Friday, September 23, 2016

“Moose,” Defamation and the Statute of Limitations

This post examines a recent opinion from the Superior Courtof New Jersey – Appellate Division: Roberts v. Mintz, 2016 WL 3981128 (2016) (per curiam). The court begins the opinion by explaining that
[p]laintiffs Donna Roberts and Dawn Abrams appeal from the summary judgment dismissal of their defamation complaint, the award of sanctions against them and their attorney, and the denial of their cross-motion for summary judgment and injunctive relief. Defendant Clifford S. Mintz cross-appeals from the sanctions award.
Roberts v. Mintz, supra.
The Superior Court went on to explain how, and why, the litigation arose:
We discern the following facts from the record, viewed in the light most favorable to plaintiffs as the non-movants.  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (Supreme Court of New Jersey 1995). In August 2008, defendant bought what he believed was a purebred Havanese dog from plaintiffs. One of the plaintiffs had represented to defendant that the dog was a healthy, nine-month-old, purebred Havanese. After taking the dog home, defendant allegedly learned from veterinarians that the dog was actually two years old, was not a purebred Havanese, and suffered from various health problems. He named the dog `Moose.’

Later in August, defendant confronted plaintiffs with these findings, which they denied. Plaintiffs offered to refund his money in exchange for Moose, but defendant insisted on keeping Moose in addition to a refund. He claimed he had spent $800 in veterinary fees and had become fond of Moose. Plaintiffs refused.

Beginning in September 2008, defendant aired his dissatisfaction with plaintiffs in a series of posts on his personal blog titled `Rants and Raves,’ which appears on his personal website, His posts, in addition to relating his personal experience with plaintiffs, disclosed what he claimed to have learned about plaintiffs from other pet owners, pet activists, and public records. He also frequently referred to plaintiffs as `dog grifters,’ `scammers,’ `nefarious,’ and `amoral and unethical scumbags.’
Roberts v. Mintz, supra.
The court goes on to explain that
[w]e need not review at length defendant's posts, as plaintiffs' complaint is limited to six statements. The first two were made in a September 1, 2008 post, which described defendant's purchase and asserted that plaintiffs misrepresented Moose's age, breed, and health. Plaintiffs challenged the statement that `Dawn Abrams fraudulently sold [defendant] a dog named ‘Moose.’ The second alleged defamatory remark in this post was the statement, `we learned that Grace Abrams is a member of a notorious ring of South Jersey dog grifters run by her mother Donna Roberts who in 2007 was found guilty under [New Jersey] Statute 4:22–26L on three of five counts of animal cruelty.’ At the conclusion of this post, defendant wrote that his goal was to `shut down the operations run by’ plaintiffs.

In the `comments’ section at the bottom of this post, two people who identified themselves as `grace’ and `Donna Roberts”’ left comments denying the allegations about Moose and calling defendant a `liar’ and a `jerk.’ `Donna Roberts’ told defendant to `can your bullshit’ and claimed that defendant was `shoved up the ass’ of another of plaintiffs' critics, whom she called `the Hitler of the dog world’ who used `Nazi tactics.’ `Donna Roberts’ also stated that defendant suffered from “rage syndrome,” a behavioral condition that afflicts canines.

On February 27, 2009, in a post titled, `The Dark Underside of New Jersey Dog Breeders: Revisited,’ defendant wrote, `For the past year or so, I have been dealing with Donna Roberts, a so-called dog breeder who recently was convicted in New Jersey on three counts of animal cruelty.’ The next allegedly defamatory remark appeared in an April 7, 2010 post, in which defendant stated, `The Vincentown address is where Dawn Roberts lives in a run down farmhouse with 6 children.’ This is a reference to the house where defendant bought Moose.

