Peckham v. New England Newspapers, Inc.

• Decision Date: 04 June 2012
• Docket Number: Civil Action No. 11–30176–KPN.
• Citation: 865 F.Supp.2d 127
• Parties: Thomas F. PECKHAM, III, Stacia Peckham, Adelaide Peckham, And Thomas Peckham, Jr., Plaintiffs v. NEW ENGLAND NEWSPAPERS, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

865 F.Supp.2d 127

Thomas F. PECKHAM, III, Stacia Peckham, Adelaide Peckham, And Thomas Peckham, Jr., Plaintiffs

v.NEW ENGLAND NEWSPAPERS, INC., Defendant.

Civil Action No. 11–30176–KPN.

United States District Court,

D. Massachusetts.

June 4, 2012.

Judith C. Knight, Law Office of Judith C. Knight, Great Barrington, MA, for Plaintiffs.

William E. Martin, Martin, Oliveira & Hamel, PC, Pittsfield, MA, for Defendant.

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S MOTION TO DISMISS (Document No. 7)

KENNETH P. NEIMAN, United States Magistrate Judge.

Thomas F. Peckham, III (“Peckham”), his wife Stacia Peckham and his parents Adelaide Peckham and Thomas Peckham, Jr. (together “Plaintiffs”) have brought claims of negligent infliction of emotional distress against New England Newspapers, Inc., which operates under the trade name North Adams Transcript. (“Defendant”). In addition, Peckham claims that Defendant violated his right to privacy. The parties have jointly consented to the jurisdiction of this court pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.

Presently before the court is Defendant's motion to dismiss the complaint in its entirety pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6), asserting that Plaintiffs' complaint was not timely served and raising as a defense its First Amendment right to publish matters of legitimate public concern. For the reasons that follow, Defendant's motion will be denied.

I. Standards of Review

Rule 12(b)(5) provides for dismissal based on insufficient service of process. Further, Federal Rule of Civil Procedure 4(m) provides that “[i]f a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). “Once challenged, [a] plaintiff [has] the burden of proving proper service.” Rivera–Lopez v. Dorado, 979 F.2d 885, 887 (1st Cir.1992).

When faced with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept the allegations of the complaint as true, drawing all reasonable inferences in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir.1992). Moreover, “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Sepulveda–Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 28 (1st Cir.2010). Recently, the Supreme Court made clear that, under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint that states a plausible claim for relief, on its face, will survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). The Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949.

II. Background

The following facts come directly from the complaint and are stated in a light most favorable to Plaintiffs, the parties opposing dismissal. Young v. Lepone, 305 F.3d 1, 8 (1st Cir.2002).

On July 4, 2008, Peckham was injured in an automobile accident when a driver, operating his vehicle under the influence, crossed into Peckham's lane and collided with his vehicle head-on. (Complaint ¶¶ 7, 9.) Emergency personnel arrived at the scene and attempted to free Peckham from his car. At some point during the rescue, Peckham, who retained consciousness, became aware that his wife and father had arrived at the scene and were watching events unfold from the side of the road. (Id. ¶¶ 16–17.) Hoping to signal to his family that he was still alive, Peckham attempted to wave his hand. (Id. ¶ 18.) A photographer employed by Defendant captured that moment in a photograph. (Id. ¶ 19.) On July 5, 2008, Defendant published a news article in the North Adams Transcript reporting the accident, which also featured the photograph taken at the scene. (Id. ¶ 21.)

III. Discussion

A. Service of Process

As a preliminary matter, the court finds that Plaintiffs have met their burden of establishing timely service of process. Plaintiffs filed their complaint on June 27, 2011. On October 14, 2011, the court granted Plaintiffs' request to extend the deadline for service of the complaint an additional sixty days, until December 26, 2011. Because there is no dispute that Plaintiffs served their complaint on Defendant on December 21, 2011, service was timely. Accordingly, Defendant's motion to dismiss will be denied on this ground.

