NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5214-14T4

PETRO-LUBRICANT TESTING LABORATORIES, INC., and JOHN WINTERMUTE, APPROVED FOR PUBLICATION Plaintiffs-Appellants/ Cross-Respondents, October 19, 2016

APPELLATE DIVISION v.

ASHER ADELMAN, d/b/a eBossWatch.com,

Defendant-Respondent/ Cross-Appellant. _______________________________

Argued September 19, 2016 – Decided October 19, 2016

Before Judges Sabatino, Haas, and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0406-12.

Mark G. Clark (Traverse Legal) of the Michigan bar, admitted pro hac vice, argued the cause for appellants/cross-respondents (Trimboli & Prusinowski, LLC, and Mr. Clark, attorneys; James Prusinowski, of counsel; Mr. Clark, Mr. Prusinowski, Jinkal Pujara, and John P. Harrington, on the briefs).

Garen Meguerian argued the cause for respondent/cross-appellant.

Eugene Volokh (First Amendment Clinic) of the California bar, admitted pro hac vice, argued the cause for amicus curiae Reporters Committee for Freedom of the Press (Hartman & Winnicki, P.C., and Mr. Volokh, attorneys; Mr. Volokh and Daniel L. Schmutter, on the brief).

The opinion of the court was delivered by

CURRIER, J.A.D.

In this defamation case, we are asked to decide whether a

second posting of an article on a website with minor changes

from the original posting was sufficient to categorize it as a

separate publication, and therefore subject to a new statute of

limitations. We find the minor changes between the two articles

to be immaterial and not sufficient to render them two separate

publications. In addition, to the extent that any of the changes

could be regarded as material, on the whole they lessened the

"sting" of the publication. Therefore, the single publication

rule is applicable and the complaint was properly dismissed as

untimely under the one-year statute of limitations.

We also uphold the dismissal of defendant's counterclaim,

rejecting the novel theory that defendant has standing as a

publisher to assert a claim of retaliation under the New Jersey

Law Against Discrimination (NJLAD).

The website eBossWatch.com was created by defendant Asher

Adelman for people to rate their employers and bosses so that

job seekers might search workplaces and "access inside

information about what it's really like to work there." After

2 A-5214-14T4 viewing an article on the Courthouse News Service1 that detailed

allegations of gender discrimination and a hostile workplace

environment in a complaint filed by an employee against

plaintiffs Petro-Lubricant Testing Laboratories, Inc. (PTL) and

John Wintermute, defendant published an article on his website

reporting on the same complaint.

The article, entitled "'Bizarre' and Hostile Work

Environment Leads to Lawsuit," was posted on August 3, 2010. It

repeated the allegations contained in the complaint which

described Wintermute as a "violent bully, a racist, and a

womanizer who regularly brought guns to the workplace."

Allegations of Wintermute's explosive temper, his sexual affairs

with female employees, and his retaliation by firing the

employee when she refused to lie for the company in another

employment-related lawsuit were also described.

In 2010, defendant also posted a webpage entitled

"America's Worst Bosses 2010," a list that ranked bosses and

named their employers. Wintermute was named in the list and a

hyperlink led to the eBossWatch article.

1 Courthouse News Service is an Internet-based news service that publishes original content, focusing on civil litigation nationwide.

3 A-5214-14T4 In December 2011, an attorney representing plaintiffs wrote

to defendant stating:

It has recently come to our attention that you have published false and defamatory statements concerning our client in an article. This letter serves as your final notice to remove this article from your website or face liability under New Jersey law for defamation, defamation per se, and false light invasion of privacy.

The letter advised that defendant "may be held liable for

significant monetary damages," and demanded defendant remove the

article, related links, and metatags.

The letter stated that the employee "was fired from Petro-

Lubricant for reasons unrelated to anything contained in her

complaint" and that her "retaliatory lawsuit containing these

baseless allegations" had been settled.

Defendant responded to plaintiffs' counsel that the

"article is clearly a reporting of the complaint that was filed

by [the employee] against [plaintiffs]. [O]ur article contains

only factual statements about the abovementioned complaint and

its allegations." Defendant stated further that "to make it

even more clear that our article is a factual reporting of the

[employee's] complaint, we have made some minor changes to the

wording and to the article's title." The email provided counsel

with a link to the updated article published in December 2011.

4 A-5214-14T4 The article was also linked to the "America's Worst Bosses 2010"

list.

A reading of the December 2011 article reveals that

defendant changed the title to "Hostile Work Environment Lawsuit

Filed Against Petro-Lubricant Testing Laboratories." He also

removed a picture of the laboratory which had accompanied the

first article. Although there was some rewording in the

paragraphs, the content reported and the construction of the

article remained the same.

