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James Cole v. Seth Ferranti and Gorilla Convict Publishing

June 12, 2012


The opinion of the court was delivered by: Hon. John E. Jones III

Hon. J. Andrew Smyser



This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge J. Andrew Smyser (Doc. 161), filed on March 12, 2012, which recommends that Defendant Gorilla Convict Publications' Motion to Dismiss (Doc. 123) be denied and that Defendant Seth Ferranti's Motion for Summary Judgment (Doc. 142) be granted. Pro se Plaintiff James Cole ("Plaintiff") filed objections to the R&R (Doc. 163) on March 29, 2012. Accordingly, this matter is ripe for our review. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R, deny the Motion to Dismiss and grant the Motion for Summary Judgment because this matter was filed outside of the applicable statute of limitations.


A. Facts

Pro se Plaintiff James Cole ("Plaintiff" or "Cole") filed this action against pro se Defendants Seth Ferranti and Gorilla Convict Publications (collectively "Defendants") on February 25, 2010. Both Cole and Defendant Ferranti are federal inmates. The Plaintiff claims that Defendant Ferranti authored and that Defendant Gorilla Convict Publications published a book entitled Street Legends. Plaintiff claims that despite previously instructing Defendant Ferranti not to use his name in the book Street Legends, the Defendants nonetheless included false and defamatory statements about him in the book. These statements center around Plaintiff's alleged involvement with the criminal organization called the Junior Black Mafia, which Plaintiff denies. Plaintiff also alleges that the quotations attributed to him within the book are false. Plaintiff filed the instant action contending that the Defendants committed libel and slander against him.

B. Procedural History

On March 3, 2011, we issued a Memorandum and Order (Doc. 72) adopting in part and rejecting in part a previous R&R (Doc. 60) issued by Magistrate Judge Smyser, thereby dismissing Plaintiff's slander claim. The matter was remanded to Magistrate Judge Smyser for further pretrial management. Thereafter, cross- Motions for Summary Judgment were filed. (Docs. 91 and 96). Following briefing thereon, Magistrate Judge Smyser issued a R&R (Doc. 113) recommending that the Defendants' Motion for Summary Judgment be granted and that this action be dismissed, because Plaintiff's claim was filed outside the applicable statute of limitations for libel actions. Plaintiff objected to this recommendation. After consideration of the Plaintiff's objections, we rejected the Magistrate Judge's recommendations for the following reasons:

Magistrate Judge Smyser recommends that summary judgment be granted in favor of the Defendants on the basis that Plaintiff's action was filed outside the one-year statute of limitations applied to libel actions in Pennsylvania. Specifically, Magistrate Judge Smyser concluded that Plaintiff's action accrued in April 2008, when Street Legends was published, and that Plaintiff cannot avail himself of any tolling of the statute.

In his objections, Plaintiff argues that he did not have the full opportunity to address the statute of limitations arguments in his brief in opposition to summary judgment. He also asserts that the Magistrate Judge's inferences concerning Plaintiff's ability to learn of the book's publication in April of 2008 are unreasonable.

Recognizing Plaintiff's pro se status, as well as his condition as an inmate, we shall decline to adopt the Magistrate Judge's recommendation to grant summary judgment on statute of limitations grounds at this time. Accordingly, we shall deny the pending Motions for Summary Judgment. We shall remand this matter back to Magistrate Judge Smyser to give the Plaintiff additional opportunity to develop the record regarding the statute of limitations issue, as well as any other issues that the Magistrate Judge sees fit. (Doc. 118, pp. 3-4). Essentially, we were uncomfortable with granting summary judgment in favor of the Defendants solely on the inferences drawn by the Magistrate Judge related to the tolling of the statute of limitation issue and thus remanded the matter for further development of the record.

Upon remand, Magistrate Judge Smyser issued an Order (Doc. 119) reopening discovery until December 6, 2011 and setting a new dispositive motions deadline of January 6, 2012. Thereafter, on September 29, 2012, Defendants' Motion to Dismiss was filed (Doc. 123) and their Motion for Summary Judgment (Doc. 142) was filed on ...

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