Defendant ratcheted up the rhetoric in his next two posts. In an April 27, 2010 post titled, `The Dog Grifters: Donna Roberts and Dawn Abrams Strike Again,’ defendant wondered how `these despicable human beings’ `think that they can continue to get away with ripping people off . . .’ Plaintiffs challenge a section of the following sentence where defendant declares,`eventually we will be able to shut down their fraudulent puppy mill ring! To that end, please pass the information along that nobody ought to buy dogs from these grifters!’ The final post in this series was a May 3, 2010 entry titled, `Donna Roberts Responds: I am Innocent of All Charges—The Rest of the World is Guilty.’ Here he writes, `I frequently get messages from others, who, like me, were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them.’
Roberts v. Mintz, supra.
The Superior Court went on to explain that
[p]laintiffs filed their complaint on May 18, 2010.  On July 16, 2010, defendant filed a motion for summary judgment in lieu of an answer. The same day, defendant's counsel served on plaintiff's counsel a `safe harbor letter’ pursuant to Rule 1:4–8 demanding that plaintiffs withdraw their complaint.

Plaintiffs filed a cross-motion for summary judgment, although none of the papers filed in support of their cross-motion were provided to us. Plaintiffs also sought an order restraining defendant from defaming plaintiffs.

The court issued a written decision granting defendant's motion and denying plaintiff's cross-motion. The court found that the statements published before May 18, 2009 were time-barred, and rejected plaintiffs' argument that the statute of limitations was tolled because defendant committed a continuing wrong. The court found that defendant's remaining statements were opinions, epithets, and hyperbole, and were not sufficiently factual to be actionable.

The court also held that defendant's statements involved a matter of public concern, such that plaintiffs were required to prove actual malice. The court found plaintiffs had not met this burden, as there was enough evident truth to defendant's statements to preclude a finding of actual malice. To this end, the court largely credited the assertions in defendant's certification that Moose was in poor health, was two years old when defendant bought him, and was not a purebred Havanese.
Roberts v. Mintz, supra.
The opinion goes on to explain that on October 27, 2010, Mintz
filed a notice of motion for sanctions against plaintiffs' counsel pursuant to Rule1:4–8, and against plaintiffs pursuant to N.J.S.A. 2A:15–59.1. Although the notice of motion referenced a certification of counsel, the record does not include one. The appendix includes what appears to be a copy of defense counsel's bills, totaling $49,732.50 in fees for work performed between June 24, 2010 and October 25, 2010, at an hourly rate of $285. At oral argument on the sanctions motion, plaintiffs contended that the motion was not supported by a proper certification, the amount sought was excessive, and defendant was not entitled to fees incurred before he sent the July 16, 2010 safe harbor letter.

In a written opinion issued October 16, 2014, the court awarded defendant $25,000 in fees and costs. The court found plaintiffs' claims were frivolous under Rule 1:4–8 and N.J.S.A. 2A:15–59 .1 because the complaint `was filed without sufficient evidentiary support, several of the claims were beyond the statute of limitations, and it was not a good faith effort to reverse existing law.’ To find that the claims were frivolous, the court reiterated its reasons for granting summary judgment.

With respect to the amount of fees, the court found that defense counsel's hourly rate and billing entries were reasonable, but concluded it was “not fair or reasonable” to require plaintiffs to be responsible for that amount. The court reduced the fee award to $25,000, finding that that amount was `fair and reasonable’ based on `the time and labor required, the novel issue of the application of the statute of limitations to internet postings and the question of whether each posting is a separate event, and the results obtained. . . .’ The court's order made the plaintiffs and their counsel jointly liable.
Roberts v. Mintz, supra.
The Superior Court then explains what is at issue in the case, noting that the
plaintiffs argue that the case was not ripe for summary judgment, none of their claims were barred by the statute of limitations, and that defendant's statements were actionable, and were made with actual malice. Plaintiffs also contend they raised novel issues of law, and therefore defendant was not entitled to an award of fees. Plaintiffs also appeal from the denial of their request for a preliminary injunction and cross-motion for summary judgment. Defendant urges us to affirm summary judgment, but contends that the court abused its discretion in reducing the award of fees.
Roberts v. Mintz, supra.
The court then began its analysis of the arguments, and the issues, in the appeal, explaining initially that
[w]e first consider the summary judgment dismissal of plaintiffs' complaint. We review the grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330, 9 A.3d 882 (New Jersey Supreme Court 2010). We must determine whether the competent evidence presented, `when viewed in the light most favorable to the non-moving party, [is] sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.’ Brill, supra, 142 N.J. at 540, 666 A.2d 146. We also review the trial court's legal conclusions de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995); including whether the statute of limitations applies, Churchill v. State, 378 N.J.Super. 471, 478, 876 A.2d 311 (App. Div. 516, 529, 643 A.2d 972 (1994).
Roberts v. Mintz, supra.
The Superior Court went on to explain that
[a]t the outset, we reject plaintiffs' argument that summary judgment was premature. Our courts favor early consideration of summary judgment motions in defamation cases:

