Opinion
CIVIL ACTION NO. 02-6882
July 15, 2003
MEMORANDUM
I. INTRODUCTION
This action in which plaintiff asserts claims of defamation and related torts arises out of references to plaintiff in defendant Rodney Carroll's autobiography titled No Free Lunch, published by defendant Random House, Inc. The autobiography, which profiles the former United Parcel Service ("UPS") executive's triumph over poverty to achieve corporate success, includes a three-page chapter, Chapter 8, which contains a short anecdote in which Mr. Carroll, as a supervisor, resolved a disciplinary problem involving plaintiff, a UPS employee, who was almost always late for work because he had another job with a schedule that prevented him from arriving at UPS on time. According to the account, Mr. Carroll resolved the problem by changing plaintiff s start time at UPS to accommodate the demands of the second job. It is this three-page chapter which forms the basis of the action. A copy of the chapter is appended to this Memorandum.
In the Complaint, plaintiff asserts claims for defamation (Count I), false light invasion of privacy (Count II), and appropriation (Count III). According to the Complaint, the anecdote described in Chapter 8 harmed plaintiff s reputation and caused him emotional distress and embarrassment. He seeks compensatory and punitive damages. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
The matter is presently before the Court on defendant's Motion to Dismiss. For the reasons set forth below, the Motion to Dismiss will be granted.
II. BACKGROUND
The pertinent facts as alleged by the plaintiff are as follows:
In 2002, defendant Random House, through its Ballantine Publishing Group division, published defendant Rodney Carroll's autobiography No Free Lunch. The book recounted Mr. Carroll's transition from welfare recipient to UPS employee, and finally to UPS corporate executive. Id. ¶ 12.
Rodney Carroll, No Free Lunch (2002).
In Chapter 8 of the book, defendant Carroll detailed the first time he had to discipline an employee as a UPS supervisor. According to defendant Carroll, the offending employee, plaintiff Henry Worthy, may have been "one of the hardest workers" but "was always late" for work and his employment file contained numerous complaints about his tardiness. Id. ¶ 13. He even faced imminent suspension. Id.
Id. at 140-42.
Henry Worthy is referred to as "Hank" Worthy in defendant Carroll's book. Neither party disputes that Hank Worthy refers to the plaintiff in this case.
Defendant wrote that plaintiff's employment file contained so many complaints for tardiness that he "didn't have a leg to stand on." Pl.'s Resp. at 2; Compl. Ex. A at 2.
Defendant Carroll wrote that he intervened to prevent plaintiff's suspension after learning that plaintiff was late for work at UPS because of a conflicting schedule at a second job as a dock worker. Id. ¶ 15. As set forth in Chapter 8, plaintiff was unable to get to work at UPS on time, 2:00 P.M., because he could not leave his job as a dock worker until 1:30 P.M., which usually made him fifteen minutes late for work at UPS. Defendant Carroll stated that he solved the problem by changing plaintiff s start time to 2:15 P.M., in a manner that allowed plaintiff to retain all job benefits commensurate with his seniority. Compl. Ex. A at 2.
According to the Complaint, the events defendant Carroll described in the book never occurred. Plaintiff alleges that although he was and remains a UPS employee, he never met with defendant Carroll, did not face disciplinary action for excessive tardiness, did not work two jobs, and did not work a shift that began at 2:00 p.m. Compl. ¶¶ 15-16.
III. LEGAL STANDARD
Dismissal for failure to state a claim is appropriate when it clearly appears that plaintiff can prove no set of facts in support of the claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). Such a motion tests the legal sufficiency of a claim while accepting the veracity of the claimant's allegations. See Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987); Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 718 (E.D. Pa. 1994), aff'd, 72 F.3d 318 (3d Cir. 1995). A court may also consider any document appended to and referenced in the Complaint on which plaintiff's claim is predicated. See Fed.R.Civ.P. 10 (c); 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). A court, however, need not credit conclusory allegations or legal conclusions in deciding a motion to dismiss. See General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 333 (3d Cir. 2001); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A claim may be dismissed when the facts alleged and the reasonable inferences therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir. 1988).
