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Donato v. Moldow

January 31, 2005

VINCENT DONATO AND GINA A. CALOGERO, PLAINTIFFS-APPELLANTS, AND ERIC OBERNAUER AND LAWRENCE R. CAMPAGNA, PLAINTIFFS,
v.
STEPHEN MOLDOW, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT, AND JOHN DOES 1-40 AND JANE DOES 1-20, DEFENDANTS,
v.
KENNETH HOFFMAN, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6214-01.

Before Judges Conley, Lisa and Winkelstein.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 14, 2004

We consider in this case the potential liability of the operator of an electronic community bulletin board website based on allegedly actionable messages posted anonymously by others. Appellants, Vincent Donato and Gina A. Calogero, elected members of the Emerson Borough Council, sued the website operator, defendant Stephen Moldow, and numerous fictitious parties, identifying them by the pseudonyms they used when posting their messages. The primary thrust of the complaint against Moldow was that the messages constituted defamation, harassment and intentional infliction of emotional distress,*fn1 and that Moldow was liable for damages because he was the publisher. The trial judge found that Moldow was immune from liability under a provision in the Communications Decency Act of 1996, 47 U.S.C.A. § 230, and granted Moldow's motion to dismiss the complaint against him for failure to state a claim upon which relief can be granted. We affirm.

I.

Moldow established the website, known as"Eye on Emerson," in late 1999. He posted information about local government activities, including, for example, minutes of meetings of the borough council, planning board and board of education. Public opinion polls were conducted on the site, which included approval ratings of local elected officials. The site included a discussion forum, in which any user could post messages, either with attribution or anonymously.

Initially, appellants favored the Eye on Emerson website, believing it provided a good source of community information and citizen participation. But, beginning in early 2001, many negative messages about appellants were posted. Some concerned the discharge of their official duties. Others were personal. Many were vile and derogatory in their language and tone. We give a few examples, taken directly from the complaint:

A false message from"my window is not a peep show" posted July 4, 2001 falsely claiming that Donato climbed a ladder to the author's bedroom window and was videotaping him or her with a camera while he/she was dressing; False statements by"Doctor in the House" that plaintiff Donato was emotionally and mentally unstable and in need of psychiatric help, ready to explode and should be on medication;....

A false statement by"Concerned Resident" on or about June 13, 2001 claiming that [] and Calogero"do drugs;"....

Various false statements including a message from"Investigator" falsely claiming that Donato and Calogero"use police reports against the residents" and claiming that Donato and Calogero abused their authority over the Emerson Police Department and violated Department Rules and Regulations and/or state laws; Messages from"RM,""Insider Investigator" and"Ron" on various dates falsely accusing Donato and Calogero of stealing files and other public records from borough hall and accusing Calogero of violating police department policies;....

Messages from"Voter,""Resident Informed,""Duped Again,""Tommy Boy" and others calling Donato a"slippery slimy fish,""hate mongering political boob,""slime of a thing,""Hitler reborn," an"evil bitter old man,""sneak and a liar,""sleeze.""vermin,""a-hole;"....

Messages from"Jackie" and others calling Calogero a"piece of sh--,""this Bitch,""corrupt influence,""Queen of Hate,""witch,""fashion violation,""nut case," claiming that she"hasn't told the truth since she was sworn into office" and other harsh and offensive comments.

The complaint alleged that Moldow and the fictitiously named anonymous posters published the statements knowing they were false, with actual malice, and with intent to injure and cause emotional distress to appellants, who sought damages for loss of esteem in the community, damage to their reputation, and physical and mental pain and suffering. We recognize that some of the statements may be non-actionable, consisting merely of unpleasant name-calling and expressions of opinions, particularly when directed at public figures.*fn2 For purposes of our analysis, we assume that some of the statements are actionable, particularly under the extremely deferential standard applicable to motions to dismiss on the pleadings. See Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 766-67 (1989). We will refer to them generically as"defamatory statements."

Of course the authors of the defamatory statements would be liable to appellants upon proof of all elements of the cause of action. Their potential liability is not before us. Appellants took steps in the trial court to ascertain the identity of the fictitious parties. Immediately upon filing the action they issued a subpoena duces tecum to FreeTools.com, trading as VantageNet, Inc., which was the electronic host of the Eye on Emerson bulletin board, seeking the Internet Protocol (IP) address of each anonymous poster.

The fictitious parties, without divulging their identities, engaged counsel, who moved to quash the subpoena. The American Civil Liberties Union and Public Citizen Litigation Group, by leave granted, intervened as amicus curiae. Because appellants failed to comply with the procedures required by Dendrite Int'l, Inc. v. John Doe No. 3, 342 N.J. Super. 134, 141-42 (App. Div. 2001), and for other reasons, the trial judge granted the motion to quash. But he denied as premature the motion of the fictitious parties to dismiss the complaint against them. Thus, appellants were not deprived of the opportunity to continue in their attempt to identify the anonymous posters. Eventually, however, appellants abandoned their efforts and voluntarily dismissed their claim with prejudice against the fictitious defendants.

