The opinion of the court was delivered by: Sitarski, M. J.
Currently pending before the Court is a motion for summary judgment filed by Defendants AAA Hellenic Marble, Inc., Nicholas Alexiadis and Richard Moser, Plaintiff's Response, and Defendants' Reply. For the following reasons, the motion will be DENIED.
Defendants move for judgment in their favor as to Plaintiff's Lanham
Act false advertisement and defamation claims. Defendants also seek
judgment in their favor and against Plaintiff and in Defendants' favor
as to the same as stated in Defendants' Counterclaim.*fn1
Defs.' Mot. for Summ. J.
Both Plaintiff NTP Marble, Inc. t/a Colonial Marble and Granite ("Colonial" or "Plaintiff") and Defendant AAA Hellenic Marble, Inc. ("Defendant" or "Hellenic") are in the marble and granite installation business. See Defs.' Mot. Partial Summ. J. ¶¶ 11-12. Each provides retail service to predominantly residential customers looking to build and/or remodel counter-tops, walls, or floors in kitchens, bathrooms, and elsewhere with customized stone fabrication. Id. Colonial and Hellenic appear to be direct competitors, even though Hellenic has been in operation significantly longer. See Pl.'s Ans. Opp. to Defs.' Mot. Partial Summ. J. ¶ 12.
According to Colonial, in or about the summer of 2009, a "smear campaign" against Colonial took place, pursuant to which numerous "negative reviews" (herein referred to as the "Reviews") of Colonial's business appeared on websites such as Citysearch, Insiderpages, Yellowbot and Google (the "Websites"). See Compl. ¶¶ 12-17. The Reviews set off alarm bells to Colonial, as, according to Colonial, the Reviews were far too numerous, and appeared in far too short of a time frame, to be legitimate.*fn2 See Pl.'s Mem. Supp. Ans. Opp. to Defs.' Mot. Partial Summ. J. 9. These Reviews criticized Colonial's customer service, on-site performance, and employment practices. Id. Concerned these Reviews were negatively affecting its business, on December 4, 2009, Colonial filed a Complaint against unknown Doe Defendants, claiming violations of the Lanham Act and defamation. Id. Colonial alleged that the Reviews were false and damaging to its business. Defs.' Mot. Part. Summ. J. ¶ 1.
During discovery, Plaintiff issued subpoenas to the Websites, requesting information to aid Plaintiff in discovering the author(s) of these Reviews. See Pl.'s Mot. Dismiss 2. Plaintiff thus learned that several Reviews came from computers having IP addresses belonging to Hellenic's business office and/or the residence of one of its alleged directors, Nicholas Alexiadis ("Alexiadis") (collectively with Defendant Hellenic, "Moving Defendants").*fn3 See Pl.'s Mem. Supp. Ans. Opp. to Defs.' Mot. Part. Summ. J. 10-12.
On July 21, 2010, Plaintiff filed an Amended Complaint, naming Moving Defendants and Nicholas Alexiadis' wife Jessica as defendants. See First Am. Compl. At the same time, Plaintiff issued a statement (the "Press Release"), dated July 21, 2010, in which Plaintiff claimed that it discovered the source of these internet Reviews: Moving Defendants. In the Press Release, Plaintiff accuses Moving Defendants of "having launched an anonymous, deliberate and defamatory campaign against Colonial  over the internet." See Defs.' Countercl. ¶ 9. The Press Release was disseminated in several local in-print and on-line publications throughout the summer and fall of 2010. Id. at ¶¶ 9-13.
Meanwhile, on or about July 28, 2010, Defendant Richard Moser ("Moser"), at that time a Hellenic employee, drafted a statement (the "Statement").*fn4 Id. at ¶ 14. In the Statement, Moser claims he had worked at Colonial during the summer of 2008, and he takes sole responsibility for posting the Reviews. Moser claims he posted the Reviews because he was angry with Colonial for treating him poorly, and for denying him certain compensation while he was an employee at Colonial. Id. Moser claims that he posted all of the Reviews without the knowledge of Moving Defendants, even though he wrote many of these Reviews from Alexiadis' residence and Hellenic's place of business.*fn5 Id. According to Alexiadis, Moser approached him upon learning that Alexiadis' computer records had been subpoenaed, and confessed to writing the Reviews from the Alexiadis home without Alexiadis' knowledge. See Pl.'s Ans. Opp. to Defs.' Mot. Partial Summ. J. Ex. 15 at 72:14 - 76:22. Thus, Moving Defendants argue that because Moser has accepted responsibility for posting the Reviews, they are entitled to summary judgment.
Plaintiff disputes that Moser's Statement "confessing" to unilaterally posting the Reviews insulates Moving Defendants from liability. Plaintiff notes that Moser disavows authorship of certain Reviews which were also posted through either IP addresses or internet accounts controlled by Moving Defendants. Pl.'s Ans. Opp. to Defs.' Mot. Partial Summ. J. 2. Furthermore, according to Plaintiff, Moser's credibility is subject to attack, as Moser has been in county jail several times since 2008, including for having pled guilty to crimen falsi. *fn6 Id. at 4-5. Plaintiff thus contends that issues of fact preclude entry of summary judgment in favor of Moving Defendants.
On April 26, 2011, in light of the foregoing discovery and Moser's Statement, Plaintiff filed a Second Amended Complaint, dropping Jessica Alexiadis as a defendant and naming Richard Moser ("Moser") as a defendant. (Doc. No. 54). On May 9, 2011, Moving Defendants filed an Answer to Plaintiff's Second Amended Complaint, a Cross-claim against Moser and Counterclaim against Plaintiff, and on June 7, 2011, Defendant Moser filed an Answer to Plaintiff's Second Amended Complaint.*fn7 (Docs. Nos. 56, 68). Moving Defendants' four count Counterclaim against Plaintiff alleged Lanham Act violations, defamation, intentional infliction of emotional distress and negligent infliction of emotional distress arising out of the statements made by Plaintiff in its Press Release. Defs.' Countercl. ¶¶ 19-42.
The matter was initially assigned to District Court Judge C. Darnell Jones, II and was then reassigned to District Court Judge Juan R. Sanchez. (Doc. No. 22). On May 12, 2011, the parties consented to this Court's jurisdiction. (Doc. No. 57).
On May 20, 2011, Plaintiff filed a Motion to Dismiss Counterclaims. (Doc. No. 60). A Response, Reply and Sur Reply were filed. (Docs. Nos. 65, 71, 73-74). On June 30, 2011, this Court denied Plaintiff's Motion as to Moving Defendants' Lanham Act and defamation counterclaims, but granted Plaintiff's Motion with respect to Moving Defendants' claims of intentional infliction of emotional distress and negligent infliction of emotional distress. (Docs. Nos. 75-76).
On July 22, 2011, Plaintiff filed an Answer to Moving Defendants' remaining Counterclaims. (Doc. No. 77). Plaintiff also served subpoenas on the Websites, seeking additional evidence relating to the Reviews.
On December 8, 2011, Moving Defendants filed this instant Motion for Partial Summary Judgment, in which Defendant Moser joined. (Docs. Nos. 88-89). On January 9, 2012 Plaintiff filed its Answer to Moving Defendants' Motion and a Response in Opposition to Moser's joinder. (Doc. No. 92). On January 23, 2012, Moving Defendants filed a Reply. (Doc. No. 95). On February 15, 2012, Moving Defendants' filed a Supplemental Brief in Support of the Motion for Summary Judgment (Doc. No. 99). On February 17, 2012, Plaintiff filed a ...