THOMAS C. FLANAGAN, III v. CITY OF ATLANTIC CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THOMAS C. FLANAGAN, III

and MICHAEL DOHERTY,

Plaintiffs-Appellants,

v.

CITY OF ATLANTIC CITY,

STEVEN YOUNG, Individually,

STEVEN MOORE, Individually,

NATIONAL ACTION NETWORK, INC.,

d/b/a NATIONAL ACTION NETWORK

and AL SHARPTON, Individually,

Defendants-Respondents.

_______________________________

December 8, 2014

Submitted September 22, 2014 - Decided

Before Judges Lihotz and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-8587-11.

Reynolds and Scheffler, LLC, attorneys for appellants (Thomas F. Reynolds, on the briefs).

Law Offices of Riley and Riley, attorneys for respondents City of Atlantic City and Steven Moore (Tracy L. Riley and Rachel M. Conte, on the brief).

J. David Alcantara, attorney for respondents Steven Young, National Action Network and Al Sharpton.

PER CURIAM

Plaintiffs Thomas C. Flanagan and Michael Doherty (collectively, plaintiffs) appeal from a January 7, 2013 summary judgment order dismissing their complaint, which alleged defendants, the City of Atlantic City, Steven Young, Steven Moore, the Atlantic City Chapter of the National Action Network (NAN),1 and Rev. Al Sharpton, (collectively, defendants), acted to cause intentional and negligent infliction of emotional distress and personal injury. Judge Nelson C. Johnson determined plaintiffs' claims were not independent causes of action, but actually asserted defamation, emanating from and dependent upon an alleged defamatory statement, published more than one year prior to the filing of their complaint. Accordingly, the judge concluded the causes of action were barred by the one-year statute of limitations and dismissed plaintiffs' complaint. Plaintiffs also appeal from the subsequent denial of their motion for reconsideration.

On appeal, plaintiffs argue summary judgment was erroneously granted, suggesting the torts alleged in their complaint had a two-year statute of limitations and were independent of any defamation claim. After reviewing the facts found in the summary judgment record, considered in a light most favorable to plaintiffs, Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014), we reject plaintiffs' contention and affirm.

The National Action Network was "[f]ounded in New York City in 1991 by Rev. Al Sharpton and a group of activists, [and] is committed to the principles of non-violent demonstration and civil disobedience as a direct outgrowth of the movement that was built and led by the Rev. Dr. Martin L. King, Jr."2 On September 7, 2009, a "press statement" was issued "for immediate release" by Young on behalf of NAN, stating four white Atlantic City firemen, Flanagan, Doherty, and two others not involved in the litigation, engaged in sexual misconduct with two black teenage females and one black adult female at a firehouse.

NAN's two page statement charged one fireman with inviting the teenage girls, who were leaving a school across from the firehouse, to return that evening for pizza. When they returned to the fire station around 8:30 p.m., the accused firefighter allegedly exposed himself and committed other sexual acts in the presence of the young women.

NAN's purported defamatory press release linked plaintiffs to the sexual misconduct, stating

None of the other firemen present in the building tried to stop the illicit sexual conduct from occurring at any point. The MOST WANTED and accused firemen are, Richard C. Williams, Jr., Brian J. Adams, Michael J. Doherty, and Thomas C. Flanagan, III.

The press release also chastised New Jersey's Attorney General, the Atlantic City Police Department, the Atlantic County Prosecutor's Office and the Atlantic City Fire Department for perceived deficiencies in investigating the matter and administering justice to those involved in such a "travesty." Further, the statement alluded to racial discrimination and corruption as causal factors for the perceived inaction.

The press release does not list proposed recipients. Further, the summary judgment record does not reflect whether the press release was actually published by newspapers or other print media.

The following week, Atlantic City held a City Council meeting. Moore served as a City Councilman and Young was a member of his paid staff. Young addressed the Council during the public portion of the meeting, "on behalf of [NAN]." His remarks focused on the racial inequalities facing minorities in Atlantic City. To illustrate his position, Young discussed the alleged sexual misconduct incident at the fire station, as previously disclosed in NAN's press release. Young named plaintiffs and the other firefighters, suggested they were included among those on the community's "Most Wanted List" and called for "them to be prosecuted." Video of Young's speech was "repeatedly broadcasted on local Channel 2."