IV. DISCUSSION
A. Defamation
In Count I, plaintiff asserts a claim for defamation. Compl. ¶¶ 17-36. Defendants argue that the defamation claim must be dismissed because the publication is not capable of defamatory meaning as a matter of law. Defs' Mot. at 6. The Court agrees with defendants and concludes that Chapter 8 of the book is not capable of defamatory meaning.To support a claim for defamation under Pennsylvania law, a plaintiff must allege (a) the defamatory character of the communication, (b) publication by the defendant, (c) application to the plaintiff, (d) the understanding of the recipient of its defamatory meaning, (e) the understanding of the recipient that it was intended to apply to the plaintiff, (f) special harm to the plaintiff from its publication, and (g) abuse of any conditionally privileged occasion. Pa. C.S.A. § 8343(a)(1998); Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001).
Neither party disputes that Pennsylvania law should be applied to this action.
As a threshold matter, the court must determine whether a statement is capable of defamatory meaning. See Remick v. Menfredy, 238 F.3d 248, 261 (3d Cir. 2001); Tucker, 237 F.3d at 281; Smith v. Sch. Dist. of Phila., 112 F. Supp.2d 417, 429 (E.D. Pa. 2000); Thomas Merton Ctr. v. Rockwell Int'l Corp., 442 A.2d 213, 215-16 (Pa. 1981). If the communication is capable of defamatory meaning, a jury must determine whether it was so understood by the recipient. See Corabi v. Curtis Publ'g Co., 273 A.2d 899, 904 (Pa. 1971); Reco Corp. v. CBS Inc., 758 F.2d 970, 971 (3d Cir.), cert, denied, 474 U.S. 843 (1985).
"`A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him.'" Beverly Enter., Inc. v. Trump, 182 F.3d 183, 187 (3d Cir. 1999) (quoting MacElree v. Philadelphia Newspapers, Inc., 674 A.2d 1050, 1053 (Pa. 1996) (further citation omitted)), cert, denied, 528 U.S. 1078 (2000). An allegedly defamatory statement must be viewed in context to assess the effect it is fairly calculated to produce and the impression it would ordinarily create. See Remick, 238 F.3d at 261; Rockwell v. Allegheny Health, Educ. Res. Found., 19 F. Supp.2d 401, 404-05 (E.D. Pa. 1998) (citingCorabi, 273 A.2d at 904); Weinstein v. Bullick, 827 F. Supp. 1193, 1197 (E.D. Pa. 1993). A communication is not defamatory merely because it may embarrass or annoy the person to whom it refers. See Mater v. Moretti, 671 A.2d 701, 794 (Pa.Super. 1995); see also Bogah v. Elkins, 176 A.2d 677, 679 (Pa. 1962).
Plaintiff contends that the excerpt from the book depicts him as "irresponsible" and a "victim [of] his own deficiencies" who would have faltered but for the "paternalism" of defendant Carroll. Pl.'s Resp. at 9. The Court disagrees. To the contrary, the discussion of plaintiff in the excerpt from the book is not capable of conveying the meaning plaintiff ascribes to it as a matter of law. When, as in this case, a publication is not in fact defamatory, it "cannot be made so by innuendo which puts an unfair and forced construction on the interpretation of the communication." Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1085 (E.D. Pa. 1980) (citations omitted).
The Court concludes that rather than portraying plaintiff as irresponsible, defendant Carroll depicts plaintiff as a hardworking individual holding two jobs in order to provide for his family. Although the excerpt from the book states that plaintiff was in danger of suspension because of his chronic tardiness, the overall portrayal of plaintiff leaves the average reader with the view that plaintiff was a hard working individual who temporarily had a difficult time balancing a hectic schedule. The depiction of plaintiff in the book does not lower his standing in the community and would not reasonably deter someone from dealing or associating with him. In the Court's view, plaintiff s allegations put "an unfair and forced construction on the interpretation . . . of Chapter 8. Id. Accordingly, the defamation claim is dismissed.
Defendants also contend that plaintiff's defamation claim is precluded by the many positive comments about plaintiff as well as the book's overall theme of triumph over adversity through diligence and hard work. Defs' Mot. at 9. However, while the overall context may undermine a defamation claim, specific language can still be defamatory even though it is not the focus nor the overall theme of the publication. See MacEleree v. Phila. Newspapers, Inc., 674 A.2d 1050, 1054 ( Pa. 1996).
B. False Light Invasion of Privacy
Defendants move to dismiss Count II of the Complaint which alleges that defendants committed false light invasion of privacy by recklessly portraying plaintiff as an "incessantly late employee whose negative employment file rendered him on the brink of suspension." Pl.'s Resp. at 10.
