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Tanzosh v. Inphoto Suveillance

January 30, 2007

DAVID J. TANZOSH, PLAINTIFF,
v.
INPHOTO SUVEILLANCE, KROLL, INC., AND TODD KARPINSKI, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is plaintiff's motion to join an additional defendant (Doc. 23). Having been briefed and argued, the matter is ripe for disposition.

Case Background

This case is a suit for defamation, invasion of privacy, and false light against defendants, a surveillance company and one of its employees. Plaintiff seeks damages based on defendants' actions in undertaking surveillance of him in a separate Federal Employer's Liability Act (FELA) action against CP Rail Corporation. See Tanzosh v. Delaware & Hudson Railway Co., Inc. (M.D. Pa. No. 02cv1407). In that action, plaintiff prevailed after trial in July 2004. He then sued the company and an employee who had staked out his property and followed him in effort to develop evidence that plaintiff had exaggerated his injuries. He claimed that these investigators had trespassed and damaged his property and had defamed him to neighbors by telling them he had lied about his injuries and was engaging in illegal activity on his property. Neighbors and area residents allegedly continued to repeat these defamatory statements as late as 2005, though the claimed trespass and defamation took place in 2003.

In May 2003, as the original FELA lawsuit was pending, plaintiff reported to the state police two incidents of individuals entering his property without permission and explaining their presence with stories that were obviously false. Plaintiff reported the license plate numbers of these trespassers to the police but claims he could not determine who these individuals were or who hired them because the investigators had used false license plates registered to no one. The state police had attempted to trace the license plates, but were unsuccessful. Plaintiff admits he was suspicious of these individuals, and suspected that they could be working as surveillance agents of CP Rail as part of the company's litigation strategy.

As part of discovery in the case, plaintiff had submitted interrogatories asking CP Rail to name any parties engaged in surveillance of the defendant. Plaintiff claims he was not made aware that any CP Rail-sponsored surveillance had occurred until June 7, 2004, when CP Rail filed pre-trial documents in the original FELA suit which contained reference to videotape exhibits made during the surveillance and listed defendant Karpinski as a witness. Though the FELA lawsuit had been filed in August 2002, the railroad had not previously acknowledged undertaking such surveillance in the case, and the materials were not submitted as part of discovery or Rule 26 disclosures. Plaintiff's attorney subsequently asked to depose Karpinski. Because the surveillance evidence was not used at trial and Karpinski did not testify, those issues were not examined further in the underlying case.

Plaintiff filed his original complaint in this case on May 27, 2005. The complaint named as defendants Inphoto Surveillance, Kroll Inc., and Todd Karpenski, an investigator employed by the defendants. CP Rail had disclosed these names in the FELA suit. After the parties exchanged written discovery requests in the instant suit, this court held a settlement conference on March 10, 2006. At the conference, defendant provided plaintiff with documents and a surveillance video that showed surveillance had been conducted by Factual Photo, the party plaintiff seeks to join in this action. Plaintiff claims that these materials were the first indication he had that Factual Photo was involved in the surveillance. He filed his motion for joinder (Doc. 23) on April 13, 2006, approximately one month after learning of Factual Photo's involvement in the surveillance. The defendants then filed a brief in opposition to that motion (Doc.24) and plaintiff replied (Doc. 27), brining the case to its present posture.

Legal Standard

Federal Rule of Civil Procedure 15(a) allows amendment of pleadings "when justice so requires." The decision to allow amendment of pleadings is left to the sound discretion of the court, but should be "freely given" because "if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). At the same time, however, "leave to amend need not be granted when amending the complaint would clearly be futile." Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (holding that "[a]mong the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility."). Maio v. Aetna, Inc., 221 F.3d 472, 500 n.19 (3d Cir. 2000) (refusing to allow amendment of a complaint because plaintiff's "could not file an amended pleading that would survive dismissal pursuant to Rule 12(b)(6)."). Amendment is inappropriate if the amended complaint would be barred by the statute of limitations. Id. (finding that no leave to amend a complaint was necessary because even as amended with new facts the claim would still be time-barred). The question here, then, is whether plaintiff's claim against Factual Photo would be time barred, and amending the complaint to add that defendant would be futile. Discussion

