MARK NEWTON v. NEWARK STAR-LEDGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARK NEWTON,

Plaintiff-Appellant,

v.

NEWARK STAR-LEDGER, NEWARK

MORNING LEDGER AND ALL PARENT

OWNERSHIP, CORPORATIONS, DAVID

TUCKER, IN HIS PROFESSIONAL

CAPACITY BOTH AS EDITOR AND

INDIVIDUALLY, AND BARRY CARTER,

REPORTER BOTH IN HIS PROFESSIONAL

CAPACITY AND INDIVIDUALLY,

Defendants-Respondents.

_________________________________

August 13, 2014

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6997-11.

Mark Newton, appellant pro se.

Michael J. Gesualdo argued the cause for respondents (Robinson, Wettre & Miller, LLC, attorneys; Mr. Gesualdo and Keith J. Miller, on the brief).

PER CURIAM

Plaintiff Mark Newton brought a defamation action against defendant Newark Morning Ledger Co., publisher of the Star-Ledger newspaper, its editor, defendant David Tucker, and a reporter, defendant Barry Carter relating to two published articles concerning plaintiff.1 Plaintiff appeals from the February 17, 2011 Law Division order, which dismissed the matter with prejudice pursuant to Rule 4:6-2(e). We affirm.

The record reveals the following facts. Sometime prior to May 15, 2011, plaintiff learned that Carter was writing an article about plaintiff's involvement as a pro se litigant in landlord-tenant court proceedings. Believing that Carter had obtained negative information from his adversaries, plaintiff declined to be interviewed for the article. Instead, on March 21, 2011, he filed a verified complaint and order to show cause in the Chancery Division, seeking to restrain the Star Ledger from publishing the article. In an April 8, 2011 order, the Chancery court denied the application.

Thereafter, on May 15, 2011, the Star-Ledger published an article entitled, "The Tenant Who Won't Get Out" (the first article). The first article reported the results of the Star-Ledger's "exhaustive" review of court records wherein plaintiff's former landlords alleged that plaintiff refused to pay rent, intentionally damaged their property in order to create habitability issues to avoid eviction and paying rent, and used tactics to prolong the litigation. The first article also reported other allegations made by plaintiff's former landlords, the landlords' family members, plaintiff's neighbors, and adversary attorneys that plaintiff abused them and the legal system and wasted judicial resources by filing numerous frivolous civil and criminal complaints.

On June 30, 2011, plaintiff filed an amended complaint in the Chancery Division, adding a defamation claim. He specifically referenced the first article and alleged, without any supporting facts, that it was "riddled with willful lies, false statements, and contorted half-truths with the express purpose of intentionally harming [his] fame, reputation, and character." He also alleged, without any supporting facts, that the Star-Ledger "purposely authored and published false statements" in "reckless disregard for the veracity[] and truthfulness of the statements published." In a mechanical fashion, he quoted statements contained in the first article and generally concluded they were "wholly false, mendacious, contorted, and otherwise misrepresented," and that defendants' conduct "constitute[d] actual malice, malice, gross negligence, negligence, libel, slander, and an intentional defamation of character and reputation, as well as pure unadulterated defamation, and was intentionally engaged in pursuant to flagrant libel, slander, and defamation of character, fame, reputation[.]"

In lieu of filing an answer, the Star-Ledger filed a motion pursuant to Rule 4:6-2(e) to dismiss the amended complaint for failure to state a claim upon which relief could be granted. In support of the motion, the Star-Ledger relied on the amended complaint, the April 8, 2011 Chancery Division order, and the first article, copies of which were attached to defense counsel's supporting certification. The Star-Ledger argued that plaintiff failed to plead that the first article contained any false statements of fact. It also argued that the fair-comment and fair-report privileges applied and plaintiff failed to plead facts showing actual malice or that the first article did not fairly and accurately report the judicial proceedings.

Prior to disposition of the motion, the matter was transferred to the Law Division. Thereafter, on September 25, 2011, the Star-Ledger published an article entitled, "Carter: Even on a family outing, woman can't escape the nuisance next door" (the second article). The second article reported the on-going dispute between plaintiff and his family members and their next-door neighbors, which resulted in the parties filing criminal charges against each other. The second article also reported information contained in police reports, as well as what the neighbors alleged about their confrontations with plaintiff.

On October 11, 2011, plaintiff filed a second amended complaint, incorporating the allegations in the first amended complaint and adding a defamation claim regarding the second article. In the second amended complaint, plaintiff specifically referred to and quoted statements contained in the second article. As with the amended complaint, the second amended complaint contained general conclusions and no supporting facts.