In argument before the trial court, appellants expressed their suspicion that Moldow might have authored some of the defamatory statements posted under pseudonyms. They argued they should be permitted discovery to pursue their suspicion and perhaps engage the services of a linguistics expert. Thus, they argued dismissal of their claim against Moldow was premature and must abide discovery. The judge rejected the argument, concluding that if appellants satisfied the Dendrite test as to any anonymously posted messages, they would be entitled to obtain the identifying information of the poster, whoever, including Moldow, it might be. At that point in the proceedings, the trial judge refused to dismiss against the fictitious defendants.

As we have stated, appellants did not pursue their Dendrite remedies or otherwise determine the identity of any of the anonymous posters. In their appellate brief, appellants acknowledge that they have not appealed the part of the order that"dismissed Moldow from the claim that he had posted anonymously... because they dismissed all claims against the anonymous defendants...." Appellants thus concede that"if it were later determined that Moldow was actually the author of any of the anonymous messages, plaintiffs would be precluded from suing him."

Therefore, appellants' contention on appeal is limited to their position that Moldow should be potentially liable because he published defamatory statements made by third parties. Appellants premise their appeal arguments on the assertion that the trial judge in effect converted the motion to dismiss into a motion for summary judgment because he considered matters outside the pleadings. Appellants then argue (1) because discovery was incomplete the matter was not ripe for summary judgment and (2) because material fact issues existed regarding Moldow's conduct, his status as an information content provider, and whether he exercised good faith in editing, the court erred in finding immunity under § 230 and granting dismissal or summary judgment.

A motion to dismiss a complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted must be evaluated in light of the legal sufficiency of the facts alleged in the complaint. Printing Mart, supra, 116 N.J. at 746. The court must view the allegations with great liberality and without concern for the plaintiff's ability to prove the alleged facts. Ibid. The plaintiff should receive the benefit of every reasonable inference of fact. Ibid. If, on a Rule 4:6-2(e) motion,"matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion." R. 4:6-2.

The judge heard Moldow's Rule 4:6-2(e) motion on the same return date as several other motions in this case, including the motion to quash the subpoena and the motion to dismiss against the fictitious defendants. The judge received certifications with many attached documents pertinent to the other motions. During the lengthy oral argument, there was considerable discussion about those materials. However, counsel for Moldow and amicus curiae narrowly tailored their arguments regarding Moldow's dismissal motion to the facts alleged in the complaint. The judge issued a written decision deciding the various motions. In the portion of the decision deciding Moldow's motion, he did not refer to or rely on any matters outside the pleadings. We therefore reject appellants' contention that the motion judge treated this as a summary judgment motion.

Our review of a motion to dismiss for failure to state a cause of action is governed by the same standard as that applied by the trial court. Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002). We therefore consider, and accept as true, the facts alleged in the complaint to ascertain whether they set forth a claim against Moldow upon which relief can be granted.

II.

Appellants' overriding allegation against Moldow is that he is liable as a publisher of the defamatory statements made by others. They further allege that Moldow was more than passive in his role as publisher, and"has actively participated in selective editing, deletion and re-writing of anonymously posted messages on the Eye on Emerson website and, as such, is entirely responsible for the content of the messages." Appellants elaborate with these factual allegations, by which they argue that Moldow shaped the discussion and thus participated in developing the defamatory statements:

24. The technology is available to require users to register with the webmaster prior to using the discussion forum message board and to identify themselves by name, address and e-mail address; however, Moldow designed the Eye on Emerson website and its discussion forum to allow all users to post messages anonymously.

25. The format of the discussion forum encourages the use of harassing, defamatory, obscene and annoying messages because users may state their innermost thoughts and vicious statements free from civil recourse by their victims.

26. Defendant Moldow controls the content of the discussion forum by various methods, including selectively deleting messages he deems offensive, banning users whose messages he finds"disruptive" to the forum and posting messages to the users who violate his rules of usage. While Moldow is quick to remove any negative message about himself or people he associates with, he allows offensive messages against the plaintiffs and their support[er]s to remain.

27. Moldow actively participates in the editing of messages. By way of example and not limitation, Moldow deleted a message from"the Saint" but not until after several other users complained; he deleted the messages from"Destroyer","the Champ" and others after Donato and Obernauer threatened litigation; after two days of complaints, he deleted messages from"Football Parent" accusing a former football coach of having sex with female students. Moldow has also deleted messages from"Pee in My Pool" and other users. On May 8, 2001, Moldow said he deleted the post of"Resident Informed" because of profanity but he re-posted an edited version of the message with the profanity partially redacted, thus instructing participants in how to convey offensive language without encountering censorship.

28. Moldow knows the identities of users of the website. On July 15, 2001, he posted a message explaining that"The posts from the author'Ouch,''Amazed,''spiderman,' and'Web Master' were removed. All of these messages appear to be from the same person. By the nature of the messages and attempting to impersonate the web master you obviously intended to disrupt the message board. This is not welcome here."

29. On separate occasion in or around April of 2001, plaintiffs Donato and Obernauer met with Moldow individually. Donato and Obernauer showed him downloaded copies of some of the more offensive messages about them and requested three things: (a) the identity of the individuals who posted the offensive, harassing and/or defamatory messages, (b) that Moldow remove the messages and post a disclaimer and (c) that Moldow change the format of ...


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