`On the one hand, in deciding whether to grant summary judgment, a court should proceed cautiously when presented with an incomplete record. On the other hand, a timely grant of summary judgment in a defamation action has the salutary effect of discouraging frivolous lawsuits that might chill the exercise of free speech on matters of public concern.’

[G.D. v. Kenny, 205 N.J. 275, 304–05, 15 A.3d 300 (2011) (internal citations omitted).]

A party claiming summary judgment is premature must ‘demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action.’ Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555, 107 A.3d 1281 (New Jersey Supreme Court 2015) (internal quotation marks and citation omitted); see also Trinity Church v. Lawson–Bell, 394 N.J.Super. 159, 166, 925 A.2d 720 (App.Div.2007) (party `must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete’). Plaintiffs have failed to do so.

Furthermore, by cross-moving for summary judgment, plaintiffs waived the incomplete-discovery argument. `The filing of a cross-motion for summary judgment generally limits the ability of the losing party to argue that an issue raises questions of fact, because the act of filing the cross-motion represents to the court the ripeness of the party's right to prevail as a matter of law.’ Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J.Super. 158, 177, 943 A.2d 881 (App.Div.), certif. denied, 196 N.J. 85, 951 A.2d 1038 (2008).
Roberts v. Mintz, supra.
The Superior Court then took up the issue of the statute of limitations, noting that
we agree with the trial court that plaintiffs' claims based on statements made before May 18, 2009 were time-barred. Actions for libel or slander must be commenced within one year of publication. N.J.S.A. 2A:14–3. We reject plaintiffs' argument that defendant engaged in a continuing pattern of defamation that tolled the statute until the last publication.

Plaintiffs rely on the `continuing violation’ doctrine, which provides that when a plaintiff `is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases.’ Wilson v. Wal–Mart Stores, 158 N.J. 263, 272, 729 A.2d 1006 (1999). Our courts have never applied the continuing violation doctrine to defamation claims, and have only applied it to hostile work environment claims under the Law Against Discrimination, and continuing nuisance claims. See Shepherd v. Hunterdon Developmental Ctr.,174 N.J. 1, 18–22, 803 A.2d 611 (2002) (hostile work environment); Wreden v. Twp. of Lafayette, 436 N.J.Super.117, 125, 92 A.3d 681 (App. Div. 2014) (continuing nuisance). Courts in other jurisdictions have uniformly declined to apply the continuing violation doctrine to defamation. See Amobi v. D.C. Dep't of Corr., 755 F.3d 980, 994 (D.C. Cir. 2014) (applying D.C. law); McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 710 (10th Cir.2012) (applying Wyoming law); Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir.2002); Smith v. IMG Worldwide, Inc., 437 F.Supp.2d 297, 304–05 (E.D.Pa.2006); Card v. Pipes, 398 F.Supp.2d 1126, 1133 (D. Or. 2004); Lewis v. Gupta, 54 F.Supp.2d 611, 616 (E.D.Va.1999); Scott v. Zaheri, 157 So.3d 779, 786–87 (La.Ct.App.2014); Selkirk v. State, 249 A.D.2d 818, 671 N.Y.S.2d 824, 825 (App.Div.1998); Rosenbaum v. Chronicle Telegram, 2002 Ohio App. LEXIS 7189, at *13, 2002 WL 31890101 (Ohio Ct.App.2002).