On February 17, 2012, the motion judge granted the motion and dismissed the matter with prejudice. The judge found the motion was properly brought pursuant to Rule 4:6-2(e), and determined the amended complaint had no facts showing the articles contained any false statements of fact. The judge emphasized that plaintiff did not deny the allegations made against him existed and that the articles did not state that the allegations were true. In addition, the judge found that the fair-comment privilege applied because the articles commented on matters of public interest, and plaintiff pled no facts showing actual malice. The judge also determined that the fair-report privilege applied, and plaintiff pled no facts showing that the articles did not fairly and accurately report the judicial proceedings. This appeal followed.

On appeal, plaintiff contends that because the motion relied on facts outside the record or not judicially noticeable, the judge should have converted it to a summary judgment motion and denied it for lack of supporting affidavits or certifications as required by Rule 1:4-4(b), Rule 1:6-2(a) and Rule 1:6-6. Plaintiff also contends that the judge erred in denying him pre-trial discovery, the fair-comment and fair-report privileges do not apply, and he need not show actual malice because he was not a public figure. We reject all of these contentions.

When a motion to dismiss pursuant to Rule 4:6-2(e) relies upon facts outside the pleadings, the motion should be treated as one for summary judgment pursuant to Rule 4:46 and supported by affidavits made in compliance with Rule 1:6-6. Pressle & Verniero, Current N.J. Court Rules, cmt. 4.1.2 on R. 4:6-2(e) (2014). However, the court's consideration of documents specifically referenced in the complaint does not convert a motion to dismiss into a summary judgment motion. E. Dickerson & Son, Inc. v. Ernst & Young, LLP, 361 N.J. Super. 362, 365 n. 1 (App. Div. 2003), aff'd, 179 N.J. 500 (2004). "In evaluating motions to dismiss, courts consider 'allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir.), cert. denied, 543 U.S. 918, 125 S. Ct. 271, 160 L. Ed. 2d 203 (2004)). "It is the existence of the fundament of a cause of action in those documents that is pivotal; the ability of the plaintiff to prove its allegations is not at issue." Ibid. (citation omitted).

Here, the first and second articles formed the sole basis of plaintiff's claims in the amended and second amended complaints. Plaintiff referred to the articles throughout both pleadings and quoted statements contained in them. The judge considered only the content of the amended complaints and the first and second articles referenced therein in deciding the motion. Accordingly, the motion did not rely on facts outside the record and no affidavits were required to support it. The judge properly declined to convert the motion to a summary judgment motion and correctly decided the motion pursuant to Rule 4:6-2(e).2

We now address the motion to dismiss. "In any defamation action, the plaintiff bears to burden of establishing, in addition to damages, that the defendant '(1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff.'" Petersen v. Meggitt, 407 N.J. Super. 63, 74 (App. Div. 2009) (quoting Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996)). "Fault, either negligence or malice, must also be proven." Ibid.

In deciding a motion pursuant to Rule 4:6-2(e), "[t]he motion judge must accept as true all factual assertions in the complaint . . . [and] accord to the non-moving party every reasonable inference from those facts." Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008). The judge must examine the complaint "'in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Green v. Morgan Props., 215 N.J. 431, 452 (2013) (quoting Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989)).

Despite this generous and hospitable standard of review, in deciding a Rule 4:6-2(e) motion to dismiss a defamation action, we have held that

when the allegations of a defamation complaint . . . are limited to the fact of publication and a bare conclusory assertion that the press defendants knew and/or reasonably should have known that the statement . . . was false, with no other factual reference to lend support to the contention, the court may not simply take the facial assertion as a given, but rather must evaluate the circumstances as best it can to determine whether there is any reasonable basis upon which the defamation claim can be seen to be viable. Were it otherwise, any person or entity claiming First Amendment protection would be at the mercy of a claimant's empty assertions unsupported even by any contentions regarding surrounding facts. This is especially so where the circumstances involve an account of a public proceeding and implicate the values protected by the fair-report privilege.

It is not enough for [a] plaintiff[] to assert . . . that any essential facts that the court may find lacking can be dredged up in discovery. A plaintiff can bolster a defamation cause of action through discovery, but not [] file a conclusory complaint to find out if one exists. . . . [A] plaintiff must plead the facts and give some detail of the cause of action.

[Darakjian v. Hanna, 366 N.J. Super. 238, 248 (App. Div. 2003) (quoting Printing Mart, supra, 116 N.J. at 768) (internal quotation marks omitted).]

Plaintiff pled no facts supporting his allegation that the articles contained false statements of fact. The allegations in both complaints were limited to the fact of publication and a litany of vague and bare conclusory assertions that the articles contained false statements of fact and the Star-Ledger purposely published the articles in reckless disregard for the truth. The essential facts that were utterly lacking in this case could not be dredged up in pre-trial discovery.

