Statute of Limitations

Lawsuits by Doctor, Dentist Over Patients' Reviews Dismissed

A doctor in New York and a dentist in Oregon have both found out that it may not be easy to sue for libel over online reviews of their services, after their separate lawsuits were both dismissed. And it turns out that most of the dentists and doctors who have sued over online reviews have reached similar results.

Subject Area: 

Jurisdiction: 

Salyer v. Southern Poverty Law Center, Inc.

Date: 

12/18/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Southern Poverty Law Center, Inc.

Type of Party: 

Individual

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

Jefferson Circuit Court, Division 4; United States District Court for the Western District of Kentucky

Case Number: 

08CI13421 (state); 3:09cv00044 (federal)

Legal Counsel: 

James L. Adams, Jon L. Fleischaker- Dinsmore & Shohl; Kimberly Bessiere Martin and Russell B. Morgan -Bradley Arant Boult Cummings, LLP

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Material Removed

Description: 

Robert Salyer sued the Southern Poverty Law Center (SPLC) in Kentucky state court over allegedly defamatory content in its print and online magazine, "Intelligence Report," which he claims stated that "he had been disbarred from practicing in military courts and also that he had received a dishonorable discharge."  (Compl. ¶ 3.)  The article at issue seems to have been edited at some point to remove the allegedly defamatory content, but re-posts at Crime and Criminals and The Experiment maintain the original content.

The SPLC removed the case to federal court and moved to dismiss the suit as barred by the statute of limitations.  Although the district court judge agreed that the suit was filed after Kentucky's one-year statute of limitations on defamation actions had run, he denied the motion pending discovery, as "changes to the website’s content may exist that would constitute substantial modification."  (Op. Den. Mot. to Dismiss 7.)  Such modifications would constitute republication of the allegedly defamatory content, and would thus "reset the clock" on the statute of limitations.

On April 28, 2009, Salyer amended his complaint, adding a claim of outrage (also known as intentional infliction of emotional distress).  The judge granted the SPLC's motion to dismiss this new claim since Kentucky law bars an outrage claim where a plaintiff's other tort claims allow damages for emotional distress, as defamation does.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

AVM- 2009 WL 1036907, pleadings not on WL, try PACER

Case is first application of single publication rule to internet publication

07/01/2009 - LB editing; Happy Canada Day!

Jurisdiction: 

The Traditional Cat Association v. Gilbreath

Date: 

05/22/2002

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Laura Gilbreath; Lee Zimerman; Randi Briggs; John Herold; Diane Dunaway; Traditional Cat Association

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court for the State of California for the County of San Diego; California Court of Appeal for the Fourth District, Division One

Case Number: 

GIC789066 (superior); D041421 (appellate)

Legal Counsel: 

Darren J. Quinn (for Defendants Gilbreath, Zimmerman, Briggs, Herold, and Traditional Cat Association, Inc.); Anthony J. Passante Jr. (for Defendant Dunaway)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Material Removed
Settled (total)

Description: 

On May 22, 2002, Diane Fineran and The Traditional Cat Association (TTCA), filed a lawsuit against Laura Gilbreath, Lee Zimmerman, Randi Briggs, John Herold, Diane Dunaway, and Traditional Cat Association (TCA), claiming unfair competition, defamation, and conversion. 

The individuals in this case are all cat enthusiasts who held leadership positions in defendant organization TCA.  In 1998, a dispute led Fineran to leave TCA and found her own organization, TTCA.  Fineran then commenced a series of lawsuits against the defendants related to the dispute and her departure.  In response to these lawsuits, in 1998 defendant Herold created a website named "The Diane Fineran Response Web Site," which purported to report the status of this litigation. 

On May 22, 2002, Fineran filed suit again, claiming that Herold's website was defamatory, and also claiming unfair competition and conversion.  According to her complaint, Herold's website falsely stated that a jury had found Fineran guilty of defamation, and falsely stated that she had admitted that she did not found TCA.  According to the complaint, the website also stated that Fineran uses "intimidation" tactics, is a "dictator," and engages in "misrepresentations," "half truths" and "whole cloth invention."

