for partial summary judgment in this regard is, therefore, granted.
B. " Of and Concerning" Ronald A. Schiavone
That the defamatory statements be "of and concerning" a plaintiff is an indispensable prerequisite to an action for defamation. Durski v. Chaneles, 175 N.J. Super. 418, 420, 419 A.2d 1134 (App. Div. 1980), citing Gnapinsky v. Goldyn, supra, 23 N.J. at 253. See also Restatement (Second) of Torts § 564, at 165 (1977), cited in Cibenko, supra, 510 F. Supp. at 765. Indeed, it is a requirement that is, apparently, constitutionally mandated. Rosenblatt v. Baer, 383 U.S. 75, 81-82, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1966) ("To the extent the trial judge authorized the jury to award respondent a recovery without regard to evidence that the asserted implication of the column was made specifically of and concerning him, we hold that the instruction was erroneous."), citing New York Times v. Sullivan, supra, 376 U.S. at 290-92. Defendant here argues that such requirement is not met with respect to plaintiff Ronald A. Schiavone.
Such argument is not without a great deal of merit. The statement here alleged to be defamatory states that "the personal files of FBI Director William Webster . . . reveal that the name of Schiavone appeared several times in the bureau's reports on the 1975 disappearance of former Teamster Boss Jimmy Hoffa." The use of the word Schiavone in this sentence, in turn, refers back to an earlier discussion of a meeting between Ray Donovan, "then part owner of New Jersey's Schiavone Construction Co.," and two mobsters, one of which was William Masselli, "a member of the Genovese Mafia family and head of an excavation firm that did business with Schiavone." Such meeting, the article continued, was designed "to set up no-show jobs for Genovese mob members on Schiavone sites." Ronald A. Schiavone is never mentioned in the article. Hence, when it later states that the "name of Schiavone appeared" in the HOFEX files, the only possible meaning to be attributed to the use of such name is in connection with the Schiavone corporation. The court finds that no reader could reasonably believe to the contrary. Gnapinsky v. Goldyn, supra, 23 N.J. at 253 (citing authorities).
That the article does not, therefore, explicitly refer to Schiavone, or use his name, does not, however, end the inquiry. See Dijkstra v. Westerink, 168 N.J. Super. 128, 133, 401 A.2d 1118 (App. Div. 1979) (". . . the actual naming of plaintiff is not a necessary element in an action for libel. It is enough that there is such reference to him that those who read or hear the libel reasonably understand the plaintiff to be the person intended."); Weller v. Home News Publishing Co., 112 N.J. Super. 502, 508, 271 A.2d 738 (L. Div. 1970) ("Neither the intent to defame nor the naming of the plaintiff is a necessary element in an action for libel."). Schiavone argues that, as 49.25 percent shareholder in a closely held firm,
of which he is Chairman of the Board of Directors and Chief Executive Officer, see Aff. of Ronald A. Schiavone (6/10/85) para. 2 ("Plaintiffs' Brief (6/11/85), Exh. B); Banta Aff., Exh. E, at 1, and which bears his name, any mention of the Schiavone Company may reasonably be understood as referring to him.
