Cole v. Ferranti et al

Filing 172

MEMORANDUM (eo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES COLE,

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Plaintiffs,
v.
SETH FERRANTI and
GORILLA CONVICT
PUBLISHING,
Defendants.

4:10-cv-426
Hon. John E. Jones III

Hon. J. Andrew Smyser

MEMORANDUM
June 12, 2012
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge J. Andrew Smyser (Doc. 161), filed on March 12,
2012, which recommends that Defendant Gorilla Convict Publications’ Motion to
Dismiss (Doc. 123) be denied and that Defendant Seth Ferranti’s Motion for
Summary Judgment (Doc. 142) be granted. Pro se Plaintiff James Cole
(“Plaintiff”) filed objections to the R&R (Doc. 163) on March 29, 2012.
Accordingly, this matter is ripe for our review.

For the reasons set forth below,

the Court will adopt the Magistrate Judge’s R&R, deny the Motion to Dismiss and
grant the Motion for Summary Judgment because this matter was filed outside of
the applicable statute of limitations.

I.

BACKGROUND
A.

Facts

Pro se Plaintiff James Cole (“Plaintiff” or “Cole”) filed this action against
pro se Defendants Seth Ferranti and Gorilla Convict Publications (collectively
“Defendants”) on February 25, 2010. Both Cole and Defendant Ferranti are
federal inmates. The Plaintiff claims that Defendant Ferranti authored and that
Defendant Gorilla Convict Publications published a book entitled Street Legends.
Plaintiff claims that despite previously instructing Defendant Ferranti not to use his
name in the book Street Legends, the Defendants nonetheless included false and
defamatory statements about him in the book. These statements center around
Plaintiff’s alleged involvement with the criminal organization called the Junior
Black Mafia, which Plaintiff denies. Plaintiff also alleges that the quotations
attributed to him within the book are false. Plaintiff filed the instant action
contending that the Defendants committed libel and slander against him.
B.

Procedural History

On March 3, 2011, we issued a Memorandum and Order (Doc. 72) adopting
in part and rejecting in part a previous R&R (Doc. 60) issued by Magistrate Judge
Smyser, thereby dismissing Plaintiff’s slander claim. The matter was remanded to
Magistrate Judge Smyser for further pretrial management. Thereafter, cross2

Motions for Summary Judgment were filed. (Docs. 91 and 96). Following
briefing thereon, Magistrate Judge Smyser issued a R&R (Doc. 113)
recommending that the Defendants’ Motion for Summary Judgment be granted and
that this action be dismissed, because Plaintiff’s claim was filed outside the
applicable statute of limitations for libel actions. Plaintiff objected to this
recommendation. After consideration of the Plaintiff’s objections, we rejected the
Magistrate Judge’s recommendations for the following reasons:
Magistrate Judge Smyser recommends that summary judgment
be granted in favor of the Defendants on the basis that Plaintiff’s
action was filed outside the one-year statute of limitations applied to
libel actions in Pennsylvania. Specifically, Magistrate Judge Smyser
concluded that Plaintiff’s action accrued in April 2008, when Street
Legends was published, and that Plaintiff cannot avail himself of any
tolling of the statute.
In his objections, Plaintiff argues that he did not have the full
opportunity to address the statute of limitations arguments in his brief
in opposition to summary judgment. He also asserts that the
Magistrate Judge’s inferences concerning Plaintiff’s ability to learn of
the book’s publication in April of 2008 are unreasonable.
Recognizing Plaintiff’s pro se status, as well as his condition as
an inmate, we shall decline to adopt the Magistrate Judge’s
recommendation to grant summary judgment on statute of limitations
grounds at this time. Accordingly, we shall deny the pending Motions
for Summary Judgment. We shall remand this matter back to
Magistrate Judge Smyser to give the Plaintiff additional opportunity
to develop the record regarding the statute of limitations issue, as well
as any other issues that the Magistrate Judge sees fit.
(Doc. 118, pp. 3-4). Essentially, we were uncomfortable with granting summary
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judgment in favor of the Defendants solely on the inferences drawn by the
Magistrate Judge related to the tolling of the statute of limitation issue and thus
remanded the matter for further development of the record.
Upon remand, Magistrate Judge Smyser issued an Order (Doc. 119)
reopening discovery until December 6, 2011 and setting a new dispositive motions
deadline of January 6, 2012. Thereafter, on September 29, 2012, Defendants’
Motion to Dismiss was filed (Doc. 123) and their Motion for Summary Judgment
(Doc. 142) was filed on December 13, 2012. Following full briefing on these
Motions, the instant R&R was filed.
C.

Recommendations Contained in R&R sub judice
1.

