United States District Court, D. New Jersey
matter arises from plaintiff Philip Read's idea for a
magazine that would focus on downtown Newark, New Jersey, to
be called The Downtowner. On December 8, 2010, Read, a former
reporter for the Star-Ledger newspaper in Newark, emailed
defendant Paul Profeta an unsolicited "blueprint"
of his idea for the magazine. The two had discussions about
the magazine idea into early 2011, and later revived their
discussions in July 2012. Discussions broke down for good in
January 2013, when the two could not agree on a business
fall of 2013, however, Profeta launched his own
Newark-centric magazine, called Radius: Brick City and
Beyond. On April 14, 2015, Read filed this action
against Profeta for "stealing" his magazine idea.
Radius lost money, and publication ceased in 2017.
was a man with an idea, but little capital. An eager suitor,
he necessarily assumed the burden of developing the concept
into something that would attract investment. Profeta, the
party being wooed, could remain noncommittal at little cost
to himself. The issue here is whether Read, rather like the
old Book-of-the-Month Club, succeeded in placing an
obligation on the solicited party. One need not wholly
endorse the manner in which Profeta dealt with Read, a person
of lesser means and business experience, to find that Profeta
did not take on any such legal obligation.
discussing Read's claims individually, I will divide them
into two classes. The division is imperfect-some claims are
ill-defined, or might straddle the two classes-but the
classification is still conceptually useful.
consists of Read's claims that Profeta made an
enforceable commitment to fund and publish The Downtowner
magazine. In these claims, Read seeks the benefit of that
bargain, primarily his expected salary or profit as editor of
The Downtowner. 1 find the evidence insufficient to create a
triable issue that Profeta committed to a contract of
employment or the equivalent.
consists of Read's claims that, in the course of
preparing for the launch of the aborted Downtowner magazine,
he performed services or incurred expenses, and that Profeta
had a duty to reimburse him for the value of those services
or expenses. The earliest statements by Profeta that
suggested even a potential commitment to the project occurred
in September/October 2012 (see pp. 11-12, infra). From that
date on, Read might have been entitled to the value of his
expenditures or services until discussions broke down in
January 2013, if those statements had constituted a
sufficiently firm promise. But they didn't; the evidence
shows that both parties left it vague, and that Profeta
imposed conditions, never fulfilled, on his assent. If Read
expected to be compensated, he needed to be clear; if
necessary, he needed to state that he would not perform
further services without some kind of commitment to be paid
there is no Class C. What is not claimed here is that Profeta
pirated Read's idea and used it to turn a profit. Radius
lost money, to the tune of some $500, 000. Understandably,
Read is not eager to claim his equitable share of that.
for his part, closes the circle of blame by asserting
counterclaims in which he attributes the Radius losses to
Read's defamatory accusations that his idea was stolen.
Critical elements of these claims, too, are unsupported by
sufficient evidence to create a triable issue of fact.
side has filed a motion for summary judgment seeking
dismissal of the other's claims. (DE 64, 65). Both of
those motions are granted. Also before the Court is
Read's motion to strike portions of a declaration
submitted by Profeta and for sanctions, which is granted in
part and denied in part. (DE 72).
Facts and Procedural History
otherwise indicated, the facts recited below are not
Facts on Defendants' Motion for Summary
Philip Read worked as a reporter for the Star-Ledger
newspaper in Newark from 1997 to 2010. (PSMF ¶l; (DE
64-3, Ex. A, Jan. 16, 2018 Deposition of Philip Read, at
23:18-22 (hereinafter "Read Dep. I"))). He focused
on redevelopment in Newark for about eighteen months before
he accepted a buyout and resigned. (DE 71-5, at 8, Plaintiffs
Answers to Defendants' First Set of Interrogatories
¶ 10). Read believed there was a market opportunity for
a "city magazine" in Newark. (Id.). While
other similarly situated cities had established city-centric
magazines, Newark had not. (PSMF ¶3).
Initial 2010-11 Discussions
November of 2010, Read asked defendant Paul Profeta, the
principal of Paul V. Profeta 8s Associates, if he could pitch
him an idea he had for a Newark-centric magazine, to be
called The Downtowner. (DSUMF ¶l; DE 64-3, Ex.
B, Feb. 8, 2018 Deposition of Philip Read, at 195:8-13
(hereinafter "Read Dep. II")). On December 8,
2010, Read emailed Profeta a "blueprint" of his
idea for The Downtowner. (PSMF ¶6; DE 71-8, Ex.
E, E-mail from Philip Read to Paul Profeta (Dec. 8, 2010,
email stated the mission of The Downtowner, "to
give the Halsey Street/Broad Street neighborhood an identity
and sense ofliveliness with an in-your-hands news product
that would create a buzz and serve to solidify the good
efforts of many who see a future in the rebirth of New
Jersey's largest city." (DE 71-8, Ex. E). Read
suggested that Profeta, who had dedicated himself "to
the revitalization of Newark . . . might be someone willing
to lead a startup intended to give the rebirth a face of its
own on a regular basis." (Id.).
indicated that they would need to gather a team of
"like-minded investors" and stakeholders "to
produce the seed capital for the start-up," and to set
up substantial advertising commitments. (Id.). Read
provided a list of "initial" staffing requirements,
including two full-time writer-editors, an advertising
salesperson, an advertising artist to design the ads, and an
editorial page designer. (Id.). Profeta would serve
as the publisher. (Id.).
also required a freelance budget for writers, a storefront
office on Halsey or Market Street, and editorial/production
computer equipment. (Id.). Read's email also
suggested that The Downtowner be published monthly
and distributed for "free" or for a nominal price
of less than a dollar. (Id.). Read noted that his
salary at the Star-Ledger was formerly $93, 804 and
that his son could work as the advertising artist for about
$40, 000. (Id.; PSMF ¶8).
response, Profeta asked Read if he had "any idea what it
would cost to launch" the magazine, noting that he did
not have any print experience. (DE 71-8, Ex. E, E-mail from
Paul Profeta to Philip Read (Dec. 12, 2010 09:52 PM)). On
December 15, 2010, Read provided a breakdown of costs. (DE
64-3, at 79, E-mail from Philip Read to Paul Profeta (Dec.
