Read v. Profeta

• Decision Date: 29 May 2019
• Docket Number: Civ. No. 15-02637-KM-JBC
• Citation: 397 F.Supp.3d 597
• Parties: Philip READ, Plaintiff, v. Paul PROFETA; Paul V. Profeta & Associates ; Radius: Brick City & Beyond; Steven Coleman ; and William Kohn, Defendants.
• Court: U.S. District Court — District of New Jersey

397 F.Supp.3d 597

Philip READ, Plaintiff,

v.Paul PROFETA; Paul V. Profeta & Associates ; Radius: Brick City & Beyond; Steven Coleman ; and William Kohn, Defendants.

Civ. No. 15-02637-KM-JBC

United States District Court, D. New Jersey.

Signed May 29, 2019

James C. Dezao, Parsippany, NJ, for Plaintiff.

Gary L. Koenigsberg, Greenbaum, Rowe, Smith & Davis, LLP, Roseland, NJ, Marc J. Gross, Fox Rothschild LLP, Morristown, NJ, Christine F. Marks, Greenbaum, Rowe, Smith & Davis, Woodbridge, NJ, for Defendants.

KEVIN MCNULTY, United States District Judge

Introduction and Summary

This matter arises from plaintiff Philip Read's idea for a magazine that would focus on downtown Newark, New Jersey, to be called The Downtowner . On December 8, 2010, Read, a former reporter for the Star-Ledger newspaper in Newark, emailed defendant Paul Profeta an unsolicited "blueprint" of his idea for the magazine. The two had discussions about the magazine idea into early 2011, and later revived their discussions in July 2012. Discussions broke down for good in January 2013, when the two could not agree on a business structure.

In the fall of 2013, however, Profeta launched his own Newark-centric magazine, called Radius: Brick City and Beyond .¹ On April 14, 2015, Read filed this action against Profeta for "stealing" his magazine idea. Radius lost money, and publication ceased in 2017.

Read was a man with an idea, but little capital. An eager suitor, he necessarily assumed the burden of developing the concept into something that would attract investment. Profeta, the party being wooed, could remain noncommittal at little cost to himself. The issue here is whether Read, rather like the old Book-of-the-Month Club, succeeded in placing an obligation on the solicited party. One need not wholly endorse the manner in which Profeta dealt with Read, a person of lesser means and business experience, to find that Profeta did not take on any such legal obligation.

Before discussing Read's claims individually, I will divide them into two classes.

The division is imperfect—some claims are ill-defined, or might straddle the two classes—but the classification is still conceptually useful.

Class A consists of Read's claims that Profeta made an enforceable commitment to fund and publish The Downtowner magazine. In these claims, Read seeks the benefit of that bargain, primarily his expected salary or profit as editor of The Downtowner . I find the evidence insufficient to create a triable issue that Profeta committed to a contract of employment or the equivalent.

Class B consists of Read's claims that, in the course of preparing for the launch of the aborted Downtowner magazine, he performed services or incurred expenses, and that Profeta had a duty to reimburse him for the value of those services or expenses. The earliest statements by Profeta that suggested even a potential commitment to the project occurred in September/October 2012 (see pp. 616–17, infra ). From that date on, Read might have been entitled to the value of his expenditures or services until discussions broke down in January 2013, if those statements had constituted a sufficiently firm promise. But they didn't; the evidence shows that both parties left it vague, and that Profeta imposed conditions, never fulfilled, on his assent. If Read expected to be compensated, he needed to be clear; if necessary, he needed to state that he would not perform further services without some kind of commitment to be paid for them.

Critically, there is no Class C. What is not claimed here is that Profeta pirated Read's idea and used it to turn a profit. Radius lost money, to the tune of some $500,000. Understandably, Read is not eager to claim his equitable share of that.

Profeta, for his part, closes the circle of blame by asserting counterclaims in which he attributes the Radius losses to Read's defamatory accusations that his idea was stolen. Critical elements of these claims, too, are unsupported by sufficient evidence to create a triable issue of fact.

Each side has filed a motion for summary judgment seeking dismissal of the other's claims. (DE 64, 65). Both of those motions are granted. Also before the Court is Read's motion to strike portions of a declaration submitted by Profeta and for sanctions, which is granted in part and denied in part. (DE 72).

I. Facts and Procedural History

Unless otherwise indicated, the facts recited below are not disputed.²

A. Facts on Defendants' Motion for Summary Judgment³

Plaintiff Philip Read worked as a reporter for the Star-Ledger newspaper in Newark from 1997 to 2010. (PSMF ¶1; (DE 64-3, Ex. A, Jan. 16, 2018 Deposition of Philip Read, at 23:18-22 (hereinafter "Read Dep. I"))). He focused on redevelopment in Newark for about eighteen months before he accepted a buyout and resigned. (DE 71-5, at 8, Plaintiffs Answers to Defendants' First Set of Interrogatories ¶ 10)- Read believed there was a market opportunity for a "city magazine" in Newark. (Id. ). While other similarly situated cities had established city-centric magazines, Newark had not. (PSMF ¶3).