Pennsylvania courts have adopted the Restatement (Second) of Torts § 652E(1977) with respect to the tort of false light invasion of privacy. See Vogel v. W.T. Grant Co., 327 A.2d 133, 136 (Pa. 1974); Larsen v. Phila. Newspapers, Inc., 543 A.2d 1181, 1188 (Pa.Super. 1988); see also Weinstein, 827 F. Supp. at 1202. A defendant liable for the tort of false light must be responsible for "`publicity that unreasonably places the [plaintiff] in a false light before the public'" that would be highly offensive to the reasonable person. Keating v. Bucks County Water Sewer Auth., No. CIV.A.99-1584, 2000 WL 1888770, at *15 (E.D. Pa. Dec. 29, 2000) (quoting Curran v. Children's Serv. Ctr. of Wyo. County, Inc., 578 A.2d 8, 12 ( Pa. Super. 1990)). False light requires "such a major misrepresentation of [plaintiff's] character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable [person] in [plaintiff's] position." Restatement (Second) of Torts § 652E, cmt. c (1977); see also Neish v. Beaver Newspapers, Inc., 581 A.2d 619, 624 (Pa.Super. 1990). Although false light is distinguishable from defamation because it requires widespread publicity or dissemination of the material rather than just publication and the false statement itself does not need to be defamatory, see Weinstein, 827 F. Supp. at 1202;Bromhall v. Rorvik, 478 F. Supp. 361, 367 (E.D. Pa. 1979), courts apply the same general analysis to false light and defamation claims. See Fogel, 500 F. Supp. at 1088.
Defendants' argument on plaintiff's false light claim is the same as their argument on the defamation claim. The Court concludes, for essentially the same reasons as set forth in addressing the defamation claim, that defendant Carroll's depiction of the plaintiff does not place plaintiff in a false light before the public and would not be highly offensive to a reasonable person when considered in context. Accordingly, the false light claim is dismissed.
C. Appropriation
Finally, defendants move to dismiss Count III of the Complaint which alleges that defendants appropriated plaintiff's name and the factual circumstances surrounding his employment without his consent.The law applicable to the tort of misappropriation remains somewhat unsettled in Pennsylvania. However, because the Supreme Court of Pennsylvania has generally applied the Restatement (Second) of Torts to privacy torts and both parties have applied the Restatement (Second) of Torts in their briefs, the Court will apply that Restatement. See Fanelle v. Lojack Corp., 79 F. Supp.2d 558, 563-64 (E.D. Pa. 2000); Marks v. Bell Tel. Co., 331 A.2d 424 (Pa. 1975).
0ne court in this District has not applied the Restatement (Second) of Torts to the tort of appropriation. See Seale v. Grammercy Pictures, 949 F. Supp. 331, 336 (E.D. Pa. 1996). In Seale, the Court predicted that Pennsylvania courts would ultimately adopt the approach to appropriation torts set forth in the Restatement (Third) of Unfair Competition. This Court disagrees with that prediction and chooses not to followSeale.
Under the Restatement (Second) of Torts, the tort of misappropriation is defined as appropriating, for one's "own use or benefit[,] the name or likeness of another. . . ." Restatement (Second) of Torts § 652C (1977). One who misappropriates " . . . is subject to liability to the other for invasion of his privacy." Id. Damages for the tort of appropriation are intended to protect the property right of an individual to the exclusive use of his own identity, notoriety, or skill.9 See Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994) (analyzing the Restatement's interpretation of misappropriation). Thus, to be held liable for appropriation under the Restatement (Second) of Torts, "defendant must have appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness." Restatement (Second) of Torts § 652C, cmt. c.
Plaintiff in this case has failed to allege that his name has any special reputation, prestige, or commercial value or that defendants used it for commercial purposes. It is insufficient to simply allege that a book was published and the defendants intended to profit from the publication. See id. cmt. d. Rather, a plaintiff asserting an appropriation claim must allege that a defendant used a plaintiff s name or likeness for the express purpose of appropriating the commercial benefit that is particularly associated with the name, not "merely because his name or his appearance is brought before the public. . . . "Id. Plaintiff's Complaint contains no such allegations. Accordingly, the appropriation claim is dismissed.
V. CONCLUSION
Plaintiff did not seek leave to file an amended complaint, nor does the Court deem it appropriate to grant permission to do so. Based on the allegations of the Complaint and the copy of Chapter 8 of No Free Lunch that is appended to the Complaint, an amended complaint would be futile. The Court concludes that plaintiff cannot plead additional facts in an amended pleading sufficient to state claims for defamation, false light invasion of privacy or appropriation. Accordingly, plaintiff's Complaint is dismissed without leave to file an amended complaint.
An appropriate Order follows.