The defendants moved to strike the complaint under California's anti-SLAPP statute.  The Superior Court denied the motion, finding that a statute of limitations defense will not support relief under the anti-SLAPP statute.  The California Court of Appeals for the Fourth District, Division One reversed the lower court and dismissed the defamation claim.  The court rejected the plaintiffs' argument that the statute of limitations renewed continuously as long as the website was running, applying California's single-publication rule to websites.  The appellate court found that the defendants had not unambiguously challenged the unfair competition claim in their motion to strike, so this claim remained intact.

In January, 2005, the parties settled.  Plaintiffs Fineran and TTCA agreed to pay $24,647.28 in attorney's fees and costs to the defendants.  Defendant organization TCA, now known as Traditional and Classic Cat International, agreed to change their numbering system for registering cats and kittens to be dissimilar from TTCA.  "The Diane Fineran Response Web Site" is no longer available.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source:mentioned in case on westlaw

Jurisdiction: 

Woodhull v. Meinel

Date: 

01/11/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Carolyn Meinel

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Second District Court of New Mexico; Court of Appeals of New Mexico

Case Number: 

D-202-CV-200700346 (district); No. 27,959 (appeals)

Legal Counsel: 

Bryan J. Davis; Andrew G. Schultz

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Angela Victoria Woodhull sued hacker Carolyn Meinel after Meinel allegedly posted two false and defamatory statements about her on Meinel's website The Happy Hacker.  In 2003, Meinel posted on her website an email message from Woodhull entitled "Please contact me" and stating "I have a job for you."  According to the appellate court opinion in the case, Meinel then added her own commentary, stating that, when she called Woodhull, Woodhull asked her to hack into a news website that had written unflattering comments about her. 

In 2006, Meinel made a second posting, which recapped the 2003 incident and went on to state that Meinel's only recourse against Woodhull for her alleged unlawful request was "to make fun of her on this website." This posting also contained the content of an email exchange between Meinel and Michael Gimignani, a staff member at The Independent Florida Alligator, a student run newspaper at the University of Florida. Gimignani's email discussed a dispute between Woodhull and the newspaper over whether a Woodhull play contained "dancing penises and condoms."  Meinel added more of her own commentary, stating that further research revealed that Woodhull had "been on America's Funniest Home Videos" and "says she is proud to be known as Wedgie Woman."

In January 2007, Woodhull filed a defamation lawsuit against Meinel in New Mexico state court.  Meinel filed a motion for summary judgment, arguing that the statute of limitations barred Woodhull's claims, and that section 230 of the Communications Decency Act ("Section 230") immunized her from liability for publishing Gimignani's emails.  The lower court agreed and dismissed the case.

Woodhull appealed, and a New Mexico appellate court reversed.  The appellate court held that, while New Mexico followed the single publication rule for Internet publications, a jury could find that the 2006 posting was sufficiently different from the 2003 posting to constitute a separate publication, resetting the statute of limitations.

The appellate court also held that a jury should decide whether Meinel's use of Gimignani's emails qualified for Section 230 immunity.  The court stated that Meinel meight be an original "information content provider" because she solicited the information from Gimignani for her own stated purpose of "making fun" of Woodhull, and incorporated this material into a overall posting along with her own thoughts.  The court noted, however, that a jury could view Meinel's posting as containing two distinct components -- her statements and Gimignani's statements -- and thus find Section 230 applicable to the component including the Gimignani's statements.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Source: Eric Goldman

Jurisdiction: 

Hamad v. Horowitz

Date: 

04/13/2006

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Center for the Study of Popular Culture; David Horowitz; Center for Jewish Community Studies; State of Texas; Americans Against Hate; Middle East Forum (Campus Watch); CB Accounts Inc.; Joe Kaufman; MilitantIslammonitor.org; Daniel Pipes; Freerepubli

Type of Party: 

Individual

Type of Party: 

Individual
Organization
Government

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Texas; United States Court of Appeals for the Fifth Circuit

Case Number: 

1:06-cv-0028 (trial court); No. 07-50165 (appeals court)

Legal Counsel: 

Manuel S. Klausner; David H. Donaldson; Peter D. Kennedy (CSPC and Horowitz); Randy Howry, Sean E. Breen - Herman, Howry & Breen, LLP (Center for Jewish Community Studies); Aaron B. Huffman (State of Texas); Ashley Ivy Kissinger, Michael Berry - Levi

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Riad Hamad, founder of the Palestine Children's Welfare Fund (PCWF), filed a defamation suit against the editor and publisher of online publication FrontPage Magazine and several other defendants.  Hamad alleged that a FrontPage article accused Hamad and PCWF of funneling money to terrorists, called Hamad an anti-Semite, and otherwise disparaged him and his organization.

