5/22/23, Defendant's Reply Memorandum in Support of Motion To Dismiss, LifeVac LLC v. States Newsroom Inc. Et Al

MER-L-000049-23 05/22/2023 2:55:13 PM Pg 1 of 23 Trans ID: LCV20231601333
PASHMAN STEIN WALDER HAYDEN, P.C.

Bruce S. Rosen (018351986)
Marc M. Yenicag (201892017)
Court Plaza South
21 Main Street – Suite 200
Hackensack, NJ 07601
(201) 488-8200
Attorneys for Defendants
States Newsroom, Inc. and Dana DiFilippo
LIFEVAC, LLC,
SUPERIOR COURT OF NEW JERSEY
Plaintiff, LAW DIVISION: MERCER COUNTY
v. Docket No.: MER-L-000049-23
STATES NEWSROOM, INC., d/b/as the New

Jersey Monitor, DANA DIFILIPPO, JOHN
DOES 1-10, and ABC CORPS 1-10,
Defendants.
REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

TABLE OF CONTENTS
PRELIMINARY STATEMENT...................................................................................................... 1
LEGAL ARGUMENT ................................................................................................................ 2
I. COUNT I (DEFAMATION) AND COUNT III (TRADE LIBEL) FAIL TO STATE A
CLAIM BECAUSE THEY ARE SUBSTANTIALLY TRUE OR ARE PREMISED ON
STATEMENTS THAT ARE NOT ACTIONABLE ............................................................. 2
A. FDA Registration. ......................................................................................................... 4
B. Studies of the Safety and Efficacy of Plaintiff’s device. .............................................. 5
C. Statements from “Unreliable Sources” ......................................................................... 7
II. PLAINTIFF FAILS TO STATE A CLAIM FOR DEFAMATION (COUNT 1) BECAUSE
PLAINTIFF ALLEGES ONLY THAT DEFENDANTS CRITICISED PLAINTIFF’S
PRODUCT ........................................................................................................................... 8
III. COUNTS I AND III MUST BE DISMISSED BECAUSE PLAINTIFF DID NOT
ADEQUATELY PLEAD ACTUAL DAMAGES ................................................................ 9
IV. PLAINTIFF’S CLAIM FOR TRADE LIBEL (COUNT III) MUST BE DISMISSED
BECAUSE IT HAS NOT ADEQUATELY PLEAD SPECIAL DAMAGES .................... 12
V. PLAINTIFF CANNOT, UNDER ANY CIRCUMSTANCE, SHOW THAT THE
ALLEGED DEFAMATORY STATEMENTS CAUSED DAMAGES .............................. 14
VI. PLAINTIFF’S TORTIOUS INTERFERENCE CLAIM (COUNT IV) MUST BE
DISMISSED AS DUPLICATIVE OF ITS TRADE LIBEL (COUNT III) AND
DEFAMATION CLAIMS (COUNT I)............................................................................... 15
VII. THE COURT SHOULD CONSIDER MAY 2, 2023 STATEMENTS ON THIS MOTION
TO DISMISS ...................................................................................................................... 17
CONCLUSION ............................................................................................................................. 18
i
TABLE OF AUTHORITIES
Page(s)
Cases

Arista Recs., Inc. v. Flea World, Inc.,

356 F. Supp. 2d 411 (D.N.J. 2005) ............................................................................................ 12

Bainhauer v. Manoukian,
215 N.J. Super. 9 (App. Div. 1987) ........................................................................................... 16

Capital Safety v. Div. of Bldgs.,
369 N.J. Super. 295 ................................................................................................................... 13

Costello v. Ocean County Observer,
136 N.J. 594 (1994) ................................................................................................................... 11

Dairy Stores, Inc. v. Sentinel Pub. Co., Inc.,
104 N.J. 125 (1986) ................................................................................................................. 3, 8

Darakjian v. Hanna,,
366 N.J. Super. 238 (App. Div. 2004) ................................................................................. 10, 12

Decker v. Princeton Packet, Inc.,
116 N.J. 418 (1989) ................................................................................................................... 16

