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The Rule of Perpetuities is the bane of all property students. I teach it, but do not test it. But, it seems that at least one law student excelled with RAP, as it is known.

Professor Doug Kmiec taught Amy Coney property as a 1L at Notre Dame. He recalls her excellent class performance:

I was privileged to teach Amy Coney Barrett in her first year of law school at Notre Dame. Then, as now, she displayed determination and intellectual preparation over many areas of law. I recall during one discussion about the rule against perpetuities in a property law class, when many students wanted to avoid participation, her hand popped up and she deftly answered a battery of textbook applications before suggesting, respectfully, how the casebook author missed an aspect of the problem. Students everywhere delight in besting the teacher, but her discernment was so unpretentious, persuasive and clear that it drew admiration from the entire class.

Judge Barrett’s demeanor during law school reflects her demeanor during the hearing: “[Nominees] everywhere delight in besting the [Senators], but her discernment was so unpretentious, persuasive and clear that it drew admiration from the entire [Congress].”

Brava! Every now and then a student finds an error in my textbook. I always celebrate the occasion, and praise the student.

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From today’s decision in Williams v. ROC Nation, LLC, by Judge Eduardo C. Robreno (E.D. Pa.):

Plaintiff’s claims arise from Free Meek, a five-part documentary series created, produced, and published by Defendants. The 2019 series explores rapper Meek Mill’s experience with the Philadelphia criminal justice system. During the fourth episode, entitled Filthadelphia, investigative reporter Paul Solotaroff discusses the Philadelphia District Attorney’s “Do Not Call List,” which identifies police officers with histories of arrests, disciplinary actions, or providing false testimony. According to the Complaint, the District Attorney directed prosecutors not to call some of the officers on the list as witnesses in criminal prosecutions.

Solotaroff states: “Now there is a new District Attorney in town, and just the last couple of months we have been learning from the District Attorney’s Office about a list of dirty and dishonest cops.” Attorney Bradley Bridge, a well-known attorney for the Defender Association of Philadelphia, also provides commentary on the “Do Not Call List,” stating, “The DA’s Office generated a specific list that has 66 names of police officers on it. There have been findings by the police department that the officers have lied to internal affairs, to other police officers, or in court.”

During Bridge’s commentary, an image of Plaintiff is briefly displayed on the screen. Plaintiff, who served as a Philadelphia police officer from 2010 until 2017, appeared on the “Do Not Call List” because she had previously been arrested and charged with assault, possession of an instrument of crime, and recklessly endangering another person after drawing her firearm during an off-duty confrontation. In February 2019, a jury acquitted Plaintiff of all charges stemming from the off-duty incident. According to Plaintiff, neither the Philadelphia Police Department nor the Office of the Philadelphia District Attorney ever found that she “lied to internal affairs, to other police officers, or in court.”

Plaintiff alleges that juxtaposing her image with Bridge’s comments and with photographs of officers placed on the “Do Not Call List” as a result of their dishonest conduct communicates the false implication that she is a “dirty, corrupt, immoral, and dishonest” police officer who lied to internal affairs, to other officers, and/or in court. Her claims in the instant action arise from this display of her image….

Plaintiff’s defamation claim relies on a theory of defamation by implication. Pennsylvania law permits such a theory where “the words utilized themselves are not defamatory in nature” but “the context in which the[] statements are issued creates a defamatory implication.”

Taken as true, the facts alleged in Plaintiff’s Complaint state a claim for defamation. Plaintiff plausibly alleges the juxtaposition of her image with Bridge’s statement that “[t]here have been findings by the police department that the officers have lied to internal affairs, to other police officers, or in court,” creates an implication that tends to harm her reputation——i.e., that she was placed on the list because she is dishonest. Defendants do not dispute that they published the communication. Further, the allegedly defamatory implication results from the display of Plaintiff’s photograph and therefore applies to her. Plaintiff plausibly alleges that a reasonable viewer would both understand the defamatory implication and would understand that it applies to her. Finally, she plausibly alleges injuries resulting from the alleged defamation.

In a suit involving defamation of a public official where the challenged statements relate to official conduct, a plaintiff must also establish that the defendant acted with “actual malice” in publishing the statement. It is uncontested that Plaintiff is a public official for the purposes of First Amendment analysis, and that the challenged statements concern her role as a police officer.

