEMORANDUM
Before the court is the report and recommendation of Judge
Mehalchick, (Doc. 5), suggesting that plaintiff’s request for a restraining order,
(Doc. 2), be denied. No objections to the report and recommendation have
been filed. For the following reasons, the report and recommendation is
ADOPTED IN FULL and plaintiff’s motion for a restraining order is DENIED.
I.

BACKGROUND1
Plaintiff Jorge Anibal Torres Puello, a citizen of Pennsylvania, brings

this defamation action sounding in diversity against defendants Crown
Heights Shmira, Inc., Meir Ezman, and Yossi Stern, who are New York
citizens, and Nicolas Ezequiel Krasniker and Alberto Ruben Ferraro, who are
citizens of Argentina. He alleges that the New York defendants in this action

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Background facts are taken from plaintiff’s complaint. (Doc. 1).

published defamatory statements about him on flyers aimed at the Jewish
community in the Crown Heights neighborhood of Brooklyn, New York and on
the Internet. He alleges that he is falsely being characterized to the
community as someone who pretends to be Jewish, who kidnaps young
children, and who offers false jobs, among other false information. He also
alleges that the Argentinian defendants posted similar defamatory statements
on the website of Periodismo Kosher Argentina, a business that they own.
Plaintiff seeks damages for these defamatory remarks.
Plaintiff also filed an emergency motion for a restraining order, alleging
that he has been harassed by people, whom he does not identify, who read
the published defamatory statements and believe that his children are actually
victims of kidnapping. He alleges that an unknown person pulled defendant
over while he was driving with his children in the car and harassed him at
gunpoint as a result of the publications of defendants. (Doc. 2). He requests
that the court issue a temporary restraining order mandating that the
previously published statements be removed, and that no more such
defamatory statements be published.

II.

STANDARD OF REVIEW
When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.
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Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,
and the court may rely on the recommendations of the magistrate judge to the
extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, "satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.
2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)
(explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.31.

III.

DISCUSSION
As Judge Mehalchick’s report explains, there is a choice of law issue in

this case, and it is unclear whether the substantive law of New York or
Pennsylvania should govern, as plaintiff’s reputational interest extends
beyond Pennsylvania to New York and Argentina. However, the choice of law
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question need not be resolved to decide plaintiff’s motion for a temporary
restraining order. Both Pennsylvania and New York ascribe to the majority
rule that “equity will not enjoin a libel.” Metro. Opera Assoc., Inc., v. Local 100,
Hotel Emps. And Restaurant Emps. Int’l, 239 F.2d 172, 177 (2d Cir. 2001);
Kramer v. Thompson, 947 F.2d 666, 677-78 (3d Cir. 1991)(“the maxim that
equity will not enjoin a libel has enjoyed nearly two centuries of widespread
acceptance at common law”). Moreover, injunctions against speech have
been found to be unconstitutional prior restraints on the exercise of free
speech in both jurisdictions. See Metro. Opera, 239 F.2d, at 177; Kramer 947
F.2d, at 673-675 (summarizing Willing v. Mazzocone, 393 A.2d 1155 (Pa.
1879)).
Additionally, Judge Mehalchick’s report accurately notes that plaintiff’s
request for a temporary restraining order fails to make any showing of
irreparable injury. Courts in Pennsylvania and New York have repeatedly
noted that, absent extraordinary circumstances, damages are an adequate
remedy for defamation. See Metro. Opera, 239 F.2d, at 177; Kramer, 947
F.2d, at 675; Graboff v. American Assoc. of Orthopaedic Surgeons, 2013 WL
1875819, at *5 (E.D. Pa. May 3, 2013).
Thus, plaintiff’s request for an injunction, (Doc. 2), is DENIED because
it is barred by common law prohibiting injunctions against defamatory speech,
it requests an unconstitutional prior restraint, and because it fails to identify
any irreparable harm or injury.
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IV.

CONCLUSION
For the foregoing reasons, the report and recommendation of Judge

Mehalchick, (Doc. 5), is ADOPTED IN FULL and plaintiff’s motion for a
temporary restraining order, (Doc. 2), is DENIED. The case is referred back
to Judge Mehalchick for further proceedings. A separate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: July 7, 2014
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