Gillon v. Bernstein

• Decision Date: 03 November 2016
• Docket Number: Civ. No. 2:12–4891 (WJM)
• Citation: 218 F.Supp.3d 285
• Parties: Iris GILLON and Iris Gillon Music'n Celebrations, LCC d/b/a IGMC, Plaintiffs, v. Honey BERNSTEIN, Defendant.
• Court: U.S. District Court — District of New Jersey

218 F.Supp.3d 285

Iris GILLON and Iris Gillon Music'n Celebrations, LCC d/b/a IGMC, Plaintiffs,

v.Honey BERNSTEIN, Defendant.

Civ. No. 2:12–4891 (WJM)

United States District Court, D. New Jersey.

Signed November 3, 2016

M. Ari Jacobson, Song Law Firm, LLC, Fort Lee, NJ, for Plaintiffs.

Emery J. Mishky, Victoria J. Adornetto, Margolis Edelstein, Berkeley Heights, NJ, for Defendant.

OPINION

WILLIAM J. MARTINI, U.S.D.J.

Plaintiffs Iris Gillon and Iris Gillon Music'N Celebrations, LLC bring this action against Defendant Honey Bernstein, alleging seven common law counts, including libel, product disparagement and false light. This matter comes before the Court on Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. In response, Plaintiffs cross-moved to admit their witness, Shane McMurray, as an expert witness before this Court. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendant's motion is GRANTED in its entirety. Plaintiffs' cross-motion is DENIED and their claims are DISMISSED .

I. BACKGROUND

This dispute arises out of a negative online consumer review posted by Defendant Honey Bernstein on August 9, 2011. In her review, Defendant expressed her dissatisfaction with the music planning services provided by Plaintiffs at her son's wedding. Plaintiffs allege that Defendant's review was defamatory because it inaccurately portrayed events that transpired the night of the wedding. Unless otherwise noted, the following facts are undisputed.

A. Gillon and IMGC

Plaintiffs in this case are Iris Gillon, a resident of Teaneck, New Jersey, and Iris Gillon Music'N Celebrations, LLC ("IGMC"), a New Jersey limited liability company that Gillon owns and operates. Gillon, through IGMC, is a self-described "event planner"¹ who specializes in booking music entertainment for both weddings and corporate events. Statement of Material Facts in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Statement") ¶ 2, ECF No. 51. Gillon operates a number of websites, many of which tout the knowledge, experience, and professionalism of IGMC. See, e.g. , id. at ¶¶ 4–7.

IGMC promotional materials also indicate that, in connection with her work in the wedding industry, Gillon has appeared on two television programs, "the Apprentice" and "Platinum Wedding." See id. at ¶ 3. At least with respect to her appearance on "the Apprentice", however, Gillon was not featured prominently, and she did not promote her event planning business. See Pls.' Resp. at ¶ 3. Moreover, while Defendant is correct in stating that there are dozens of websites related to IGMC, Gillon created some of those sites for the sole purpose of diverting internet traffic away from Defendant's negative review.² See Pls.' Supplemental Statement of Material Facts in Opp'n ("Pls.' Statement") 2–4, ECF No. 58.³

The record further shows that, at least with respect to the event planning industry, Plaintiff has never written articles in trade publications, provided insight in seminar settings, or maintained any role in industry associations. See Pls.' Statement at ¶¶ 6–13. Plaintiff also does not have any employees who assist her with the business—IGMC therefore operates as a sole proprietorship, and its successes and failures are only felt by Plaintiff. See Certification in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Cert."), Ex. Q ¶¶ 2–4, ECF No. 50. As evidenced by tax returns, Gillon and IGMC have experienced inconsistent financial earnings since 2007. Specifically, IGMC reported the following net profit figures between 2007 and 2013: $106,454.00 in 2007; $119,621.00 in 2008; a loss of $56,579.00 in 2009; $73,899.00 in 2010; $21,496.00 in 2011; a loss of $5,181.00 in 2012; and $7,704.00 in 2013. See Def.'s Cert., Ex. W.

B. Defendant's Hiring of IGMC

In the early summer of 2011, Defendant sought to hire a music entertainment company for her son's wedding, which was to be held at her home in Goshen, New York.

See Def.'s Statement at ¶ 1. According to her testimony, Defendant came across IGMC in the course of her internet research and was impressed with the promotional materials featured on Gillon's website. See id. at ¶ 10. The representations on the website inspired Defendant to inquire with Gillon regarding the possibility of using IGMC for the wedding. See id. at ¶ 11. After hashing out certain details, the parties entered into a "Music Producer and Purchaser Agreement" (the "Agreement"), which provided that IGMC would produce, supervise, and manage all music entertainment associated with the event. The entertainment booked for the wedding included a DJ and a band named "Unanimous." See id. at ¶14; Def.'s Cert., Ex. J. The Agreement that provided the following, in pertinent part:

• Total Performance Hours: 1 hr ceremony and arrivals Keys and Flue (to begin no later than 7:45–8:45 pm)

• 4 Hours Full Band w/DJ combo playing for the Reception (8:45—Ending 12:45 am)

• Music Detail: 5 Musicians Keyboards, Guitar–Vocals, Sax–Vocals, F. Vocal and Congas Trumpet/Vocals and DJ

See Def.'s Cert., Ex. J.

