Opinion
Civil Action 2:21-cv-00974
12-22-2021
DANIEL LEISTEN, Plaintiff, v. CBS BROADCASTING, INC., et al, Defendants.
Christy Criswell Wiegand District Judge.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS COMPLAINT AS TIME BARRED
Lisa Pupo Lenihan United States Magistrate Judge.
For the reasons set forth below, it is respectfully recommended that Defendants' Motion to Dismiss Complaint as Time Barred (ECF No. 10) be granted and the case dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). More particularly, and as Defendants correctly assert, Plaintiff's defamation claim is barred by his failure to file within the one-year time period allowed under applicable Pennsylvania statutory law. Under the “single publication rule”, Plaintiff's cause of action accrued on the original publication date, i.e., no later than May 19, 2020, and this Court agrees with its sister District Courts in predicting that the Pennsylvania Supreme Court would hold any potential “discovery rule” extension inapplicable to this mass media publication claim.
I. Factual and Procedural History
Plaintiff, Daniel Leisten (“Plaintiff”), a Florida resident, filed his Complaint on July 22, 2021, alleging a single count of defamation arising from Defendants' media reports in May, 2020. These reports misidentified Plaintiff in a report on the arrest of his estranged brother, 1 Jeffrey Leisten, in connection with a fatal stabbing in McKeesport, Pennsylvania. The arrest was reported by KDKA, a Pittsburgh television station owned/operated by CBS Broadcasting Inc.. A video of the local television broadcast was then published on the websites of KDKA and WPCW and on KDKA's YouTube account no later than May 19, 2020 (the “Reports”). ECF No. 11 at 45. Defendants' Report captioning misidentified the arrestee as Daniel, rather than Jeffrey, Leisten. See ECF No. 1-2 (Complaint Ex. A) (video caption: “51-year old Daniel Leisten was arrested and is facing charges.”); see also ECF No. 11 at 5, n. 3; ECF No. 1-1 to 1-4 (Exhibits).
Plaintiff, a professional arborist, “regularly receives business through word of mouth and online searches of his name.” ECF No. 1 at ¶ 21. Plaintiff experienced “an inexplicable slowing of business inquiries” between March 2020 and March 2021 and discovered the misidentification “while doing an internet search for his own name”. ECF No. 1 at ¶ 23-24. Plaintiff contacted Defendants who removed his name “from certain online sources”. Id. at ¶¶ 25-26.
By their Motion filed September 2, 2021, the “CBS Defendants” (herein “Defendants”) requested dismissal on statute of limitations grounds pursuant to Rule 12(b)(6). This Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. 1332.
As asserted in the Complaint, the John Doe Defendants “are individual adult residents of the Commonwealth of Pennsylvania who work for or with the other named Defendants in this case as employees, agents, or otherwise.” ECF No. 1 at 2. Any ruling on the statute of limitations bar raised by the moving Defendants will equally apply to the Doe Defendants.
II. Standard of Review
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is2
liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). See also Plastic Surgery Ctr., P.A. v. Aetna Life Ins. Co., 967 F.3d 218, 229 (3d Cir. 2020) (“The court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the [nonmoving party]'s favor.”).
In ruling on a motion to dismiss, the Court may consider “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” together with any document “integral to or explicitly relied upon in [framing] the complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
The Third Circuit has also specified that courts may consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Finally, “[t]he statute of limitations is an affirmative defense and the burden of establishing its applicability rests with the defendants.” Coviello v. Berkley Pub'g Grp., No. 1:15-CV-01812, 2017 U.S. Dist. LEXIS 8200, at *27 (M.D. Pa. Jan. 19, 2017) (citing BradfordWhite Corp. v. Ernst & Winney, 872 F.2d 1153, 1161 (3d Cir. 1989)). In cases to which the discovery rule applies, determination of the statute of limitations period “implicates factual questions as to when plaintiff discovered or should have discovered the elements of the cause of action ....'” Davis v. Grusemeyer, 996 F.2d 617, 623, n.10 (3d Cir. 1993) (quoting Van Buskirk v. Carey Canadian Mines, Ltd., 3 760 F.2d 481, 498 (3d Cir. 1985)); Schmidt, 770 F.3d at 251. Where, on the other hand, “it is plain on the face of the Complaint . . . that the claim sought to be asserted is barred by the statute of limitations, the Court can address its application then and there.” Carnrike v. Titusville Herald, Inc., 2015 U.S. Dist. LEXIS 55449, at *2-3 (W.D. Pa. Apr. 28, 2015) (citing Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)).
