Summary
finding the plaintiff sufficiently alleged general damages by stating that an article harmed the plaintiff's reputation and customer base
Summary of this case from Trivedi v. SlaweckiOpinion
Civil Action No. 01-145
August 16, 2001
MEMORANDUM
Plaintiff Franklin Prescriptions Incorporated ("Plaintiff") brought this action after a picture of its web site appeared in an article in defendant New York Times Company's (the "Times") newspaper. Plaintiff's Complaint includes two counts, one for invasion of privacy under the false light rubric and the other for defamation. Presently before the Court is Defendants' Motion to Dismiss both counts. For the reasons stated below, Defendants' motion will be granted in part and denied in part.
I. BACKGROUND
Plaintiff is a company located in Philadelphia, Pennsylvania, which specializes in the sale of infertility medication. In addition to the Times, which is the publisher of The New York Times, three of its employees, Susan Coburn ("Coburn"), John Doe and Jane Doe are also defendants. On October, 25, 2000, the Times published an article on page twenty of a special "E-Commerce" section of the paper entitled "A Web Bazaar Turns into a Pharmaceutical Free for All." Generally, the article discusses the negative and positive attributes of the online pharmaceutical market, highlighting the risks and dangers of illicit online businesses. Although Plaintiff is not mentioned directly or indirectly in the text of the article, its web site is the only web site pictured with the article. No caption accompanies the picture explaining whether Plaintiff's business represents an illegal operation or a legitimate one. Plaintiff believes the picture insinuates Plaintiff is one of the "dangerous, illicit, unregulated, `unscrupulous' and `cloak and dagger'" web site businesses which sell controlled pharmaceuticals at below market prices and sometimes without requiring a doctor's prescription. See Complaint ¶ 10 and 11. Plaintiff contends the combination of this insinuation plus the absence of an explanation that Plaintiff's business is legitimate gives rise to the false light and defamation claims that Defendants now move to dismiss.
Coburn's name is on the byline of the Times' article and Plaintiff alleges John Doe and Jane Doe either coauthored or edited the article.
II. LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The court must only consider those facts alleged in the complaint in considering such a motion. See ALA v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). The pleader must provide sufficient information to outline the elements of the claim, or to permit inferences to be drawn that these elements exist. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d. Cir. 1993). A complaint should be dismissed if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73 (1984).
III. DISCUSSION
A. Choice of Law
Before reaching the merits of Plaintiff's claims, the Court must address a conflict of laws issue. Plaintiff, a Pennsylvania company, argues Pennsylvania law is applicable and Defendants argue New York law is applicable. In choosing which law applies, a federal court sitting in diversity must apply the forum state's conflict of laws rules. See Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941); LeJeune v. Bliss-Salem Inc., 85 F.3d 1069, 1071 (3d Cir. 1996). Here, the Court does not believe a review of Pennsylvania's conflict of laws analysis is necessary because Plaintiff's claims warrant the same treatment under Pennsylvania law as they do under New York law.
B. False Light Claim
Plaintiff's first claim is for false light invasion of privacy. "New York does not have a common law tort protecting privacy against publicity that unreasonably places a person in a `false light.'" Cardone v. Empire Blue Cross Blue Shield, 884 F. Supp. 838, 848 (S.D.N.Y. 1995) (citingHowell v. New York Post, 612 N.E.2d 699, 703 (1993)). The cause of action simply is not available to Plaintiff under New York law. Similarly, the Court believes Pennsylvania law does not provide Plaintiff a false light cause of action. Pennsylvania does have a common law tort for false light, but this Court believes Pennsylvania's Supreme Court would not permit a corporation such as Plaintiff to make a false light claim. Although the Pennsylvania Supreme Court has not confronted this issue, it has adopted the tentative draft of § 652 of the Restatement of Torts 2d which limits the availability of false light invasion of privacy to individuals. See Nabisco, Inc. v. Ellison, No. 94-1722, 1994 U.S. Dist. LEXIS 16041 *13-14 (E.D.Pa. Nov. 8, 1994) (explaining that Pennsylvania adopted the tentative draft of § 652 of the Restatement of Torts 2d and that § 652I and comment c thereto operate to limit a false light cause of action to individuals preventing corporations, partnerships or unincorporated associations from bringing false light claims); see also Fraternal Order of Police, Philadelphia Lodge No. 5 v. The Crucifucks, No. 96-2358, 1996 U.S. Dist. LEXIS 10897, *5-6 (E.D.Pa. July 29, 1996) (concluding the plaintiff could not maintain a cause of action for false light because it was not a natural person). Having adopted the tentative restatement, the Pennsylvania Supreme Court likely would adopt the Restatement and would approve of the notion that false light invasion of privacy is limited to individuals. Accordingly, whether applying Pennsylvania law or New York law, the Court will dismiss Plaintiff's claim alleging false light invasion of privacy.