15, 2010 05:34 PM)).
told Read that he had never run a newspaper before, was not
familiar with the economics of running such a publication,
and that he did "not know where to start or what
questions to ask." (DSUMF ¶2; DE 64-3, Ex. D, at
Read believed that Profeta was "very open" to his
idea at the time. (Read Dep. II at 195:16-17). Read did not
tell Profeta that his ideas were confidential, and the
parties did not execute a confidentiality agreement. (DSUMF
¶3; Read Dep. Hat 195:21-25).
early 2011, the parties' initial discussions regarding
the magazine ended, with Read advising Profeta that he was
going to approach other potential investors. (DSUMF ¶4;
PRS ¶4; PSMF ¶12). In 2011, Read discussed his
magazine with other potential backers, including Frank
Giantomasi of the law firm of Genova, Burns & Giantomasi,
and Mark Berson of Fidelco. (PSMF ¶¶12, 39; DSUMF
¶5; Read Dep. II at 202:6-14; DE 71-19).
created a visual depiction of his magazine idea and presented
his idea to other potential backers, including Dan Stroll of
Rutgers Business School, Jay Gottesman of Edison Properties,
Helen Paxton of Rutgers/ Newark, Barbara Kaufman of the
Newark Regional Business Partnership, Stefan Pryor of Brick
City Development, Vaughn Crow of the Amelior Foundation, Jeff
Normal of the New Jersey Performing Arts Center, and Kathy
Weaver of the Newark Alliance. (DSUMF ¶6; PRS ¶6;
PSMF ¶44; Read Dep. II at 225:17-227:4; DE 71-19). Read
did not ask anyone he met with to execute a confidentiality
agreement. (Read Dep. II at 228:16-18; DSUMF ¶39; PRS
Reopened 2012-13 Discussions
in July of 2012, Read reapproached Profeta about the
magazine. (DSUMF ¶7; Read Dep. II at
199:13-16). Read advised Profeta that he had persuaded
some "significant people [to] step forward as
stakeholders" for The Downtowner. (DSUMF
¶8; PRS ¶7; Read Dep. II at 200:2-4). Between July
of 2012 and October 2012, Profeta asked Read "to
basically educate him about magazines." (PSMF ¶40).
18, 2012, Read emailed Profeta regarding a meeting they had
held that day. (PSMF ¶14; DE 71-12, Ex. I, Email from
Philip Read to Paul Profeta (July 18, 2012 06:51 PM)).
Read's email was seemingly a response to a question that
Profeta had posed during the meeting regarding the
"editorial-advertising mix" of "the
competition." (DE 71-12, Ex. I). Read provided Profeta
with a few examples of city magazines, their
editorial/advertising ratio, and sample "rate
cards," which detailed prices for various ad placement
options. (DE 71-12, Ex. I; PSMFr*41-42).
Read's email noted that the deputy editor and design
director of The Downtowner would not need health
benefits, but that the three other full-time employees,
including Read, would. (Id.).
August 9, 2012, Read sent Profeta another email with more
information. (PSMF ¶ 16; DE 71-13, Ex. J, Email from
Philip Read to Paul Profeta (Aug. 9, 2012 12:22 PM)).
Read's email stated that Giantomasi told him that either
Berson or Giantomasi would provide office space, although
Read believed that a downtown Newark address "would be
best." (Id.). Read provided Profeta with an
average full-page advertising rate and indicated that he had
a person in mind for the advertising salesperson position.
stated that Giantomasi and Berson encouraged the project.
(Id.). Giantomasi allegedly told Read that "I
know this is going to happen," and Berson told him that
"we're going to take this to the next level."
(Id.). Read claims that their interest in the
project "just died," however, for "want of
someone to assume the 'publisher role.'"
(Id.). Read suggested a meeting with himself,
Profeta, Berson, and Giantomasi. (Id.).
August 9, 2012 email, Read also stated that he had a
"Plan B" for the magazine. (Id.). Instead
of ten issues per year, the magazine would run six.
(Id.). This alternative plan would reduce printing
costs, but would also yield less advertising revenue, and
would require the staff to accept "greatly reduced
sent Profeta a follow-up email on August 23, 2012, indicating
that he had found an ad salesperson who would work at a
salary of $800 per week, plus a ten percent commission. (PSMF
¶17; DE 71-14, Ex. K, E-mail from Philip Read to Paul
Profeta (Aug. 23, 2012 01:28 PM)). Read suggested setting up
a meeting with the ad salesperson and asked whether he should
set up the meeting with Berson and Giantomasi.
August 27, 2012, Profeta responded that Read should set up
the meeting with Berson and Giantomasi, and stated that he
would meet with the ad salesperson. (DE 71-14, Ex. K, E-mail
from Paul Profeta to Philip Read (Aug. 27, 2012 08:54 AM)).
September 10, 2012, Read emailed Profeta again. Read wrote
that he was having difficulty scheduling a meeting with the
ad salesperson, but that he was available to meet with Berson
and Giantomasi "anytime." (PSMF ¶18; DE 71-15,
Ex. L, E-mail from Philip Real to Paul Profeta (Sept. 10,
2012 07:26 PM)). Read provided more information about his
"Plan B," which reduced the "start-up/ ramp-up
costs marginally from $132, 000 to $118, 000," lowered
the per-month ad sale minimum, and required a reduction in
salary "for the key players." (Id.).
response to this email, Profeta advised Read that he was
considering funding the entire magazine venture, subject to a
positive outcome of his due diligence and a mutually
agreeable business structure. (DSUMF ¶¶9-10; PRS
¶¶9-10; PSMF ¶18; DE 64-3, Ex. E at 85; DE
71-15, Ex. L). Profeta stated that he still wanted to meet
with Berson and Giantomasi to see if they would consider
donating office space. (Id.).
understood that Profeta was conducting due diligence and that
Profeta was not at this time promising to pay him. (DSUMF
¶12; PRS ¶12; Read Dep. II at 243:11-14). Read
claims, however, that he relied upon Profeta's
"assurances" that Profeta was considering funding
the magazine. (Read Dep. II at 243:15-25).
