by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
In Roberts v. Mintz, defendant bought what he believed was a "healthy, nine-month old, purebred Havanese," but what he got was a two-year old dog that was not a purebred Havanese, and was suffering from various health problems. Defendant complained and plaintiffs offered to refund his money in exchange for the dog. Defendant refused. He wanted the refund, but he wanted to keep the dog because he had already incurred $800 in veterinary fees and because he had become fond of the dog, which he named Moose.
One month after buying Moose, defendant began posting about his experience with plaintiffs on his blog. As you probably guessed, the posts were not positive. Eventually, plaintiffs sued in connection with six specific statements defendant made on his blog, which, among other things, accused plaintiffs of being members of a "notorious ring of South Jersey dog grifters," alleged that plaintiffs had been convicted of animal cruelty, claimed that plaintiffs' lived in a "run down farmhouse with 6 children," and described plaintiffs as "despicable human beings" who ran a "fraudulent puppy mill." Defendants also posted that they had heard from others who were "unwittingly scammed" by plaintiffs. Individuals who claimed to be plaintiffs responded to some of the posts in the comments sections of the blog, calling defendant a "liar" and a "jerk," and claiming that he "suffered from 'rage syndrome,' a behavioral condition that afflicts canines."
In lieu of answering plaintiffs' complaint, defendant moved for summary judgment, seeking to have the complaint dismissed. He also served plaintiffs with a frivolous litigation letter. Plaintiffs cross moved for summary judgment and also sought an injunction preventing defendant from defaming them. The trial court granted defendant's motion. It held that plaintiffs were barred from suing in connection with several of the statements because the one-year statute of limitations had expired. In doing so, it rejected plaintiff's claim that the statute of limitations should have been tolled because defendant had committed a continuous tort. The trial court found that the remaining statements were "opinions, epithets, and hyperbole," and were therefore "not sufficiently factual to be actionable."
Defendant then moved for sanctions, and the trial court granted the motion. Although it did no award defendant all of the sanctions he sought, it did award him $25,000 — assessed against both plaintiffs and their counsel — because plaintiffs filed their complaint without sufficient evidentiary support and because several claims were barred by the statute of limitations.
Both sides then appealed — plaintiffs seeking to reverse the trial court's decision dismissing their complaint, and defendant seeking to reverse the trial court's decision to award him less in sanctions than what he requested
The Appellate Division rejected plaintiffs' argument that defendant was engaged in a continuous tort. It noted that the "continuing violation doctrine" provides that when a plaintiff is "subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases." But, it held that this doctrine had not yet been applied by any New Jersey courts to defamation claims, and instead had only been applied by New Jersey courts in hostile work environment claims and continuing nuisance claims. The Appellate Division refused to extend the doctrine to plaintiffs otherwise time-barred claims. It noted, among other things, that applying the doctrine to plaintiffs' claims would "be at odds with the single publication rule, which provides that a statement posted on the internet is deemed to only be published once for purposes of the statute of limitations; the limitations period does not restart every time the post is viewed."
The Appellate Division then affirmed the trial court's decision that the remaining statements were not defamatory. In doing so, it provided a road map for defamation claims in general:
- To state a claim for defamation, a plaintiff must allege, among other things, that a defendant made a false and defamatory statement.
- To determine if a statement is defamatory, courts consider the content, context, and verifiability of the statement.
- A statement's verifiability refers to whether it can be proved true or false.
- Statements of opinion are usually not actionable because they are "generally not capable of proof of truth or falsity because they reflect a person's state of mind," but an opinion is actionable if it "implies 'reasonably specific assertions' of 'underlying objective facts that are false.'"
- "Loose, figurative or hyperbolic language is not likely to imply specific facts, and thus is generally not actionable." Neither are "epithets, insults, name-calling, profanity and hyperbole."
- Statements "falsely attributing criminality to an individual are defamatory as a matter of law," but "this does not mean that using a word that is also the name of a crime necessarily accuses the person of committing that crime." Instead, the word must be considered in context, "focusing on the listener's reasonable interpretation of the statement."
- Ultimately, the "higher the fact content of a statement, the more likely it is to be actionable."
Applying these standards, the Appellate Division agreed with the trial court that defendant's statements were not actionable. The statement that plaintiffs lived in a "rundown farm house" was simply opinion. The rest of the statements "present[ed] a closer issue" because they included terms and phrases like "grifter" and "scammed" and "fraudulent puppy mill," which, if taken literally, could be interpreted as accusing plaintiffs of having committed crimes. However, the Appellate Division held that the context in which those words were used revealed that a reasonable reader would not take them literally:
First, the words immediately surrounding these terms include sarcastic quips like "Despite a down economy, it appears that business for the dog grifting team of [plaintiffs] is booming," and derisive insults such as "nefarious individuals," "despicable human beings," and "cronies." Second, defendant's invective grew more disparaging in response to comments left by readers claiming to be plaintiffs, which attacked defendant using incendiary language. The parties' exchange of insults suggests a reader would view defendant's words as barbs, hyperbole, and opinion – not fact.
Perhaps most importantly, defendant made these statements under the heading, "Rants and Raves," signaling to any reader that what followed were the author's personal viewpoints . . . .Given the profanity-laden, emotionally-charged context in which defendant used "grifters," "scammed," and "fraudulent puppy mill," a reader would not reasonably understand defendant as charging plaintiffs with a crime or fraud. Instead, a reasonable reader would interpret these statements as name-calling and hyperbole.
The Appellate Division therefore concluded that "defendant's statements were non-actionable opinion, hyperbole, and epithets."
However, the Appellate Division reversed the trial court's decision to impose sanctions on plaintiffs and their counsel. It held that, while it disagreed with plaintiffs' legal arguments, the line between opinion and fact was unclear when words like "fraud," "grift," and "scam" are involved. Therefore, plaintiffs' claims based on these words were not baseless. Similarly, the Appellate Division held that it was reasonable for plaintiffs to argue that the continuing violation doctrine applied to their claims. While the Appellate Division disagreed with the argument, it was reasonable, and therefore not sanctionable, for plaintiffs to rely upon it because the question of whether it applied to defamation claims had not previously been addressed by New Jersey courts.
Pete's Take 