Precisely two years following the date of NAN's press release, plaintiffs filed their complaint alleging Atlantic City, NAN, Sharpton and Moore, that, through Young, caused plaintiffs to sustain injury to their reputations and persons and suffer lost wages. Plaintiffs asserted defendants were liable for "carelessly, recklessly, knowingly, purposely and/or negligently permit[ting] . . . Young, to make untrue statements about [p]laintiff[s]" at the September 16, 2009 Atlantic City Council meeting. The complaint further asserts Atlantic City allowed its employee to make false statements, which it knew or should have known were false, and defendants allowed the false statements to be repeatedly rebroadcast on news channels, and endorsed the statements by not preventing their rebroadcast.

On November 14, 2012, Young, NAN and Sharpton, joined by Atlantic City and Moore, moved for summary judgment. In support of the motion, defendants averred the alleged statements were neither defamatory nor libelous, and, moreover, represented protected speech. See Sisler v. Gannett Co., 104 N.J. 256, 262 (1986) (referring to "the unhappy cohabitation of the tort of defamation, which is protective of an individual's reputation, with constitutional guarantees that serve to protect free speech and press"). Citing N.J.S.A. 2A:14-3, defendants urged plaintiffs' claims were barred by the statute of limitations because their action should have "be[en] commenced within [one] year next after the publication of the alleged [defamatory comments]."

Plaintiffs' opposed defendants' motion, raising procedural defects, asserting discovery remained outstanding, suggesting the speech was not protected because it was defamatory, and arguing the causes of action pled were "intentional infliction of emotional distress, negligent infliction of emotional distress, personal injury and lost wages resulting from the intentional and/or negligent acts of [d]efendants," each of which was governed by the two-year statute of limitations set forth in N.J.S.A. 2A:142.

On December 21, 2012, oral argument was held before Judge Johnson. In discussing his decision, the judge noted, "whether you talk negligent infliction, emotional distress, whether you talk intentional infliction, emotional distress, harm to reputation[,] [t]he genesis of whatever causes of action you have here, are they not words? . . . Everything flows from that." Determining plaintiffs' causes of action were derived from Young's written or spoken words, the judge found all claims subject to the one-year statute of limitations, pursuant to N.J.S.A. 2A:14-3. Further he held,

the emotional distress that you're talking about here derives from the words and if you don't have a cause of action on the words, you don't have a cause of action on anything else. . . . There is no cause of action because the statute of limitations has run and the . . . purported claims recited in the plaintiffs' complaint are derivative of and have their genesis in the spoken and written word. As a consequence, . . . plaintiffs' complaint is dismissed with prejudice.

An order memorializing this decision was filed on January 7, 2013, and included a written statement of reasons, providing this analysis

The starting point for any cause by these [p]laintiffs is the spoken and written words of the [d]efendants. All of the stated claims are derivative of the [p]laintiffs' defamation claims. If [p]laintiff[s'] libel and slander claims fail, a fortiori, everything else must fail.

The record before the Court [evinces] that [p]laintiffs did not file their [c]omplaint until September 7, 2011 which exceeds the one[-]year time frame to file a claim of defamation pursuant to N.J.S.A. 2A:14-3. Despite [p]laintiffs' [c]omplaint alleging the torts of intentional infliction of emotional distress, negligent infliction of emotional distress and personal injury, these torts all arise from words, the published and spoken words of September 7, 2009 and September 16, 2009. The statute of limitations at N.J.S.A. 2A:14-2 applies to negligence claims for physical injury only and is inappropriate in this instance. Plaintiffs' claims of intentional infliction of emotional distress, negligent infliction of emotional distress and personal injury have their genesis in the printed and spoken word. As such, N.J.S.A. 2A:14-3 controls and the effect is to time[-]bar [p]laintiffs' [c]omplaint.

Because [p]laintiffs failed to bring their claim in a timely manner within the applicable statute of limitations pursuant to N.J.S.A. [2A:14-3,] their [c]omplaint must be dismissed. The Court need not analyze whether or not the statements at issue were in fact defamatory.

Plaintiffs' moved for reconsideration and defendants filed a motion for an award of counsel fees. Both were denied and this appeal ensued.

We review summary judgment motions de novo. L.A. v. N.J. Div. of Youth & Family Servs., 217 N.J. 311, 323 (2014). See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Motions for summary judgment require a court to determine "whether there exists a 'genuine issue' of material fact that precludes summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). See also R. 4:46-2(c). Summary judgment should be granted only when "the evidence 'is so one-sided that one party must prevail as a matter of law[.]'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

On appeal, plaintiffs seize upon one phrase in the judge's opinion, contending summary judgment was granted based upon an erroneous determination that N.J.S.A. 2A:14-2 applies only to physical injuries, not emotional injury as they pled. We reject plaintiffs' argument because it ignores the judge's rationale underpinning his holding and misapprehends the court's application of the law.