September 18, 2012, Read emailed Profeta, advising Profeta
that he had met with representatives from Bayard, Oot, James
& Associates (hereinafter "Bayard"), a company
to which magazines outsource their ad sales. Read stated that
those Bayard representatives were available to meet with
Profeta. (PSMF ¶ 19; DE 71-16, E-mail from Philip Read
to Paul Profeta (Sept. 18, 2012 02:46 PM)). On September 25,
2012, the meeting was scheduled for September 27, 2012. (PSMF
¶20, DE 71-17).
meantime, on September 26, 2012, in response to Profeta's
questions, Read emailed Profeta with a breakdown of
"potential income expenses and rates." (PSMF
¶21; DE 71-18). Read provided ad rate cards, display
advertising, and starting salaries. (DE 71-18). Read
estimated that the total per-issue expense was $63, 840. That
figure, however, did not include expenses for items (fixed
costs, evidently), such as office space, phone service, or
medical benefits for the staffers. (Id.). Read also
provided Profeta more background on Bayard, its experience
with selling ads in Newark, and a monetary
"set-aside" for Bayard. (DE 71-18).
September 26, 2012, Read sent Profeta a separate email that
included a presentation booklet, or "Executive
Summary," reflecting a six- issue-per-year model. (PSMF
¶22; DE 71-19). The cover page of the Executive Summary
was marked "confidential." (DE 71-19). The
Executive Summary described the magazine in the following
The Newark Downtowner™ is intended to be a vehicle to
give Military Park and Halsey and Broad Street Neighborhoods
(and their environs) an identity and sense of liveliness with
an in-your-hands news product that would create a buzz and
serve to solidify the efforts of many who see a future in the
fragile rebirth of New Jersey's largest city.
The magazine format - published six times a year - will be
focused on Newark's downtown and will provide a voice
that is being lost in ever-shrinking daily newspapers that
choose to give their content away for free online, in the
process undercutting their ability to maintain the more
lucrative print advertising as well as staff to produce
content, in particular anything other than the latest Newark
shooting or city-hall brouhaha.
(DE 71-19; PSMF ¶7). The Executive Summary identified
the magazine's target audience as commuters from
wealthier suburbs, college students, and "higher income
Newarkers." (DE 71-19; PSMF ¶56).
terms of competition, the Executive Summary noted that there
were "some weeklies in Newark now, but they are almost
entirely advertising vehicles running poorly written press
releases verbatim." (Id.). Hoboken and Jersey
City, it disclosed, had both recently launched city
Executive Summary further explained the magazine's
proposed staffing. Full-time staff included Read as
editor-in-chief; Russell Ben-Ali as deputy editor; Bob Bogert
as design director; and Philip Read Jr. as senior graphics
designer. (Id.). Photographers and "some
writing contributors" would be funded through a
freelance account. (Id.). Per-issue payroll was
estimated as $48, 000. (Id.)
October 5, 2012, Read again emailed Profeta about the
business plan for the magazine. (PSMF ¶23; DE 71-20). In
terms of ad sales, Read indicated that when he initially
presented the magazine idea to potential stakeholders, he
sought a one-year commitment, and then suggested six months,
but was not successful. (DE 71-20). The best he could
accomplish was "an informal 6-month commitment"
from Rutgers Business School. (Id.).
addressing a business structure, Read indicated that Profeta
would be the majority owner and publisher. (Id.).
Read stated that he would "like to retain a small
minority stake, in recognition for developing the idea and
spending the better part of 2 years nurturing it."
(Id.). Read testified that he believed that he and
Profeta were "partners," but the parties never
agreed, for example, to share in profits or losses. (PSMF
¶84; Read Dep. II at 109:10-20).
October 9, 2012, Profeta and Read had a meeting with Berson
and Giantomasi. (PSMF ¶24; DE 71-16; DE 71-21). In that
meeting, Profeta told Read that "it looks like you got
your magazine." (DSUMF ¶13; PRS ¶13; Read Dep.
II at 263:12-13). Read testified that if this meeting had not
gone well and Profeta had not given him this assurance, Read
"probably would have taken a couple more pokes at
people, and if nothing materialized quickly, I would [have]
cut the cord." (Read Dep. II at 157:2-12). Even at that
point, Read knew that Profeta was not "100 percent
committed" to move forward with The Downtowner.
(DSUMF ¶14; Read Dep. II at 263:16-20).
Read testified that by mid-2012 he had "an
agreement" with Profeta. (Read Dep. II at 196:19-20). At
his deposition, Read was asked to state the terms of that
alleged agreement. Read answered that Profeta "was
passionate about the magazine and we should go forward, and
this was going to happen now, and his CFO was saying I look
forward to working with you." (Read Dep. II at
196:21-25; see also PSMF ¶38).
follow-up email that same day, October 9, 2012, Read
expressed gratitude to Profeta for Berson and
Giantomasi's evident enthusiasm about creating a
"Founders Club," or a page in the magazine that
would be dedicated to its "Founders." (DE 71-21;
Read Dep. II at 269:14*21;DE 71-27, Ex. X, at 76:12-77:9
(July 10, 2018 Deposition Transcript of Paul Profeta
(hereinafter "Profeta Dep."))). Read told
Profeta that he believed that they were getting closer to
launching the magazine and that he hoped they could "set
up a business structure by month's end." (DE 71-21).
