Baines v Daily News L.P.
Annotate this CaseDecided on March 28, 2018
Supreme Court, New York County
Donnell Baines, Plaintiff,
against
Daily News L.P.; John Doe No. 1; John Doe #2; John Doe #3; John Doe #4; Janon Fisher; Tracy Connor; Shayna Jacobs; Jane Doe A.K.A. "Barbara", Defendants.
401845/2013
PLAINTIFF:
Donnell Baines- Pro Se
Five Points Correctional Facility
State Route 96, P.O. Box 119
Romulus, New York, 14541
DEFENDANTS:
Daily News, Jamon Fisher, Tracy Connor, Shayna Jacobs, and John Does 1-4:
Davis Wright Tremaine LLP
Laura R. Handman & Geoffrey Brounell
1251 Ave. of the Americas, 21st Floor
New York NY 10020
AND
Daily News, LP
Matthew A. Leish
Deputy General Counsel
4 New York Plaza, 7th Floor
New York, NY 10004
Carmen Victoria St. George, J.
In this defamation action, plaintiff Donnell Baines moves for leave to amend his complaint, pursuant to CPLR 3025 (b). The motion is partially opposed by defendant Daily News, L.P., Janon Fisher, Tracy Connor, Shayna Jacobs and John Does #'s 1, 2, 3 and 4 (collectively, the Daily News defendants). Specifically, the Daily News defendants raise two objections to the proposed amendment. First, they object to the plaintiff's inclusion of allegations that the matters reported on in the subject news article were not a matter of public concern. Second, they object to the plaintiff's addition of the following new defendants: Peggy Ackerman, Matthew Leish, Sarah Ryley, "John Doe Confidential Source," Katie Nelson, Robert [*2]Moore, and Gersh Kuntzman.
The original complaint in this action was filed on October 21, 2013. In that complaint, plaintiff Donnell Baines sued to recover damages for alleged "Libel, Slander, Defamation, and Injurious Falsehood" arising out of his criminal trial and subsequent conviction of rape, assault and unlawful imprisonment. The original complaint alleged three causes of action based on: (1) statements about him by defendant "Jane Doe A.K.A. Barbara" (Jane Doe); (2) a news article based on those statements, entitled "Torture of Guilt. Vi" target="_blank">O'Halloran v Metro. Transp. Auth., 154 AD3d 83, 86 [1st Dept 2017], quoting Anoun v City of New York, 85 AD3d 694, 694 [1st Dept 2011]). Nevertheless, "leave to amend a complaint is not granted upon mere request without a proper showing. Rather, in determining whether to grant leave to amend, a court must examine the underlying merit of the causes of action asserted therein, since, to do otherwise would be wasteful of judiciary resources" (Wieder v Skala, 168 AD2d 355, 355 [1st Dept 1990] [citations omitted]). "Leave will be denied where the proposed pleading fails to state a cause of action, or [*4]is palpably insufficient as a matter of law" (Thompson v Cooper, 24 AD3d 203, 205 [1st Dept 2005], citing Ancrum v St. Barnabas Hosp., 301 AD2d 474, 475 [1st Dept 2003] and Davis & Davis, P.C. v Morson, 286 AD2d 584, 585 [1st Dept 2001]).
In the proposed amended complaint, plaintiff has added allegations that the statements in the Article regarding Jane Doe's claims were not related to any matter of political, social, or other public concern or exposition, and are merely unsubstantiated rumor, gossip, and prurient interest (see Leish affirmation, Ex. M, ¶¶ 53-54, 78, 109).
In her July 13, 2015 decision and order Justice Billings ruled:
"Although the Daily News defendants' requisite fault to support their liability may depend on the subject of their publication, plaintiff further concedes in opposition to their motion that their articles reported on issues of legitimate public concern, so that, even to be liable for an untrue report, defendants must be grossly irresponsible in their reporting. Crime, the legal process, and the penalties imposed on crimes through that legal process legitimately concern the public and warrant public exposition. E.g., Weiner v. Doubleday & Co., 74 NY2d at 595; Karaduman v. Newsday, 51 NY 531, 539 (1980); Sarwer v. Conde Nast Publs., 237 AD2d 191, 192 (1st Dep't 1997); Sheridan v. Carter, 48 AD3d 447, 448 (2nd Dep't 2008). Newspaper editors' determination of a subject's newsworthiness is evidence in itself of the public's interest in the subject. Huggins v. Moore, 94 NY2d 296, 305 (1999); Weiner v. Doubleday & Co., 74 NY2d at 595."(July 13, 2015 Decision and Order at 15). Thus, Justice Billings went on to apply the gross irresponsibility standard to the Article's summary of Jane Doe's allegations about her dealings with the plaintiff (id. at 16-18).