The court agrees. While some cases have held that a stockholder may not sue for the libel of a corporation, United States Steel Corp. v. Darby, 516 F.2d 961, 964 n.4 (5th Cir. 1975); McBride v. Crowell-Collier Publishing Co., 196 F.2d 187 (5th Cir. 1952), citing R.G. Dun & Co. v. Shipp, 127 Tex. 80, 91 S.W.2d 330 (1936), and that the same is true of an officer, see, e.g., Gilbert Shoe Co. v. Rumpf, 112 F. Supp. 228, 229 (D. Mass. 1953); cf., McMillen v. Arthritis Foundation, 432 F. Supp. 430, 432 (S.D.N.Y. 1977) (Chairman of the Board and principal shareholder cannot sue for statement praising him but critical of his corporation); but see Brentwood Pharmacy, Inc. v. Sheppard, 229 N.Y.S.2d 511, 512 (S. Ct. 1962) other courts have found defamation actions to lie for individuals involved in "a small business owned and operated by two individuals," Shop Called East v. KYW - Channel 3, 8 Med. L. Rptr. 1399, 1402 (D.N.J. 1982) (Gerry, J.), citing Kilpatrick v. Edge, 85 N.J.L. 7, 88 A. 839 (E. & A. 1913), or in a sole proprietorship, see Patzer v. Liberty Communications, Inc., 58 Or. App. 679, 650 P.2d 141 (1982); Annotation : "Libel and slander: sufficiency of identification of plaintiff by matter complained of as defamatory," 100 A.L.R.2d 227, 294 (1965), citing Bohan v. Record Publishing Co., 1 Cal. App. 429, 82 P. 634 (1905), particularly where, as here, the name of the individual plaintiff and that of the enterprise are the same. See United States Steel Corp. v. Darby, supra, 516 F.2d at 964 n.4; Patzer, supra, 650 P.2d at 142 ("In the present case, defendants published the name of the corporation, but not plaintiff's name. However, because plaintiff's surname is part of the corporation name, it is possible that persons hearing the remarks would understand them to refer to plaintiff."); Southland Publishing Co. v. C.E. Sewell, 111 Ga. App. 803, 143 S.E.2d 428, 432 (1965) (citing cases). Cf., DiGiorgio Furit Corp. v. A.F. of L. & C.I.0., 215 Cal. App. 2d 560, 30 Cal. Rptr. 350 (1963) (corporation can sue where individual after whom it is named is mentioned in defamatory statement), cited in Annotation, supra, 100 A.L.R.2d at 263 (citing cases in which plaintiff defamed where a name similar to his own was used in defamatory statement). See also Annotation, supra, 100 A.L.R.2d at 299 ("Imputations concerning the manner in which a specified business has been conducted have been held sufficiently [sic] to identify the officials responsible for the conduct of the pertinent phase of the business to support an individual action for defamation on their behalf."). But see Chandless v. Borg, 24 N.J. Super. 73, 88, 93 A.2d 651 (App. Div. 1952) (alleged defamation of law firm not libelous as to individual members thereof). The court finds the latter cases to be applicable here, where the corporate entity is owned by a very few persons, of whom Schiavone is the principal one, where Schiavone is the Chairman of the Board of Directors, the Chief Executive Officer and the person who might well have been responsible for the major decisions of the corporation, and where the corporate entity bears Schiavone's name.
Of course, plaintiff Ronald Schiavone will ultimately be required to show that a reasonable reader, see Shop Called East, supra, 8 Med. L. Rptr. at 1402; Gnapinsky, supra, 23 N.J. at 253 (published statement must be understood to apply to plaintiff "by at least some third person"), found the statement here at issue to be "of and concerning" Mr. Schiavone.
Moreover, in light of the Supreme Court's decision in Gertz, to the effect that states cannot impose liability for defamation without fault, 418 U.S. at 347, Schiavone will have to show that defendant was, at least, negligent in failing to anticipate that the statement might be viewed as referring to him, and in not taking the appropriate action in light of such knowledge. Restatement (Second) of Torts, supra, § 564 Comment f, at 167. See, e.g., Zerpol Corp. v. DMP Corp., 561 F. Supp. 404, 410 n.3 (E.D. Pa. 1983). See Sisler v. Courier News Co., 199 N.J. Super. 307, 312-14, 489 A.2d 704 (App. Div. 1985) (New Jersey has adopted negligence standard for non-public figures). For these reasons, defendant's motion to dismiss as against plaintiff Ronald A. Schiavone is denied without prejudice to its being renewed in light of the facts to be adduced at trial.
C. Fair Report
Defendant here asserts the fair report privilege as a defense to plaintiffs' claim, arguing, in effect, that since the August 23, 1982 article was an "accurate and complete or a fair" report of the Webster memorandum, it cannot be held liable for the defamatory matter existing in such memorandum. The genesis of this privilege was traced by the Court of Appeals for the Third Circuit in Medico v. Time, Inc., 643 F.2d 134 (3d Cir.), cert. denied, 454 U.S. 836, 70 L. Ed. 2d 116, 102 S. Ct. 139 (1981). There, the court noted that, with the advent of the republication rule, whereby the republisher of a defamatory statement adopted the statement as his or her own, "special problems" were created for the press.
When a newspaper published a newsworthy account of one person's defamation of another, it was, by virtue of the republication rule, charged with publication of the underlying defamation. Thus, although the common law exonerated one who published a defamation as long as the statement was true, a newspaper in those circumstances traditionally could avail itself of the truth defense only if the truth of the underlying defamation were established.