United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER
SUSAN
PARADISE BAXTER United States District Judge
This
action was received by the Clerk of Court by transfer from
the United States District Court for the Southern District of
New York on September 22, 2017. The case was assigned to
District Judge Cathy Bissoon and referred to the undersigned
as the Magistrate Judge for pre-trial proceedings. On
September 18, 2018, upon taking the oath as United States
District Judge, the matter was re-assigned to the undersigned
as the District Judge, and on September 27, 2018, Magistrate
Judge Richard A. Lanzillo was referred the case for report
and recommendation in accordance with the Magistrate Judges
Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4
of the Local Rules. Prior to its transfer to this Court, the
matter had a procedural history starting in New York state
court with its subsequent removal to the Southern District of
New York federal court as described in detail in Magistrate
Judge Lanzillo's Report and Recommendation (ECF No. 124).
Plaintiff
Marinka Peschmann (Peschmann), a Canadian citizen, brings a
lengthy eleven-count Second Amended Complaint asserting
defamation, misrepresentation, civil conspiracy and other
torts against Defendants Douglas Hagmann (Hagmann) and
Stephen Quayle (Quayle) as well as twenty "John
Doe" defendants. Peschmann is mainly a freelance
political reporter, with other writing credits to her
portfolio. She wrote an article about Defendant Hagmann for
publication on a site called Canada Free Press about
Hagmann's claim that he was being targeted fr
surveillance by the National Security Agency of the United
States. Plaintiff claims the information provided by Hagmann
and upon which she based her article was false. She later
issued public retractions of her article.
The
details of the disagreement between the parties were played
out in public on both sides as not only did Plaintiff write
several articles along with her retractions that were
critical of Defendants, but Defendants, in turn, on their own
Internet media programs and elsewhere were critical of
Plaintiff and her accusations against them. The Report and
Recommendation provides the details of these episodes and
they will not be repeated here but to say that
Plaintiff's Second Amended Complaint, the operative
pleading, reads as a soul-baring catalog of complaints of
Defendants' comments about her and critique after
critique of Defendants' work and political views.
The
Report and Recommendation appropriately takes to task
Plaintiffs pleading for its length, repetitiveness and
refusal to provide concise statements of factual allegations
as required by Rule 8 of the Federal Rules of Civil
Procedure. [1] The burden this imposes on court
resources i substantial and would strain the patience of any
Judge, even when accounting for the fact that Plaintiff is a
pro se litigant. For her part, Plaintiff has apologized for
the length and breadth of her Second Amended Complaint in her
Objections, reiterating that she is not a lawyer and
suggesting alternatively that she either return to her First
Amended Complaint or agree to some of the Magistrate
Judge's recommended dismissals. Her Objections and those
of Defendants, which lean heavily on arguments to dismiss all
counts with prejudice, rather than giving Plaintiff any more
opportunities to amend, have been studied in their entirety
as part of the Court's de novo review. The legal
requirements to state claims of each of these torts under
Pennsylvania law were thoroughly and accurately laid out by
Judge Lanzillo. Using the Iqbal/Twombly
standard[2], a review of Plaintiff s claims follows.
First,
the dismissal with prejudice of Count IV (Intentional and
Negligent Infliction of Emotional Distress) and Count VIII
(Unjust Enrichment) are required as the facts underlying them
do not state a plausible claim as to either tort under
Pennsylvania law. It appears from her Objections that
Plaintiff is not contesting such a ruling.
Second,
Count V (Equitable Estoppel), Count X (Continuing
Violations)[3] and Count XII[4] (Immediate Permanent
Injunctive Relief) are not legitimate causes of action or are
not pled as plausible claims under any "title"
Plaintiff might give them. It appears from her Objections
that Plaintiff is also not contesting the dismissal of these
claims beyond that discussed in note 3.
Third,
Plaintiffs first and clearest count is her Defamation claim
(Count I) against both Defendants. In her Objections, she
recounts her claims in this regard and specifically points to
statements made by both Defendants that accuse her of libel,
slander and cyberbullying, which she alleges rise to claims
of criminal conduct under Pennsylvania's criminal
statutes related to stalking, harassment, cyberbullying and
general threats. In response, both Defendants, and
particularly Defendant Quayle, attempt to parse out the
specific quotes pointed to by Plaintiff and argue that these
statements were made against another player in this saga, not
Ms. Peschmann. Such an argument is a defense, not a basis for
a motion to dismiss, and one that requires a factual
determination to succeed. At this stage, all of Plaintiff s
allegations are accepted as true, including those statements
she alleges were made against her and call into question
whether she violated criminal statutes in verbally attacking
Defendants and those averments where she alleges that
Defendants called her a psychopath, a sociopath and mentally
retarded. Because of this, the defamation claims against both
named Defendants will proceed.
Similarly,
with Count IX (False Light), Plaintiff alleges that such
statements also satisfy the elements of a False Light cause
of action of Publicity That Unreasonably Places the Other in
a False Light Before the Public. That tort, as defined in
Restatement (Second) of Torts § 652E, and applied by
Pennsylvania courts, has two elements: (1) the false light in
which the other was placed would be highly offensive to a
reasonable person, and (2) the actor had knowledge or acted
in reckless disregard as to the falsity of the publicized
matter and the false light in which the other would be
placed. See Curran v. Children's Service Center of
Wyoming County, Inc., 396 Pa.Super.29, 38-39 (1980).