Since the court has already ruled that the statements attributed to Jane Doe are matters of public interest, this ruling, which was not timely appealed or reargued, is law of the case and may not be relitigated (Strook & Strook & Lavan v Beltramini, 157 AD2d 590, 591 [1st Dept 1990]). In fact, plaintiff has basically conceded that the gross irresponsibility standard is law of the case (see Mem. of Law in Reply to Defendants' Partial Opp. to the Motion For Leave to Amend, dated August 31, 2017, at 24-25; Oct. 19, 2017 transcript at 11-12).
Even if this ruling were not law of the case, this court wholly concurs with Justice Billings' determination. The gross irresponsibility standard applies to a new article "where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition" (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). Jane Doe's allegations regarding plaintiff's treatment of her were directly related to the plaintiff's criminal trial, and thus a matter of legitimate public concern, and this court should not "second-guess" the Daily News on its decision to print her story absent clear abuse (Weiner v Doubleday & Co., 75 NY2d at 595; Gaeta v New York News, 62 NY2d 340, 349 [1984]).
The Daily News defendants also oppose the addition of all of the new defendants, arguing that since the Daily News and the actual writers of the Article are all already defendants, plaintiff's attempt to add the defendants' attorney and a random assortment of current and former editors, "most of whom had little or nothing to do with the Article, as well as a group of vaguely described John Does, is largely a pointless distraction" (Mem. of Law in Partial Opposition to Motion to Amend, dated Aug. 18, 2017, at 10). The statute of limitations is also raised as a bar to adding these new defendants.
Plaintiff advances two arguments to escape the one-year statute of limitations for [*5]defamation claims. First, he contends that the newly-named defendants are simply the true names of the previously named "John Doe" defendants. Second, he contends that the claims against the newly-named defendants "relate back" to the date the original complaint was filed.
CPLR 1024 allows a plaintiff who is unaware of the name of a proper defendant to "proceed against such person as an unknown party by designating so much of his name as is known. If the name . . . becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly." However, a John Doe summons and complaint "is jurisdictionally sufficient only if the actual defendants are 'adequately described and would have known, from the description in the complaint, that they were the intended defendants" (Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482 [1st Dept 1992] [citation omitted]; see also Olmstead v Pizza Hut of Am., Inc., 28 AD3d 855, 856 [3d Dept 2006]). In addition, the plaintiff must show that he made genuine efforts to ascertain the John Doe identities prior to the expiration of the statute of limitations (Goldberg v Boatmax://, Inc., 41 AD3d 255, 256 [1st Dept 2007]; Tucker v Lorieo, 291 AD2d 261, 261 [1st Dept 2002]).
In this case, the description of the four John Doe defendants in the original complaint, i.e., "Editor-in-Chief and publisher," "the Managing Editor," "the Supervising Editor," and "editor for internet edition," does not adequately describe the seven newly-named defendants, and those defendants could not have known from the complaint that they were the intended defendants. This is particularly the case for attorney Matthew Leish and "John Doe Confidential Source" since they are not editors for or the publisher of the Daily News. Indeed, at oral argument of the motion, plaintiff conceded that the four John Doe editors are limited to Peggy Ackerman, Katie Nelson, Robert Moore, and Sarah Ryley (Oct. 19, 2017 transcript at 14-16). According to defendants' counsel, Robert Moore was one of several managing editors at the Daily News at the time the Article was published (Leish affirmation, ¶ 37). The court, however, finds that the brief description of John Doe # 2, i.e., "the Managing Editor," was not sufficient to place this defendant on notice that he was an intended defendant in this lawsuit. Again, plaintiff himself claims that Mr. Moore was not this John Doe, but John Doe # 4 (Oct. 19, 2017 transcript at 16). Nothing in the original complaint gives notice that the plaintiff intended to later add as a defendant every single Daily News employee that had anything to do with the investigation, writing and publishing of the Article, which he is now attempting to do via CPLR 1024.
Plaintiff also relies on the relation back doctrine, which "allows a claim asserted against a defendant in an amended pleading to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes" (Buran v Coupal, 87 NY2d 173, 177 [1995]; see also CPLR 203 [f]). This doctrine is aimed at liberalizing strict formalistic requirements while respecting the important policies inherent in the statute of limitation, one of which is to protect a defendant from the obligation of defending stale and ancient claims where evidence has been lost, memories have faded and witnesses have disappeared (Duffy v Horton Mem. Hosp., 66 NY2d 473, 476-477 [1985]). The three conditions that must be satisfied are that:
"(1) both claims arose out of the same conduct, transaction or occurrence; (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement; and (3) the new party knew or should have known that, but for an excusable mistake by the plaintiff in originally failing to identify all the proper parties, the action would have been brought against the additional party united in interest as well"(Mondello v New York Blood Ctr.—Greater NY Blood Program, 80 NY2d 219, 226 [1992] [citation omitted]; see also Buran v Coupal, 87 NY2d at 176). "[U]nity of interest will not be found unless there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other" (Valmon v 4 M & M Corp., 291 AD2d 343, 344 [1st Dept 2002]).
