NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5214-14T4
PETRO-LUBRICANT TESTING
LABORATORIES, INC., and
JOHN WINTERMUTE,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants/
Cross-Respondents, October 19, 2016
APPELLATE DIVISION
v.
ASHER ADELMAN, d/b/a
eBossWatch.com,
Defendant-Respondent/
Cross-Appellant.
_______________________________
Argued September 19, 2016 – Decided October 19, 2016
Before Judges Sabatino, Haas, and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Sussex County, Docket
No. L-0406-12.
Mark G. Clark (Traverse Legal) of the
Michigan bar, admitted pro hac vice, argued
the cause for appellants/cross-respondents
(Trimboli & Prusinowski, LLC, and Mr. Clark,
attorneys; James Prusinowski, of counsel;
Mr. Clark, Mr. Prusinowski, Jinkal Pujara,
and John P. Harrington, on the briefs).
Garen Meguerian argued the cause for
respondent/cross-appellant.
Eugene Volokh (First Amendment Clinic) of
the California bar, admitted pro hac vice,
argued the cause for amicus curiae Reporters
Committee for Freedom of the Press (Hartman
& Winnicki, P.C., and Mr. Volokh, attorneys;
Mr. Volokh and Daniel L. Schmutter, on the
brief).
The opinion of the court was delivered by
CURRIER, J.A.D.
In this defamation case, we are asked to decide whether a
second posting of an article on a website with minor changes
from the original posting was sufficient to categorize it as a
separate publication, and therefore subject to a new statute of
limitations. We find the minor changes between the two articles
to be immaterial and not sufficient to render them two separate
publications. In addition, to the extent that any of the changes
could be regarded as material, on the whole they lessened the
"sting" of the publication. Therefore, the single publication
rule is applicable and the complaint was properly dismissed as
untimely under the one-year statute of limitations.
We also uphold the dismissal of defendant's counterclaim,
rejecting the novel theory that defendant has standing as a
publisher to assert a claim of retaliation under the New Jersey
Law Against Discrimination (NJLAD).
The website eBossWatch.com was created by defendant Asher
Adelman for people to rate their employers and bosses so that
job seekers might search workplaces and "access inside
information about what it's really like to work there." After
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viewing an article on the Courthouse News Service1 that detailed
allegations of gender discrimination and a hostile workplace
environment in a complaint filed by an employee against
plaintiffs Petro-Lubricant Testing Laboratories, Inc. (PTL) and
John Wintermute, defendant published an article on his website
reporting on the same complaint.
The article, entitled "'Bizarre' and Hostile Work
Environment Leads to Lawsuit," was posted on August 3, 2010. It
repeated the allegations contained in the complaint which
described Wintermute as a "violent bully, a racist, and a
womanizer who regularly brought guns to the workplace."
Allegations of Wintermute's explosive temper, his sexual affairs
with female employees, and his retaliation by firing the
employee when she refused to lie for the company in another
employment-related lawsuit were also described.
In 2010, defendant also posted a webpage entitled
"America's Worst Bosses 2010," a list that ranked bosses and
named their employers. Wintermute was named in the list and a
hyperlink led to the eBossWatch article.
1
Courthouse News Service is an Internet-based news service that
publishes original content, focusing on civil litigation
nationwide.
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In December 2011, an attorney representing plaintiffs wrote
to defendant stating:
It has recently come to our attention that
you have published false and defamatory
statements concerning our client in an
article. This letter serves as your final
notice to remove this article from your
website or face liability under New Jersey
law for defamation, defamation per se, and
false light invasion of privacy.
The letter advised that defendant "may be held liable for
significant monetary damages," and demanded defendant remove the
article, related links, and metatags.
The letter stated that the employee "was fired from Petro-
Lubricant for reasons unrelated to anything contained in her
complaint" and that her "retaliatory lawsuit containing these
baseless allegations" had been settled.
Defendant responded to plaintiffs' counsel that the
"article is clearly a reporting of the complaint that was filed
by [the employee] against [plaintiffs]. [O]ur article contains
only factual statements about the abovementioned complaint and
its allegations." Defendant stated further that "to make it
even more clear that our article is a factual reporting of the
[employee's] complaint, we have made some minor changes to the
wording and to the article's title." The email provided counsel
with a link to the updated article published in December 2011.
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The article was also linked to the "America's Worst Bosses 2010"
list.
A reading of the December 2011 article reveals that
defendant changed the title to "Hostile Work Environment Lawsuit
Filed Against Petro-Lubricant Testing Laboratories." He also
removed a picture of the laboratory which had accompanied the
first article. Although there was some rewording in the
paragraphs, the content reported and the construction of the
article remained the same.