In an ordinary defamation case, actual malice is defined as “knowledge that [the defamatory statement] was false or … reckless disregard of whether it was false or not.” However, the Third Circuit has held that the actual malice standard has an additional element in defamation-by-implication cases. Kendall v. Daily News Publ’g Co. (3d Cir. 2013). In such cases, “the alleged defamatory statement has two possible meanings, one that is defamatory and one that is not.” Therefore, a plaintiff must demonstrate not only that the defendant “either knew that the defamatory meaning of their statement was false or were reckless in regard to the defamatory meaning’s falsity,” but also that the defendant intended to communicate the defamatory implication. To satisfy this “communicative intent” element, a plaintiff must demonstrate “that the defendant either intended to communicate the defamatory meaning or knew of the defamatory meaning and was reckless in regard to it.” This inquiry is “subjective [in] nature” and “requires that there be some evidence showing, directly or circumstantially, that the defendants themselves understood the potential defamatory meaning of their statement.”

Defendants … argue that the broader context of the documentary belies a finding of actual malice. Specifically, they cite the documentary’s inclusion of a 6ABC television news clip in which an anchor explains that officers are placed on the “Do Not Call List” for offenses including “assault, drug dealing, mishandling evidence, [and] lying to authorities.” Defendants also highlight that the documentary displays the snippet from the Inquirer article containing the actual reason Plaintiff was placed on the list.

While Defendants may pursue the argument that this context precludes a finding of actual malice before the fact finder, the argument fails at the motion-to-dismiss stage…. Plaintiff satisfies the “falsity” element by plausibly alleging that Defendants knew the defamatory implication was false because they possessed the Philadelphia Inquirer article detailing the true reason for her inclusion on the “Do Not Call List” (i.e, her arrest for an off-duty confrontation) and in fact featured that article in the documentary.

With respect to the “communicative intent” element, Plaintiff plausibly alleges that Defendants either intended to communicate the defamatory implication or knew of the defamatory implication and were reckless in regard to it. Specifically, she avers that although Defendants knew of the true reason for Plaintiff’s placement on the “Do Not Call List,” they chose to juxtapose her image with audio describing the officers on the list as having “lied to internal affairs, to other police officers, or in court.” The snippet from the article detailing the reason for Plaintiff’s inclusion on the list appears in small print and scrolls rapidly on the screen, making it virtually unreadable and undermining Defendants’ argument that the article’s inclusion belies a finding of actual malice. For these reasons, Plaintiff adequately pleads actual malice…..

Under Pennsylvania law, the tort of false light invasion of privacy “imposes liability on a person who publishes material that ‘is not true, is highly offensive to a reasonable person, and is publicized with knowledge or in reckless disregard of its falsity.'” … Plaintiff’s Complaint states a claim for false light [for the same reason that it states a claim for defamation]….

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From today’s decision in Corbishley v. Napolitano, by Judge Vernon S. Broderick:

Plaintiff Charles Corbishley brought suit in this Court on September 11, 2020, under diversity jurisdiction. Plaintiff argues that venue is proper is this District under 28 U.S.C. § 1391(b)(1) because Defendant resides in New York City, and does not identify any other reason why venue would be proper in this District.

The Complaint alleges four counts brought under New Jersey Stat. § 2A:14-2b. According to the Complaint, Defendant, then a New Jersey Superior Court Judge presiding over a case in which Corbishley was a criminal defendant, sexually assaulted Corbishley at a residence in Hackensack, New Jersey, in or around December 1988. [Judge Napolitano immediately sued Corbishley in a separate case,] alleging that Plaintiff’s allegations in his Complaint and statements to the press and public through counsel and agents amount to defamation against Napolitano….

Section 1406 [of Title 28 of the U.S. Code] provides that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” … [Title] 28 U.S.C. § 1391 … determines that “[a] civil action may be brought in—

“(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

“(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

“(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.”

For purposes of § 1391(b)(1), “a natural person … shall be deemed to reside in the judicial district in which that person is domiciled.”

The essence of the dispute between the parties concerns which judicial district Napolitano “resides” in for purposes of § 1391(b)(1). Plaintiff does not contest that nearly all of the events giving rise to the causes of action occurred in New Jersey, the Complaint does not reference § 1391(b)(2) as a basis for venue, and Plaintiff’s opposition papers do not argue that venue would be proper under § 1391(b)(2)…. [I]in assessing whether venue is proper under § 1391(b)(1), I must determine where Defendant is domiciled.