Prior to discussing the substantive issues raised, we cannot ignore that plaintiffs' appeal was not timely filed. An appeal from a final judgment must be filed within forty-five days of the date of the final order. R. 2:4-1(a). This period is tolled only from the date a motion for reconsideration is filed until the date of the order disposing of the reconsideration motion. R. 2:4-3(e) (stating the time limit to appeal is tolled by "the timely filing and service of a motion to the trial court . . . for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2"). "The remaining time shall again begin to run from the date of the entry of an order disposing of such a motion." Ibid.

In this matter summary judgment was issued on January 7, 2013. Reconsideration was requested by motion dated January 28, 2013 and decided on February 22, 2013. Therefore, twenty-one days of the allotted forty-five days to appeal had elapsed, requiring the notice of appeal to be filed by March 18, 2013. However, plaintiffs' notice of appeal was not filed until April 10, 2013. Defendants mention the untimeliness of the appeal in their brief, but failed to file a motion to dismiss. See R. 2:8-1. Consequently, for completeness, we will address the merits of plaintiffs' arguments.

There are two statutes defining the period for filing tort actions. First, N.J.S.A. 2A:14-2(a) provides in pertinent part

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within two years next after the cause of any such action shall have accrued[.]

The statute addresses claims for personal injuries involving physical or emotional harm. See Rumbauskas v. Cantor, 138 N.J. 173, 178 (1994).

Second, N.J.S.A. 2A:14-3 states: "Every action at law for libel or slander shall be commenced within [one] year next after the publication of the alleged libel or slander." In enacting this statute, "the Legislature has fixed a precise date on which the limitations period begins to run in a defamation action, which must be brought within one year of 'the publication' of the alleged libel." NuWave Inv. Corp. v. Hyman Beck & Co., 432 N.J. Super. 539, 568 (App. Div. 2013) (citation and internal quotation marks omitted) (brackets omitted).

An examination of plaintiffs' complaint reveals all alleged torts are based on NAN's press release and Young's city council speech. While the complaint does not expressly assert "defamation" as a cause of action, it does contend Young's speech was "slander," a claim mentioned in four of the complaint's sixteen counts. The complaint also explicitly asserts some form of reputational harm from the speech in the remaining twelve counts.

The essential nature of each averment and the resultant injuries stem from speech. There is no other distinct conduct stated as a cause of the complained damages. Accordingly, plaintiffs' tort claims relate to the asserted false or malicious printed and spoken words. In other words, plaintiffs' action is one for defamation. Because the allegations are grounded in defamation, N.J.S.A. 2A:14-3 dictates the statute of limitation.

In an effort to avoid the statutory time bar of N.J.S.A. 2A:14-3, plaintiffs characterize their pleadings as asserting claims for intentional infliction of emotional distress, negligent infliction of emotional distress and personal injury, as well as defamation. They maintain the two-year limit of N.J.S.A. 2A:14-2 applies to torts other than defamation. Also, they suggest the judge mistakenly believed claims for emotional damages are not encompassed by N.J.S.A. 2A:14-2.

Aside from the failure to allege facts supporting the elements of intentional or negligent infliction of emotional distress, the causes set forth in plaintiffs' complaint are tied to the asserted false speech and are indistinguishable from defamation. Indeed, we have rejected analogous arguments on at least two prior occasions. See Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108 (App. Div. 2009); Rodriguez v. Home News, 137 N.J. Super. 320 (App. Div. 1975).

In Swan, the plaintiff, a surveillance officer for Caesar's in Atlantic City, was charged by the Division of Gaming Enforcement (DGE) with the improper use of casino surveillance equipment. Swan, supra, 407 N.J. Super. at 111. The charges were made public, when that information was disseminated on a bulletin board at the casino, published in a press release and broadcast on television. Id. at 112, 114. Plaintiff's complaint sought damages for false light-invasion of privacy. Id. at 114.

The trial court granted the defendant's motion for summary judgment, id. at 110, and specifically dismissed the false light claim as time-barred by N.J.S.A. 2A:14-3. Id. at 121. On appeal, the plaintiff argued his claim for false light was "neither libel nor slander, but rather [] a separate and distinct privacy tort and thus N.J.S.A. 2A:14-3 cannot apply." Id. at 118. Rather, the plaintiff argued the tort of false light was subject to the six-year statute of limitations pursuant to N.J.S.A. 2A:14-1 or, in the alternative, an "injury to the person" under N.J.S.A. 2A:14-2 and thus subject to a two-year time-bar. Id. at 117-18.