Hamad's original complaint brought approximately 15 legal claims against FrontPage editor David Horowitz and publisher Center for the Study of Popular Culture (CSPC) and asked for $80 million in damages.  Hamad subsequently amended his complaint five times, progressively adding more defendants and legal claims related to the FrontPage article and postings from other sites. These claims included business disparagement, tortious interference, intentional infliction of emotional distress, fraud, negligence, and trademark dilution, among others.

The district court dismissed all of Hamad's claims in three 2006 and 2007 orders. Each claim was dismissed in part because the one-year statute of limitations for defamation actions had run -- Hamad had filed suit in 2006, while the articles were published in 2003 and 2004.  In finding that the statute of limitations had passed, the court applied the single publication rule: it determined that the statue of limitations began running when each article was first published online.

In the three orders, the court also dismissed most of Hamad's claims on alternative grounds, such as lack of personal jurisdiction, failure to state a claim upon which relief could be granted, and immunity under CDA 230 (with respect to Dotster, Inc., a domain registrar).

In the second of the three orders, the court sanctioned Hamad for repeatedly amending his complaint without permission and for failing to heed a court warning that he would face sanctions if he did not voluntarily dismiss his complaint.  The court ordered him to pay $3,000 in sanctions.

Rather than voluntarily dismissing his suit following the sanctions, Hamad filed for default judgment as to some of the parties.  As a result, the third and final court order dismissed Hamad's remaining claims and ordered him to pay $9,000 in sanctions and more than $50,000 in defendants' fees and costs.  Hamad appealed.

The Fifth Circuit affirmed the district court's judgment, relying primarily on the statute of limitations.  The court also granted defendants' request for fees arising from Hamad's "frivolous" appeal, amounting to more than $30,000.

All told, Hamad was ordered to pay more than $92,000 in sanctions, fees, and costs.

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

Statute of Limitations

"Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts.

Bradley v. Conner

Date: 

07/23/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Herbert Bennet Conner

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

Court of Common Pleas, Allegheny County, Pennsylvania; United States District Court for the Western District of Pennsylvania

Case Number: 

2:07-cv-01347-DWA (W.D. Pa)

Legal Counsel: 

Dennis St. J. Mulvihill; Bruce E. Rende; Erin Wengryn

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Kimball Bradley, an executive at Reunion Industries, Inc., a publicly traded manufacturing company, sued Herbert Conner, an attorney who previously represented Reunion, over posts Conner allegedly made on a Yahoo! Finance Message Board that Bradley believed defamed him and cast him in a false light.

According to allegations in the complaint and other filings in the case, beginning in August 2005 and continuing through March 2006, Conner, using the alias “pun2dex,” posted numerous messages on the Yahoo! Finance Message Board designated for Reunion. Bradley alleges that Connor posted the following statements:

  • On August 10, 2005, pun2dex stated: “As badly as this company is run, there is no shutdown. Richard Conway (of Lc Capital Masters) is in and will be heard. The company has fresh cash and is buying raw material. It will show an operating profit this quarter primarily due to the sales in China by its CPI sub. So long as the bond holders sit still, there could be some upside.”

  • On September 1, 2005: “[Reunion] operates with a lockbox. It has no choice but to pay down the Bank debt. The Bondholders are stuck. The Bank takes all the excess cash and leaves only enough to buy material for production. Leadership is lacking, but well paid anyway. Check the identity of majority ownership in relation to the CEO and COO. I do not know how the outside directors sleep. There is a large lawsuit looming if someone should have the energy to file it.”

  • On September 20, 2005: “Richard Conway is running Reunion. At last someone with an IQ. He paid hard cash. The banks have been backed off and RUN will report around 20 cents, if it so chooses in October, not from operations, but debt reduction. They can now buy raw steel and make product. The Oneida division will be sold and the cylinder and pressure vessel business will be advanced. Conway will have a $4.00 stock in 18 months.”