III. Analysis
The parties do not dispute that the Pennsylvania statute of limitations applicable to a lawsuit for “libel, slander or invasion of privacy” is one year. 42 Pa.C.S. § 5523(1). See also, e.g., Strader v. U.S. Bank N.A., 2018 U.S. Dist. LEXIS 20249, at *51 (W.D. Pa. Feb. 7, 2018) (dismissing defamation claim brought more than one year after publication); LabMD, Inc. v. Tiversa Holding Corp., 2016 U.S. Dist. LEXIS 21250, at *9 (W.D. Pa. Feb. 22, 2016); Carnrike, 2015 U.S. Dist. LEXIS 55449, at *2-4. Plaintiff's Complaint was filed approximately 14 months after the May 19, 2020 publication date shown on his Complaint Exhibit. ECF No. 1-2. He asserts two primary arguments against a time bar in this matter: first, that subsequent publications triggered new statutes of limitations and second, that his filing was timely under a properly extended statute of limitations pursuant to the discovery rule. Both of Plaintiff's arguments, while inventive, are unavailing.
The news reports at issue were published in the mass media and, with regard to the statute of limitations in this defamation action, are clearly subject to the “single publication” rule. See Graham v. Today's Spirit, 468 A.2d 454, 457 (Pa. 1983) (citing Restatement (Second) of Torts § 577(A)(3)); 42 Pa.C.S. § 8341(b). Under this rule, the statute of limitations for a claim based on a mass media publication begins to run with “the original publication of the defamatory material.” Graham, 468 A.2d at 457. The Third Circuit has noted that the purpose of the single 4 publication rule is “[t]o avoid the potential for endless re-triggering of the statute of limitations” by the continued circulation of the publication, and it follows that the principle is “as applicable to Internet publication as traditional publication, if not more so”. In re Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012) (“Every court to consider the issue” has held “that the single publication rule applies to information widely available on the Internet”) (citation omitted); Slozer v. Slattery, 134 A.3d 497 (Pa. Super. 2015) (concluding that In re Phila. Newspapers “accurately reflects Pennsylvania law regarding the doctrines of single publication and republication in defamation actions as they apply to internet communications”).
Cf. Carnrike, 2015 U.S. Dist. LEXIS 55449, at *3 (rejecting argument “that the continued presence on a newspaper's website of a defamatory article kept the defamation ‘alive' so to speak, avoiding the statute of limitations”).
Defendants' Supplemental Notice of Authority, ECF No. 19, submits that in recently addressing “the issue of venue in defamation cases arising from Internet publications, the [Pennsylvania Supreme] Court recognized that the Internet is “a medium with worldwide accessibility” and that Internet publications are subject to Pennsylvania's Uniform Single Publication Act, 42 Pa. C.S. § 8341” (citing Fox v. Smith, No. 42 EAP 2019). More particularly, in Fox, the Pennsylvania Supreme Court observes the “pervasive accessibility” of the internet, and that proper venue exists wherever an alleged defamation is read and understood. It goes on to note that this “multiple venue” result “was anticipated” by the Single Publication Act provision for a “single cause of action . . . for such [widely accessible] statements” that includes “all damages” suffered “in all jurisdictions”. ECF No. 19-1 at 10.
The Court finds Plaintiff's assertion - by analogy to articles in a scholarly journal or other specialized publication - that the Reports published by Defendants were not “mass media publications” unpersuasive. Television and internet website media content quickly reaches both a large and diverse audience - they are quintessential mass media publications. See, e.g. Restatement (Second) of Torts, § 577A(3) cmt. (1977) (“single publication rule” applies to “a newspaper, magazine or book, ” and to “any similar aggregate communication that reaches a large number of persons at the same time”). The Court also rejects Plaintiff's assertion that, assuming the single publication rule applies, “each [of Defendants'] broadcasts on a different network” or “posting on a separate site” nonetheless triggered a new statutory time period as it 5 was a new (versus a re-) publication of defamation. Plaintiff asserts that publications at issue give rise to separate claims because they were “separate publications of the same or similar defamatory material” rather than “multiple copies of the same publication”. ECF No. 12 at 5. The Court notes that Plaintiff's proffered analysis in the case sub judice is inconsistent with the plain language and intent of the single publication rule and that Plaintiff provides no meaningfully analogous legal support. Cf. Graham, 468 A.2d at 457-58 (“If this protection was not afforded publishers, then at a minimum the statute of limitations would be meaningless . . . .”). As Defendants duly note, Plaintiff's analysis is also inconsistent with the statutory language of the Uniform Publication Act, 42 Pa. C.S. § 8341(b), which is tied to the “original tortious act” of publication of the news report and not its subsequent circulations. ECF No. 13 at 1-2 (also citing Graham, supra).