Starting with "John Doe Confidential Source," alleged to be an unknown member of the Manhattan District Attorney's Office, this person is clearly not united in interest with the Daily News Defendants, and the motion to amend is denied as to this newly-named defendant.
Matthew Leish was the Daily News' Assistant General Counsel at the time the Article was published and his only role in connection with the Article was to provide privileged and undiscoverable legal advice to his client (Leish affirm., ¶¶ 46-47 & Ex. P). Thus, there could be no reason whatsoever for Mr. Leish to have believed himself to be a possible defendant in this defamation action but for an excusable mistake on plaintiff's part. In addition, Mr. Leish is co-lead counsel in this case, and plaintiff has already taken the position that adding him as a defendant would require his disqualification.[FN2] Thus, allowing the amendment would potentially prejudice the Daily News Defendants by depriving them of their right to be represented by an attorney of their choice (360 W. 11th LLC, 90 AD3d 552, 553-554 [1st Dept 2011]).
As for Peggy Ackerman, Katie Nelson, Robert Moore and Gersh Kuntzman, plaintiff makes no showing that any of these individuals were more than just peripherally involved in the publication of the Article, and thus would have had no way of knowing that they were an intended defendant in this lawsuit. For example, Katie Nelson was copied on a single email dated October 24, 2012 from Sarah Ryley entitled "Court/Transit Skeds," summarizing activity and coverage of various ongoing court and transit stories (Leish affirmation, Ex. I).
Sarah Ryley is the only newly-named defendant that was identified by the Daily News as a person with knowledge "of some facts at issue in this litigation" (Leish affirmation, Ex. G at 3). Ms. Ryley also apparently authored and was copied on several emails regarding the Article back in October 2012 (id., Exs. I & P), and has been identified "as the courts editor who supervised these reporters" (Oct. 19, 2017 transcript at 32). The Daily News defendants do not contend that the addition of Ms. Ryley as a defendant does not satisfy the first two elements of the relation back doctrine. Their only objection is that plaintiff was made aware of her identity in January 2016, upon receipt of the Daily News defendants' response to plaintiff's first set of interrogatories, but waited over a year before attempting to add her as a defendant. Citing Goldberg v Boatmax (41 AD3d 255 [1st Dept 2007]), the court is urged to deny the motion.
In the Goldberg case, because the plaintiff knew the identifies of the intended defendants nearly one year before moving to amend his complaint, the First Department ruled that his [*6]failure to name them earlier "could not be characterized as a mistake for relation-back purposes" (id. at 256). This reliance on the Goldberg case ignores two key facts. First, the plaintiff is an incarcerated prisoner, and is self-represented, while the plaintiff in Goldberg was represented by counsel. Second, since the Daily News defendants had not produced any documentary evidence until January 2017, the court finds that the plaintiff exercised enough due diligence that his amendment to add Sarah Ryley should not be denied on this basis.
CONCLUSION AND ORDER
In summary, it is
ORDERED that the plaintiff's motion for leave to amend his complaint is granted, in part, and denied in part; and it is further
ORDERED that the motion is denied with respect to any allegations that the statements in the Article regarding Jane Doe's claims were not related to any matter of political, social, or other public concern or exposition; and it is further
ORDERED that the motion is also denied with respect to the addition of any new defendants other than, Sarah Ryley; and it is further
ORDERED that plaintiff is directed to serve and file a newly-drafted amended complaint in accordance with this decision and order no later than sixty (60) days from service of a copy of this decision and order with notice of entry; and it is further
ORDERED that the defendants shall serve/file an answer to the amended complaint within thirty (30) days of the service/filing of the amended complaint.
Dated: March 28, 2018
Carmen Victoria St. George, J.S.C. Footnotes
Footnote 1: In view of the fact that Justice Billings dismissed the cause of action based on the 2013 Article, the proposed amended complaint properly removes Shayna Jacobs as a named defendant.
Footnote 2:In a supporting affidavit sworn to on June 26, 2017 that plaintiff filed together with his proposed amended complaint, plaintiff asked the court to strike the opposing affirmation of Mr. Leish and disqualify him from representing the defendants in this action due to his conflict of interest. In a subsequent letter to the court dated August 10, 2017, plaintiff stated that "there is a current motion to disqualify Matthew Leish from acting as the Daily News attorney in this action due to his conflict of interest," although no such motion has, in fact, been made. However, the letter continues that the court should first decide the issue of the amendment before deciding whether attorney Leish can maintain his status as attorney of record for the defendants.
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