On August 4, 2011, two days before the wedding date, Defendant emailed Gillon, inquiring to the proper electrical specifications for the live music. See Def.'s Statement at ¶ 18; Def.'s Cert., Ex. I. Gillon responded within an hour, explaining that:

2x 20 amp line is enough for the ceremony

5 x 20 amp lines should do it for band and DJ both.

THAT IS wiring needed for two separate locations.

See Def.'s Cert., Ex. I. Defendant never relayed that information to her electrician, however, who was hired to be present at the ceremony and ensure that all electricity-related issues ran smoothly. See Pls.' Statement at 28; Pls.' Br. in Opp'n ("Pls.' Opp'n"), Ex. D–1, Drew Dep. 36:9–19.⁴

C. The Wedding

The wedding reception and ceremony were both held at Defendant's home on August 6, 2011. Chaim Kurzman, the band leader for Unanimous, was the first band member to arrive. See Def.'s Statement at ¶ 19. Upon arrival, Kurzman informed Defendant that the amount of electricity that her electrician laid out was insufficient, explaining that four circuits were needed to accommodate the needs of the band. See Def.'s Statement at ¶ 20; Def.'s Cert., Ex. S, Drew Dep. 24:8–11. After receiving that information, Defendant's electrician hastily rearranged the electrical configurations so that enough electricity would be available. See Def.'s Statement at ¶ 21; Def.'s Cert., Ex. S, Drew Dep. 24:13–25:22.

According to Defendant, the DJ and a female singer arrived shortly before the event was to begin. See Def.'s Statement at ¶ 22. Defendant recalls seeing only three performers—specifically, Kurzman, the DJ, and the female singer—on stage during the wedding reception, which would have violated the Agreement that required a total of six performers to appear. See id. at ¶ 23; Def.'s Cert., Ex. J. However, photographic stills from a wedding video produced by Defendant in discovery show that in addition to the three performers Defendant recalls, the stage was also occupied by a saxophonist, a guitarist, and a keyboardist. See Pls.' Opp'n at 11, Exs. PH–1–PH–11; Pls.' Statement at 23. Some of the stills also appear to show Defendant dancing in front of the stage with all six performers present. See, e.g. , Pls.' Opp'n, Exs. PH, PH–1, PH–4. Additionally, for the purposes of the instant motion, certain band members have submitted affidavits explaining that all six musicians were present during the reception. See Pls.' Opp'n, Ex. A–1, Kurzman Aff. ¶ 6; Ex. A–2, V. Cuccia Aff. ¶ 6; Ex. A–3, L. Cuccia Aff. ¶ 6.⁵

According to Defendant, the band fell woefully short of matching the impressive ensembles showcased in IGMC's promotional materials. See Def.'s Statement at ¶ 24. At various points during the band's performance, Defendant expressed her dissatisfaction to the performers. See id. at ¶ 25. Ultimately, Defendant became convinced that the band was detracting from the tenor of the reception. Accordingly, she instructed the band to cease playing, and substituted their music with her own iPod playlist. See id.

D. The Posting

Three days after the reception, on August 9, 2011, Defendant decided to post an online review of IGMC. Defendant explained that she wished to write " ‘an honest posting’ of opinion about the quality of services actually received." See id. at ¶ 26 (quoting Def.'s Cert., Ex. A, Bernstein Dep. 81:13–14). After perusing various websites for roughly twenty minutes, Defendant decided to post her review on a website called "Ripoff Report."⁶ Defendant's review stated the following:

iris gillon, igmc Way below Par service—did not get what was contracted for Internet

iris gillon and igmc did not deliver acceptable service. Iris is a marketeer par excellence—an unusually good salesperson with an impressive and well-designed website. Don't let these things fool you. My son got married this past weekend and (1) the singer was awful (2) the number of musicians promised did not show up (3) the band leader had no personality whatsoever and though he tried hard to please, could not read the crowd. the band's electrical requirements that iris sent me were all wrong and my electrician, at an enormous additional expense, had to work the night of the party, in the rain, to make sure that there was enough power. also, notice how the rebuttals to the first complaint are from employees. i wonder why that is? I would never, ever recommend using this company.

Pls.' Opp'n, Ex. R–2. Two days after posting her review, Defendant sent Plaintiff a strongly worded e-mail further expressing her tremendous disappointment with IGMC's services. See id. , Ex. E–1. In her e-mail, Defendant warned, "I plan to post my opinion in as many places online as i [sic ] can find." Id.

E. Plaintiffs' Lawsuit

On August 3, 2012, Plaintiffs filed the instant action, which alleges that Defendant's August 9, 2011 posting was defamatory. In their initial filing, Plaintiffs alleged that the defamatory posting caused IGMC and Gillon...