In reporting the employee's claims, the earlier article

stated: "[Wintermute] also allegedly forced workers to listen to

and read white supremacist materials." The second posting

deleted that wording and stated: "John Wintermute also allegedly

regularly subjected his employees to 'anti-religion, anti-

minority, anti-Jewish, anti-catholic, anti-gay rants.'"

In June 2012, plaintiffs filed a complaint against

defendant alleging defamation, false light publicity, and

intentional infliction of emotional distress as a result of the

false and defamatory statements contained in the August 2010

eBossWatch article and the "America's Worst Bosses 2010" list.

The complaint was amended in September 2012 to include

defamation claims arising from the December 2011 posting.

5 A-5214-14T4 In lieu of filing an answer, defendant moved for summary

judgment. Noting the one-year statute of limitations for a

libel or slander action, N.J.S.A. 2A:14-3, the motion judge

found the August 2010 article and the December 2010 publication

of the worst bosses list to be time-barred. He further

concluded in his opinion and order of December 10, 2012 that

issues of fact prevented the grant of summary judgment regarding

the December 2011 re-posted article.

At the close of discovery both parties presented summary

judgment motions. Defendant also moved to amend his answer and

add a counterclaim for retaliation under the NJLAD, N.J.S.A.

10:5-12(d), as well as a motion seeking sanctions for

plaintiffs' alleged discovery violations.

Following oral argument on May 21, 2015, the second motion

judge2 rendered an oral decision, with only a brief reference to

the statute of limitations argument posited by defendant. He

stated: "I'm satisfied that the Single Publication rule does not

apply to the December 2011 article as that rule applies to a

mass distribution of the same material." Therefore, he

concluded the statute of limitations on the second article had

not expired. Summary judgment, however, was granted to defendant

2 A different judge presided over the second summary judgment applications.

6 A-5214-14T4 on other grounds as the judge found the article was a "full,

fair and accurate account of the [employee's complaint]" and

therefore privileged as plaintiffs had failed to prove it had

been published with actual malice. On the same date, the judge

issued a written statement of reasons granting summary judgment

to defendant and denying summary judgment to plaintiffs.

Although the judge granted defendant's motion to amend the

answer with a counterclaim, he denied the counterclaim as moot

and denied defendant's sanction request.

On appeal, plaintiffs argue that the December 2011 article

is "a separate and distinct publication from the August 2010

post" and therefore, the complaint was timely filed within the

one-year statute of limitations. Plaintiffs contend the single

publication rule does not apply to the second posting as the

December 2011 article contained significant changes in its

content, substance, and form from the earlier post. Plaintiffs

also argue that the judge erred in deeming the article

privileged. In his cross-appeal, defendant contends the judge's

dismissal of his retaliation counterclaim and discovery sanction

motion was error.

Amicus curiae, the Reporters Committee for Freedom of the

Press, asserts that the "minor changes" made in the December

2011 article did not broaden any of the claims or allegations

7 A-5214-14T4 set forth in the original posting, and therefore, under the

single publication rule, the one-year statute of limitations

applied and had expired prior to the filing of the complaint.

We review a grant of summary judgment under the same

standard as the motion judge. Rowe v. Mazel Thirty, LLC,

(2012). We must determine whether there are any

genuine issues of material fact when the evidence is viewed in

the light most favorable to the non-moving party.

. "The inquiry is whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law."

Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A.,

(2007) (quoting Brill v. Guardian Life Ins. Co. of

Am.,

(1995)) (internal quotation marks

omitted). "[T]he legal conclusions undergirding the summary

judgment motion itself [are reviewed] on a plenary de novo

basis," Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,

(2010); including whether the statute of

limitations applies, Churchill v. State,

(App. Div. 2005).

The single publication rule was applied traditionally to

"mass publications under which a plaintiff alleging defamation

has a single cause of action, which arises at the first

8 A-5214-14T4 publication of an alleged libel, regardless of the number of

copies of the publication distributed or sold."

In Churchill, we addressed the application of the single

publication rule to an Internet publication of a document.

Concluding that the "Internet appears to be particularly suited

to application of the single publication rule," we found no

basis to treat the Internet differently than other forms of mass

media, and held the single publication rule applied to Internet

publications.

.

The plaintiffs in Churchill also argued that the updates

made to the website constituted republications of the allegedly

defamatory report, thus triggering a new statute of limitations

upon each update.

. We rejected that argument,

finding that the updates "were merely technical changes to the

website. . . . [T]hey in no way altered the substance or form

of the report."

