On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3612-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and Waugh.
Plaintiffs Atlantic City News Agency (ACNA) and its owner, Stuart Weiss, appeal from the dismissal of their complaint alleging defamation, false light, invasion of privacy, and product disparagement. Following our review of the arguments presented on appeal, in light of the record and applicable law, we affirm the April 13, 2011 order dismissing plaintiffs' complaint, concluding the allegations are insufficient to sustain a cause of action.
Plaintiffs alleged defendants Pinnacle Entertainment, Inc., its Chief Executive Officer Daniel R. Lee, its employee Kimberly Townsend, and its affiliated companies, Pinnacle Atlantic City and ACE Gaming, LLC, related defamatory statements published in three articles appearing in the city newspaper, Press of Atlantic City (the Press). Defendants sought to develop a new casino resort on the former Sands Casino site, and offered to purchase plaintiffs' adjacent realty. Plaintiffs declined the offer and provided a counter offer, which defendants found unreasonable. Thereafter, defendants urged the City of Atlantic City to exercise eminent domain by declaring plaintiffs' and other properties necessary for defendants' development, "in need of redevelopment."*fn1
In their September 14, 2008 complaint, plaintiffs identified comments attributed to individual defendants, reported in the three newspaper articles and also posted on the Press's website. The claimed offensive excerpts included in the first article were found to have been made beyond the one year statute of limitations.*fn2 Because they are not relevant on appeal, we decline to discuss them.
The other remarks reported in the latter two Press articles in part emanated from Lee's August 21, 2008 appearance during a Casino Control Commission (CCC) hearing investigating the need for redevelopment. In urging the CCC take action, Lee characterized ACNA's business as a "really tawdry adult bookstore." On a September 21, 2008 front page article, the Press reported on the CCC's hearings and included this statement. The article also mentioned Lee's comment plaintiffs sought in the "ballpark of $100 million an acre" for their property, followed by his remark that all the property owners' asking prices "were either high or ridiculous. Those that were high, I think in every case we've reached a deal. Those who are ridiculous, we have not."
A second story printed in the Press on September 26, 2008, repeated Lee's "really tawdry" remark, without referencing whether it was made during the CCC hearing or on some other occasion. Further, the article quoted Townsend's statement plaintiffs had asked for "about $5.5 million" for their building. Finally, this commentary was attributed to Lee:
If Atlantic City has any hope of reinventing itself and competing with the newer and better casinos in Connecticut, Pennsylvania and, likely, Maryland, then it has to wake up and recognize these businesses for what they are - blights that draw a negative element to an area and that frighten away the average American that is necessarily the bread and butter of every new casino.
Defendants moved for dismissal of the complaint, asserting plaintiffs failed to allege an actionable claim. The initial motion judge reviewed the specific statements relied upon by plaintiffs to support their contentions and found no basis for relief regarding the references to plaintiffs' asking price, including the remark it was "in the ballpark of one hundred million an acre" and the "either high or ridiculous" quip. However, the initial motion judge did not dismiss the product disparagement claim stating, "I'm not suggesting that I have made any determination whether [ACNA] is or is not [primarily engaged in the sale of pornographic materials]. What I'm suggesting is that on this motion record[,] I can neither take judicial notice of that fact . . . or not." He further suggested the question of whether the use of the term "blight" was an opinion requiring a "fact sensitive analysis," which could not be made on the pleadings filed. The initial motion judge also declined to rule on defendants' asserted application of privilege, concluding such a claim was better left for summary judgment.
Regarding the claims surviving the initial motion to dismiss, plaintiffs were ordered to "amend their complaint to identify the circumstances of publication of those statements not made to reporters or to the Press[.]" Plaintiffs were to plead the specific factual circumstances surrounding the alleged publication of statements alleged to be defamatory and "provide, to the extent known, the content of each statement, when it was made, where it was made, and to whom it was made."
Plaintiffs filed an amended complaint that included sixty-two paragraphs of asserted facts followed by five claims for relief. The content of the facts alleged was confined to Townsend's and Lee's remarks reported in the September 21 and 26 newspaper articles. The complaint in paragraph twenty-seven noted Lee's September 21 remarks were made during the CCC hearing, stating: "According to the [September 21, 2008] article, in his testimony Lee called [ACNA] a 'really tawdry adult bookstore.'" Paragraph twenty-eight then asserts that statement is false and "Lee knew the statement to be false when he made it." The subsequent paragraphs repeat the other statements we have listed above, and add these statements:
34. Plaintiffs are informed and believe that one or more of the defendants, or someone acting on their behalf, . . . sent the transcript of the August 21, ...