October 14, 2012, Profeta responded that he would not fund
the venture until there were "at least 40 members in the
Founder's Club" and that he would start trying to
secure such members that week. (Id.). On October 17,
2102, Read provided Profeta with a final proposed ad rate
card. (DE 71-22).
November 7, 2012, Read emailed his staff, stating that
Profeta had told him that the magazine was going to happen,
possibly in thirty days, and that the staff would be on
payroll by January 1. (PSMF ¶55; DE 71-28). Read's
email to the staff also indicated that Profeta had asked him
to come up with a half-page contract for
November 19, 2012, Profeta invited Read and the
magazine's staff to his office's Christmas party.
(PSMF ¶27; DE 71-24). Read accepted the invitation on
behalf of himself and the staff, and stated that he
"trust[ed] that we'll be official by then." (DE
71-24). Profeta responded that he would "love" to
tell Read that they would be "officially rolling by Dec.
14th," but had "doubt[s] [that they]
would be that lucky." (Id.).
December 3, 2012, Profeta asked Read for a "mockup"
of the magazine that could be distributed to the Founder
prospects so that they could "visualize what they -
hopefully - would be putting their names on." (PSMF
¶28; DE 71-25). On December 16, 2012, Read responded to
Profeta's email, and stated that he needed a photo of
Profeta for the mockup. (DE 71-29). He further stated that he
had attempted to "get a hold of Ledger photos that ran
with [his] old stories," but was unable to do so.
(Id.). He further stated that the stories in the
mockup, without the art, "simply won't do."
(Id.). Read further noted that Profeta would be away
from December 20th to January 4th and
expressed hope that the magazine could nonetheless launch on
January "14th, fingers crossed." (DE 71-29; PSMF
responded on December 17, 2012 that they "should go
forward with the best we [have) and take our best shot. I
will get a shot taken of Marisa and me." (DE 71-29). As
of December 2012, Read believed that Profeta was entirely
committed to funding the magazine because he had directed
Read to send the mockup to the printer. (Read Dep. II at
265:17-24; PSMF ¶47).
January 8, 2013, Profeta emailed Read, stating that he had
reviewed the mockup. Profeta expressed concern about
Read's January 14 deadline, in part because he had not
yet spoken to any Founders and the mockup was still in draft
form. (DE 71-30). On January 10, 2013, Read responded that he
would push the deadline back to February 4 and asked if
Profeta would consider putting each staff member on a
"small retainer" of $1, 000 per month.
January of 2013, Profeta learned that another Newark-centric
magazine, Newark Bound, was being published. (DSUMF
¶15; PRS ¶15; Read Dep. II at 274:11-14). Read
testified that he was not "surprised" to learn of
the publication because he "was shopping this around for
two years" and knew "other people might do
it." (DSUMF ¶16; Read Dep. II at 274:11-275:14).
Read admitted that he did not "own" the idea of
creating a city magazine in Newark. (DSUMF ¶36; PRS
January 2013, Profeta told Read that he was not moving
forward with Read's magazine idea. (DSUMF ¶17; Read
Dep. II at 276:4-7; PSMF ¶ll; DE 71-11). In an email
exchange between Read and Profeta on January 16, 2013,
Profeta told Read that the proposed business model, which
included a formal office and staffed employees on a payroll,
was not financially feasible. (DSUMF ¶18; PRS ¶18;
PSMF ¶69; DE 64-3, Ex. F, at 88). Profeta also expressed
concern that Read's proposed deadlines were "not
realistic." (DE 71-31).
related discouraging conversations with his wife, who used to
work for Hearst Corporation and was the managing editor of
Cosmo Girl magazine, as well as with her colleagues in the
magazine business. Through those conversations, Profeta said,
he learned that the magazine world had shifted away from
formal offices and payroll. (DE 64-3, Ex. F, at 88). Instead,
individuals were hired on a per project basis: writers were
paid per article, graphic designers were paid per issue, and
photographers were paid per shoot. (Id.). Such
individuals also furnished their own equipment.
(Id.). Profeta asked Read if he could wait until the
summer to launch the magazine so that they would have time to
consider a freelance business model. (Id.).
responded that same day that he was not interested in the
freelance model. (DSUMF ¶19; PRS ¶19; DE 71-31).
Read wanted salaried staff because New Jersey "has the
highest property taxes in the nation and has a high cost of
living." (Read Dep. I at 27:17-21). Read's email to
Profeta stated that he could not work for a freelance salary
and afford to pay his property taxes and health benefits. (DE
71-31). Read also stated that he wanted a physical office
space, and that the cost would not be a significant concern
if the space could be donated by Berson or Giantomasi.
(Id.). Read told Profeta that he was flexible with
deadlines, "but would need a firm commitment of some
kind, as would the staff." (DE 71-32, at 3).
January 18, 2013, Profeta responded to Read that he was
"having a hard time gaining confidence in your business
model, given what I have learned lately about magazines.
$500, 000 is a huge amount of money to risk on a program that
I do not feel comfortable with." (PSMF ¶71; DE
71-33). On January 22, 2013, Read requested that Profeta
return his "business plan/presentation booklet" as
well as the mock-up prototype. (DE 71-34).
acknowledged that there was nothing obligating Profeta to
continue with the magazine and that he never had a "firm
deal" with Profeta. (DSUMF ¶¶22-23; PRS
¶23; Read Dep. II at 301:25-302:2). Read and Profeta
never executed a contract for the project or agreed on a
mutually acceptable business structure. (DSUMF ¶24; PRS
¶24; Read Dep. II at 239:16-20). Nevertheless, Read
testified, Profeta was enthusiastic about launching The
Downtowner, "thought the time was right," and
told Read "on more than one occasion [that] this is
going to happen now." (DE 64-3, Read Dep. I at 54:21-24;
did not tell Profeta that any information he had disclosed
about his magazine concept was secret. (Read Dep. II at
196:6-9; DSUMF ¶33; PRS ¶33). Much or most of the
information that Read had shared with Profeta he also shared
with the other potential backers. (Read Dep. II at 196:1-5;
DSUMF ¶¶30, 32; PRS ¶¶30, 32). Read's
research regarding his platform was disclosed to everyone
"who asked." (DSMF ¶34; PRS
Profeta Publishes Radius
admitted that he and Profeta had no agreement that would have
prohibited Profeta from launching his own magazine. (DSUMF
¶50; PRS ¶50). In the fall of 2013, Profeta did
launch a magazine called Radius: Brick City and
Beyond. (DSUMF ¶51; PRS ¶51). .Radius used a
freelance business model. It was Profeta's first
experience with printed media. (PSMF ¶48; Profeta Dep.
