United States District Court, E.D. Pennsylvania
FRANCIS X. CHENEY, II
DAILY NEWS, L.P
For FRANCIS X. CHENEY, II, Plaintiff: GONEN HAKLAY, LEAD ATTORNEY, COHEN, PLACITELLA & ROTH, PC, PHILADELPHIA, PA; JAMES P. GOSLEE, LEAD ATTORNEY, COHEN PLACITELLA & ROTH, PHILADELPHIA, PA.
For DAILY NEWS, L.P., (INCORRECTLY SUED AS " NEW YORK DAILY NEWS COMPANY" ), Defendant: MICHAEL BERRY, LEAD ATTORNEY, ELIZABETH SEIDLIN-BERNSTEIN, LEVINE SULLIVAN KOCH & SCHULZ LLP, PHILADELPHIA, PA.
STEWART DALZELL, J.
We consider here defendant Daily News, L.P.'s (the " Daily News" ) (incorrectly sued as " New York Daily News Company" in the initial complaint) motion to dismiss plaintiff Francis X. Cheney, II's complaint. Cheney, a Philadelphia firefighter, sued the New York Daily News for false light/invasion of privacy, defamation/libel, and intentional infliction of emotional distress based on the use of his photograph in a January 29, 2015 article about a Philadelphia Fire Department scandal in which Cheney had no involvement.
We have jurisdiction pursuant to 28 U.S.C. § 1332.
II. Standard of Review
A defendant moving to dismiss under Fed.R.Civ.P. 12(b)(6) bears the burden of proving that the plaintiff has failed to state a claim for relief. See Fed.R.Civ.P. 12(b)(6); see also, e.g., Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). To survive a Rule 12(b)(6) motion, the complaint must contain sufficient factual matter, accepted as true, to state a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678.
As the Supreme Court stresses, " the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action...do not suffice." Id. Courts " are not bound to accept as true a legal conclusion couched as a factual allegation."
Twombly, 550 U.S. at 555. In the wake of Twombly and Iqbal, our Court of Appeals laid out a two-part test to apply when considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6):
First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations omitted). In deciding a motion to dismiss, we may consider " the allegations contained in the complaint, exhibits attached to the complaint and matters of public record," and any " undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
We recite the relevant facts as they appear in the complaint.
III. Factual Background
Defendant Daily News publishes the New York Daily News in print and online at http://www.nydailynews.com. On January 29, 2015 the Daily News published an article on its Web site with the headline " Heated Sex Scandal Surrounds Philadelphia Fire Department: 'It's Bad Stuff.'" Compl. at ¶ 6. Below the headline, the Daily News placed a picture of Cheney in his Philadelphia Fire Department uniform with the caption, " Philadelphia firefighter Francis Cheney holds a flag at a 9/11 ceremony in 2006." Id. at ¶ 7; Pl. Resp. Ex. B at 3.
After the photograph, the article began: " A sex scandal has set Philadelphia Fire Department ablaze with firefighters accused of having sex with a paramedic on- and off-duty."  Compl. at ¶ 8. The article described possible charges for the firefighters involved, called the conduct a " terrible embarrassment," and quoted the former Philadelphia Fire Commissioner as stating that the scandal was " bad stuff." Id. The article indicated that an investigation implicated " dozens of city employees including paramedics, firefighters and the department's supervisors." Pl. Resp. Ex. B. The ...