Statements that essentially accuse Plaintiff of criminal
conduct and cyberbullying, call into question her mental
health, suggest that she is a Satan follower, Communist,
Marxist, or the like, or intimate that she was part of a
conspiracy to ruin Defendants because they failed to promote
her book can plausibly be construed as attributing to
Plaintiff characteristics, conduct, or beliefs that are
false, as well as objectively offensive to an individual in
Plaintiff's position. See Reese v. Pook & Pool,
LLC, 158 F.Supp.3d 271, 290 (E.D.Pa. 2016)("For the
information about a person to be 'highly offensive, '
it must constitute a 'major misrepresentation of his
character, history, activities or beliefs that serious
offense may reasonably be expected to be taken by a
reasonable man in his position.. ..'")(quoting
Restatement (Second) of Torts § 652, cmt.c). At this
stage of the case, Plaintiff has made factual allegations,
accepted as true, to make out a plausible claim for False
Light, and the count will go forward as against both named
Defendants.
Fourth,
although Plaintiff contests the dismissal of Count VI (Civil
Conspiracy) and Count VII (Aiding and Abetting) for failure
to state plausible claims, each count fails because all of
the elements necessary to make out a prima facie
case in each instance are lacking. As to Civil Conspiracy, a
cause of action for conspiracy requires that two or more
persons combine or enter an agreement to commit an unlawful
act or to do an otherwise lawful act by unlawful means.
Slaybaugh v. Newman, 330 Pa.Super. 216, 221, 479
A.2d 517, 519 (1984). Plaintiffs allegations focus generally
on the alleged wild and dangerous nature of false information
disseminated by Defendants to the public. The only
allegations that may be read to be allegations of a specific
conspiracy against Plaintiff directly, focus on
Defendants' failure to retract the alleged false NSA
targeting claims, "causing the Plaintiff compounding
[unspecified] damage, and by continuing to harm more innocent
individuals, separate from the Plaintiff." ECF No. 103,
¶ 483. The underlying failure to retract the NSA
targeting claims is not an unlawful act and neither is
telling a falsehood. Also missing from the claim are
allegations of "legal damage" to her. See
McKeeman v. Cor estates Bank, N.A., 751 A.2d 655, 660
(Pa. Super. Ct. 2000) (third element of a civil conspiracy
claim is legal damage). Even in her several filings objecting
to the Report and Recommendation and objecting to the
objections of the named Defendants, she points to no
allegations in her Second Amended Complaint and offers no new
facts to support legal damage from the alleged conspiracy.
Similarly,
in the Aiding and Abetting claim, Plaintiffs allegations do
not state a claim. As discussed in the Report and
Recommendation, there must be allegations of tortious
conduct, knowledge with some amount of intent, and
substantial assistance by the abettor to cause the tortious
conduct in order to state a claim. See, generally,
Restatement (Second) of Torts § 876 (1979). Plaintiffs
allegations in this count focus on the general falsehoods she
claims are being spread by Defendants and especially those
which criticize the media generally, a media of which she is
a member. She also makes much of Defendant Quayle's
Renaissance Precious Metals sales and the general alleged
harm caused by the unusual theories posited by Defendants to
the general public. These allegations do not state the
elements necessary to bring an Aiding and Abetting claim,
especially as to Plaintiff specifically. The Report and
Recommendation suggests that a generous reading of these
allegations may be construed as claims of aiding and abetting
defamation against Plaintiff, which defamation claims survive
these motions to dismiss as to each named Defendant. Even
giving Plaintiff this generous reading of her allegations in
this count, there are no claims that either named Defendant
substantially assisted the other in the alleged defamatory
statements; instead, the allegations are that each of the
Defendants said similar defamatory things. In other words,
the defamation claims against each named Defendant are the
tort, no1 Aiding and Abetting.
Finally,
the Fraudulent and Negligent Misrepresentation claims (Counts
II and III) will be dismissed because Plaintiff has not pled
damage of pecuniary loss with the particularity required for
either count. See Restatement (Second) of Torts
§ 525 (1979) ("One who fraudulently makes a
misrepresentation of fact, opinion, intention or law for the
purpose of inducing another to act or to refrain from action
in reliance upon it, is subject to liability to the other in
deceit for pecuniary loss caused to him by his justifiable
reliance upon the misrepresentation.");
Barry-Wehmiller Design Grp., Inc. v. Storcon Sys.,
Inc., 2014 WL 6750089, at *2 (M.D.Pa. 2014) ("To
state a legally sufficient claim for negligent
misrepresentation, the plaintiff must show the following: (1)
the defendant, in the course of business, supplied false
information for the guidance of others in their business
transactions; (2) the defendant failed to exercise reasonable
care or competence in obtaining or communicating the
information; (3) the plaintiff justifiably relied upon the
information; and (4) such reliance caused pecuniary
loss.") (citing Restatement (Second) of Torts § 552
(1977)).
Putting
aside the particularity that must be pled for charges of
fraud, Plaintiff has made no allegations that she lost
contracts, business or any individual work that would satisfy
the element of these counts such that justifiable reliance on
the misrepresentation, whether fraudulent or negligent,
resulted in a pecuniary injury that can be redressed. Such
specificity of out-of-pocket damages by reason of the
reliance, as noted by the Magistrate Judge, is necessary;
general claims of harm to her business reputation are not
enough. Cf. Rosen v. Comm'n Servs. Group, Inc.,
155 F.Supp.2d 310, 322 (E.D.Pa. 2001) (plaintiffs adequately
pled loss causation by alleging that, as a direct result of
the defendant's misrepresentations, losses were sustained
because of the fraudulent over valuation of the consideration
received for their stock).
At its
core, this is a Defamation and False Light case, and the
allegations and review of the law bear that out. Therefore,
after de novo review of the complaint, all filings
and documents in the case, together with the report and
...