. We concluded that "to treat the

changes as republications would be inappropriate and defeat the

beneficial purposes of the single publication rule."

.

Mindful of that benchmark, we turn to an analysis of the

two articles. Both posts are constructed similarly, each

containing six paragraphs. As noted earlier, the title was

changed between posts but the subject matter remained the same;

9 A-5214-14T4 both articles report on a hostile work environment lawsuit.

Although the wording used in the first two paragraphs is

slightly different, the substance remains the same. The fourth,

fifth, and sixth paragraphs are unchanged.

We look then at the third paragraph in the articles. The

August post reads:

[The employee] claims that John Wintermute is a violent bully, a racist, and a womanizer who regularly brought guns to the workplace and target practiced, hunted and gutted birds, which he then fed to his guard dogs, on company property. He also allegedly forced workers to listen to and read white supremacist materials, drank alcohol regularly throughout the workday, and was a violent, raging drunk.

The third paragraph of the December 2011 article states:

[the employee] claims that John Wintermute is a "dangerous and violent alcoholic" who allegedly regularly brought guns to the workplace and target practiced, hunted and gutted birds, which he then fed to his dogs, on company property. John Wintermute also allegedly regularly subjected his employees to "anti-religion, anti-minority, anti- Jewish, anti-catholic, anti-gay rants."

The only substantive difference in the actual text of these

articles is the elimination of the reference to Wintermute

requiring his employees to listen to and read white supremacist

materials; the later post instead quotes the employee's

allegations that Wintermute subjected his employees to "anti-

10 A-5214-14T4 religion, anti-minority, anti-Jewish, anti-catholic and anti-gay

rants."

Communications posted on websites are viewed on a far wider

scale than traditional mass media. Web postings are available

for an indefinite period of time. If immaterial changes to an

Internet post were to result in a retriggering of the statute of

limitations on each occasion, the legislative purpose of

favoring a short statute of limitations for defamation would be

defeated. Therefore, the statute of limitations will only be

triggered if a modification to an Internet post materially and

substantially alters the content and substance of the article.

We note that the modifications in the second posting were

intended by defendant to diminish the defamatory sting of the

previously reported allegations after his receipt of plaintiffs'

counsel's antagonistic correspondence. We find it a logical

extension of our decision today to also conclude that a

softening of prior material in a subsequent posting should not

result in the commencement of a new statute of limitations.

Therefore, if a minor modification diminishes the defamatory

sting of an article, it should not trigger a new statute of

limitations.

We reject the argument that the second post was altered in

substance or form from the earlier posting as the differences

11 A-5214-14T4 between the articles are immaterial. The allegedly defamatory

information is the same in both articles. Paragraph three of

the second posting was minimally altered to quote specific

phrases contained in the complaint. The disseminated

information stayed constant.

Therefore, we find the December 2011 article was not a

republication and instead falls under the single publication

rule. The one-year statute of limitations commenced with the

posting of the original article in August 2010; therefore, the

complaint filed in June 2012 is barred as untimely and

defendants were entitled to summary judgment and a dismissal of

plaintiffs' claims. As a result, we do not consider the

remainder of plaintiffs' contentions.

We turn to defendant's cross-appeal. Defendant sought to

assert a counterclaim on the grounds of retaliation under NJLAD,

N.J.S.A. 10:5-12(d).3 The facts presented in the summary

judgment record are not sufficient to accord standing to

defendant under the statute. There were no proofs that

defendant had any relationship with the aggrieved employee or

that he aided or encouraged her in asserting her rights in her

3 "It shall be an unlawful employment practice . . . [f]or any person to take reprisals against any person because that person has . . . aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act."

12 A-5214-14T4 NJLAD claim so as to confer him standing under the statute. See

Craig v. Suburban Cablevision Inc.,

(1995).

Moreover, defendant may be granted certain rights and

protections under the First Amendment and the common law as a

result of his claimed status as a journalist objectively

reporting on employment litigation. He would not be entitled to

those same safeguards if he were to be considered an advocate

for the rights of the employee under the NJLAD. Although we

disagree with the judge's determination that mootness required

the dismissal of the counterclaim, we nevertheless find the

dismissal to have been properly entered, as defendant lacked

standing to assert the claim. See Isko v. Planning Bd. of

Livingston,

(1968) ("[I]f the order of the

lower tribunal is valid, the fact that it was predicated upon an

incorrect basis will not stand in the way of its affirmance.").

Finally, we find the judge did not abuse his discretion in

denying defendant sanctions for alleged discovery abuses.

Affirmed.

13 A-5214-14T4