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dismissing publicity claim where the plaintiff's name was used merely in its capacity as a place holder, like John Doe, and not because it added value or assisted in selling a product
Summary of this case from Faulkner v. Hasbro, Inc.Opinion
CIVIL ACTION NO. 03-1582 (MLC)
August 29, 2003
Robert A. Rusignola, Esq., Short Hills, NJ, for Plaintiff
Marc D. Haefner, Esq., Connell Foley, LLP, Roseland, NJ, for Defendant
MEMORANDUM OPINION
This matter comes before the Court on (1) the motion by defendants The New York Times Company ("NYT"), Young Rubicam, Inc. ("YR"), The United Negro College Fund ("UNCF") to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and (2) plaintiffs' cross motion for partial summary judgment pursuant to Rule 56(c). Plaintiffs, Lawrence Botts, Jr. ("Botts, Jr."), Lawrence Botts, III ("Botts, III"), and Christine Botts ("wife"), wife of Botts, Jr. and mother of Botts, III, brought this action in response to an advertisement ("ad") published by defendants. They allege that the defendants' ad (1) defamed plaintiffs (Counts 1, 2, 4, and 5); (2) invaded their privacy by putting them in a false light and appropriating their identities (Counts 3 and 7); and (3) intentionally inflicted emotional distress on them (Count 6). For the reasons stated, we will grant defendants' motion, deny plaintiffs' cross motion, and dismiss the complaint in its entirety.
The complaint will also be dismissed with respect to the unnamed defendants, because the filing of this motion gave them notice of this motion and an opportunity to respond.
BACKGROUND
YR is an advertising agency based in New York. (Defs.' Br. at 3.) Botts, III was an employee at YR from September 1999 to February 2001. Between May and October 2000, YR developed an advertising campaign promoting the UNCF's efforts to provide young African-Americans with a college education. (Id.; Dittmar Decl. ¶ 4.) YR created an ad depicting a young African-American man sitting on a box in front of a dilapidated trailer and holding a bottle in a brown paper bag. (Dittmar Decl., Attach. 1.) Superimposed over the man's face is a picture purporting to be a year-book photograph of — presumably — the same young African-American man. ("Id.) Underneath the picture these words are printed:LARRY BOTTS Dream: To study journalism and keep the politicians on their toes.
At the bottom of the page is the slogan: "A Mind is a Terrible Thing to Waste." (Id.)YR created the ad pro bono, and, upon its completion, sent it to the Ad Council, which began distributing it to various media outlets in July 2001. (Defs.' Br. at 3.) The ad was first published in certain media in late July or early August of 2001. (Id.) The NYT later published the ad on January 22, February 8, and February 18, 2002. (Hammond Decl. ¶ 3; Pls.' Br. at 2 6.) The ad has not been altered or modified since its first publication. (Defs.' Br. at 3.)
The Ad Council is an organization which distributes advertisements to various media outlets for publication. (07-09-03 Oral Arg.)
For purposes of this memorandum, we determine that the date of first publication was January 22, 2002.
Plaintiffs are Caucasian and live in an affluent suburb in New Jersey. (Compl., First Count ¶¶ 1, 2, 5.) Both Botts, Jr. and, III are professionals with college degrees. (Defs.' Br. at 10.) Plaintiffs allege that they are known "as "Larry Botts" and that, therefore, the ad is linked to and clearly identifies them. (Compl., First Count ¶ 14.) Plaintiffs further assert that the ad depicts them as derelict, immoral drunkards who are incapable of employment in their chosen fields. (Id. ¶¶ 9-10.)
Plaintiffs brought this action against defendants on February 7, 2003 in the Superior Court of New Jersey, Somerset County, alleging defamation, invasion of privacy, and intentional infliction of emotional distress ("IIED"). (Compl., Third Count ¶ 9.) Defendants removed the action to this Court on April 19, 2003, and moved to dismiss all claims against them on May 5, 2003.
DISCUSSION
I. Standard for Rule 12(b)(6) Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the complaint. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). When considering such a motion, the reviewing court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);Wisniewski v. Johns-Manvilie Corp., 759 F.2d 271, 273 (3d Cir. 1985); Rogin v. Bensalem Twp., 616 F.2d 680, 685 (3d Cir. 1980). A court may not grant the motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
District courts must accept as true the facts pleaded in the complaint and any and all reasonable inferences derived from those facts.Ungrer v. Nat'l Residents Matching Program, 928 F.2d 1392, 1400 (3d Cir. 1991)/ Glenside v. Howard Sav. Bank, 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). Moreover, it is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. S'holder Litig., 758 F. Supp. 226, 230 (D.N.J. 1990). Legal conclusions offered in the guise of factual allegations, however, are given no presumption of truthfulness. Papasan v. Allain, 478 U.S. 265, 286 (1986).