to the Radius website, the mission of
Radius was "to provide a positive antidote to
the numbing, distorted, depiction of Newark printed daily in
the Star-Ledger. Radius tried to suggest what was
positive and fun about returning to Newark." (PSMF
¶4; DE 71-7, Ex. D, Paul V. Profeta, Letter from the
Publisher - Summer 2016, Radius: Brick City and Beyond
(May 26, 2016)). In his "Letter from the
Publisher," Profeta states that before he "began to
publish Radius, ” he "canvassed the
anchor institutions of Newark before assuming a financial
endeavor like this one." (PSMF ¶5; DE 71-7, Ex. D).
Profeta testified that Radius was mailed to people
in the suburbs, while The Downtowner was going to be
distributed for free in downtown locations. (Profeta Dep. at
other municipalities have city-centric magazines. (DSUMF
¶37; PRS ¶37; Read Dep. II at 304:1-205:20). Read
alleges, however, that Profeta took his idea for a
Newark-centric magazine and used "the people" that
Read had lined up as advertisers. (Read Dep. II at 212:20-25;
PRS ¶38; PSMF ¶43). When asked how Profeta was
"enriched," as alleged in his complaint, Read
testified that it perhaps was Profeta's "ego"
that was enriched. He acknowledged that Profeta's
magazine, Radius, was not a financial success. (Read
Dep. II at 68:17-22). Read further indicated that "no
magazine really" has data that would enable a person
"to quantify the return on investment." (Read Dep.
I at 15:18-21).
asserts that he is entitled to $300, 000 in damages. (Read
Dep. II at 120:3-122:1). That number includes a notional
six-figure yearly salary of $109, 000 for two
years. The two-year period represents the time
Read spent "pitching his idea to anyone in Newark who
would listen." (DSUMF ¶46(c); PRS ¶46(c)).
further claims that he is entitled to recover expenses for
the time he spent developing The Downtowner. (DE
71-5, at 7, Plaintiffs Answers to Defendants' First Set
of Interrogatories, ¶7). When asked how much money Read
believed Profeta owed him for his efforts, Read testified
"I could only look at it in terms of my investment in
time and the significant expenses I took to stay in place to
put these pieces together under Mr. Profeta's
direction." (Read Dep. I at 49:18-21). Such expenses, he
says, involved the liquidation of $20, 000 in a mutual fund,
$31, 000 in trust money from his mother, and cashing out his
401(k), in the amount of $75, 000. (Read Dep. II 121:9-18;
PSMF ¶81). Read used the $75, 000 to pay his mortgage.
(Read Dep. II at 148:22-23). He used the $20, 000 to pay for
other living expenses. (Read Dep. II at 149:5-9). Read used
the $31, 000 for his family's expenses. (Read Dep. II at
150:2-6). There is no claim that Profeta committed to pay
such living expenses, or that they would not have been
incurred but for something Profeta said or did. Nor is there
any indication that these expenses were incurred in the
period after mid-2012, the earliest time that, even by
Read's own account, he had an "agreement" with
believes that he was "hired" in 2012 and that he
"worked for" Profeta. (Read Dep. I at
50:4-51:52:2). Read admitted that he did not have an
employment contract with Profeta, and that the parties never
agreed upon a salary. (DSUMF ¶25-26; PRS ¶26; DE
64-3, Read Dep. I at 46:10-12, 51:16-24). Nonetheless, Read
says he expected to be paid by Profeta. (PSMF ¶35).
did not keep track of the hours that he claims to have
expended, never told Profeta he would be charging for his
time, and did not submit claims for expenses to Profeta.
(Read Dep. I at 52:6-8; Read Dep. II at 208:16-209:19; DSUMF
¶45; PRS ¶45). Read admitted that his investment of
time and expenses is "subjective" and is "open
to anyone's interpretation." (DSUMF ¶48; PRS
¶48). Read's answers to interrogatories state that
he "invested literally hundreds of hours to the project
over two years, which he [estimates] to be worth
approximately $200, 000." (DE 71-5, at 7). It is unclear
how Read came up with this figure. (See id.; PSMF
claims that he focused all his time on developing the
magazine to the exclusion of other employment opportunities.
(PSMF ¶¶57-58; DE 71-5, at 10-11). Read recalled
that he got "a tip" about a job opening at "NJ
BIZ," but felt there was no reason to abandon the
project for a full-time job. (Id.).
has since started a freelance-sryle city magazine in Wake
Forest, North Carolina, with no employees and no office.
(DSUMF ¶52; PRS ¶52; PSMF 178).
Facts Presented in Read's Motion for Summary
was published from November 2013 to June 2017, when it was
shut down for "lack of profitability." (DE 65-10,
Defendants' Answers to Interrogatories, ¶15; PSUMF
¶8; DRS ¶8). Radius never made a profit;
it lost over $500, 000. (DE 65-10, Defendants' Answers to
counterclaims allege that Read engaged in a "campaign of
callousness" that was "designed to defame and
destroy" Radius. (PSUMF ¶9; DRS ¶9).