Motion to Dismiss

The Defendants move for dismissal of Gorilla Convict Publications as a
Defendant in this matter on the grounds that the party was identified as Gorilla
Convict Publishing rather than its correct name of Gorilla Convict Publications.
Magistrate Judge Smyser recommends that the Motion be denied, noting that both
parties have, by and large, referred to the Defendant by its correct name, Gorilla
Convict Publications, throughout the litigation and that there has been no prejudice
to the party by the erroneous reference. This recommendation is unobjected to
and, inasmuch as we find the recommendation to be entirely reasonable, we shall
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adopt the same and deny the Motion to Dismiss.
2.

Motion for Summary Judgment

Defendant Ferranti’s Motion for Summary Judgment again raises the
argument that Plaintiff’s action is time-barred because it was filed outside of the
one-year statute of limitations applied to defamation claims. Magistrate Judge
Smyser recommends that the Motion be granted, noting that the Plaintiff was
informed of Defendant Ferranti’s plan for the book in April of 2007.1 Plaintiff
himself has admitted that he informed Defendant Ferranti that he did not want to be
referenced in the book. Street Legends was published in April of 2008. Plaintiff
ultimately obtained and read the book in December of 2009. The Magistrate
Judge recommends that the Motion for Summary Judgment be granted because this
action, filed on February 25, 2010 was filed outside of the statute of limitations.
II.

STANDARD OF REVIEW
When objections are filed to the report of a magistrate judge, the district

court makes a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objections are made. 28 U.S.C. §
636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may
1

We note that the Magistrate Judge erroneously put April of 2008 as the date when
Plaintiff was first informed about the book. However, Defendant Ferranti’s statement of facts
states that “Plaintiff was contacted on or about April 2007 and sent a courtesy copy of the
manuscript.” (Doc. 144, p. 4).
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accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the exercise of sound
discretion, chooses to place on a magistrate judge’s proposed findings and
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423
U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
III.

DISCUSSION
In his objections, Plaintiff persists in his argument that the “discovery rule”

should operate in this defamation action, and essentially toll the statute of
limitations in a way that saves his claim. However, Plaintiff’s argument ignores
the trend in Pennsylvania’s federal district courts not to apply the discovery rule to
mass-media defamation actions, and holding that a defamation cause of action
begins to accrue at the publication of mass-media containing the defamatory
statement. See Wolk v. Olson, 730 F. Supp. 2d 376 (E.D. Pa. 2010); Bradford v.
Am. Media Operations, 882 F. Supp. 1508, 1519 (E.D. Pa. 1995); Barrett v.
Catacombs Press, 64 F. Supp. 2d 440, 446 (E.D. Pa. 1999)(“[T]he discovery rule
should not be applied where . . . a defendant’s alleged defamation was not done in
a manner meant to conceal the subject matter of the defamation.”); Drozdowski v.
Callahan, 2008 U.S. Dist. LEXIS 10164 (E.D. Pa. Feb. 12, 2008)(declining to
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apply the discovery rule to defamation published in a book). These cases all
recognize that the discovery rule, a narrow exception to an otherwise strict
limitation standard, is intended for hard-to-discern injuries. Thus, the discovery
rule is at “odds with a cause of action based upon a defamatory statement
disseminated through a mass medium. . .” Wolk, 730 F. Supp. 2d at 378. While
we recognize that neither the Pennsylvania Supreme Court or the United States
Court of Appeals for the Third Circuit has spoken directly to this legal issue, we
are persuaded by the reasoning of our sister courts.2 Accordingly, because Street
Legends was published in April of 2008 and the Plaintiff filed the instant lawsuit in
February of 2010, nearly two years after the publication of the book, we shall grant
summary judgment in favor of the Defendants on Plaintiff’s claim, because it is
barred by the one-year statute of limitations applied to defamation actions in
Pennsylvania. See 42 Pa. C. S. § 5523(1).

2

Plaintiff can hardly claim that he was unaware of the imminent publication of this book.
Indeed, Plaintiff was aware of the prospect of the book’s publication in April of 2007 when he
was given a manuscript to review. Thus, this is not a situation where a plaintiff had absolutely
no way of learning of his injury until after the limitations period. Rather, Plaintiff was on notice
of the potential contents of the book as well as the fact that Defendant Ferranti was attempting to
have the work published. Regardless of the fact that Plaintiff was an inmate, he knew the book’s
publication was impending. He was thereafter not vigilant in obtaining the book or learning of its
contents, but rather slept on his rights. Based on these facts, this is not a circumstance where the
discovery rule can save Plaintiff’s claims from being barred by operation of the statute.
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IV.

CONCLUSION
Accordingly, based on the foregoing reasons, we shall adopt the Magistrate

Judge’s R&R. The Motion to Dismiss shall be denied and the Motion for
Summary Judgment shall be granted. This matter shall be closed. An appropriate
Order shall issue.

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