The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff can prove any set of facts in support of the asserted claims that would entitled the plaintiff to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). However, although the Federal Rules of Civil Procedure do not dictate that a "claimant set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 (1984) (citing Conley, 355 U.S. at 47). II. The Parties' Arguments A. Defendants
Defendants first argue that plaintiffs' claims are barred by the applicable statute of limitations. (Defs.' Br. at 5.) Second, they assert that plaintiffs failed to state a claim of defamation because the ad (1) is not "of and concerning" plaintiffs, and (2) does not include a defamatory statement of fact. (Id. at 8-13.)
Defendants claim that defamation, false light invasion of privacy, and intentional infliction of emotional distress based on a defamation claim are governed by a one-year statute of limitations. They concede that a six-year statute of limitations applies to appropriation invasion of privacy. (Defs.' Br. at 1; Defs.' Reply Br. at 3.)
Third, defendants contend that plaintiffs' claims for invasion of privacy must fail. (Id. at 15.) They argue that plaintiffs have not stated a claim for false light invasion of privacy because the publicized material did not "constitute a major misrepresentation of [plaintiffs'] character, history, activities or beliefs." Romaine v. Kallinger, 109 N.J. 282, 295; 537 A.2d 284, 291 (1988). They further assert that plaintiffs' claim for misappropriation of identity is without merit because (1) defendants did not "appropriate to their own use or benefit the name or likeness of another," Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 908 (D.N.J. 1986), and (2) the ad was constitutionally protected because it did not have an exclusively commercial purpose. (Id. at 16, 19.)
Fourth, defendants argue that plaintiffs have not stated a claim for IIED because (1) the ad is not defamatory, and (2) the complaint fails to allege outrageous conduct and sufficiently severe emotional distress. (Id. at 22, 24, 26.) Finally, defendants assert that the wife's claims should be dismissed because the complaint does not allege any facts supporting them. (Id. at 27.)
B. Plaintiffs
Plaintiffs counter that they have complied with the one-year statute of limitations for defamation because the distribution of the ad on February 8, 2002 constituted a republication and made plaintiffs' filing of this complaint on February 7, 2003 timely under the statute. (Pls.' Br. at 8.) They further argue that false light invasion of privacy and IIED have a two-year statute of limitations. Second, plaintiffs allege that the complaint states a valid claim for" defamation because the ad was (1) "of and concerning the Plaintiffs," and (2) presented a "defamatory portrayal of the Plaintiffs." (Id. at 18, 23.) Third, plaintiffs argue that the unpermitted publication of the ad constituted an invasion of their privacy. (Id. at 25.) They also reject defendants' assertion that the ad was constitutionally protected. (Id. at 29.) Finally, plaintiffs contend that they all have brought cognizable claims for IIED sustainable by all of them. (Id. at 33, 36.)
III. Analysis A. Defamation; Statute of Limitations
A defamation claim is timely under New Jersey law, if it is filed within one year of the publication of the allegedly defamatory material. N.J.S.A. § 2A:14-2. In this case, the ad was published in the NYT on January 22, February 8, and February 18, 2002. The parties disagree as to which publication date started the running of the statute of limitations. To decide this dispute, we must determine whether the printing and distribution of the ad in the NYT on February 8 and 18, 2002 constituted a republication of the same ad published in the same newspaper on January 22, 2002.
New Jersey has adopted the single publication rule to determine when the statute of limitations in a defamation action begins to run.Barres v. Holt. Rinehart Winston Inc., 131 N.J. Super. 371, 330 A.2d 38 "(App.Div. 1974), aff' d 74 N.J. 461 (1977);Palestri v. Monogram Models, Inc., 875 F.2d 66, 68 (3d Cir. 1989). According to this rule, "where an issue of a newspaper, magazine or edition of a book contains a libelous statement, plaintiff has a single cause of action." Barres, 131 N.J. Super, at 374. The statute of limitations starts running from the first publication of the material at issue unless it has been republished. See id. at, 131 N.J. Super. 371; see also Roth v. Golden Nugget Casino Hotel. Inc., 576 F. Supp. 262, 267-68 (D.N.J. 1983) (claim filed more than one year after alleged defamation dismissed on statute of limitations grounds).