Profeta claims that Read began to falsely communicate to
third parties that Profeta had stolen his business plan and
magazine concept. (PSUMF ¶10; DRS ¶10). Profeta
further alleges that Read communicated with
Radius's funding sources, including certain
advertisers, that Radius is based on a
"stolen" magazine concept, which impaired
Radius's ability to raise funds for its
continued operation. (PSUMF ¶13; DRS ¶13). Profeta
claims that he had a reasonable expectation that he would
have obtained funding from these sources, but due to
Read's conduct, was unable to do so. (PSUMF ¶14; DRS
the course of this litigation, Read propounded written
discovery requests to Profeta, and asked Profeta to "set
forth in detail your factual allegations" in support of
his counterclaim against Read. (DE 65-10, Interrogatory
¶18). In Profeta's November 15, 2017 certified
responses, he incorporated the general allegations set forth
in his counterclaim and provided no further detail.
(Id.). In response to a discovery request regarding
damages, Profeta simply asserted that he "sustained
special damages and incurred legal fees." (Id.
at ¶18; PSUMF ¶33).
February 7, 2018, plaintiffs counsel requested more specific
answers and, in particular, requested a more specific answer
to Interrogatory No. 18. (DE 65-11). On February 16, 2018,
defense counsel responded only that the "amount of
special damages if awarded are within the discretion of the
court and jury to be determined by them." (DE 65-11;
counsel sent another deficiency letter on February 23, 2018.
(DE 65-12; DE 74-2, ¶6; DE 74-5). The letter stated that
the response to Interrogatory No. 18, even as amended, was
deficient in that Profeta failed to provide "any"
factual bases for the counterclaims or his calculation of
damages. (DE 74-5, at 3). Read requested confirmation that
Profeta did not have any "actual" damages. (DE
74-5, at 3).
February 27, 2018, Profeta "supplemented" his
discovery responses, and attached an April 15, 2015 article
that was published by the Star-Ledger. (DE 65-12; DE
74-6). This article was a supplementation to Interrogatory
No. 18. (DE 74-6). Profeta asserted that this article was
"an item of special damages" that "damaged Mr.
Profeta's reputation in the community."
(Id.). Defendants further asserted that they
believed that Read had "been provided with more than
enough information to go forward with a deposition of Mr.
article is titled "Former Star-Ledger reporter files
suit, claims N.J. bizman stole his magazine idea."
(Id.). Written by Thomas Zambito, the article
recited the allegations of Read's complaint, noting that
all of the facts presented in the article were
"according to the lawsuit" or consisted of what
"Read claims" in the lawsuit. (Id.).
testified that after the article was published, he called
Zambito. (Profeta Dep. 14:18-16:19; PSUMF ¶50; DRS
¶50). Zambito told Profeta that the article was
"planted" by Read, which Profeta took to mean that
Read wrote the article. (PSUMF ¶¶52, 54; DRS.
¶¶52, 54). Zambito told Profeta that Read was his
friend, and that Read had previously sued "wealthy
people," including S.I. Newhouse,  the publisher
of the Star-Ledger. (Profeta Dep. 19:4-20:9).
spoke about the article with "Rutgers people,"
including the Chancellor of Rutgers-Newark, Gene
Vincenti. (Profeta Dep. at 25:23-26:23). Profeta
"thought they mentioned the article to me," and
Profeta told them that the article had been planted by Read.
(Id.] PSUMF ¶58; DRS ¶58).
told Profeta that he thought the article was
"unfortunate." (PSUMF ¶60; DRS ¶60;
Profeta Dep. at 28:2-16). Berson told Profeta that
"It's sad that you got slandered like this."
(Profeta Dep. at 29:20-30:11). Profeta could not recall
speaking with anyone else about the article. (PSUMF ¶64;
opposition to Read's motion for summary judgement,
Profeta has submitted a declaration, which Read has moved to
strike. (DE 70-3 (Oct. 22, 2018 Profeta Declaration
(hereinafter "Profeta Decl."))). Profeta states in
that certification that after the launch of Radius,
"Read began to communicate falsely to third-parties that
I had 'stolen' his business plan and magazine concept
in an effort to forestall Radius' success and
decimate its ability to turn a profit." (Profeta Decl.
¶6; DSMF ¶5). Profeta further states that Read
communicated "falsely to Radius' funding
and advertising sources, including many of
Radius' 'Founders/ that Radius was
based upon Read's 'stolen' magazine
concept." (Profeta Decl. at ¶6). He claims this
impacted Radius's ability to raise funds.
(Id.). Profeta claims that he "heard from
marketing people with several of Radius'
advertisers that the executives in the companies" were
disappointed in Profeta for "stealing" Read's
idea. (Profeta Decl. ¶8).
these factual assertions, Profeta does not identify (1) the
third parties; (2) what Read actually said; (3) when Read
made these statements; (4) how Profeta knows what Read said
to other third parties; or (5) the identity of the funding or
advertising sources, or "Founders."
his deposition, Profeta identified the following individuals
as persons with knowledge of his counterclaims: Steven
Coleman; Phil Read and his son; Bob Bogert; and Zambito.
(Profeta Dep. at 10:23-11:25). These were the only
individuals that Profeta could "recollect" at the
time. (Profeta Dep. at 11:25).
claims that the following companies discontinued their
advertisements with Radius: Commercial Mortgage,
Cook Maran, Dr. Boiardo/CarePoint, ECC, Flemington Car &
Truck Country, Genova Burns Giantomasi & Webster,
Hollister Construction, Hehl & Hehl, J.P. Morgan, Korman,
McElroy Deutch Mulvaney & Carpenter, MCJ Amelier - My
Brother's Keeper, PUIF, St. Michael's Hospital,
United Energy Consultants, Van Cleef, and Verizon. (Profeta
Decl. ¶9; PSMF ¶8). Profeta claims that each of
these advertisers had previously paid $4, 000 per quarter in
advertising. (PSMF ¶9; Profeta Decl. ¶9). He does
not, however, proffer additional facts linking the loss of
these advertisers to defamatory statements by Read.
objects to the majority of Profeta's declaration,
claiming that Profeta's assertions are based on hearsay,
lack a sufficient foundation of personal knowledge, and
violate discovery rules. (See PRS ¶¶ 4-9,
April 14, 2015, Read initiated this action against Profeta,
Steven Coleman, William Kohn, Paul V. Profeta &
Associates, and Radius: Brick City & Beyond. (DE
1). On April 15, 2016, the Court granted in part and denied
in part the defendants' motion to dismiss the complaint.