We decline to extend the doctrine to defamation. A continuing tort by its nature `involves repeated conduct’ and occurs over a period of time; it cannot be distilled to one discrete act giving rise to the cause of action. Shepherd, supra, 174 N.J. at 19, 803 A.2d 611. A claim for defamation, by contrast, is based on a single act: the publication of a defamatory statement. The claim accrues `immediately upon the occurrence of the tortious act.’ Flowers, supra, 310 F.3d at 1126.
Roberts v. Mintz, supra.
The court went on to explain that,
[a]pplying the continuing tort doctrine in this case would also be at odds with the single publication rule, which provides that a statement posted on the internet is deemed to only be published once for purposes of the statute of limitations; the limitations period does not restart every time the post is viewed. Churchill, supra, 378 N.J.Super. at 479–83, 876 A.2d 311.

Furthermore, our Supreme Court is generally reluctant to relax the statute of limitations governing defamation. See NuWave Inv. Corp. v. Hyman Beck & Co., Inc., 221 N.J. 495, 500, 114 A.3d 738 (2015) (declining to apply discovery rule to defamation claim, holding the statute's `clear and unqualified language’ requires all libel claims to be made within one year of publication).

In sum, the court correctly dismissed as time-barred plaintiffs' defamation claims based on the three statements made in the September 1, 2008 and February 27, 2009 blog posts.
Roberts v. Mintz, supra.
The Superior Court then took up the “statements that are not time-barred,” explaining that
we conclude they were non-actionable opinion.4 There are three elements of a cause for defamation: `”(1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher.”’ Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585, 969 A.2d 1097 (2009) (quoting DeAngelis v. Hill,180 N.J. 1, 13, 847 A.2d 1261 (2004)). `”To determine if a statement has a defamatory meaning, a court must consider three factors: ‘(1) the content, (2) the verifiability, and (3) the context of the challenged statement.”’ Ibid. (quoting DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261).

In considering verifiability, our courts have drawn a line between opinions, which are not actionable, and statements of fact, which are. `A statement's verifiability refers to whether it can be proved true or false.’ Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 167, 735 A.2d 1129 (1999). A statement is actionable if it `”suggested specific factual assertions that could be proven true or false.”’  Leang, supra, 198 N.J. at 585, 969 A.2d 1097 (quoting DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261). Statements of opinion are usually not actionable, as opinions “ ‘are generally not capable of proof of truth or falsity because they reflect a person's state of mind[.]’ “ NuWave Inv. Corp. v. Hyman Beck & Co., 432 N.J.Super. 539, 553, 75 A.3d 1241 (App. Div. 2013) (quoting Ward, supra, 136 N.J. at 531, 643 A.2d 972) aff’d, 221 N.J. 495, 114 A.3d 738 (2015). But an opinion is actionable if `it implies ‘reasonably specific assertions' of “underlying objective facts that are false.”’ Ibid. (quoting Ward, supra, 136 N.J. at 531, 643 A.2d 972).

`Loose, figurative or hyperbolic language is not likely to imply specific facts’ and thus is generally not actionable. Lynch, supra, 161 N.J. at 167–68, 735 A.2d 1129. Similarly, `epithets, insults, name-calling, profanity and hyperbole’ are not actionable. DeAngelis, supra, 180 N.J. at 14, 847 A.2d 1261. `The higher the fact content of a statement,”the more likely it is actionable.”’ Lynch, supra, 161 N.J. at 168, 735 A.2d 1129. . . . 

Statements `falsely attributing criminality to an individual [are] defamatory as a matter of law.’ G.D., supra, 205 293, 15 A.3d 300 (internal citation omitted) (flyers referring to G.D. as a convicted drug dealer were defamatory); see also Lawrence v. Bauer Publ'g & Printing, 89 N.J. 451, 456, 459–60, 446 A.2d 469 (statement that two men might be charged with forgery was defamatory), cert. denied, 459 U.S. 999 (1982). Yet, this does not mean that using a word that is also the name of a crime necessarily accuses the person of committing that crime. Rather, the word must be considered in context, focusing on `the listener's reasonable interpretation’ of the statement. Leang, supra, 198 N.J. at 585, 969 A.2d 1097. Context includes `the identity of the speaker and the targeted audience[,]’ Senna v. Florimont, 196 N.J. 469, 492–93, 958 A.2d 427 (2008), or `the section of a newspaper in which an article appears,’ Lynch, supra, 161 N.J . at 168, 735 A.2d 1129 (internal citation omitted).
Roberts v. Mintz, supra.