The Barres court held that the subsequent printing of 2,500 additional copies of a book did not constitute a republication of the allegedly libelous contents of the book or give rise to a new cause of action for defamation. Barres, 131 N.J. Super, at 390. The books had initially been published in November 1971. Id. The additional 2,500 copies were published in February 1972. Id. The Barres court found the reprinting sufficiently close in time to consider it to be part of the first publication, rather than a republication. Id. at 390-91.
The parties have not cited, and we have not found, other cases addressing the issue of republication of defamatory material in New Jersey.
Courts in other jurisdictions have also held that a cause of action for defamation arises and the statute of limitations begins to run on the date of first publication. Belli v. Roberts Bros. Furs, 49 Cal.Rptr. 625 (Cal.Ct.App. 1966) (where allegedly defamatory statements published on two consecutive days, action filed within one year of second day untimely because cause of action arose on first publication date);VanBuskirk v. NYT Co., 325 F.3d 87, 89 (2d Cir. 2003) (stating New York state Court of Appeals, in adopting single publication rule, long ago rejected proposition that each subsequent publication or distribution of challenged material sets statute running anew); Bradford v. Am. Media Operations. Inc., 882 F. Supp. 1508, 1514 (E.D. Pa. 1995) (stating statute of limitations usually begins to run at time publication becomes available to general public); Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 298 n. 2 (D.C. 2001) ("for purposes of the statute of limitations in defamation claims, a book, magazine, or newspaper has one publication date, the date on which it is first generally available to the public").
The single publication rule also provides that "there is no republication where materials are qualitatively identical and published by the original libeler." Zoll v. Jordache Enters. Inc., No. 01-1339, 2002 U.S. Dist. LEXIS 24570 (S.D.N.Y. Dec. 24, 2002)(quoting Firth v. State. 98 N.Y.2d 365, 371 (2002));Givens v. Quinn, 877 F. Supp. 485, 490 (W.D. Mo. 1994) (syndicated column is "single integrated publication" and statute of limitations does not renew each time column published in another periodical).
Plaintiffs contend that each newspaper is a new writing in all respects, regardless of whether it carries information previously given to the public. (Id.) They quote Barres for the proposition that Courts "have held that where there has been a separate edition . . . after the general release date, there is a cause of action based on the later or republication date." Barres, 131 N.J. Super, at 383. However, plaintiffs rely exclusively on cases dealing with the publication of books or editorial materials in newspapers or magazines. E.g., Wheeler v. Dell Publish. Co., 300 F.2d 372 (7th Cir. 1962); Winrod v. Time, Inc., 78 N.E.2d 708 (Ill.App.Ct. 1948). Moreover, because these cases predate the introduction of the single publication rule we find them to be inapposite.
Plaintiffs state that the purpose of a newspaper is to convey relevant, dated information to readers. (Pls.' Br. at 13) (emphasis in original.) This argument is irrelevant here because the allegedly defamatory material was not "dated information," but rather an ad which aimed to persuade readers to donate money to UNCF and the date of which was of no moment.
"The purpose of the single publication rule is to protect the defendant — and the courts — from a multiplicity of suits . . . [and] an almost endless tolling of the statute of limitations."Barres, 131 N.J. Super, at 390; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777(1984). The single publication rule acknowledges the "realities of a society in which mass distribution and nationwide communication now are the norms." Rinaldi v. Viking Penguin. Inc., 52 N.Y.2d 422, 433 (1981). One rationale of the single publication rule is that defendants should only be hailed into court once, where trade practices turn a single conscious act of publication into multiple presentations of the material.Barres, 1-31 N.J. Super, at 390-91 (applying single publication rule where publisher followed "trade practices in general release of book and subsequent sales").
Neither the parties, nor the Court, have been able to identify any case law in any jurisdiction involving the application of the single publication rule to the publication of an ad in a newspaper. The issue in Zoll v. Jordache Enter., No. 01-1339, 2002 U.S. Dist. LEXIS 24570 (S.D.N.Y., Apr. 22, 2003), however, which addresses the repeated publication of a television commercial, is closely related to this case. Id. at *1.
