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Read v. Profeta

United States District Court, D. New Jersey

May 29, 2019

PHILIP READ, Plaintiff,
v.
PAUL PROFETA; PAUL V. PROFETA & ASSOCIATES; RADIUS BRICK CITY & BEYOND; STEVEN COLEMAN; and WILLIAM KOHN Defendants.

          OPINION

          KEVIN MCNULTY. U.S.D.J.:

         Introduction and Summary

         This 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 structure.

         In the fall of 2013, however, Profeta launched his own Newark-centric magazine, called Radius: Brick City and Beyond.[1] On April 14, 2015, Read filed this action against Profeta for "stealing" his magazine idea. Radius lost money, and publication ceased in 2017.

         Read 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.

         Before 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.

         Class A 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.

         Class B 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 for them.

         Critically, 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.

         Profeta, 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.

         Each 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).

         I. Facts and Procedural History

         Unless otherwise indicated, the facts recited below are not disputed.[2]

         A. Facts on Defendants' Motion for Summary Judgment[3]

         Plaintiff 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).

         1. Initial 2010-11 Discussions

         In 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")).[4] 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, 02:05 PM)).

         Read's 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.).

         Read 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.).

         Read 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).

         In 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)).

         Profeta 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 79[5]). 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).

         In 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).

         Read 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 ¶39).

         2. Reopened 2012-13 Discussions

         Sometime in July of 2012, Read reapproached Profeta about the magazine. (DSUMF ¶7; Read Dep. II at 199:13-16).[6] 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).

         On July 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.).[7]

         On 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. (Id.).

         Read 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.).

         In his 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 salaries." (Id.).

         Read 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. (Id.).

         On 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)).

         On 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.).

         In 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.).

         Read 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).

         On 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).

         In the 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).

         Also on 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 manner:

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).

         In 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 magazines. (Id.).

         The 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.)[8]

         On 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.).

         In 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).

         On 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).[9]

         Nonetheless, 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).

         In a 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."))).[10] 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).

         On 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).

         On 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 "founders." (Id.).[11]

         On 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.).

         Around 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 ¶67).

         Profeta 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).

         On 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. (Id.).

         In 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 ¶36).

         In 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).

         Profeta 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.).

         Read 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).

         On 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).

         Read 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; PSMF ¶30).[12]

         Read 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 ¶34).[13]

         3. Profeta Publishes Radius[14]

         Read 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.[15] It was Profeta's first experience with printed media. (PSMF ¶48; Profeta Dep. at 46:20-47:13).

         According 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 83:9-11).

         4. Read's Damages

         Many 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).[16] 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).

         Read 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.[17] The two-year period represents the time Read spent "pitching his idea to anyone in Newark who would listen."[18] (DSUMF ¶46(c); PRS ¶46(c)).

         Read 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 Profeta.

         Read 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).

         Read 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 ¶66).

         Read 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.).

         Read 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).

         B. Facts Presented in Read's Motion for Summary Judgment[19]

         Radius 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 Interrogatories, ¶16).

         Profeta's 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 ¶14).

         During 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).

         On 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; PSUMF ¶35).

         Plaintiffs 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).

         On 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. Profeta." (Id.).

         The 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.).

         Profeta 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, [20] the publisher of the Star-Ledger. (Profeta Dep. 19:4-20:9).

         Profeta spoke about the article with "Rutgers people," including the Chancellor of Rutgers-Newark, Gene Vincenti.[21] (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).

         Giantomasi 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; DRS ¶64).

         In 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).

         Regarding 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."

         During 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).

         Profeta 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.

         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, 12).

         C. Procedural History

         On 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).

         On June 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).

         On 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).

         Fact 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.

         On 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).

         Read 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).

         II. Standard

         Federal 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.

         Once 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).

         Unsupported 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).

         Moreover, 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 party." Id.

         III. Defendants' Motion for Summary Judgement

         A. Contract Claims

         Defendants 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.

         A "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.")).

         An 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).[22] 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).

         "For 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.

         Assuming 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.

         Read 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.

         I 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.

         Read 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.[23] 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).

         Read 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.

         I turn 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.

         On July 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.

         It was 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.

         On 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.

         On 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.

         On 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 ...


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