Durando v. Nutley Sun,
209 N.J. 235 (2012) ..................................................................................................................... 9

G.D. v. Kenny,
205 N.J. 275 (2011) ................................................................................................................. 5, 6

Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) .................................................................................................................. 11

Gonzalez v. City of Camden,
357 N.J. Super. 339 (App. Div. 2003) ....................................................................................... 13

Harte-Hanks Commc’ns v. Connaughton,
491 U.S. 657 (1989) .............................................................................................................. 9, 10

Henry V. Vaccaro Const. Co. v. A. J. DePace, Inc.,
137 N.J. Super. 512 (Law. Div. 1975) ................................................................................. 12, 16

Herrmann v. Newark Morning Ledger Co.,
48 N.J. Super. 420 (App. Div. 1958) ........................................................................................... 2
ii

Hustler Magazine v. Falwell,
485 U.S. 46 (1988) .................................................................................................................... 16

Jusino v. Lapenta,
442 N.J. Super. 248 (Law. Div. 2014) ....................................................................................... 13

Kotlikoff v. The Cmty. News,
89 N.J. 62 (1982) ......................................................................................................................... 3

L.C. v. Middlesex Cnty. Prosecutor’s Off.,
No. A-3654-18, 2021 WL 1327169 (N.J App. Div. Apr. 9, 2021) .............................................. 6

La Rocca v. New York News, Inc.,
156 N.J. Super. 59 (App. Div. 1978) ........................................................................................... 6

Lutz v. Royal Ins. Co. of Am.,
245 N.J. Super. 480 (App. Div. 1991) ....................................................................................... 16

Lynch v. New Jersey Educ. Ass'n,
161 N.J. 152 (1999) ............................................................................................................ passim

Mayflower Transit, LLC v. Prince,
314 F. Supp. 2d 362 (D.N.J. 2004) ............................................................................................ 13

McLaughlin v. Rosanio, Bailets & Talamo, Inc.,
331 N.J. Super. 303 (App. Div. 2000) ......................................................................................... 7

Milkovich v. Lorian Journal, Co.,
497 U.S. 1 (1990) ........................................................................................................................ 7

New York Times v.Sullivan,
376 U.S. 254 (1964) .............................................................................................................. 9, 10

Newton v. Newark Star-Ledger, No. A-3,
819-11T3, 2014 WL 3928500 (N.J. App. Div. Aug. 13, 2014) ................................................. 10

O’Keefe v. WDC Media, LLC,
No. CIV. 13-6530 CCC, 2015 WL 1472410 (D.N.J. Mar. 30, 2015) .......................................... 6

Orso v. Goldberg,
284 N.J. Super. 446 (App. Div. 1995) ......................................................................................... 4

Patel v. Soriano,
369 N.J. Super. 192 (App. Div. 2004) ............................................................................. 8, 12, 14

iii
Romaine v. Kallinger,
109 N.J. 282 (1988) ..................................................................................................................... 2

Salzano v. N. Jersey Media Grp. Inc.,
201 N.J. 500 (2010) ..................................................................................................................... 5

Senna v. Florimont,
196 N.J. 469 (2008) ................................................................................................................... 10

Sisler v. Gannett Co.,
104 N.J. 256 (1986) ................................................................................................................... 10

St. Amant v. Thompson,
390 U.S. 727, (1968) ................................................................................................................. 11

Ward v. Zelikovsky,
136 N.J. 516 (1994) ................................................................................................................. 2, 7

Weiner v. Cnty. of Essex,
262 N.J. Super. 270 (Law. Div. 1992) ....................................................................................... 17

Wilson v. Grant,
297 N.J. Super. 128 (App. Div. 1996) ..................................................................................... 2, 3

Rules
Rule 4:5-8………………………………….………………………………….……………...12, 14
Rule 1:36–3………………………………….………………………………….……………........6
Other Authorities
Pressler & Verniero, Current N.J. Court Rules, Comment 3.5, on R. 1:36–3……………………13
iv
PRELIMINARY STATEMENT
In its opposition, Plaintiff LifeVac LLC fatally misreads the law of defamation as it exudes
its eggshell pique about virtually every statement in a news article (the “Article”) that was not only
substantially true, but contained expressed opinions involving an admitted matter of public
concern.
Plaintiff misunderstands the role of the court in acting as a gatekeeper on a Motion to
Dismiss in Defamation cases and certainly confuses the concept of “substantial truth” as a
mechanism for evaluating whether a statement is defamatory as opposed to proving truth as a
defense as an affirmative defense at trial. As importantly, Plaintiff fails to adequately plead actual
malice, instead faulting Defendant for alleged failure to investigate and for ill-motive, neither of
which, by themselves, constitutes actual malice.
The opposition brief is a misdirected barrage of complaints about the points of views
expressed in the news article: Defendants should have reported this, but not that, should have
listened to this person, but not that person, or focused on this study, not that study. Moreover, the
primary damages sought by the Complaint—that but for this news story a bill would have been
approved by both New Jersey Legislature and signed by the Governor that would have resulted in
various public entities having bought their product—is beyond speculative. 1
All the Court has to do is read the Article itself and recognize that its readily apparent
content, verifiability, and context plainly make the contents of the Article non-actionable. The

