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‘Sexcapade’ Libel Claims Stay in Federal Court

PHILADELPHIA (CN) - A businessman cannot go to state court with claims that the Philadelphia Daily News defamed him by turning his online conversation with a 23-year-old woman into an untrue story of an underage "sexcapade," a federal judge ruled.

David Morgenstern, a one-time Pennsylvania Convention Center executive, filed suit in February 2008 after allegedly sloppy reporting led local news outlets to air untrue allegations, depicting him "as a deviant person of poor moral character, who was having inappropriate internet relations and engaging in inappropriate communications with a 15 year-old girl."

Morgenstern says he was easily able to confirm through a birth certificate that the woman at issue was really 23, and that due diligence by the media could have prevented the allegedly defamatory coverage.

One reporter, Jeff Cole, showed up at Morgenstern's home with a camera crew and broadcast the allegations to millions of Fox 29 viewers, according to the complaint.

The Philadelphia Daily News followed up with a similarly erroneous piece headlined "Sexcapade at the Convention Center," Morgenstern claims.

Even though the woman's age was "readily ascertainable," the Daily News piece "was recklessly published without proper fact checking and verification, and intentionally avoided readily available facts so as to not uncover the truth," he says.

"The Daily News Article repeatedly states as fact that the supposed 'teen girl' and 'underage girl' was 15 years old, when the undisputed truth is that the female in question was 23 years old," the suit states.

Morgenstern named several other defendants, including two Daily News reporters and the convention center's CEO, Albert Mezzaroba, who allegedly divulged the untrue allegations to other staffers. He also says powerful electrical union boss John Dougherty passed the bogus information on to Fox.

Since Morgenstern has settled with the Convention Center and its workers, and he claims to have a pending settlement with Fox, U.S. District Judge Thomas O'Neill Jr. noted last week that only state-law claims of defamation and invasion of privacy remain against the Daily News.

Morgenstern had asked the court to dismiss the case so he might refile in state court, but O'Neill refused on Wednesday.

"Two reasons weigh in favor of my exercise of discretion to retain jurisdiction over this matter," O'Neill wrote. "First, as the Daily News defendants assert, resolution of plaintiff's claims against them may require an interpretation of federal constitutional standards. If the Daily News defendants are able to establish that plaintiff was a public official, the conduct of the Daily News defendants must be considered under the constraints of the First Amendment."

"Second, resolution of plaintiff's claims against the Daily News defendants in this forum would serve the principles of convenience and judicial economy," in light of the fact that Morgenstern's case has been pending in Pennsylvania's Eastern District for four years, the three-page opinion states.

"Plaintiff's case can be most efficiently disposed of in this forum - the forum he originally chose," O'Neill wrote.

All expert reports must be submitted by Jan. 27.

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