Janice Lee v. TMZ Productions Inc , 710 F. App'x 551 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 16-2736
________________
JANICE LEE; BON HYUB KOO; R.J.M.K., Minor;
HON SEA LEE; YOON SOON LEE,
Appellants
v.
TMZ PRODUCTIONS INC; DAILY NEWS LP; JOSEPH STEPANSKY;
ERIK BADIA; CORKY SIREMASZKO; DAVID HANDSCHUH; SHOWBIZ NEWS;
THE KOREA TIMES; CHEON JI HUN; UPTOWN MAGAZINE; NATALI RIVERS;
ROLLINGOUT; TERRY SHROPSHIRE; DIRTY SPORTS; CHURCH ILBO;
YOUR DAILY MEDIA; MAMO; ALL THINGS CRIME; TIGERDROPPINS;
JOHN DOES; JANE DOES 13-15; DAILY MAIL; SEOUL NEWS; IMBC INC;
MBC INC; LEE UN JOO, NEWS; MUNHWAI.COM; CHANNEL A INC.;
SPORTALL KOREA; K-AMERICAN POST; YTN NEWS; MALAYSIA
CHRONICLE; PAGESAY.COM; HEADLINES 365; JOHN AND JANE DOES 1-35
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 2-15-cv-00234)
District Judge: Honorable William J. Martini
________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 7, 2017
Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges
(Filed: October 17, 2017)
________________
OPINION*
________________
SCIRICA, Circuit Judge
Plaintiff Janice Lee and members of her family appeal from the dismissal of their
suit alleging numerous media outlets committed libel and libel per se, and negligently,
recklessly, and intentionally inflicted emotional distress upon Lee and her family by
falsely reporting Lee’s involvement in a drug and prostitution ring. The District Court
dismissed all claims, finding that the challenged articles were protected by the fair-report
privilege under New Jersey state law. We will affirm.
I.
A. Factual Background
On January 30, 2014, New York Attorney General Eric T. Schneiderman (NYAG)
held a press conference and issued a press release to announce the arrest of 18 people in
connection with a prostitution and drug trafficking ring targeting high-end clientele.
Both the press conference and the press release described a ring that generated millions of
dollars in illegal proceeds laundered through numerous front businesses. According to
the NYAG, much of the ring’s proceeds were generated through the sale of “party packs”
consisting of cocaine and prostitutes, and the NYAG described aggressive efforts to
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
market these packages to out-of-town clientele arriving in New York for Super Bowl
weekend. On a visual aid at the press conference, the NYAG displayed the names and
photographs of the 18 individuals arrested and charged with various felony and
misdemeanor counts. The press release also included the list of names. Among those
listed was Plaintiff Janice Lee.
Lee is a New Jersey resident who works as a sales account manager for an
international seller of wigs and hair products. At the time of her arrest, she was charged
with conspiracy, criminal possession of a controlled substance, criminal sale of a
controlled substance, and promoting prostitution. It appears that Lee was wrongly
accused. According to a separate complaint Lee filed against the NYAG and other
defendants, Lee’s attorney immediately provided exculpatory evidence showing that she
could not have committed the acts with which she was charged. Approximately a week
after she was arrested, Lee was released from jail, and several days later, the charges
against her were dropped.
In the wake of the NYAG press conference and press release—but prior to Lee’s
release—several media outlets published articles related to the investigation and arrests.
Lee claims certain of these articles defamed her and inflicted emotional distress upon her
and her family members. This appeal focuses on articles published by five outlets:
(1) TMZ Productions, Inc.; (2) Daily News, L.P.; (3) The Korea Times New York, Inc.;
(4) Your Daily Media; and (5) All Things Crime. The substance of each article and the
specific statements Lee alleges are defamatory are described below.
1. TMZ Productions, Inc.
3
On January 30, 2014, TMZ posted to its celebrity and entertainment news site an
article titled “Super Bowl Prostitution Bust Was Asian Invasion.” The article was also
shared on TMZ’s Facebook and Twitter pages. Lee’s Complaint alleges the article made
the following defamatory remarks:
The high-end, coke-fueled prostitution ring that was just busted on the high
heels of Super Bowl weekend was comprised of a small army of Asian
hookers . . . who take credit cards.
NY officials say the prostitutes had their eyes set on Seahawks and Broncos
fans who were coming in for the game.
Officials say the ring made millions, with the help of pimps who fronted
phony businesses to funnel the sex profits. The businesses included wig
shops, a beauty supply store and a limo company.
Johns were paying up to $10K a night for hookers and blow. The customers
would do drugs and become impaired . . . and the girls would then figure out
ways of fleecing them by charging even more.
All of the women nailed -- in what NYPD calls Operation Shade of Beige --
are Asian, and used Korean code words to mask the drug deal. One code
name for coke -- Soojaebi . . . a Korean noodle and vegetable soup. Mmmm
Mmmm bad.
PA019–020. The article was accompanied by photographs showing the visual aid
displayed at the NYAG press conference. Lee alleges these pictures are also defamatory
because her full name and photograph appear on the visual aid.
2. Daily News, L.P.
On January 30, 2014, the Daily News, a New York–based newspaper, published
on its website an article titled “‘One-stop shopping’ drug and prostitution ring, Asian
Wave Escorts, busted ahead of Super Bowl.” Lee alleges the article included the
following defamatory statements:
4
The prostitutes identified in court papers were no spring chickens. They
ranged in age from 26 to 56 and four of them were in their 40s.
The ring specialized in ‘party-packs’, where johns were enticed to buy
cocaine and other drugs to go along with the sex.
The arrested prostitutes were identified as: Young Mi Lee, 40, Jung Hee
Jang, 43, Haiming Quan, 41, Nina Kim, 31, Hada Jang, 26, He Jung Chern,
42, Ji Young Moon, 40, and Janice Lee, 40.
PA025.
3. The Korea Times New York, Inc. (KTNY)
KTNY, a newspaper serving the Korean-American community in New York,
published a Korean-language article on January 30, 2014, titled “990
Apartments…Korean Community’s Secret Exposed – Shocking Korean prostitution ring
uncovered, internet advertising, soliciting clients by texting.” Lee alleges the article
defamed her by generally conveying:1
There were a lot of criminal organizations before, but none like this one.
NY prosecutors bust prostitution ring of 16 shocking the community.
The organization was based out of a well-known Koreatown neighborhood
and was highly organized into groups divided according to service level.
1
Because the challenged KTNY article is a Korean-language article, Lee’s complaint
summarizes the allegedly defamatory remarks “in essence.” PA029. KTNY submitted
an English translation of the challenged article with its motion to dismiss. Lee did not
dispute the accuracy of the translation, but moved to strike the translation as extraneous
and hearsay. The District Court denied the motion to strike, finding “it would be unjust
for Lee to rely on the Korean-language article in her complaint and then prevent KTNY
from explaining the article’s contents in a Rule 12(b)(6) motion to dismiss,” Lee v. TMZ
Prods. Inc., No. 15-234, 2015 WL 5638081, at *3 (D.N.J. Sept. 24, 2015), and citing our
precedent permitting consideration of documents “integral to or explicitly relied upon in
the complaint” on a motion to dismiss, In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997). We find no fault with the District Court’s decision.
5
Customers could choose to acquire party packs with drugs and prostitution services
at different levels.
Services were advertised via internet advertisement sites. Once customers
became regular, they were contacted via text message. The Super Bowl
season was busy, with the ring sending bulk text messages to loyal
customers.
PA029–030. Lee further alleges defamation on the basis that KTNY published her name
and photograph by including a picture of the NYAG visual aid with the article.
4. Your Daily Media
Your Daily Media published on its entertainment website an article titled “Police
Bust Prostitution Ring Promising Cocaine & Hooker Super Bowl Party Pack” on January
30, 2014. The article was written in a satirical tone, lamenting the potential pitfalls of a
Super Bowl party with drugs and prostitutes if the ring had not been busted. Your Daily
Media included a picture from the NYAG press conference showing the visual aid
displaying Lee’s name and photograph. Lee further alleges that the Your Daily Media
article included the following defamatory statements:
While some people might be upset that their big Sunday filled with whores
and opiates is ruined, it’s really for the best. And no, not because the hookers
apparently steal money from their “Johns” while they are inebriated.
Because those would have been just horrible Super Bowl parties.
Add some hookers and guess what happens?
Yup! Total hookers-in-the-way-of-the-game party-foul. HOW CAN I
WATCH PAYTON [sic] MANNING TRY TO THREAD THE NEEDLE
AGAINST THE TOP PASSING DEFENSE IN THE LEAGUE WITH ALL
THESE HOOKERS IN FRONT OF THE TV? Can some friends just enjoy
the #1 teams in both the AFC and NFC face off against each other without
having to politely turn down an offer for sex? And no, you can’t wait until
halftime. The hookers are probably going to want to watch the halftime
show. And lets [sic] not forget the cocaine. Are you really going to have a
6
face full of blow after your buddy Dave brings by this?
I mean, how rude would that be? Your buddy spends all day making an
incredible football-themed spread and nobody’s hungry because they went
balls out on some yayo? Terrible. So thank you, New York Attorney General
Eric Schneiderman. You just saved a lot of guacamole from going to waste.
PA046–047.
5. All Things Crime
All Things Crime posted to its true crime blog site on February 6, 2014, an article
titled “Super Bowl Shocker: Interstate Child Prostitution Ring Busted in Connection to
Big Game.” The article focused on the allegations of prostitution to explain the author’s
disillusionment with the decadence of the Super Bowl. Like many of the other articles at
issue, the All Things Crime article included a picture of the NYAG visual aid that shows
Lee’s name and photograph. Lee’s complaint additionally identifies the following
statements from the blog post as defamatory:
Only now, days later, has a particular news story related to the Super Bowl
provided some dreadful clarity. The essence of the big game has now been
captured and brought into plain view. The headline says it all: “Super Bowl
Prostitution Ring Forced Teens as Young as 13 into Sex Work.”
Obviously, kidnapping juveniles and forcing them into prostitution is a
shocking and despicable crime. But should we really be surprised that such
crimes are part of the equation on Super Bowl weekend?
PA041–042.
B. Procedural History
Lee, her husband, her son, her father, and her mother filed the Complaint in this
action on January 12, 2015, in the District of New Jersey. TMZ, the Daily News, KTNY,
Your Daily Media, All Things Crime, and some of their employees were among the
7
media outlets and individuals named as defendants in the suit.2 The suit alleges the
defendants committed libel and libel per se, and negligently, recklessly, and intentionally
inflicted emotional distress upon Lee by “validating and rubber-stamping the bald, false
allegations uttered by police and other government officials.” PA051. Her family
members assert derivative claims.
Defendants each moved for dismissal under Federal Rule of Civil Procedure
12(b)(6). In an order dated August 10, 2015, the District Court dismissed all claims
against the Daily News, KTNY, Your Daily Media, and All Things Crime. On March 22,
2016, the District Court also dismissed all claims against TMZ. In both written opinions,
the District Court explained that the challenged articles are protected from libel and libel
per se claims by the fair-report privilege under New Jersey law. It further found that
Plaintiffs’ claims of emotional distress must fail because they are based on an
unsuccessful defamation claim. Plaintiffs appealed.3
2
Certain other defendants named in the suit were either not served with the complaint or
were served and failed to respond. Those defendants are not implicated in this appeal.
3
Appellees’ briefs were due on or before January 20, 2017. Appellee All Things Crime
did not file its brief at that time, nor did it file any motion seeking an extension in
advance of the deadline. On March 17, 2017—over a month after Lee and her family
members filed their consolidated reply brief—All Things Crime submitted its brief,
accompanied by a short Motion for Extension of Time in Which to File Brief for
Appellee. Lee and her family members opposed the extension and filed a cross-motion
seeking to strike All Things Crime’s brief. In light of All Things Crime’s considerable
delay in filing—with minimal explanation—we will not accept All Things Crime’s
untimely brief. We will, however, grant the alternative relief proposed by All Things
Crime and permit it to join in the brief filed by the Daily News, to which Lee and her
family members had adequate opportunity to respond in their consolidated reply.
8
II.4
Lee argues the District Court erred in dismissing her defamation claims based on
the fair-report privilege and disregarding her claims that the defendant news outlets and
their employees acted with reckless disregard for the falsity of the articles they published.
We disagree and will affirm the dismissal of Lee’s defamation claims.
A.
The fair-report privilege is an exception to the general principle of defamation law
that those who repeat or republish defamatory statements of another may themselves be
held liable for defamation. See Costello v. Ocean Cty. Observer, 643 A.2d 1012, 1018
(N.J. 1994).5 “The fair-report privilege reflects the judgment that the need, in a
self-governing society, for free-flowing information about matters of public interest
outweighs concerns over the uncompensated injury to a person’s reputation.” Salzano v.
N. Jersey Media Grp. Inc., 993 A.2d 778, 786 (N.J. 2010). Accordingly, the privilege
“protects the publication of defamatory matters that appear in a report of an official
action or proceeding, or of a meeting open to the public that deals with a matter of public
4
The District Court had jurisdiction under 28 U.S.C. § 1332 based on the parties’
diversity of citizenship. We have jurisdiction under 28 U.S.C. § 1291. Our review of the
District Court’s dismissal of the Complaint on Rule 12(b)(6) grounds is de novo. See
Phillips v. Cty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).
5
Because this is a diversity action, we must decide as a threshold matter which state’s
substantive law applies. The District Court applied New Jersey law, and the parties have
not objected either before the District Court or on appeal. Given that a New Jersey
resident is the target of the alleged defamation—giving New Jersey an interest in the
outcome of the litigation—we see no reason to sua sponte challenge the District Court’s
choice of law. See Schiavone Constr. Co. v. Time, Inc., 735 F.2d 94, 96 (3d Cir. 1984).
9
concern.” Id. It recognizes that the author or publisher of a piece reporting on what
transpired at an official proceeding “acts as an agent for persons who had a right to
attend, and informs them of what they might have seen for themselves.” Medico v. Time,
Inc., 643 F.2d 134, 141 (3d Cir. 1981).
“For the privilege to apply, the court must first determine whether the report is a
full, fair, and accurate account of the official proceeding. The determination of whether a
report is fair and accurate is an objective one.” Costello, 643 A.2d at 1019. Under New
Jersey law, once a report has been deemed full, fair, and accurate, “the privilege becomes
absolute and cannot be defeated.” Salzano, 993 A.2d at 797. In other words, once the
full, fair, and accurate standard has been satisfied, “the state of mind of the publisher is
irrelevant.”6 Id. at 781.
In evaluating whether a report is full, fair, and accurate, we keep in mind that “‘[i]t
is not necessary that [the account] be exact in every immaterial detail . . . . It is enough
that it conveys to the persons who read it a substantially correct account.’” Costello, 643
A.2d at 1019 (alterations and omission in original) (quoting Restatement (Second) of
Torts § 611 cmt. f (1976)). But, in order to be fair, “it is necessary that nothing be
omitted or misplaced in such a manner as to convey an erroneous impression to those
who hear or read it.” Id.
B.
6
To the extent earlier cases cited by Lee, including Costello, 643 A.2d at 1018–19,
suggested that malice on the part of the publisher could defeat the fair-report privilege,
they were overruled by Salzano, 993 A.2d at 796–97.
10
Like the District Court, we find the articles challenged by Lee are entitled to the
protections of the fair-report privilege because they present full, fair, and accurate reports
of the NYAG press conference and press release describing the alleged drug and
prostitution ring—including Lee’s alleged involvement.7
The facts described in each of the articles are derived from the NYAG press
release and press conference report on the alleged activities of the drug and prostitution
ring.8 For example, while Lee’s Complaint cites as defamatory statements in several
articles regarding the “party packs” allegedly offered by the members of the ring, the
NYAG press release uses the term “party packs” and describes the ring as having
“charged customers for sex and drugs as a package deal.” PA344–345. Likewise, the
claims in the articles that the alleged prostitutes used code words and small businesses as
fronts to disguise their scheme mirror the statements made by the NYAG, as does the
suggestion that the ring targeted Super Bowl attendees. Because the articles are based on
the facts as stated by the NYAG, the articles “convey[] to the persons who read [them] a
substantially correct account” of the NYAG press conference and press release. See
Costello, 643 A.2d at 1019. The Complaint does not identify any facts about the ring
7
Lee’s contention that the application of the fair-report privilege cannot be decided on a
Rule 12(b)(6) motion is incorrect. Whether an allegedly defamatory report is full, fair,
and accurate is for the court to determine as a matter of law. See Salzano, 993 A.2d at
792.
8
We find no error with the District Court’s consideration of the NYAG press release at
the Rule 12(b)(6) stage. The government-issued press release is a matter of public
record, and matters of public record may be considered on a motion to dismiss. See
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).
11
contained in these articles that depart from the facts as explained by the NYAG.
Instead, Lee objects primarily to the association of her name and photograph with
these allegations. In short, she contends the NYAG press conference and press release
were wrong. But whether an article is entitled to the protections of the fair-report
privilege does not hinge on the accuracy of the underlying official document or
statement. See, e.g., Lavin v. N.Y. News, Inc., 757 F.2d 1416, 1420 (3d Cir. 1985)
(“[W]hether the FBI agents misinterpreted the situation, had incorrect information, or
even consciously misstated the facts in the affidavit, there can be no liability on the part
of the defendants for republishing the contents of an official document, so long as their
account is reasonably accurate and fair.”). Lee’s ultimate exoneration is not
determinative. At the time the articles in question were published, the NYAG’s
allegations against Lee were actively pending.9 See Reilly v. Gillen, 423 A.2d 311, 327
(N.J. Super. Ct. App. Div. 1980) (“[T]he truth of an alleged libel must be measured ‘as of
the time of the defamatory publication.’”) (quoting Restatement (Second) of Torts § 581a
cmt. g (1977)). Lee’s name is listed among the women arrested in the NYAG press
release. Lee’s photograph was displayed as part of the visual aid at the NYAG press
conference.10 Accordingly, it was fair and accurate for the media outlets to report on
9
For this reason, Lee’s reliance on Costello is misplaced. The articles at issue in Costello
were deemed misleading because they described sexual harassment allegations in the
present tense, conveying to readers that the claims were actively pending, when in fact no
complaint had ever been filed. See 643 A.2d at 1019.
10
We agree with the District Court that there is no reason to treat the media outlets’
publication of the NYAG’s visual aid—and thus Lee’s photograph—differently from the
NYAG’s press release and oral statements. The visual aid was presented by the NYAG
12
Lee’s arrest. Lee’s distress at having been falsely accused is understandable. But her
grievance is with the NYAG, not the media outlets that fairly reported on the allegations
against her.
Lee also suggests the articles are misleading—and accordingly not entitled to the
fair-report privilege—because certain portions omit the words “accuse” or “allege,”
giving the impression Lee was guilty of the conduct described. But we do not evaluate
the application of the fair-report privilege on the basis of selective quotes. “[W]e
presume that the public reads the entire article when we assess its fairness and accuracy.”
Salzano, 993 A.2d at 524. Each of the challenged articles makes sufficiently clear that
Lee and the other individuals implicated were arrested in a police operation; none gives
the impression that the arrestees had been convicted. “In a fair report, the defendant is
not required . . . to justify every word of the alleged defamatory matter; it is sufficient if
the substance, the gist, the sting of the libelous charge be justified . . . .” Costello, 643
A.2d at 1027 (omissions in original) (internal quotation marks and citation omitted).
Here, the sting of the libelous charge—that Lee was arrested and accused of involvement
in the drug and prostitution ring—was justified by the NYAG’s press conference and
press release. “[V]iewed on the backdrop of the entire report,” Salzano, 993 A.2d at 793,
the isolated statements Lee points to do not render the articles unfair or misleading.
Lee also takes issue with the tone and language used in the challenged articles.
at an official government meeting and is therefore eligible for the protections of the
fair-report privilege. Cf. Lavin, 757 F.2d at 1420–21 (assessing photograph and headline
before applying fair-report privilege).
13
This “jocular commentary,” as it was termed by the District Court, does not preclude the
application of the fair-report privilege. While the colorful language used—particularly
notable in the TMZ and Your Daily Media articles—may be distasteful or insulting to
certain readers, the use of such language is not actionable for defamation. See DeAngelis
v. Hill, 847 A.2d 1261, 1268 (N.J. 2004) (“The use of epithets, insults, name-calling,
profanity and hyperbole may be hurtful to the listener and are to be discouraged, but such
comments are not actionable.”); Restatement (Second) of Torts § 566 cmt. d (1977) (“If
all that the communication does is to express a harsh judgment upon known or assumed
facts, there is no more than an expression of opinion of the pure type, and an action of
defamation cannot be maintained.”). The hyperbolic and satirical language used in the
challenged articles is not itself actionable, and the articles in their entirety remain full,
fair, and accurate accounts of the facts presented by the NYAG.
Because the challenged articles “convey[] to the persons who read [them] a
substantially correct account,” Costello, 643 A.2d at 1019, of the NYAG press
conference and press release, the articles are protected under the fair-report privilege, and
Lee’s defamation claims must be dismissed.
III.
Even if the fair-report privilege did not protect the challenged articles, Lee’s libel
and libel per se claims would still fail because she has not adequately alleged actual
malice on the part of the media outlets and their employees.
Under New Jersey law, in order to prevail on a defamation claim, a plaintiff must
show (1) a false and defamatory statement; (2) communication of the statement to a third
14
party; and (3) fault amounting to negligence or actual malice on the part of the publisher.
DeAngelis, 847 A.2d at 1267–68. Lee argues the final prong is satisfied in her case by a
mere showing of negligence because she is a private figure. But New Jersey courts “have
applied the actual-malice standard to defamation lawsuits brought by private-figure
plaintiffs against media defendants that have purportedly published erroneous news
stories regarding a matter of public interest or concern.” Durando v. Nutley Sun, 37 A.3d
449, 457 (N.J. 2012); see also id. at 458 (“Today, in New Jersey, the actual-malice
standard protects both media and non-media defendants who make statements involving
matters of public concern, regardless of whether the targets of the statements are public
figures or private persons.”). The criminal investigation discussed in these articles is
manifestly a matter of public concern, and Lee does not argue otherwise.
To meet the actual malice standard, Lee must plead “that the publisher[s] knew the
statement[s] to be false or acted in reckless disregard of [their] truth or falsity.” Dairy
Stores, Inc. v. Sentinel Publ’g Co., Inc., 516 A.2d 220, 233 (N.J. 1986). This standard
imposes a heavy burden. “That an editor or reporter should have known or should have
doubted [the] accuracy of an article before publishing it is insufficient to show reckless
disregard for the truth.” Durando, 37 A.3d at 459 (alteration and emphases in original)
(internal quotation marks and citation omitted). Rather, New Jersey courts have required
“[t]o act with reckless disregard of the truth, a defendant must actually doubt[] the
veracity of the article.” Id. (alteration and emphasis in original) (internal quotation marks
and citation omitted). A mere lack of professionalism will not suffice. “[T]he
actual-malice test will shield careless acts of publication that would be considered
15
irresponsible by common journalistic standards.” Id.
The allegations in Lee’s complaint rise to no more than professional negligence.
Lee contends the media outlets published the challenged articles “without fact-checking,
without investigation, without interviewing those involved, and with no regard for
accuracy.” PA015. She contends the conduct by the defendants was “far below the
standard of practice which governs the news media, according to long established
principles in the news reporting profession.” PA016. She alleges they “engaged in abject
failure to interview Mrs. Lee or any other suspect; failed to review documents; [and]
failed to communicate with Mrs. Lee’s counsel.” PA018. Taken as true, these
allegations might amount to a “careless act[] of publication that would be considered
irresponsible by common journalistic standards.” Durando, 37 A.3d at 459. But they
don’t amount to an allegation that the defendants “actually doubt[ed] the veracity” of the
articles implicating Lee. Id. Accordingly, Lee has failed to plead actual malice on the
part of the defendant media outlets and their employees. Even if the fair-report privilege
did not apply to the challenged arguments, her defamation claims would be dismissed.
IV.
We agree with the District Court that Lee’s claims for negligent, reckless, and
intentional infliction of emotional distress fail along with her claims for defamation.
“There is . . . a certain symmetry or parallel between claims of emotional distress and
defamation that calls for consistent results.” Decker v. Princeton Packet, Inc., 561 A.2d
1122, 1129 (N.J. 1989); see also G.D. v. Kenny, 15 A.3d 300, 318 (N.J. 2011) (“The
intentional- and negligent-infliction-of-emotional-distress claims also fail because those
16
torts are predicated on the same conduct alleged in the defamation claim.”). In this case,
because Lee’s claims for emotional distress are based on the same conduct as her libel
claims—which fail under the fair-report privilege—her emotional distress claims must
also be dismissed.
Similarly, the failure of Lee’s underlying defamation and emotional distress
claims requires dismissal of the derivative claims asserted by her family members. See
Petrocelli v. Daniel Woodhead Co., 993 F.2d 27, 30 (3d Cir. 1993) (dismissing derivative
loss-of-consortium claim). We will affirm the District Court’s dismissal of the claims
brought by Lee’s husband, son, father, and mother.
V.
For the foregoing reasons, we will affirm the District Court’s August 10, 2015,
order dismissing all claims against the Daily News, KTNY, Your Daily Media, All
Things Crime, and their employees. We will also affirm the District Court’s March 22,
2016, order dismissing all claims against TMZ Productions, Inc.11
11
Plaintiffs argue in passing that the District Court erred by dismissing their claims with
prejudice in lieu of giving them an opportunity to amend their Complaint. Because
dismissal of the claims is based on a finding that the articles are immunized from any
defamation claims based on the fair-report privilege, amendment would be futile, and
dismissal with prejudice was warranted. See, e.g., Oran v. Stafford, 226 F.3d 275, 291
(3d Cir. 2000).
17