C. Defamation Claim
Plaintiff's second claim is for defamation. Plaintiff has the burden of proving similar elements under the laws of the two states.
The elements for defamation in New York are as follows: 1) a false statement; 2) published without privilege or authorization to a third party; 3) constituting fault as judged by, at a minimum, a negligence standard; and, 4) it must either cause special harm or constitute defamation per se. See Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (1999), citing Restatement [Second] of Torts § 558.
The elements for defamation in Pennsylvania are as follows: 1) the defamatory character of the communication; 2) its publication by the defendant; 3) its application to the plaintiff; 4) an understanding by the reader or listener of its defamatory meaning; 5) an understanding by the reader or listener of an intent by the defendant that the statement refer to the plaintiff; 6) special harm resulting to the plaintiff from its publication; 7) abuse of a conditionally privileged occasion. See Synygy, Inc. v. Scott-Levin, Inc., 51 F. Supp.2d 570, 579-80 (E.D.Pa. 1999) citing 42 Pa. Cons. Stat. Ann. § 8343(a)(1)-(7) (1998).
The Court concludes Plaintiff has sufficiently pled its defamation claim under both Pennsylvania law and New York law. Plaintiff has alleged Defendants, through innuendo, made false statements about Plaintiff which are defamatory in nature and were published to a third party. Further, Plaintiff has alleged that a third party reading the article would understand Plaintiff's business to be illicit or dangerous in nature. The Court also finds Plaintiff has sufficiently addressed Defendants' degree of liability by suggesting the defamatory mistake would have been avoided if Defendants employed standard journalistic research rather than acting with reckless disregard. Finally, the Court believes Plaintiff only had to allege general damages and that Plaintiff did so by stating the article has harmed Plaintiff's reputation within the Philadelphia metropolitan area, the national pharmaceutical and medical communities, and Plaintiff's customer base. See Drug Research Corp. v. Curtis Publ'g Co., 7 N.Y.2d 435, 440 (N.Y. 1960); Continental Air Ticketing Agency, Inc. v. Empire International Travel, Inc., 380 N.Y.S.2d 369, 371 (N.Y.App.Div. 197 6); see also Synygy, Inc. v. Scott-Levin, Inc., 51 F. Supp.2d 570, 579-80 (E.D.Pa. 1999) citing Walker v. Grand Cent. Sanitation, Inc. 634 A.2d 237 (Pa.Super.Ct. 1993). Thus, defendants' motion with respect to Plaintiff's defamation claim will be denied.
IV. CONCLUSION
For the reasons set forth above, Defendant's Motion to Dismiss will be granted in part and denied in part. An appropriate order follows.
ORDER
AND NOW, this 16th day of August, 2001, upon consideration of Defendants' Motion to Dismiss (Docket No. 3) and Plaintiff's response thereto (Docket No. 5), it is ORDERED that Defendants' motion is GRANTED as to Count I of Plaintiff's Complaint and DENIED as to Count II of Plaintiff's Complaint. Furthermore, Plaintiff's Motion for Leave to Supplement its Opposition to Defendants' Motion to Dismiss (Docket No. 6) is DENIED as moot.