(DE 23, 24). On May 10, 2016, Read filed an amended complaint
asserting fourteen counts: theft of intellectual property
(count 1); fraud (count 2); interference with a prospective
economic advantage (count 3); promissory estoppel (count 4);
breach of an implied covenant of good faith and fair dealing
(count 5); conversion (count 6); breach of contract (count
7); negligence (count 8); gross negligence (count 9); unjust
enrichment (count 10); quantum meruit (count 11); breach of
fiduciary duty (count 12); equitable fraud (count 13); and
injunctive relief (count 14). (DE 25).
21, 2016, defendants filed an answer and counterclaim against
Read. (DE 30). On January 11, 2017, the Court granted in part
and denied in part Read's motion to dismiss the
counterclaim. (DE 39). Defendants filed an amended
counterclaim on January 27, 2017. (DE 41). Count 1 of the
counterclaim, which alleged abuse of process, was dismissed
with prejudice on consent. (DE 55, at 4). Read's motion
to dismiss the amended counterclaim was otherwise denied. The
remaining counterclaims against Read are as follows: tortious
interference with prospective economic advantage (second
count); defamation and slander (third count); tortious
interference with contractual relations (fourth count); false
light (fifth count); and trade libel (sixth count). (DE 41).
January 4, 2018, pursuant to the parties' stipulation,
defendants Steven Coleman, William Kohn, and Paul V. Profeta
and Associates were dismissed from the case. (DE 59).
discovery was completed on July 31, 2018. (DE 63). The
Court's order directed "the resolution of certain
objections by Plaintiff to responses to written discovery and
the deposition of Defendant Profeta" to be completed by
that date and directed the parties to "meet and confer
regarding Plaintiffs objections to written discovery
responses." Id. Any remaining disputes were to
be submitted to the Court by letter on or before June 7,
2018. Id. No such letter was received by the Court.
September 14, 2018, Profeta and Radius moved for
summary judgment on Read's claims (DE 64) and Read moved
for summary judgment on defendants' counterclaims (DE
65). Each party opposed the other's summary judgment
motion. (DE 70, 71).
has also moved for sanctions and to strike Profeta's
declaration in opposition to Read's motion for summary
judgment. Defendants have opposed that motion. (DE 72, 74).
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." See
Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d
Cir. 2000); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In deciding a motion for summary
judgment, a court must construe all facts and inferences in
the light most favorable to the nonmoving party. See
Boyle v. Cnty. of Allegheny Pennsylvania, 139 F.3d 386,
393 (3d Cir. 1998) (citing Peters v. Delaware River Port
Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir.
1994)). The moving party bears the burden of establishing
that no genuine issue of material fact remains. See
Celotex, 477 U.S. at 322-23. "[W]ith respect to an
issue on which the nonmoving party bears the burden of proof.
. . the burden on the moving party may be discharged by
'showing' - that is, pointing out to the district
court - that there is an absence of evidence to support the
nonmoving party's case." Id. at 325.
the moving party has met that threshold burden, the
non-moving party "must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial.
Anderson, 477 U.S. at 248; see also Fed. R.
Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that
genuine issues of material fact exist).
allegations, subjective beliefs, or argument alone, however,
cannot forestall summary judgment. See Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888, 111 L.Ed.2d 695,
110 S.Ct. 3177 (1988) (nonmoving parry may not successfully
oppose summary judgment motion by simply replacing
"conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit."); see also
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d
Cir. 2001) ("A nonmoving party has created a genuine
issue of material fact if it has provided sufficient evidence
to allow a jury to find in its favor at trial."). Thus,
if the nonmoving party fails "to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial . . . there can be 'no
genuine issue of material fact,' since a complete failure
of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts
immaterial." Katz v. Aetna Cas, & Sur. Co.,
972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477
U.S. at 322-23).
the "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact."
Anderson, 477 U.S. at 247-48. A fact is only
"material" for purposes of a summary judgment
motion if a dispute over that fact "might affect the
outcome of the suit under the governing law."
Id. at 248. A dispute about a material fact is
"genuine" if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving
Defendants' Motion for Summary Judgement
move to dismiss Read's contract claims (Counts 5 and 7).
They assert that the essential terms of a contract, including
price and duration, were never agreed to by the parties or
even sufficiently defined. (DSJBr at 13-16). It is undisputed
that there was no express contract. The plaintiff claims,
however, that there was a contract implied in fact.
"contract implied in fact 'is in legal effect an
express contract,' and varies from the latter only
insofar as the parties' agreement and assent thereto have
been manifested by conduct instead of words." Saint
Barnabas Med. Ctr. v. Cnty. of Essex, 111 N.J. 67, 77
(1988) (citation omitted); see Baer v. Chase, 392
F.3d 609, 616 (3d Cir. 2004) ("The distinction between
express and implied contracts rests on alternative methods of
contract formation.") (citing In re Penn. Cent.
Transp. Co., 831 F.2d 1221, 1228 (3d Cir. 1987)
("An implied-in-fact contract, therefore, is a true
contract arising from mutual agreement and intent to promise,
but in circumstances in which the agreement and promise have
not been verbally expressed. The agreement is rather inferred
from the conduct of the parties.")).
implied contract "must be sufficiently definite that the
performance to be rendered by each party can be ascertained
with reasonable certainty." Weichert Co. Realtors v.