1. Initial 2010-11 Discussions

In November of 2010, Read asked defendant Paul Profeta, the principal of Paul V. Profeta & Associates, if he could pitch him an idea he had for a Newark-centric magazine, to be called The Downtowner . (DSUMF ¶1; DE 64-3, Ex. B, Feb. 8, 2018 Deposition of Philip Read, at 195:8-13 (hereinafter "Read Dep. II")).⁴ On December 8, 2010, Read emailed Profeta a "blueprint" of his idea for The Downtowner . (PSMF ¶6; DE 71-8, Ex. E, E-mail from Philip Read to Paul Profeta (Dec. 8, 2010, 02:05 PM)).

Read's email stated the mission of The Downtowner . "to give the Halsey Street/Broad Street neighborhood an identity and sense of liveliness with an in-your-hands news product that would create a buzz and serve to solidify the good efforts of many who see a future in the rebirth of New Jersey's largest city." (DE 71-8, Ex. E). Read suggested that Profeta, who had dedicated himself "to the revitalization of Newark ... might be someone willing to lead a startup intended to give the rebirth a face of its own on a regular basis." (Id. ),

Read indicated that they would need to gather a team of "like-minded investors" and stakeholders "to produce the seed capital for the start-up," and to set up substantial advertising commitments. (Id. ). Read provided a list of "initial" staffing requirements, including two full-time writer-editors, an advertising salesperson, an advertising artist to design the ads, and an editorial page designer. (Id. ). Profeta would serve as the publisher. (Id. ).

Read also required a freelance budget for writers, a storefront office on Halsey or Market Street, and editorial/production computer equipment. (Id. ). Read's email also suggested that The Downtowner be published monthly and distributed for "free" or for a nominal price of less than a dollar. (Id. ). Read noted that his salary at the Star-Ledger was formerly $93,804 and that his son could work as the advertising artist for about $40,000. (Id. ; PSMF ¶8).

In response, Profeta asked Read if he had "any idea what it would cost to launch" the magazine, noting that he did not have any print experience. (DE 71-8, Ex. E, E-mail from Paul Profeta to Philip Read (Dec. 12, 2010 09:52 PM)). On December 15, 2010, Read provided a breakdown of costs. (DE 64-3, at 79, E-mail from Philip Read to Paul Profeta (Dec. 15, 2010 05:34 PM)).

Profeta told Read that he had never run a newspaper before, was not familiar with the economics of running such a publication, and that he did "not know where to start or what questions to ask." (DSUMF ¶2; DE 64-3, Ex. D, at 79⁵ ). Read believed that Profeta was "very open" to his idea at the time. (Read Dep. II at 195:16-17). Read did not tell Profeta that his ideas were confidential, and the parties did not execute a confidentiality agreement. (DSUMF ¶3; Read Dep. II at 195:21-25).

In early 2011, the parties' initial discussions regarding the magazine ended, with Read advising Profeta that he was going to approach other potential investors. (DSUMF ¶4; PRS ¶4; PSMF ¶12). In 2011, Read discussed his magazine with other potential backers, including Frank Giantomasi of the law firm of Genova, Burns & Giantomasi, and Mark Berson of Fidelco. (PSMF ¶¶12, 39; DSUMF ¶5; Read Dep. II at 202:6-14; DE 71-19).

Read created a visual depiction of his magazine idea and presented his idea to other potential backers, including Dan Stroll of Rutgers Business School, Jay Gottesman of Edison Properties, Helen Paxton of Rutgers/Newark, Barbara Kaufman of the Newark Regional Business Partnership, Stefan Pryor of Brick City Development, Vaughn Crow of the Amelior Foundation, Jeff Normal of the New Jersey Performing Arts Center, and Kathy Weaver of the Newark Alliance. (DSUMF ¶6; PRS ¶6; PSMF ¶44; Read Dep. II at 225:17-227:4; DE 71-19). Read did not ask anyone he met with to execute a confidentiality agreement. (Read Dep. II at 228:16-18; DSUMF ¶39; PRS ¶39).

2. Reopened 2012-13 Discussions

Sometime in July of 2012, Read reapproached Profeta about the magazine. (DSUMF ¶7; Read Dep. II at 199:13-16).⁶ Read advised Profeta that he had persuaded some "significant people [to] step forward as stakeholders" for The Downtowner . (DSUMF ¶8; PRS ¶7; Read Dep. II at 200:2-4). Between July of 2012 and October 2012, Profeta asked Read "to basically educate him about magazines." (PSMF ¶40).

On July 18, 2012, Read emailed Profeta regarding a meeting they had held that day. (PSMF ¶14; DE 71-12, Ex. I, Email from Philip Read to Paul Profeta (July 18, 2012 06:51 PM)). Read's email was seemingly a response to a question that Profeta had posed during the meeting regarding the "editorial-advertising mix" of "the competition." (DE 71-12, Ex. I). Read provided Profeta with a few examples of city magazines, their editorial/advertising ratio, and sample "rate cards," which detailed prices for various ad placement options. (DE 71-12, Ex. I; PSMF ¶¶41-42). Read's email...