In reporting the employee's claims, the earlier article
stated: "[Wintermute] also allegedly forced workers to listen to
and read white supremacist materials." The second posting
deleted that wording and stated: "John Wintermute also allegedly
regularly subjected his employees to 'anti-religion, anti-
minority, anti-Jewish, anti-catholic, anti-gay rants.'"
In June 2012, plaintiffs filed a complaint against
defendant alleging defamation, false light publicity, and
intentional infliction of emotional distress as a result of the
false and defamatory statements contained in the August 2010
eBossWatch article and the "America's Worst Bosses 2010" list.
The complaint was amended in September 2012 to include
defamation claims arising from the December 2011 posting.
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In lieu of filing an answer, defendant moved for summary
judgment. Noting the one-year statute of limitations for a
libel or slander action, N.J.S.A. 2A:14-3, the motion judge
found the August 2010 article and the December 2010 publication
of the worst bosses list to be time-barred. He further
concluded in his opinion and order of December 10, 2012 that
issues of fact prevented the grant of summary judgment regarding
the December 2011 re-posted article.
At the close of discovery both parties presented summary
judgment motions. Defendant also moved to amend his answer and
add a counterclaim for retaliation under the NJLAD, N.J.S.A.
10:5-12(d), as well as a motion seeking sanctions for
plaintiffs' alleged discovery violations.
Following oral argument on May 21, 2015, the second motion
judge2 rendered an oral decision, with only a brief reference to
the statute of limitations argument posited by defendant. He
stated: "I'm satisfied that the Single Publication rule does not
apply to the December 2011 article as that rule applies to a
mass distribution of the same material." Therefore, he
concluded the statute of limitations on the second article had
not expired. Summary judgment, however, was granted to defendant
2
A different judge presided over the second summary judgment
applications.
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on other grounds as the judge found the article was a "full,
fair and accurate account of the [employee's complaint]" and
therefore privileged as plaintiffs had failed to prove it had
been published with actual malice. On the same date, the judge
issued a written statement of reasons granting summary judgment
to defendant and denying summary judgment to plaintiffs.
Although the judge granted defendant's motion to amend the
answer with a counterclaim, he denied the counterclaim as moot
and denied defendant's sanction request.
On appeal, plaintiffs argue that the December 2011 article
is "a separate and distinct publication from the August 2010
post" and therefore, the complaint was timely filed within the
one-year statute of limitations. Plaintiffs contend the single
publication rule does not apply to the second posting as the
December 2011 article contained significant changes in its
content, substance, and form from the earlier post. Plaintiffs
also argue that the judge erred in deeming the article
privileged. In his cross-appeal, defendant contends the judge's
dismissal of his retaliation counterclaim and discovery sanction
motion was error.
Amicus curiae, the Reporters Committee for Freedom of the
Press, asserts that the "minor changes" made in the December
2011 article did not broaden any of the claims or allegations
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set forth in the original posting, and therefore, under the
single publication rule, the one-year statute of limitations
applied and had expired prior to the filing of the complaint.
We review a grant of summary judgment under the same
standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209
N.J. 35, 41 (2012). We must determine whether there are any
genuine issues of material fact when the evidence is viewed in
the light most favorable to the non-moving party. Id. at 38,
41. "The inquiry is whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J.
436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 536 (1995)) (internal quotation marks
omitted). "[T]he legal conclusions undergirding the summary
judgment motion itself [are reviewed] on a plenary de novo
basis," Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202
N.J. 369, 385 (2010); including whether the statute of
limitations applies, Churchill v. State, 378 N.J. Super. 471,
478 (App. Div. 2005).
The single publication rule was applied traditionally to
"mass publications under which a plaintiff alleging defamation
has a single cause of action, which arises at the first
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publication of an alleged libel, regardless of the number of
copies of the publication distributed or sold." Ibid.
In Churchill, we addressed the application of the single
publication rule to an Internet publication of a document.
Concluding that the "Internet appears to be particularly suited
to application of the single publication rule," we found no
basis to treat the Internet differently than other forms of mass
media, and held the single publication rule applied to Internet
publications. Id. at 483.
The plaintiffs in Churchill also argued that the updates
made to the website constituted republications of the allegedly
defamatory report, thus triggering a new statute of limitations
upon each update. Id. at 477. We rejected that argument,
finding that the updates "were merely technical changes to the
website. . . . [T]hey in no way altered the substance or form
of the report." Id. at 483. We concluded that "to treat the
changes as republications would be inappropriate and defeat the
beneficial purposes of the single publication rule." Id. at
483-84.