“Although a person may have more than one residence, she may only have one domicile at any one time.” “Domicile is established initially at birth and is presumed to continue in the same place, absent sufficient evidence of a change. To effect a change of domicile, ‘two things are indispensable: First, residence in a new [domicile]; and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient.'” In other words, if a person is domiciled in a particular location, that location remains his domicile “whenever he is absent” so long as “he has the intention of returning.” “In determining domicile … courts consider factors including voting registration, employment, current residence, location of real and personal property, location of spouse and family, driver’s license, automobile registration, tax payment and addresses, and location of a person’s bank account and physician.”

The parties agree that Napolitano owns two homes—one in Sussex County, New Jersey, and one in Manhattan—and that he typically spends at least some nights each week staying at each home. However, Napolitano offers significant evidence that even if he is at times absent, he has “the intention to remain” in Sussex County. Napolitano asserts in his declarations that he has: (1) a New Jersey’s driver’s license; (2) a New Jersey firearm license, and (3) that he pays taxes, is registered to vote, and has all four of his vehicles registered and insured in New Jersey. Napolitano also states that he owns and operates a farm in New Jersey through a New Jersey corporation with a New Jersey bank account. In addition, his church and all his doctors are located in New Jersey. Finally, Napolitano also swears that he “intend[s] to stay [in Sussex County] into retirement and beyond.”

In opposition, Plaintiff’s strongest evidence is a declaration from an individual who asserts that Napolitano personally told him at times between 2014-2017 “that he lives and works in Manhattan (5) five days a week” and “that he goes to his New Jersey home only on the weekends.” The assertions in the declaration are in tension with Napolitano’s assertions in his declarations that he has “always” spent at least half his time at his home in Sussex County, that he “spend[s] far fewer than 180 days or nights of the year at the New York City apartment,” and that his Sussex County home has been his “primary residence since May 2001.”

The remainder of Plaintiff’s factual arguments provide little help to his New York residency argument. Plaintiff provides a declaration from a private investigator who claims that an “onsite Manager who identified himself as Keith” at the New York City building where Napolitano’s apartment is located told him that “Napolitano lives here and that he sometimes goes for the weekend to a farm in New Jersey.” Assuming for these purposes that the investigator’s declaration is admissible, it is only marginally probative—the investigator provides no indication of how well, if at all, the manager knows Napolitano or his schedule, and Napolitano already admits that he “lives” at the apartment at times during the week.

Plaintiff also notes Napolitano’s employment at Fox News, whose studios are located in Manhattan, and as a visiting law professor at Brooklyn Law School. Napolitano, however, asserts that he has not worked at Brooklyn Law School since 2017, when he only worked there two days per week. These facts are also of limited probative value since Napolitano readily admits that he spends a certain portion of his time in New York City, but asserts that he spends more than half his time at his New Jersey residence and does not work at the Fox studios on Fridays.

Ultimately, the parties’ main factual disagreement—over the precise amount of time Napolitano spends in each place—is not determinative in the domicile analysis. Regardless of where Napolitano primarily resides, the uncontested evidence—demonstrating that (1) he is registered to vote, drive, and own firearms in New Jersey, (2) he owns and operates a farm in New Jersey, (3) his vehicles are registered and insured in New Jersey, (4) he pays taxes in New Jersey, and (5) his physicians and church are located in New Jersey—strongly corroborate his claim that he intends to remain in New Jersey for the indefinite future. In light of all these undisputed and tangible connections to his home in New Jersey, it is mostly inconsequential and not material whether he spends more of his time at one home or the other.

Because Defendant is domiciled in New Jersey, and nearly all the events giving rise to suit occurred outside this District, venue is improper under §1391(b)(1) and § 1391(b)(2). Venue is proper in the District of New Jersey—both under § 1391(b)(1), because Napolitano resides in New Jersey, and under § 1391(b)(2), because the alleged events took place in New Jersey.

Therefore, because there exists a different district in which this suit can properly be brought, venue is also improper in this District under § 1391(b)(3). With Plaintiff unable to satisfy any of the options under § 1391(b), I must transfer this case to the District of New Jersey pursuant to § 1406(a).

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