1
The bill’s future became even more problematic on May 2, 2023 when the NJ Department of
Health issued a directive that prohibited the use of LifeVac and other anti-choking devices in pre-
hospital care by Emergency Medical Technicians and others for many of the exact reasons set forth
by critics in the news article. We have requested that the Court take Judicial Notice of the Notice’s
existence, not for the truth of its content, but to show that that a state agency, along with the critics
cited in the article, has now weighed in against use of the devices by EMS, adding to the context
of the controversy.
1
Complaint has all the earmarks of a Strategic Lawsuit Against Public Participation (“SLAPP”),
and while an anti-SLAPP law works its way through that same legislature, this Court should not
countenance such a frivolous effort to silence critics.
LEGAL ARGUMENT
I. COUNT I (DEFAMATION) AND COUNT III (TRADE LIBEL) FAIL TO STATE A
CLAIM BECAUSE THEY ARE SUBSTANTIALLY TRUE OR ARE PREMISED
ON STATEMENTS THAT ARE NOT ACTIONABLE
Plaintiff’s arguments consistently make too fine a point and in the process miss our
Court’s instruction (outlined in Defendant’s moving brief) that “the Court must consider the
content, verifiability, and context of the challenged statements.” Ward v. Zelikovsky, 136 N.J.
516, 529 (1994).
Courts begin their review to determine whether a statement is susceptible of a defamatory
meaning by looking “‘to the fair and natural meaning which will be given it by reasonable
persons of ordinary intelligence.’” Romaine v. Kallinger, 109 N.J. 282, 290 (1988) (quoting
Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 431 (App. Div. 1958), aff'd on
reh'g, 49 N.J. Super. 551, 140 A.2d 529 (App. Div. 1958).
Yet, a court cannot take a section of a publication and put a magnifying glass onto it as
Plaintiffs do: “The court must consider all the words used not merely a particular phrase or
sentence.” Wilson v. Grant, 297 N.J. Super. 128, 135–36 (App. Div. 1996) (internal citations and
quotation marks omitted).
To determine a statement’s “context,” the court must “examine the statement in its totality
in the context in which it was uttered or published. The context to be considered is both narrowly
linguistic and broadly social.” Id. at 137 (internal citations and quotation marks omitted). Context
will help determine “the listener’s reasonable interpretation” of the content, which is “the proper
measure for whether the statement is actionable.” Id. (internal citations and quotation marks
2
omitted). Courts also take into account the “medium by which the statement is disseminated and
the audience to which it is published.” Id. (internal citations and quotations marks omitted).
The context of this piece – which was published by a serious online publication that
discusses matters of public concern – is a summary of an important public issue of anti-choking
devices being considered by the New Jersey Legislature. As much as Plaintiff will not
acknowledge it, the Article presented the many sides of the issue, not just those that were critical
of Plaintiff’s product or these devices in general, including the opinions of some professionals and
organizations such as the American Red Cross that have concerns as to how these devices are
regulated and whether they are effective. Readers will expect from NJ Monitor publications that
there are various opinions expressed and that some will be right and some wrong; readers will
come to their own conclusions about the credibility of each.
An opinion is “pure”—and therefore not actionable—when “the maker of the comment
states the facts on which he bases his opinion . . . and then states a view as to the plaintiff’s conduct,
qualifications or character.” Kotlikoff v. The Cmty. News, 89 N.J. 62, 68-69 (1982). The opinion
can be “based on stated facts or facts that are known to the parties or assumed by them to exist.”
Dairy Stores, Inc. v. Sentinel Pub. Co., Inc., 104 N.J. 125, 147 (1986); Lynch v. New Jersey Educ.
Ass'n, 161 N.J. 152, 167 (1999) (“[O]pinion statements do not trigger liability unless they imply
false underlying objective facts.”). As the New Jersey Supreme Court has recognized,
“[e]xpressions of ‘pure’ opinion on matters of public concern” can never be “the basis of an action
for defamation.” Kotlikoff, 89 N.J. at 69-71.
For the reasons discussed below and in Defendants’ moving papers, Counts 1 and 3 of
Plaintiff’s complaint must be dismissed.
3
A. FDA Registration.
Plaintiff’s primary issue appears to be that the article states that anti-choking “devices are
not regulated by the federal Food and Drug Administration, which worries some watchdogs who
say they should be.” Plaintiff gets hyper technical about what it means to be “regulated,” as anti-
choking devices must be registered with the FDA and to Plaintiff that means regulated. But the
FDA also “regulates” other medical devices, prescription drugs, biologics, infant formula, surgical
implants and other things, and in those cases the FDA declares them to be “safe and effective.”
What the Article makes clear is that some experts who were interviewed believe that these devices
should be evaluated in a way where the FDA could declare them “safe and effective,” rather than
simply registered.
This apparently offends Plaintiff. Yet the statement about regulation comes in the
immediate context of quoting both a spokesman for the American Red Cross saying, “these devices
have not been validated by evidence,” and Dr. Robert Baritz, a Massachusetts internist who is past
president of the National Council Against Health Frauds, who also questioned the efficacy of these
devices. What the Plaintiff dislikes is that these individuals – who believe the regulation is
inadequate – are not their experts, although Plaintiff’s point of view is clearly represented in the
article.
As stated in Defendant’s moving papers, the FDA statement belies Plaintiff’s entire
argument: the statement is truthful. It is not only protected by the common interest privilege, as
stated in Defendant’s moving papers, but upon reflection it is also protected by the Fair Report
privilege. See Orso v. Goldberg, 284 N.J. Super. 446, 451 (App. Div. 1995) (Publication of a report
of official action based on a description by a government official outside of an actual meeting). If
the information is a full, fair and accurate description of what was provided to the press, the Fair
4
Report privilege is absolute. Salzano v. N. Jersey Media Grp. Inc., 201 N.J. 500, 513 (2010).
Further, Plaintiff is flat wrong that privileges such as these cannot be determined on a motion to
dismiss, as that is exactly what our Supreme Court determined in Salzano in upholding dismissal
of most of the Complaint based on Fair Report.
B. Studies of the Safety and Efficacy of Plaintiff’s device.
The article discusses generally testing on anti-choking devices, and that the article states
“while [both Plaintiff’s and another company] list studies endorsing their devices, none tested the
devices on live humans.” Plaintiff says two of the studies did test on live humans and that the result
is that the article “stoking fear as to the safety and efficacy of the LifeVac Device when used on
Live Humans.” (Pl’s Br. at 16).
Again, Plaintiff dances on the head of pin by making arguments way beyond the
capabilities of “reasonable persons of ordinary intelligence” by claiming it was defamed by
description of a “study” cited by the Article when it was actually a presentation abstract, thus
“overstating the abstract’s authority”(Pl’s Br. at 17); omitting that the LifeVac device successfully
removed moistened saltines; or arguing whether use of the word throat is incorrect when describing
the glottis can be the definition of glottis, among other issues (Pl.’s Br. at 5-7). These were all
addressed in detail in the moving brief. What Plaintiff essentially claims are that these were not
minor inaccuracies but even if they are, they are collectively actionable. Plaintiff then interestingly
cites G.D. v. Kenny, 205 N.J. 275 (2011) in support, which is a substantial truth case.
In G.D., the Court gave wide berth to inaccurate descriptions in a political flyer of the
charges and time served behind bars for a political operative, again reminding that courts must
consider the Article (in that case the flyer) as a whole to determine the impression it will make on
a reader: “The law of defamation overlooks minor inaccuracies, focusing instead on ‘substantial
5
truth.’” 205 N.J. at 294 (citations omitted). The G.D. Court added that “[m]inor inaccuracies do
not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified.”
Id. (internal citations and quotation marks omitted); see also La Rocca v. New York News, Inc.,
156 N.J. Super. 59, 63 (App. Div. 1978) (cartoon criticizing police arrest of a schoolteacher was
not actionable on the basis of substantial truth where the arrest had occurred inside a classroom,
since the mistake was “unimportant and unrelated to the ‘gist or sting’ of the alleged libel”); L.C.
v. Middlesex Cnty. Prosecutor’s Off., No. A-3654-18, 2021 WL 1327169, at *22-23 (N.J App.
Div. Apr. 9, 2021), cert. denied, 250 N.J. 11 (2022), reconsideration denied, 250 N.J. 493, (2022)2
(claim dismissed on the basis of substantial truth, since describing plaintiff’s conduct as “sexual
assault” maintained the gist and sting of plaintiff’s actual charges of, among others, conspiracy to
commit aggravated criminal sexual conduct, criminal sexual contact, and aggravated assault);
O’Keefe v. WDC Media, LLC, No. CIV. 13-6530 CCC, 2015 WL 1472410, at *4 (D.N.J. Mar.
30, 2015) (activist arrested and charged with a misdemeanor for entering a U.S. Senator’s office
pretending to be a repair man and trying to get access to the central phone system claimed his
intention was to stage a stunt, not to tap any phones, and therefore statements that he was
“apparently trying to bug” and “trying to tamper with” the phone system falsely accused him of
felony wiretapping. In granting the motion to dismiss the libel suit, the court held that the phrases
should be “understood in the colloquial sense,” and did not “alter the fundamental gist” of the
otherwise accurate report).
Finally, Plaintiff objects to the word “problematic” when applied to the description of a
study authored by relatives and an employee of LifeVac’s inventor and cited by LifeVac in support

2
All unpublished cases cited in this brief are attached to the Rosen Reply Cert. pursuant to Rule
1:36-3.
6
of its product. Plaintiff alleges that because the article was not an “opinion piece” it is not entitled
to include any opinion and argues that the word “problematic” “denigrates the study, Plaintiff and
the LifeVac Device.” (Pl’s Br. at 18).
This line of reasoning is ludicrous. To establish a claim for defamation, the challenged
statement must be provably false. See, e.g., McLaughlin v. Rosanio, Bailets & Talamo, Inc., 331
N.J. Super. 303, 312 (App. Div. 2000) (emphasis added). Unlike “factual assertions that could be
proven true or false,” expressions of opinion are not actionable precisely because they are not
amenable to being proven false. Ward, 136 N.J. at 531; see also Lynch, 161 N.J. at 167 (“[O]pinion
statements do not trigger liability unless they imply false underlying objective facts.”). Not only
are expressions of opinion protected under New Jersey state law, but First Amendment principles,
which likewise require that “a statement on matters of public concern must be provable as false
before there can be liability under state defamation law.” Milkovich v. Lorian Journal, Co., 497
U.S. 1, 19-20 (1990).
According to Oxford Languages, the Oxford University and Google dictionary site, the
primary definition of “problematic” is “constituting or presenting a problem or difficulty.” It is
hard to fathom that a study authored by related interested parties and advertised by a company as
authoritative could not be seen as a “problem” by some, but in any case, it cannot be proven true
or false whether such a relationship makes the study “problematic.”
C. Statements from “Unreliable Sources”
Plaintiff completely ignores argument in Defendant’s moving papers that address
statements in the Complaint seeking to hold Defendant liable for statements made by Dr. Baratz
and Gerard, a San Francisco-based paramedic. The opinions of these individuals were discussed
in Defendant’s wide-ranging article which presented several points of view. Readers could
7
ascertain their credibility as they could the LifeVac executive. But Plaintiff then goes on to say
that Gerard’s opinions (about anti-choking devices in general) and his timeline for having dealt
with them in his career were false, and that “any credible medical source” would have shown them
to be in error. Defendant cannot be held liable for failure to investigate to Plaintiff’s liking
(including finding more favorable experts), and the statements must be judged only on the
standards cited above and in Defendants’ moving brief.
II. PLAINTIFF FAILS TO STATE A CLAIM FOR DEFAMATION (COUNT 1)