In addition, the fair-comment privilege applies. "Generally, the fair-comment privilege provides a defense to a libel or slander action when the words in question are a fair comment on a matter of public interest or concern, even though the words are of or concerning a private individual.'" Petersen, supra, 407 N.J. Super. at 76 (quoting Senna v. Florimont, 196 N.J. 469, 484, 486 n. 12 (2008)) (internal quotation marks omitted). The privilege is extended to investigative news stories that address matters of public concern or legitimate public interest, "requiring proof of actual malice to impose liability." Ibid. (citing Dairy Stores, Inc. v. Sentinel Publ'g Co., 104 N.J. 125, 156-57 (1986); Sisler v. Gannett Co., 104 N.J. 256, 271-76 (1986)).

The actual-malice standard applies to statements involving matters of public concern or legitimate public interest regardless of whether the plaintiff is a public figure or private person. Durando v. Nutley Sun, 209 N.J. 235, 250 (2012). Thus, the plaintiff must plead facts showing that the media defendant acted "with knowledge that [the statement] was false or with reckless disregard of whether it was false or not." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964). Mere conclusory allegations of "[s]pite, hostility, hatred, or the deliberate intent to harm demonstrate possible motives for making a statement, but not publication with a reckless disregard for its truth." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 166-67 (1999). Moreover, allegations "[t]hat an editor or reporter 'should have known' or 'should have doubted [the] accuracy' of an article before publishing it is insufficient to show reckless disregard for the truth." Durando, supra, 209 N.J. at 251-52 (quoting Lawrence v. Bauer Publ'g & Printing Ltd., 89 N.J. 451, 467, cert. denied, 459 U.S. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982)). "To act with reckless disregard of the truth, a defendant must "'actually doubt[]' the veracity of the article." Id. at 252 (quoting Lawrence, supra, 89 N.J. at 468).

"When published by a media . . . defendant, a news story concerning public health and safety, a highly regulated industry, or allegations of criminal or consumer fraud or a substantial regulatory violation will, by definition, involve a matter of public interest or concern." Senna, supra, 196 N.J. at 496-97. In all other cases, to determine whether the speech "involves a matter of public concern or interest that will trigger the actual-malice standard, a court should consider the content, form, and context of the speech." Id. at 497 (citation omitted). For content, a court must "look at the nature and importance of the speech[,]" and for context, a court must "look at the identity of the speaker, his ability to exercise due care, and the identity of the targeted audience." Ibid.

Newspaper articles, such as the articles here, concerning allegations of abuse of the legal system, non-payment of rent and intentional damage of private residences in landlord-tenant matters, the causing of general disharmony in the community, and potential fraud and other criminal or civil wrongdoing, implicate matters of legitimate public interest. False statements of fact concerning matters of legitimate public interest are privileged absent proof of actual malice. Thus, even if the articles contained false statements of fact, plaintiff pled no facts supporting his allegation that the Star-Ledger acted with knowledge that the statements were false or with reckless disregard of whether they were false or not.

The fair-report privilege also applies. This privilege insulates media defendants from liability for otherwise defamatory statements in their news stories when they fully, fairly, and accurately report statements made in judicial or other public proceedings. Salzano v. N. Jersey Media Group, Inc., 201 N.J. 500, 522 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1045, 178 L. Ed. 2d 864 (2011). Whether the report is full, fair, and accurate is the only relevant inquiry, and once that condition is met, the privilege becomes absolute. Id. at 530. "[S]o long as the publisher fully, fairly, and accurately reports the contents of a public proceeding, he has done what is necessary and is immune from a suit for defamation based on false statements made, not by him, but by the participants in the proceeding." Id. at 532.

Here, the articles reported the allegations made against plaintiff in judicial proceedings and police reports. The articles did not state the allegations were true or had been adjudicated. Plaintiff did not deny his involvement in the judicial proceedings or that the allegations made against him existed, and he pled no facts showing that the articles did not fully, fairly, and accurately report the judicial proceedings and reports.

For all of these reasons, we conclude that the judge properly dismissed this matter with prejudice pursuant to Rule 4:6-2(e).

Affirmed.

1 We shall sometimes refer to defendants collectively as the Star-Ledger.

2 Having reached this conclusion, we reject plaintiff's additional contention that the motion was defective because it was returnable less than twenty-eight days after it was filed. Because Rule 4:6-2(e) governed the motion, the sixteen-day requirement of Rule 1:6-3(a), not the twenty-eight day requirement of Rule 4:46-1, applied.