Both sides appear to agree that the key question in whether Factual Photo can be added to the case is whether the statute of limitations in Pennsylvania for defamation actions had run before plaintiff sought to add Factual Photo. If the statute of limitations has run, plaintiff has no cause of action against Factual Photo. The parties agree that under Pennsylvania law, the statute of limitations for plaintiff's defamation, false light and invasion of privacy claims is one year. See PENN. CONS. STAT. § 5523 (establishing a one-year statute of limitations for "libel, slander or invasion of privacy."). The parties also agree that since the statute of limitations had clearly run in the case before plaintiff sought to add Factual Photo, the key question is whether the "discovery rule" applies in this case, tolling the statute of limitations until plaintiff became aware of the injury and potential cause of action.*fn1

In most cases, "the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations, [citations omitted] even though a person may not discover his injury until it is too late to take advantage of the appropriate remedy." Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983). The discovery rule "arises from the inability of the injured, despite the exercise of due diligence, to know the injury or its cause." Id.. Courts considering this exception to a statute of limitations must, therefore, "address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action." Id. When the discovery rule applies, the statute of limitations is tolled until the plaintiff could reasonably be expected to discover the injury and its cause. Id.

The discovery rule has largely been applied to situations where the defendants' actions or the nature of the injury make it difficult for a plaintiff to discover an injury has occurred. Medical malpractice, where a plaintiff may not discover an injury until years after the conduct that caused that injury took place, represents one area where the discovery rule has frequently been applied. See, e.g. Ayers v. Morgan, 154 A.2d 788, 792 (Pa. 1959) (finding that the statute of limitations on medical malpractice was tolled because a plaintiff "could not open his abdomen like a door and look in and discover the injury."); Murray v. Hamot Med. Ctr., 633 A.2d 196, 200-201 (Pa. Super. Ct. 1993) (applying the discovery rule for a plaintiff infected with HIV during a blood transfusion).

Here, the situation is somewhat different, since the injuries of which plaintiff complains, defamation, and false light, are causes of action usually played out in a public forum. Some courts have said that the discovery rule should not apply in defamation cases, since publication is generally part of defamation, and thus, the plaintiff should have no trouble discovering the injury or its cause. See Bradford v. American Media Operations, Inc., 882 F. Supp. 1508, 1512 (E.D. Pa. 1995) (finding that the discovery rule did not apply to a defamation action when the defamatory material was published in a "widely distributed" tabloid.). Buffett v. Warner Commc'ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982) (finding that a complaint of emotional distress could not be tolled by the discovery rule, since plaintiff "does not dispute that he knew of the conduct complained of and of the identity of the alleged wrongdoer more than two years prior to the filing of the complaint."); Walls v. Sabatasso Foods, Inc., No. 91-1107, 1991 WL 111191 (E.D. Pa. June 18, 1991) (finding that the discovery does not apply in a defamation case when a plaintiff knew of the injury and did not apply due diligence to discover its cause and the cause of action). Courts have not found, however, that pleading a tort for defamation per se precludes application of the discovery rule. See Barron v. St. Joseph's Univ., No. 01-3063, 2002 WL 32345690 (E.D. Pa. Jan. 17, 2002); Giusto v. Ashland Chem. Co., 994 F. Supp. 587, 594 (E.D. Pa. 1998). In cases where a plaintiff would not have been able, through due diligence, to discover the injury, courts have applied the discovery rule to defamation. See Smith v. IMG Worldwide, Inc., 437 F. Supp. 2d 297, 306 (E.D. Pa. 2006) (finding that a jury could decide on statute of limitations issue because "plaintiff has presented sufficient evidence that he could not have known of his injuries, despite the exercise of due diligence, to support the application of the discovery rule to this claim.").

We think that the unique facts of this case mandate that the discovery rule apply here. Neither party has cited a case dealing with this precise issue, and we have not been able to discovery any directly relevant case law through our own research. Defendants points to Gallucci v. Phillips & Jacobs, Inc. as a case where the court upheld a jury's refusal to apply the discovery rule in case where the defendants had allegedly given defamatory information about plaintiff to the FBI, holding that plaintiff had been aware of the potential cause of action. Gallucci v. Phillips & Jacobs, Inc., 614 A.2d 284 (Pa. Super. Ct. 1992). This case is different than Gallucci, however, since in that case, the plaintiff claimed he did not have enough knowledge of the content of the allegedly defamatory statements to bring a cause of action, not that he was unable to discover who made them. See id. at 288. (holding that the discovery rule did not apply because "[a]ppellant's argument is not that they did not know of the injury or the cause thereof, rather appellants argue that they did not have access to the information necessary to prepare a proper complaint in defamation."). Here, Factual Photo's subterfuge and CP Rail's incomplete answers to discovery meant that plaintiff did not have information on the party who caused his ...


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