Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-20-2004

Botts v. NY Times Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4009




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Recommended Citation
"Botts v. NY Times Co" (2004). 2004 Decisions. Paper 481.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/481


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                                                           NOT PRECEDENTIAL

               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                               Case. No: 03-4009

              LAWRENCE BOTTS, JR.; LAWRENCE BOTTS, III;
                       CHRISTINE S. BOTTS,

                                             Appellants,

                                        v.

       THE NEW YORK TIMES COMPANY; YOUNG & RUBICAM,
      INC. a/k/a YOUNG & RUBICAM, NEW YORK; UNITED NEGRO
       COLLEGE FUND; JOHN DOE, AND RICHARD ROE, NAMES
         BEING FICTITIOUS AND UNKNOWN, THE ABC CORP.
      NUMBERS 1-10, NAMES BEING FICTITIOUS AND UNKNOWN.
                        ____________________

                 On Appeal from the United States District Court
                     for the District of New Jersey, Trenton

                         (D.C. No. 03-CV-1582 (MLC))
                 District Judge: The Honorable Mary L. Cooper
                           ______________________
                 Submitted Pursuant to Third Circuit LAR 34.1
                                  June 18, 2004

           Before: ALITO, SMITH, and WALLACE, Circuit Judges*
                           (Filed: July 20, 2004)
                           __________________

                           OPINION OF THE COURT
                            ___________________
__________________
            *The Honorable J. Clifford Wallace, Senior Circuit Judge for the
United States Court of Appeals for the Ninth Circuit, sitting by designation.
WALLACE, Senior Circuit Judge.

      Plaintiffs Lawrence Botts, Jr., Lawrence Botts III, and Christina Botts

appeal from the district court’s order dismissing their complaint with prejudice

against defendants Young & Rubican, Inc., the New York Times Company, and

the United Negro College Fund (UNCF). The district court had diversity

jurisdiction over this state-law action for libel, false light, misappropriation of

identity, and intentional infliction of emotional distress pursuant to 28 U.S.C. §§

1332 & 1441. We exercise jurisdiction over the plaintiffs’ timely filed appeal

pursuant to 28 U.S.C. § 1291, and we affirm the district court’s dismissal of the

complaint.

      The defendants contend that the district court properly dismissed the

complaint because (1) the plaintiffs failed to file their complaint within New

Jersey’s applicable statutes of limitations, and (2) the complaint does not state a

valid claim as required by Federal Rule of Civil Procedure 12(b)(6). Because we

agree that the complaint does not state a valid claim under New Jersey law, we

need not reach the defendants’ timeliness challenges.

      To state a valid claim for libel, a plaintiff must allege, inter alia, “that the

defendant made a defamatory statement of fact [in print] . . ..” Taj Mahal Travel,

Inc. v. Delta Airlines, Inc., 

, 189 (3d Cir. 1998). “A defamatory

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statement is one that is false and injurious to the reputation of another or exposes

another person to hatred, contempt or ridicule or subjects another person to a loss

of the good will and confidence of others.” 

marks and

citations omitted).

      The advertisement is not libelous as a matter of state law because it cannot

reasonably be construed as communicating a false message concerning the

plaintiffs. The advertisement, which was affixed to the plaintiffs’ complaint,

depicts a fictional African-American male who turned to alcohol and “wasted” his

mind because he could not afford a college education. The plaintiffs, who are

Caucasian, do not claim that readers of the Times could reasonably draw the

conclusion that they are African-Americans in need of a UNCF college

scholarship. The district court properly dismissed their libel claim.

      Plaintiffs contend that the advertisement places them in a false light as

“alcoholics” and “derelicts.” “The interest protected by the duty not to place

another in a false light is that of the individual’s peace of mind, i.e., his or her

interest in not being made to appear before the public in an objectionable false

light or false position, or in other words, otherwise than as he is.” Romaine v.

Kallinger, 

, 294 (N.J. 1988) (internal quotation marks and citation

omitted). The plaintiffs stretch the advertisement’s message beyond its rational

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limits. No reasonable person could confuse the advertisement’s fictional “Larry

Botts” for any of the three plaintiffs in this case.

      Plaintiffs’ “misappropriation of identity” claim also fails under New Jersey

law. In this case, the defendants arguably used the name “Larry Botts” for a

commercial purpose (i.e., fundraising), but they clearly did not misappropriate the

plaintiffs’ identity. The name “Larry Botts” merely functions as “John Doe” or

“Jane Roe,” i.e., as a generic placeholder for the prototypical underprivileged

African-American youth. Indeed, the advertisement’s effectiveness as a

fundraising tool would be significantly compromised if readers actually associated

the name “Larry Botts” with plaintiff Lawrence Botts III—a college-educated

Caucasian. As such, we affirm the district court holding that the plaintiffs fail to

state a valid misappropriation of identity claim. See Palmer v. Schonhorn

Enterprises, Inc., 

, 460 (N.J. Super. Ct. 1967).

      Finally, plaintiffs seek compensation for intentional infliction of emotional

distress. Plaintiffs’ tort claim fails for two reasons. First, the defendants’ use of

the name “Larry Botts” in the UNCF advertisement was not sufficiently

“outrageous” to support a valid claim under New Jersey law. See Buckley v.

Trenton Saving Fund Soc’y, 

, 863 (N.J. 1988); Taylor v. Metzger,

, 694 (N.J. 1988). Second, the defendants’ alleged tortious conduct

                                            4
was not sufficiently egregious “that no reasonable man could be expected to

endure it.” 

, quoting RESTATEMENT (SECOND) OF TORTS

§ 6, cmt. j (1977).

      AFFIRMED.




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