Opinion
No. 04 Civ. 197 (HB).
July 30, 2004
OPINION ORDER
Defendant Newark Star Ledger ("NSL") moved pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12(b)(6) to dismiss all claims asserted by plaintiff Ronald Sorenson, a.k.a. Ron James ("Sorenson"), in his class-action complaint, alleging that the NSL (1) monopolized free speech in violation of the Sherman Act, 15 U.S.C. § 2, (2) committed a nuisance per se, and (3) violated the First and Fifteenth Amendments of the Constitution. For the following reasons, defendant's motion is granted and plaintiff's complaint is dismissed.
Plaintiff mistakenly sued the "Newark Star Ledger," when the newspaper's proper name is the "Newark Star Morning Ledger." Because plaintiff's complaint fails for more substantive reasons, this typographical error is immaterial. Plaintiff's Opposition to Defendant's Motion to Dismiss ("Pl. Opp.") at 1.
I. BACKGROUND
On May 19, 2003, a rally took place in Trenton, New Jersey, to advocate for a constitutional amendment, "banning the desecration of the American Flag." Amended Complaint ("Compl.") at 1. In attendance at the rally were, among others, "New Jersey's Governor, James McGreevy, Members of New Jersey's State Assembly, Senate, and leading Representatives of Veterans Organizations." Id.
Sorenson alleges that while the NSL was invited to the rally, it failed to attend, and instead, just two days prior to the date of the rally, published "a stinging editorial against us entitled `Unflagging Foolishness.'" Id. Sorenson's suit "does not attack the media that does not involve themselves in this criminal activity, but we do file suit against those who would monopolize the peoples right to access of that medium of free speech by rebuttal." Id.
II. DISCUSSION
A. Standard of ReviewOn a motion to dismiss, pursuant to Rule 12(b)(6), a court must construe all well-pleaded factual allegations in the complaint in favor of the plaintiff, and dismiss the complaint only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir. 1994) (citations omitted). "[W]e read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
B. Defendant's Claims
Plaintiff asserts that the NSL's actions constituted (1) a nuisances per se, and violations of (2) the Sherman Act, (3) the First Amendment, and (4) the Fifteenth Amendment. As to all four of these legal theories, defendant asserts that plaintiff has failed to state a claim upon which relief can be granted. I will address each legal theory seriatim.
1. Nuisance Per Se
Sorenson fails to allege facts sufficient to establish a tort claim of nuisance per se. "Nuisance per se is a nuisance based on an act which is unlawful, even if performed with due care." State v. Fermenta ASC Corp., N.Y.S.2d 342, 345-346 (2d Dep't 1997). In order to assert a nuisance per se claim, a party must establish that the defendant violated the law and, in so doing, "created [a situation] which endangers or injures the property, health, safety, or comfort of a considerable number of persons." Id. Sorenson asserted that "the media in particular the press violate are [sic] rights without rebuttal that they are a nuisance per se." Compl. at 1. In support of this legal claim, Sorenson asserts only that "[b]asis for argument is founded on analogy and abstract logic ( a priori)." Id. Unfortunately, "analogy and abstract logic" are insufficient here. Because the Court finds that none of the NSL's acts, as plead in the complaint, amount to a legal violation, Sorenson has failed to make out a claim of nuisance per se.
2. Sherman Act
Sorenson also fails to assert a claim under Section Two of the Sherman Act. "The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." U.S. v. Grinnell Corp., 384 U.S. 563, 570-571 (1966). Sorenson merely asserts that "[i]f we have no control in what we read and hear, then in truth our thought is monopolized, and in violation of the Sherman Act." Compl. at 2. This assertion, in conjunction with the remainder of the complaint, falls far short of the necessary basis for a Sherman Act claim. Therefore, Sorenson's Sherman Act claim is dismissed.
3. First and Fifteenth Amendment
Because only governmental entities, not private entities such as the NSL, can be held responsible for First and Fifteenth Amendment violations, Sorenson's constitutional challenges are dismissed. The First Amendment provides that " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Const. amend. 1 (emphasis added). The Fifteenth Amendment HB provides that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation." U.S. Const. amend. XV §§ 1-2 (emphasis added). Because Sorenson only asserts claims against a private entity, the NSL, and a hypothetical class of additional private paper media, his constitutional challenges cannot stand
III. CONCLUSION
While the Court respects Sorenson's interest in a responsible press and free speech, Sorenson's amended complaint fails to raise any cognizable legal claims. Therefore, defendant's motion to dismiss is granted, and the Clerk is instructed to close this motion and any other open motions, and remove this case from my docket.