We affirmed the summary judgment dismissal of the false light tort claim, stating

Neither law nor logic justifies why Count Two of [the] plaintiff's complaint labeled "Defamation" should be subject to a one-year statute of limitations while his same claims re-labeled "False Light/Invasion of Privacy" in Count Three should be governed by a longer limitations period. To allow such a result would condone a transparent evasion of the one-year statute of limitations in New Jersey, and would be contrary to the implicit direction in [our case law] . . . and the rationale expressed by the multitude of courts in other jurisdictions that apply the same statute of limitations to both false light privacy and defamation claims. As it is undisputed th[e] plaintiff's complaint was not filed within one year of the "publication" asserted in Count Three, the claim was properly dismissed with prejudice as time-barred.

[Id. at 122-23.]

In Rodriguez, the plaintiff appealed an order granting summary judgment and the dismissal as time-barred of his two-count complaint for negligence related to a newspaper article. Rodriguez, supra, 137 N.J. Super. at 322. In reviewing the plaintiff's complaint, we noted

The first count recited . . . [the] defendant "negligently and carelessly wrote and published or caused to be written and published in said newspaper certain articles and charges which were false concerning the plaintiff's place of business." As a result of the "negligent, and incorrect articles published by [the] defendant," [the] plaintiff claimed injury to his "good name, fame and credit, sustained loss of customers, his place of business sustained physical damage, and the plaintiff was attacked and beaten." Damages were sought.

In the second count [the] plaintiff recited the same preliminary allegations . . . [and] quoted in full the defamatory article which was "falsely and maliciously" published on February 2, 1973, alleged the fact of error and [the] defendant's acknowledgment thereof in a printed retraction published on the following day. As a result of the publication of the defamatory statement, "wil[l]fully and maliciously made" by [the] defendant, [the] plaintiff alleged injury to "his good name, fame and credit," was brought into public disgrace and infamy amongst his neighbors and in his community, and as further damages alleged financial loss in his business, loss of customers and physical damage to his place of business including broken windows and fixtures.

[Id. at 322-23.]

On appeal, the plaintiff conceded count two alleged libel and was time-barred. Id. at 323. However, the plaintiff maintained count one advanced negligence and maintained "if a libelous or slanderous utterance is maliciously published, suit for damages resulting therefrom must be brought within one year; if, however, the publication is the result of negligence, the one-year period does not bar the claim." Ibid.

We rejected this argument, concluding the unambiguous language of N.J.S.A. 2A:14-3 applied to the plaintiff's claims. "Whether the defamation was published intentionally and maliciously, on the one hand, or as a result of negligent or careless reporting on the other, the bar of the statute nonetheless applies." Id. at 324 (footnote omitted). We also concluded the plaintiff's argument must be rejected as a matter of public policy, as there should not be a disparity in the limitations period for actions based upon their culpability. Under the plaintiff's theory, redress for the more culpable willful conduct must be sought within one year, yet the less culpable negligent act could be pursued within two years. Ibid. We found such a result contrary to common sense and notions of justice. Ibid.

In examining the facts at hand, we conclude they yield a similar result. Plaintiffs' complaint alleges harm caused by the content of the alleged false statements causes of action that sound in defamation, regardless of the labels plaintiffs apply. See Swan, supra, 407 N.J. Super. at 121 (finding the thrust of the plaintiff's actions were "grounded in allegations which were defamatory in nature").

Although Judge Johnson stated N.J.S.A. 2A:14-2(a) applied to physical injury actions only, we understand his comment to mean an injury distinguishable from tort claims arising from malicious speech. In fact, in the colloquy with counsel during oral argument, he provided an illustration of a tort unrelated to defamation, although occurring at the same time as to defamatory conduct suggesting the independent tort could be subject to the two-year limitations period. As the judge found in this matter there were no separate torts alleged and "[t]he starting point for any cause by . . . plaintiffs is the spoken and written words of the [d]efendants. All of the stated claims are derivative of the [p]laintiffs' defamation claims."

We conclude Judge Johnson properly granted summary judgment, concluding the complaint alleged time-barred defamation claims because publication occurred more than a year prior to the filing of suit. There is no legal basis to interfere with this order.

Affirmed.

1 The National Action Network uses the acronym NAN. However, in our opinion we use the same acronym only when referring to the Atlantic City Chapter of the organization and will use the full title when referencing the parent organization.

2 http://nationalactionnetwork.net/about/history (last visited November 11, 2014).