Opponents of hydraulic fracturing in Luzerne County can add defamation and conspiracy claims to their suit against the private surveillance company that the government allegedly hired to watch them, a federal judge has ruled.
The Gas Drilling Awareness Coalition filed suit in 2010 claiming that the state’s former director of the Pennsylvania Emergency Management Agency’s Office of Homeland Security and the Institute of Terrorism Research and Response violated the First and 14th amendments when they surveilled the group. The 14th Amendment claims were dismissed last year.
Last week, U.S. District Judge William W. Caldwell of the Middle District of Pennsylvania granted the group’s request to add state law claims for defamation and conspiracy.
“These claims, like the claims in the complaint, involve allegations that [Michael] Perelman and [the Institute for Terrorism Research and Response] published false statements to a third party. Both the complaint and the proposed amendments arise out of the same conduct,” Caldwell said, holding that the claims are not time-barred. He also held that the group is not guilty of undue delay, because it complied with the court’s order that it wait to file the amended claims until the earlier ruling was made.
Perelman is the president of the ITRR, which bills itself as “an American and Israeli nonprofit corporation created to help organizations succeed and prosper in a world threatened by terrorism,” according to its website. The company has offices in Philadelphia and Jerusalem.
According to the Pennsylvania Department of State, though, it was incorporated as a domestic nonprofit in York in 2004 and shares an address there with the Perelman Security Group.
In fall 2009, James Powers, who has since resigned as director of PEMA’s Office of Homeland Security, signed a contract with the ITRR for $125,000 a year, according to the complaint.
The Gas Drilling Awareness Coalition is a grassroots organization that advocates against hydraulic fracturing, a recently conceived method of drilling for natural gas that had previously been inaccessible in shale formations, including the Marcellus Shale.
According to the eight-page opinion in Gas Drilling Awareness Coalition v. Powers , the coalition alleged that the institute identified it “as a potential threat and began surveillance of the organization, compiling information in tri-weekly bulletins which were provided to law enforcement agencies and ‘private third-party individuals and entities.’”
Although Pennsylvania’s statute of limitations for defamation claims is one year from the time that the plaintiff learns about the defamatory statements, the “plaintiff may avoid a time bar if the amendment relates back to the date of the original pleading,” Caldwell said. He held that the group met that standard.
The group found out about the defamatory statements in 2010, according to the opinion, but waited to file its claims until the court had ruled on already-pending motions.
For that reason, it did not demonstrate undue delay in its filing, Caldwell ruled.
“We find that its decision to comply with our order and await a ruling on the pending motions to dismiss was reasonable under the circumstances. Therefore, we do not find plaintiff’s 15-month delay to be undue, given it has not previously amended its complaint and has offered a reasonable basis for the delay,” he said.
Perelman and ITRR were dismissed from the suit in December 2011 under the initial complaint because they were not state actors for the purposes of Section 1983 claims. Because they were dismissed, Perelman and ITRR argued that in order to reinstate them into the case the coalition had to meet the requirement under Federal Rule of Civil Procedure 15(c)(1)(C), which allows an amended filing only when the amendment changes the party or the naming of the party against whom a claim is asserted.
Caldwell disagreed, however, finding the coalition only had to meet the requirement of Rule 15(c)(1)(B), which requires the amended complaint arose out of the conduct set out in the original complaint. Caldwell found the coalition met that rule because the new claims, like the ones in the original complaint, involve allegations that Perelman and ITRR published false statements to a third party.
Alan Epstein of Spector Gadon & Rosen in Philadelphia, who represents ITRR, said, “We’ll have to wait and see what’s alleged.” He went on, “We really do not believe they will be able to state a viable claim of defamation against our client.”
Paul Anthony Rossi, of Kennett Square, Pa., who represents the Gas Drilling Awareness Coalition, could not be reached for comment.
(Copies of the eight-page opinion in Gas Drilling Awareness Coalitionv.Powers, PICS No. 12-0774, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •