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Francis Howlan v. Hireright Solutions

December 6, 2012

FRANCIS HOWLAN, PLAINTIFF,
v.
HIRERIGHT SOLUTIONS, INC.; USIS COMMERCIAL SERVICES, INC.; AND DAC CONSUMERS, INC., DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On August 11, 2010, Plaintiff commenced this action in New York State Supreme Court, Fulton County. See Dkt. No. 1. Plaintiff, who was represented by counsel at the time the complaint was filed, asserted claims of negligence and libel. See id. On September 13, 2010, Defendants removed the action to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. Currently before the Court is Defendants' second motion for summary judgment. See Dkt. No. 26.

II. BACKGROUND*fn1

Defendant HireRight Solutions Inc. ("HireRight")*fn2 assembles information for the purposes of furnishing reports to third parties. Among other things, Defendant HireRight provides potential employers with an applicant's employment history and a criminal background check. Plaintiff is a retired truck driver. See Dkt. No. 26-3 at ¶ 1. Plaintiff retired in September of 2009 because he was finally eligible to collect a pension. See id. at ¶ 2. Thereafter, Plaintiff applied for Social Security Disability benefits, and began receiving them as of November 2010. See id. at ¶ 3.

According to Plaintiff, six companies would not hire him in 2009 or 2010 (immediately prior to and after his retirement) because they thought that he was a sex offender. See id. at ¶ 4. The following are the companies that Plaintiff has identified: (1) Target; (2) Gulf; (3) National Freight; (4) Cardinal; (5) Swift; and (6) Air Liquid. See id. Plaintiff alleges that he was not hired by these companies because of statements that Defendant HireRight made in reports that it provided to these companies. See id. at ¶ 5. Plaintiff claims that, from 2001 through April 2010, Defendant HireRight published and distributed false and malicious information relating to Plaintiff. In the complaint, Plaintiff claims that "said false and defamatory statement was published by the defendants that the plaintiff . . . committed criminal transgressions in various counties of New York State among other false and malicious publications indicated the plaintiff's name, date of birth and social security number matched the plaintiff as a sex offender." See Dkt. No. 1 at ¶ 12. Plaintiff claims that Defendants' actions were done intentionally and with malice.

III. DISCUSSION

A. Summary judgment standard

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

In reviewing a pro se case, the court "must view the submissions by a more lenient standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). However, this does not mean that a pro se litigant is excused from following the procedural requirements of summary judgment. Id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001)). Specifically, 'a pro se party's 'bald assertion,' completely unsupported by evidence' is not sufficient to overcome a motion for summary judgment. Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

B. Statute of limitations

The statute of limitations in New York for defamation is one year from the date of the publication of the statement. See N.Y. C.P.L.R. § 215(3). "[U]nder the 'single publication rule', a reading of libelous material by additional individuals after the original publication date does not change the accrual date for a defamation cause of action but, rather, the accrual date remains the time of the original publication." Gelbard v. Bodary, 270 A.D.2d 866, 867 (4th Dep't 2000) (quotation and other citations omitted). An exception to the single publication rule applies when a defamatory statement is "reissued" or "republished," which gives rise to a new limitations period. See Gold v. Berkin, No. 00 Civ. 7940, 2001 WL 121940, *3 (S.D.N.Y. Feb. 9, 2001) (citations omitted). This exception, however, does not apply to statements published online or otherwise continuously available to the public. See Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 89-90 (2d Cir. 2003) (citation omitted); see also Firth v. State, 98 N.Y.2d 365, 370 (2002); Young v. Suffolk County, 705 F. Supp. 2d 183, 212 (E.D.N.Y. 2010) ("[U]nder the single publication rule, the fact that a story remains available online does not restart the statute of limitations" (citation omitted)).

In the present matter, Plaintiff's complaint failed to allege the identity of the individuals or entities to which Defendant HireRight had purportedly published the allegedly false and defamatory statement -- specifically, that Plaintiff is a "sex offender." As such, Defendant HireRight served Plaintiff interrogatories asking him to identify those individuals or entities alleged to have received these defamatory statements. See Dkt. No. 26-5 at Exhibit "A." In Plaintiff's response to Defendants' ...


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