The Court then began the process of outlining its “holding,” i.e., its decision, in the case:
Applying these principles, we consider first defendant's comment that Roberts lived in “a run down farm house” with six children. This merely conveys defendant's opinion of Roberts's home, and is therefore not actionable.

The two remaining statements present a closer issue. As noted, in the April 27, 2010 post, defendant called plaintiffs `grifters’ and their business a `fraudulent puppy mill ring.’ The May 3, 2010 post alleged that defendant “frequently” received messages from “others” who also `were unwittingly scammed by Donna and her spawn after purchasing puppies and dogs from them.’

We recognize that words like `grifters,’ `scammed,’ and `fraudulent’ can be used to describe unscrupulous or deceptive business practices, and a `puppy mill’ is a facility where puppies are bred, usually in inhumane conditions. However, our concern is not the meaning of these words in isolation, but rather their meaning in the context in which defendant said them. Leang, supra, 198 N.J. at 585, 969 A.2d 1097. And three elements of context lead us to conclude that a reasonable reader would not take defendant's use of these words literally.
Roberts v. Mintz, supra.
The opinion goes on to explain that,
[f]irst, the words immediately surrounding these terms include sarcastic quips like `Despite a down economy, it appears that business for the dog grifting team of [Roberts and Abrams] is booming,’ and derisive insults such as `nefarious individuals,’ `despicable human beings,’ and `cronies.’ Second, defendant's invective grew more disparaging in response to comments left by readers claiming to be plaintiffs, which attacked defendant using incendiary language. The parties' exchange of insults suggests a reader would view defendant's words as barbs, hyperbole, and opinion—not fact.

Perhaps most importantly, defendant made these statements under the heading, `Rants and Raves,”’signaling to any reader that what followed were the author's personal viewpoints. See Summit Bank v. Rogers, 206 Cal.App.4th 669, 142 Cal.Rptr.3d 40, 60 (Court of Appeals 2012) (fact that statements appeared in section of website entitled `Rants and Raves”’ indicated a reader would `view them with a certain amount of skepticism’ and understand that `they will likely present one-sided viewpoints rather than assertions of provable facts’). That impression is reinforced by the fact that few of the blog posts included in this record are factual in nature. Given the profanity-laden, emotionally-charged context in which defendant used `grifters,’ `scammed,’ and `fraudulent puppy mill,’ a reader would not reasonably understand defendant as charging plaintiffs with a crime or fraud. Instead, a reasonable reader would interpret these statements as name-calling and hyperbole. See Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 14 (1970) (stating that `even the most careless reader’ would have interpreted an accusation of `blackmail' in the context of public negotiations as `rhetorical hyperbole’).

Additionally, defendant did not assert specific, verifiable facts to support claims that plaintiffs operated a `fraudulent puppy mill’ or `scammed’ their customers. See Dice v. Johnson, 711 F.Supp.2d 340, 360–61 (M.D.Pa.2010) (accusation that someone was a `notorious puppy broker’ was not defamatory); NBC Subsidiary (KCNC–TV) v. Living Will Ctr., 879 P.2d 6, 12 (Colo.1994) (statement that company that sells living will forms is a `scam” was not defamatory because it did not imply `a verifiable fact’ nor could `it reasonably be understood as an assertion of actual fact’). In the absence of “underlying objective facts” that could be proven true or false, defendant's accusations are more accurately classified as opinoiins. See Ward, supra, 136 N.J. at 531, 643 A.2d 972.

In conclusion, the court properly dismissed plaintiffs' claims, as defendant's statements were non-actionable opinion, hyperbole, and epithets. Having concluded that plaintiffs' claims were properly dismissed on this ground, we need not address whether defendant's statements involved matters of public concern, imposing on plaintiffs the heightened burden to prove actual malice. Plaintiffs' arguments with respect to the denial of their request for a preliminary injunction and their cross-motion for summary judgment lack sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).
Roberts v. Mintz, supra.

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