Ryan, 128 N.J. 427, 435 (1984) (citations and internal
quotations omitted). Courts will, if possible, "attach a
sufficiently definite meaning to the terms of a bargain to
make it enforceable," Paley v. Barton Savings and
Loan Assoc, 82 N.J.Super. 75, 83 (App. Div. 1964), and
in doing so may refer to "commercial practice or other
usage or custom." Lynch v. New Deal Delivery Serv.
Inc., 974 F.Supp. 441, 458 (D.N.J. 1997).
a contract to be enforceable there must be a meeting of the
minds for each material term to an agreement." In re
Rappaport, 517 B.R. 518, 529 (Bankr. D.N.J. 2014)
(internal quotations and citations omitted). The requirements
of a meeting of the minds "is 'an essential element
to the valid consummation of any contract."'
Id. at 530 (quoting Ctr. 48 P'ship v. May
Dep't Stores Co., 355 N.J.Super. 390, 406 (App. Div.
2002)). This requirement is met when "there has been a
common understanding and mutual assent to all the terms of a
contract." Id. (citation and quotation
omitted). An implied-in-fact contract is "unenforceable
for vagueness when its terms are too indefinite to allow a
court to determine with reasonable certainty what each party
has promised to do." Lynch, 974 F.Supp. at 457.
an offer contains definite terms, there must also be
"'an unqualified acceptance to conclude the
manifestation of assent.'" Weichert Co.
Realtors, 128 N.J. at 435-36 (quoting Johnson &
Johnson v. Charmley Drug Co., 11 N.J. 526, 539 (1953)).
Manifestation of assent may be communicated through oral or
written communication, or through conduct. Id. at
436. "Like express contracts, contracts implied in fact
depend on 'mutual agreement and intent to
promise.'" Saint Barnabas Med. Ctr., 111
N.J. at 77.
asserts that the parties' conduct created an
implied-in-fact contract. The parties "agreed," he
says, that Read would work for defendant "on a salary,
along with the Plaintiffs staff." (PBr at 9). In
Read's telling, "Plaintiffs documents and
testimony" establish that there is at least a triable
issue of fact as to whether a contract was formed.
disagree and will grant defendants' motion for summary
judgment on the claims of breach of contract and breach of
the implied covenant of good faith and fair dealing. This
record unambiguously demonstrates a course of negotiations
that never took shape as an agreed-upon, definite, and
enforceable contract. There is no evidence that Profeta, by
words or conduct, agreed to pay Read a salary or fund his
proposed magazine. Neither the terms themselves, nor the
alleged acceptance-by-conduct of such terms, ever attained
the requisite clarity.
approached Profeta in November of 2010 with an idea to launch
a magazine. Between that first discussion in November 2010,
and the cessation of the initial discussions in early 2011,
Profeta did no more than ask Read for more information about
the costs related to launching a magazine. At no point did
Profeta expressly or implicitly agree to pay Read a
salary. See Flemming v. Ronson Corp.,
107 N.J.Super. 311, 315 (Law Div. 1969), aff'd
o.b., 114 N.J.Super. 221 (App. Div. 1971) (finding
parties never had a meeting of the minds and no contract was
formed when "all that [could] be derived" from
parties' course of conduct was an invitation from
defendant to plaintiff to submit an idea, defendant requested
additional details of idea, defendant "did not promise
to pay for the mere submission of an idea," and after
receipt of information from plaintiff of additional
information, defendant stated it was not interested in idea).
told Profeta that he wanted to hire editors, an advertising
salesperson, an artist, and an editorial page designer. That
might arguendo be construed as an offer, although it
seems more exploratory than definite. Be that as it may,
there is no evidence that Profeta accepted that offer in
2010-11. Indeed, the parties ceased their discussions and
Read sought other potential financial backers, until he
re-approached Profeta over a year later.
to those resumed discussions, beginning in July 2012 and
extending through January 2013. In those months, Read
continued to supply information to Profeta about his proposed
magazine and at times responded to Profeta's requests for
more information. A request for more information, however,
falls far short of an agreement or a meeting of the minds on
the material terms of a contact.
18, 2012, for example, Read told Profeta that certain staff,
including himself, would need health benefits. There is no
evidence that Profeta agreed or even responded to this
request. On August 9, 2012, Read proposed a "Plan
B" for the magazine, which would reduce the number of
issues per year and require the staff to accept reduced
salary levels. Again, the record is devoid of any evidence
that Profeta agreed to either Plan A or Plan B, or agreed to
fund either option.
not until September 10, 2012, that Profeta even broached the
idea of funding the entire venture. However, Profeta's
offer to fund the magazine was premised on an important
condition that was never met: that the parties could come
together on a "mutually agreeable business
structure." The parties had discussions back-and-forth
about the business structure, but never reached agreement on
such highly material terms as whether there would be an
office and salaried employees.
September 26, 2012, in response to a request from Profeta,
Read provided a breakdown of expenses. (PSMF ¶21). Read
also provided an Executive Summary, which included proposed
staffing levels for the magazine. (DE 71-19). Again, neither
of these events suggest that Profeta agreed to
Read's proposal. At best, they constitute due diligence
by Profeta and Read's continued attempts to convince
Profeta to back his idea.
October 5, 2012, Read raised the possibility of being a
minority stakeholder, stating that he would "like to
retain a small minority stake" in recognition of his
having developed the idea. (PSMF¶23; DE 71-20). Read
says he believes that he and Profeta were partners. (PSMF
¶84; Read Dep. II at 109:10-20). All this evidence
shows, however, is that Read asked to be a partner.
October 9, 2012, Read sent another email to Profeta,
expressing his hope that they would set up a business
structure by the end of the month. (DE 71-21). Profeta
replied that he would not fund the venture until there were
"at least 40 members in the Founder's club."
(Id.). For all that appears in this record, no
person or entity ever actually committed to be a
"Founder." Cf. In re Beltrami, 324 B.R.
255, 277 (Bankr. M.D. Pa. 2005) ("these comments
conveyed nothing more than promises that negotiations would
continue . . .and hope that a final agreement ...