The plaintiff in Zoll brought an action for the allegedly unauthorized use of her likeness in a jeans commercial aired in 2000 ("2000 commercial"). Id. The commercial had been created and aired for the first time in 1978 ("1978 commercial"). Id. The court held that because the 2000 commercial was "qualitatively identical" to the 1978 commercial and "published by the original libeler," the 2000 commercial was not a republication. Id. at *9. Stating that modification or alteration of the original is the sine qua non of a republication, the court found that the statute of limitations had started running on the original release date in 1978 and, therefore, the plaintiff's claim was time-barred. Id.
The ad here similarly was not modified, altered, or changed in any way in the three times it appeared in the NYT. David J.Gold. P.C. v. Berkin, No. 00-7940, 2001 U.S. Dist. LEXIS 1206, at *12 (S.D.N.Y. Feb. 9, 2001) (granting motion to dismiss where continued dissemination of allegedly defamatory statements on credit reports not republication because "subsequent reports were qualitatively identical"); Ferber v. Citicorp. Mortgage, Inc., No. 94-3038, 1996 U.S. Dist. LEXIS 1210, at *17-18 (S.D.N.Y. Feb. 5, 1996) (dismissing claim as time barred where old reports indistinguishable from newly published ones). The NYT did nothing more than reuse a statement, without modification or change. As a result, nothing in the subsequent printings of the ad could distinguish it in the minds of the NYT's readers from the initial printing. Id., 1996 U.S. Dist. LEXIS 1210, at *17. Moreover, the reprintings of the ad in the NYT were also in accord with trade practices and occurred within a month of initial publication. Accordingly, we consider the second and third printings of the ad to be part of the first publication.
Courts determine a motion to dismiss by examining the face of the Complaint. Fed.R.Civ.P. 12(b)(6). Generally, a court may not consider any material beyond the pleadings. See.e.g., In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); In re Westinghouse Sec. Litig., 90 F.3d 696, 707 (3d Cir. 1996). However, a court in reviewing the sufficiency of a complaint may refer properly to factual allegations contained in certain documents, such as documents referred to in the complaint and matters of public record, if the claims in the complaint are based on those documents. Id. The ad in this case is a matter of public record, both with respect to the dates on which it was published and with respect to the fact that its subsequent publications were not modified, altered, or changed in any way. Therefore, it is proper to decide this case on a motion to dismiss.
We conclude that the statute of limitations for plaintiffs' defamation claim started to run on January 22, 2002, and that no republication occurred after that date. Because plaintiffs' complaint was not filed until February 7, 2003, more than one year after the publication of the ad the defamation claim should be dismissed. We hold that plaintiffs' filing of their defamation claim was untimely and will, therefore, be dismissed.
B. Invasion of Privacy
Invasion of privacy consists of four distinct torts: (1) publicity placing a person in a false light ("false light"), (2) appropriation of name or likeness ("appropriation"), (3) intrusion upon seclusion, and (4) publicity given to private life. Restatement (Second) of Torts ("F.2d") §§ 652B-E (1977). Plaintiffs allege false light and appropriation.
1. False Light a. Statute of Limitations
False light invasion of privacy in other jurisdictions carries a one-year statute of limitations, the same as that for defamation.Rumbauskas v. Cantor, 138 N.J. 173, 182, 694 A.2d 853, 857 (1994); Rolax v. Whitman, 175 F. Supp.2d 720, 730 (D.N.J. 2001) (holding false-light statute of limitations one year),aff'd, No. 01-4229, 2002 WL 31528790 (3d Cir. Nov. 15, 2002) (table decision). Plaintiffs counter that the statute of limitations for false light should be governed by N.J.S.A. § 2A:14-2, which prescribes a two-year statute of limitations for injuries to the person. Plaintiffs do not cite any pertinent case law to support this proposition. Based on this precedent and for the reasons stated in section III.A.2. of this memorandum, we find defendants' argument more convincing and hold that the statute of limitations for false light in New Jersey is one year. Therefore, plaintiffs' filing of the false light invasion of privacy claim was untimely and will be dismissed.
b. Substantive Law
We would grant the part of the motion seeking dismissal of the false light claim on the merits, even if the claim had been timely. To establish false light plaintiffs must show that they were depicted in a manner that would (1) "constitute a major misrepresentation of [their] character, history, activities or beliefs," and (2) "be highly offensive to a reasonable person." Romaine, 109 N.J. at 295. Further, the defendants must act in "reckless disregard as to the falsity of the publicized matter." Romaine, 109 N.J. at 295.