B. Failure to State a Claim

At the hearing on Defendant's motion to dismiss, it became evident, upon inquiry of the court, that the photograph of Peckham was made available to the public in four different contexts: (1) the July 5, 2008 hard copy edition of the newspaper, (2) an online edition of the newspaper, (3) a separate stand-alone item available for purchase from Defendant's photo archives, and (4) an image which could be placed on various items of merchandise, also available for public purchase. From discussions between the court and Defendant's counsel at the hearing, it appears that Defendant does not sell photographs or merchandise directly to the public but, rather, makes such items available through a third party; it is not clear precisely what fee arrangement, if any, exists between Defendant and the third party.

Plaintiffs do not challenge Defendant's publication of the accident photograph as newsworthy in either the hard copy or online edition of the North Adams Transcript. At the hearing, however, Plaintiffs' counsel did assert that the availability of the standalone photograph for sale raised privacy concerns and ought not be shielded by the newsworthy defense. Although the court harbors serious doubts about the viability of this position, it notes that Plaintiffs' complaint only raises claims relevant to the fourth context of use, i.e., the sale of the image on commercial products. Plaintiffs' complaint simply alleges that Defendant violated Peckham's privacy by selling “reproductions of the accident scene photo in color on Tee-shirts, coffee mugs, and mouse pads” and that Plaintiffs suffered emotional distress as a result thereof. ( See Complaint ¶¶ 22, 28.) The court will confine its discussion accordingly.

For its part, Defendant has assumed the sufficiency of Plaintiffs' pleadings but argues that dismissal of their complaint is nonetheless mandated because Defendant is shielded from liability by its First Amendment right to publish “newsworthy” material. In essence, Defendant alleges that any publication of the accident photograph, even in the context of commercial product sales, is not actionable because it relates to the automobile accident, a matter of legitimate public concern. For the reasons which follow, the court believes that it is too early in these proceedings to reach such a conclusion.

1. The Right to Privacy in Massachusetts

In 1890, Samuel D. Warren and Louis D. Brandeis authored their seminal article articulatinga new common law tort: the invasion of the right of privacy. See Howard v. Antilla, 294 F.3d 244, 247–48 (1st Cir.2002) (“It is rare that the pedigree of a whole breed of common law tort claims can be traced with pinpoint accuracy,” but most agree that the “broad contours” of common law claims of the invasion of the right of privacy were outlined by Warren and Brandeis); see also generally Samuel D. Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L.Rev. 193, 214 (1890). More than a half-century later, Dean William Prosser described four distinct causes of action that comprise the legal protections accorded to privacy: (1) intrusion upon solitude; (2) public disclosure of embarrassing facts; (3) appropriation of an individual's name or likeness; and (4) publicly casting a person in a false light. See William Prosser, Privacy, 48 Cal. L.Rev. 383, 389 (1960).

In Massachusetts, a general right to privacy has been codified at M.G.L. c. 214, § 1B, which provides that “a person shall have a right against unreasonable, substantial or serious interference with his privacy.” Separately, M.G.L. c. 214, § 3A provides a cause of action for “any person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent,” the privacy tort known at common law as misappropriation.

It is not entirely clear under which specific statutory provision or provisions Plaintiffs believe Peckham's current privacy claim arises; their complaint does not refer to any statutory provision and states only that his privacy rights were violated. (Complaint ¶ 28.) At the hearing on the motion to dismiss, however, Plaintiffs indicated that they may well proceed with claims under both provisions. Indeed, the facts set forth in Plaintiffs' complaint may be fairly read to raise claims under both sections 1B and 3A. ( See id. (alleging that Defendant interfered with Peckham's privacy rights via “exploitation of [the accident photograph] on mouse pads, tee-shirts and coffee mugs”).) In any event Defendant does not challenge the sufficiency of Plaintiffs' complaint but, rather, asserts only a blanket defense of newsworthiness. Accordingly, the court will assume Plaintiffs have asserted privacy claims arising under both statutory provisions.

2. The “Newsworthiness” Defense

The fact that a publication of otherwise private facts is not actionable because it is “newsworthy,” i.e., that the publication touches upon a matter of “legitimate public concern,” reflects a determination that an individual's...