  • On September 21, 2005: “I have followed the company for a very long time and read the filings. The Board is becoming concerned since Worldcom, in light of Sarbox, and well they should. . . .Kimball Bradley [Plaintiff] is still called COO, C E Bradley is still CEO, but the latter is CEO in paycheck only, and will soon be resigning at the request of Mr. Conway. The only way out for [Reunion] is to do what Conway suggests. Look for him to buy the junk bonds, reduce and control the debt and spur the growth of the profitable divisions. Check LC Capital Masters and Lampe, Conway Fund Group. Run (sic) needs management with a higher IQ than club handicap, with Conway, they get one, even if K. Bradley stays in as COO or even moves to CEO. He will not be calling the shots, except on the Golf Course.”

  • On January 1, 2006: “. . .the story is all of failure since the young Bradley took over and will not stop until he is long gone. Until that day, this company and this stock will bounce a little, but is going nowhere.” On January 24, 2006: “If you are intent on paying salaries, you must sell something in the context of this company. Check the President, who is a member of the YPO. That means he was unable to be employed anywhere else, so his father made him president of this company so he could hang out with other young guys who were born on third base and think they hit a triple. This company is going nowhere. The next big thing will be a revolt of the bondholders or the banks. The shareholders will not be happy.”

  • On January 25, 2006: “Our leader will never consider stepping aside to allow someone with the drive and intellect to run the company, so long as he has no other job prospects and strong cash needs. Instead of figuring out a way to make the company profitable, he sells assets to keep his check coming in. Go to GHIN.COM in Pennsylvania for Kimball Bradley and you will quickly see where the energy of management is spent, and only a small fraction of the rounds are posted so as not to upset his father. What a waste. The bondholders would be well advised to call his bluff, take control and get someone in who will put the company right. There are only a few assets left to sell, and at Kimball’s age he will need to sell them all just to pay his caddies.”

  • On February 10, 2006: “The market cap on RUN is $9,500,000.00. Check what the company was worth when currect [sic] management took over. Even at that number you could not sell the stock and hold the current stock price. What a waste. How do those people sleep at night? Subtract the debt from a reasonable enterprise evaluation and you are below zero. A monkey could do better.”

  • On February 22, 2006: “There is a [sic] apparent disconnect between blind optimism and business sense. A manager should get out of his office and go to customers, visit the plants and find new markets, new products and new businesses to bring a company above the profit line. He does not refinance a sea of debt over a five year reign, sell the divisions that earn a profit, add no new ones, shrink the revenue and raise his own salary, while buying a stadium box for his personal use with company funds, leave the office by 3:00 pm every weekday, work no weekends or evenings and pine for a job that makes ‘real money.’ This guy is rearranging the deckchairs on the Titanic, and only on a part time basis at that, while he works on his golfing handicap. We write in the hope that the board will wakeup and find a real CEO. Will recognize that it has a duty to the shareholders and not to an incompetnat [sic] young boy who cannot find a job on his own. . . .At Worldcom each boardmember was required to pay 20% of his personal net worth to the shareholders because they ignored guys like me. It will happen again.”

  • On March 9, 2006: “This is just more rearranging of the deck chairs on the Titanic. K. Bradley probably thinks he did something meriting a huge bonus or perhaps a pay increase, but look at what has happened since he became COO. Straight down for revenues, profits and share price. I agree he probably can’t sleep at night, but he should still put in a full day, although with his ability, the company would do better without him. Still, Dad likes him, so he gets promoted, GO Figure. After all the comments about YPO, I did some research and have concluded that they are circle of jerks or a circle jerk. Our Boy fits right in.”

Based on these statements, Bradley asserted claims under Pennsylvania law for defamation, including defamation per se, and for false light.

In October 2007, Connor removed the case from Pennsylvania state court to federal court and filed a motion to dismiss the case, arguing that the claims were barred under Pennsylvania's one-year statute of limitations.

On November 29, 2007, the district court agreed and dismissed the lawsuit, rejecting the plaintiff's assertion that the "discovery rule" should have tolled the statute of limitations.

Content Type: 

CMLP Notes: 

I assume appeal is still possible

No evidence of appeal as of 2/19/2009 - VAF

Jurisdiction: 

Subject Area: 

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