Plaintiffs argue that "the reasonable man would find it highly offensive to be portrayed as a drunkard, a destitute individual, and an unemployed individual." (Pls.' Br. at 26.) Be that as it may, the individual in the ad does not "depict" either Botts, Jr. or Botts, III. There are no similarities between the ad and plaintiffs, or the circumstances of their lives. Both Botts's are Caucasian college graduates with professional careers. (Defs.' Br. at 10.) It is highly unlikely that a reasonable person, whether acquainted with the Botts family or not, would identify either one of them as the person depicted in the ad.
We note that the picture in the ad can be interpreted in several ways. Plaintiffs' interpretation is only one of them, but we will accept that interpretation for purposes of this motion only.
Where a statement obviously purports to be fictitious, there can be no "falsity of the publicized matter," and, therefore, no reckless disregard for such falsity. Romaine, 109 N.J. at 295; Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978). Here, the ad is fictitious. It does not purport to depict a real individual, but rather a type of person (i.e., an uneducated young African-American male). Thus, even if plaintiffs' false light claim had been timely, we would hold that they failed to state a claim for false light invasion of their privacy and dismiss the claim.
2. Appropriation of Name or Likeness a. Statute of Limitations
The statute of limitations for appropriation invasion of privacy is six years. Therefore, plaintiffs' claim is timely. However, plaintiffs' appropriation claim fails on substantive grounds.
b. Substantive Law
Those who appropriate for their own use or benefit the name or likeness of another are subject to liability for invasion of privacy. Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 908 (D.N.J. 1986). However, the mere public mention of a plaintiff's name does not constitute an appropriation of its value. F.2d § 652C. Defendants are liable for invasion of plaintiffs' privacy only if they have appropriated to their own use or benefit the reputation, prestige, social or commercial standing, public interest or other values associated with the plaintiffs' name or likeness.Id. The use must be mainly for trade purposes, without redeeming public interest, news, or historical value.Tellado, 643 F. Supp. at 910.
Thus, "it is not enough that a defendant has adopted . . . a name that is the same as that of a plaintiff, so long as he does not . . . seek to obtain for himself the values or benefits of the plaintiff's name or identity." F.2d § 652C. Unless the use of the name or likeness adds value to or assists in selling the product at issue, "the defendant is free to [use] any name he likes, whether there is — only one person or a thousand others of the same name." Hooker v. Columbia Pictures Indus., Inc., 551 F. Supp. 1060 (N.D. Ill. 1982) (emphasis added). "Even if the defendant is engaged in the business of publication of . . . a newspaper . . . [for] profit, the incidental publication of a plaintiff's name is not a commercial use of the name or likeness." F.2d § 652C. Thus a newspaper, although it is not a philanthropic institution, does not become liable for appropriation to every person whose name or likeness it publishes. Id.
Here, plaintiffs' name was not used mainly for trade purposes. (See Defs.' Br. at 19.) First, defendants YR and NYT respectively created and published the ad free of charge. (Id. at 20.) And while the ad's purpose is to raise funds for UNCF? the funds are not intended for UNCF's own use or profit. (Id.) Rather, they are distributed to underprivileged, young African-Americans to assist them in obtaining a college education. (Id.) Second, since the ad supports a worthy goal, i.e, the education of the individuals who might otherwise not be able to afford one, it is not without redeeming public interest. (Id.) Finally, the name Botts does not appear to carry any special "reputation, prestige, social or commercial standing, public interest or other value" that would benefit defendants. The use of plaintiffs' name does not add value to or assist in selling the ad. In fact, it is hard to imagine any name at all that would do so. The character depicted in the ad is fictitious, and his name is irrelevant to the impact of the message conveyed by the ad. Therefore, we will dismiss plaintiffs' claim for appropriation invasion of privacy.
C. Intentional Infliction of Emotional Distress 1. Statute of Limitations
The parties disagree with respect to the statute of limitations for IIED. Plaintiffs, again under the theory that IIED is an injury to the person and thus covered by N.J.S.A. § 2A:14-2, argue that the statute of limitations is two years. Defendants contend that it is one year, based on the decision inMacDonald v. Time. Inc., 7 Media L. Rptr. 1025 (D.N.J. Aug. 25, 1981). In MacDonald, the plaintiffs alleged, inter alia, defamation and IIED. The court found that because the plaintiffs' claim for IIED was "based upon the publication of alleged false and defamatory statements," it was governed by a one-year statute of limitations. It reasoned that
[i]t would not be appropriate to permit a party to extend the statute of limitations merely by placing a different label on the identical facts and claim. The legislature intended to establish a limited time period for instituting actions predicated upon defamation. A defamation action contemplates a claim for emotional distress arising from such defamation. To permit a party to pursue an independent claim for emotional distress based upon defamation, when the claim for defamation itself is barred would thwart the policy enunciated by the legislature and nullify its applicability.Id. at 1028.