Mindful of that benchmark, we turn to an analysis of the
two articles. Both posts are constructed similarly, each
containing six paragraphs. As noted earlier, the title was
changed between posts but the subject matter remained the same;
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both articles report on a hostile work environment lawsuit.
Although the wording used in the first two paragraphs is
slightly different, the substance remains the same. The fourth,
fifth, and sixth paragraphs are unchanged.
We look then at the third paragraph in the articles. The
August post reads:
[The employee] claims that John Wintermute
is a violent bully, a racist, and a
womanizer who regularly brought guns to the
workplace and target practiced, hunted and
gutted birds, which he then fed to his guard
dogs, on company property. He also
allegedly forced workers to listen to and
read white supremacist materials, drank
alcohol regularly throughout the workday,
and was a violent, raging drunk.
The third paragraph of the December 2011 article states:
[the employee] claims that John Wintermute
is a "dangerous and violent alcoholic" who
allegedly regularly brought guns to the
workplace and target practiced, hunted and
gutted birds, which he then fed to his dogs,
on company property. John Wintermute also
allegedly regularly subjected his employees
to "anti-religion, anti-minority, anti-
Jewish, anti-catholic, anti-gay rants."
The only substantive difference in the actual text of these
articles is the elimination of the reference to Wintermute
requiring his employees to listen to and read white supremacist
materials; the later post instead quotes the employee's
allegations that Wintermute subjected his employees to "anti-
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religion, anti-minority, anti-Jewish, anti-catholic and anti-gay
rants."
Communications posted on websites are viewed on a far wider
scale than traditional mass media. Web postings are available
for an indefinite period of time. If immaterial changes to an
Internet post were to result in a retriggering of the statute of
limitations on each occasion, the legislative purpose of
favoring a short statute of limitations for defamation would be
defeated. Therefore, the statute of limitations will only be
triggered if a modification to an Internet post materially and
substantially alters the content and substance of the article.
We note that the modifications in the second posting were
intended by defendant to diminish the defamatory sting of the
previously reported allegations after his receipt of plaintiffs'
counsel's antagonistic correspondence. We find it a logical
extension of our decision today to also conclude that a
softening of prior material in a subsequent posting should not
result in the commencement of a new statute of limitations.
Therefore, if a minor modification diminishes the defamatory
sting of an article, it should not trigger a new statute of
limitations.
We reject the argument that the second post was altered in
substance or form from the earlier posting as the differences
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between the articles are immaterial. The allegedly defamatory
information is the same in both articles. Paragraph three of
the second posting was minimally altered to quote specific
phrases contained in the complaint. The disseminated
information stayed constant.
Therefore, we find the December 2011 article was not a
republication and instead falls under the single publication
rule. The one-year statute of limitations commenced with the
posting of the original article in August 2010; therefore, the
complaint filed in June 2012 is barred as untimely and
defendants were entitled to summary judgment and a dismissal of
plaintiffs' claims. As a result, we do not consider the
remainder of plaintiffs' contentions.
We turn to defendant's cross-appeal. Defendant sought to
assert a counterclaim on the grounds of retaliation under NJLAD,
N.J.S.A. 10:5-12(d).3 The facts presented in the summary
judgment record are not sufficient to accord standing to
defendant under the statute. There were no proofs that
defendant had any relationship with the aggrieved employee or
that he aided or encouraged her in asserting her rights in her
3
"It shall be an unlawful employment practice . . . [f]or any
person to take reprisals against any person because that person
has . . . aided or encouraged any other person in the exercise
or enjoyment of, any right granted or protected by this act."
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NJLAD claim so as to confer him standing under the statute. See
Craig v. Suburban Cablevision Inc., 140 N.J. 623, 630 (1995).
Moreover, defendant may be granted certain rights and
protections under the First Amendment and the common law as a
result of his claimed status as a journalist objectively
reporting on employment litigation. He would not be entitled to
those same safeguards if he were to be considered an advocate
for the rights of the employee under the NJLAD. Although we
disagree with the judge's determination that mootness required
the dismissal of the counterclaim, we nevertheless find the
dismissal to have been properly entered, as defendant lacked
standing to assert the claim. See Isko v. Planning Bd. of
Livingston, 51 N.J. 162, 175 (1968) ("[I]f the order of the
lower tribunal is valid, the fact that it was predicated upon an
incorrect basis will not stand in the way of its affirmance.").
Finally, we find the judge did not abuse his discretion in
denying defendant sanctions for alleged discovery abuses.
Affirmed.
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