Second, Pennsylvania Federal courts have declined to consider a potential discovery rule extension in defamation suits arising from mass media publications. See e.g., Wolk v. Olson, 730 F.Supp.2d 376, 377-79 (E.D. Pa. 2010) (declining to apply discovery rule to defamation claim arising from article published online); see also ECF No. 12 at 3 (acknowledging that “federal courts sitting in Pennsylvania have predicted that the Pennsylvania Supreme Court would not apply the discovery rule to ‘mass media defamation claims'”). Plaintiff argues that “[t]he statute of limitations did not begin to run with respect to any of these defamatory statements until they were either widely published in the State of Florida; or . . . discovered by Plaintiff” and that determination on Defendants' motion is precluded by the requirement of individualized factual assessments. ECF No. 12 at 2, 5-8. As Defendants correctly and succinctly reply: “[a]s an initial 6 matter, . . . as Leisten admits, the Website Reports were available in Florida.” ECF No. 13 at 1 (emphasis in original) (citing ECF No. 1 at ¶ 24).
Id. at 378 (application of discovery rule to article on legal news website would “nullif[y] the stability and security that the statute of limitations aims to protect”).
Plaintiff further argues that a number of hard-copy print (e.g., book and newspaper) defamation cases have held that the statute of limitations does not begin to run until the first date a print publication becomes available in the state where plaintiff resides. See ECF No. 12 at 5-6 (asserting that “in ‘mass media' cases, the statute of limitations begins to run upon publication of the defamatory material in the injured party's state, and not necessarily on the very first date the material was published generally”). Defendants respond that the cases addressing print publication and the plaintiff's residence in the state of publication do not support Plaintiff's proposition that Defendants' online defamation must be shown by Defendants to have been widely published in his state of residence, i.e., Florida. As opposed to print media, the internet intrinsically and simultaneously renders the widespread electronic circulation, and thus the “reasonable availability”, of publications across geographic lines. Cf. ECF No. 11 at 7 (“The reports at issue in this case were published online and readily available to the general public . . . .”). The intrinsic reasonable availability of internet publications grounds the Courts' holdings that individual factual determinations of reasonable discoverability (and their related time and expense to the parties and the courts) are unnecessary and inapplicable. 7
See e.g., Coviello v. Berkley Pub'g Grp., 2017 U.S. Dist. LEXIS 8200, at *30 (M.D. Pa., Jan. 19, 2017) (declining to apply discovery rule to defamation claim arising from book); ECF No. 12 at 8 (providing citations to several Pennsylvania book publication cases). See also ECF No. 14 at 1-2 (Plaintiff's Sur-Reply) (citing Dominiak v. Nat'l Enquirer, 439 Pa. 222, 226 (1970) for its holding that statute began with “general sale” of defamatory material in Plaintiff's residence state of Pennsylvania rather than with earlier sale to public in New York metropolitan area). Compare ECF No. 11 at 7 (“The reports at issue in this case were published online and readily available to the general public more than one year before Leisten brought suit.”).
As reflected in Section II, Standard of Review, the standards regard burdens of proof and fact-specific assessment of reasonable availability of the defamatory material under the discovery rule become applicable if and when the discovery rule itself applies. Conversely, they do not render a motion to dismiss “inappropriate for adjudication” where the discovery rule is inapplicable. Cf. ECF No. 12 at 8.
As Defendants duly observe, “[n]ews reports posted on the Internet, whether on ‘local' or ‘national' websites, are available worldwide, are in no way concealed, and thus are not subject to the discovery rule.” ECF No. 13 at 3 (citing LabMD, 2016 U.S. Dist. LEXIS 21250, at *9 n.7) (“[I]t is plain that the discovery rule does not apply where the defamation was not done in a manner meant to conceal the subject matter of the defamation.”)); ECF No. 11 at 4 (providing citation to several Pennsylvania Federal District Court cases). Plaintiff makes no assertion that the contested reports were in any way concealed or that access to them was in any way restricted from non-local or non-Pittsburgh residents. To the contrary, Plaintiff asserts that Defendants' publications adversely impacted his local business in Florida.
See also Dalrymple v. Brown, 701 A.2d 164, 170 (Pa. 1997) (explaining that discovery rule applies when “the nature of the injury itself is such that no amount of vigilance will enable the plaintiff to detect an injury”). In other words, and as noted during the parties' December 6, 2021 Oral Argument, the applicable standard is not whether the defamation could be missed, but whether it could not be found. ECF No. 21.
In sum, Plaintiff's defamation claim is subject to the one-year Pennsylvania statute of limitations period which, under the single publication rule, began with Defendants' original mass media publication on or before May 19, 2020. The discovery rule does not afford Plaintiff a potential extension in avoidance of the statutory time bar. As a result, this action should be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).
IV. Conclusion
For the reasons set forth above:
It is respectfully recommended that ECF No. 10, the Motion to Dismiss Complaint as Time Barred, be granted.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, the parties shall have fourteen 8 (14) days from the date of the service of this report and recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date on which the objections are served to file its response. A party's failure to file timely objections will constitute a waiver of that party's appellate rights. 9