Plaintiffs concede that "[t]he claim for intentional infliction of emotional distress is premised upon defamatory acts and cognizable under the law." (Pls.' Br. at 33-36.) Therefore, we find that the statute of limitations for IIED in this case is one year. As a result, plaintiffs' claim for IIED was untimely and will be dismissed.
2. Substantive Law
We would still dismiss the claim for IIED on the merits, even if it had been filed in a timely manner. To support a claim for IIED, plaintiffs must show that (1) defendants acted intentionally or recklessly, (2) defendants' conduct was extreme and outrageous, (3) defendants' actions were the proximate cause of plaintiffs' emotional distress, and (4) their distress was "so severe that no reasonable man could be expected to endure it." Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366, 544 A.2d 857, 863 (1988). Plaintiffs must prove that the conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. "Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" do not give rise to liability for IIED. Taylor v. Metzger, 152 N.J. 490, 509, 706 A.2d 685, 694 (1988); Obendorfer v. The Gitano Group, 838 F. Supp. 950, 955 (D.N.J. 1993).
Defendants reject plaintiffs' IIED claim arguing that there was no defamatory conduct. Decker v. Princeton Packet, Inc., 116 N.J. 418, 432, 561 A.2d 1122, 1129 (1989). Further, they contend that even if their conduct was found to be defamatory, plaintiffs failed to allege both outrageous conduct and severe distress.
Courts have refused to impose liability in cases involving more outrageous conduct than here. Ramirez v. United States, 998 F. Supp. 425, 434 (D.N.J. 1998) (IIED claim dismissed where plaintiff detained for over two and half hours based on
Cunreasonable assumption that he was person named in warrant);Zamboni v. Stamler, 847 F.2d 73, 80 (3d Cir. 1988) (IIED claim insufficient where defendant constantly harassed plaintiff in workplace causing physical and psychological problems). Defendants assert that liability for IIED was only found in the most extreme cases. E.g. Hume v. Bayer, 178 N.J. Super. 310, 428 A.2d 966 (Law Div. 1981) (IIED claim recognized where physician with knowledge untruthfully told parents child had serious, possibly cancerous illness).
The complaint in this case, construed most favorably to plaintiffs, alleges that defendants here used a name that also happened to be plaintiffs' for a fictitious character in an ad designed to raise funds for a worthy cause. We find that defendants' conduct did not rise to the level necessary to maintain a claim for IIED. With the exception of the name, there was no resemblance between plaintiffs and the person depicted in the ad.
We further find that plaintiffs have failed to allege emotional distress so severe that no reasonable person could be expected to endure it. Buckley, 111 N.J. at 368. Buckley requires that plaintiffs must at least allege the kind of illness or stress they endured for their claim to survive a motion to dismiss.Id. at 369 (emphasis added). Mere allegations of aggravation, without more, are not sufficient for a claim of IIED. Id. at 368. In this case, plaintiffs have failed to allege the particular type of illness or stress they suffered.
New Jersey law also requires plaintiffs to assert that they sought treatment for their alleged distress. Mardini v. Viking Freight, Inc., 92 F. Supp.2d 378, 384-85 (D.N.J. 1999) (motion to dismiss IIED claim granted because plaintiff did not seek medical assistance or allege specific ailments); Harris v. Middlesex County Coll., 353 N.J. Super. 31, 45-46, 801 A.2d 397, 405-406 (App.Div. 2002) (IIED dismissal affirmed where plaintiff did not allege need for psychiatric counseling); Aly v. Garcia, 333 N.J. Super. 195, 204-05, 754 A.2d 1232, 1237 (App.Div. 2000) (IIED claim should be dismissed where no evidence that plaintiffs sought medical treatment for alleged distress). Plaintiffs have not alleged that they have sought medical treatment for their distress. For these reasons, we conclude that plaintiffs' IIED claim is without merit and will dismiss it.
CONCLUSION
For the reasons stated, we will grant defendants' motion, deny plaintiffs' cross motion as moot, and dismiss the complaint in its entirety.