BECAUSE PLAINTIFF ALLEGES ONLY THAT DEFENDANTS CRITICISED
PLAINTIFF’S PRODUCT
As stated in Defendant’s initial brief, criticism of a product cannot give rise to a defamation
claim, but may, under specific certain circumstances, be a basis for a trade libel claim. Indeed,
“unless the disparaging statement explicitly imputes to the corporation fraud, deceit, dishonesty,
or reprehensible conduct in relation to the product, courts will not deem a merely critical statement
to be defamatory.” Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 159 (1986) (Garibaldi,
J., concurring).
However, in its brief, Plaintiff attempts to manufacture instances in which the Article
allegedly caused damage to the company’s reputation when in reality the complained-about
statements concern only the LifeVac device, or at best, Plaintiff’s business relating to same. Patel
v. Soriano, 369 N.J. Super. 192, 247 (App. Div. 2004) (explaining that where a statement charges
a plaintiff with personal misconduct, or imputes to plaintiff reprehensible personal characteristics,
it is regarded as libel or slander and if the aspersion reflects only on the quality of plaintiff's
product, or on the character of plaintiff's business as such, it is disparagement.).
In opposition, Plaintiff only identifies three statements and/or topics from the Article that
it argues amounts to defamation rather than trade libel: (1) a statement in the Article that “FDA
registration merely means the FDA is aware of the devices”; (2) stating that the FDA sent a warning
8
letter to another company for another device – i.e., not LifeVac – outlining multiple violations; and
(3) stating that family members and employees of LifeVac inventor were involved in a certain
study supporting the LifeVac device. (See Pl’s Br. at 20-22).
None of these statements explicitly impute corporate fraud, deceit, dishonesty, or
reprehensible conduct. In fact, except for the second statement – which concerns another product
altogether – the identified statements concern the product and not Plaintiff, meaning that, at best,
they would form the basis of a trade libel claim, not a defamation claim.
For these reasons, Count I for defamation must be dismissed.
III. COUNTS I AND III MUST BE DISMISSED BECAUSE PLAINTIFF DID NOT
ADEQUATELY PLEAD ACTUAL DAMAGES
Plaintiff concedes that the First Amendment requires that public officials and other public
figures plead and prove actual malice, i.e., that the statements at issue were made with knowledge
of falsity or with reckless disregard for the truth, as an element of any defamation claim. New
York Times v.Sullivan, 376 U.S. 254, 279-80 (1964); (Pl’s Br. at 22).
Under the actual malice standard, “reckless disregard for the truth” requires far more than
negligent or accidental falsity. To meet this standard a plaintiff must plead facts that, if true, would
establish that the defendant “actually doubt[ed] the veracity” of the statements, Durando v. Nutley
Sun, 209 N.J. 235, 252 (2012), or had a “high degree of awareness” as to their probable falsity,
Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657, 667 (1989) (internal quotation marks
omitted), at the time of publication. Sullivan, 376 U.S. at 286; see also Harte-Hanks, 491 U.S. at
688 (“failure to investigate before publishing . . . is not sufficient to establish reckless disregard.”);
Sullivan, 376 U.S. at 286 (failure to retract upon plaintiff’s demand not evidence of actual malice);
Lynch, 161 N.J. at 165, 172 (“[n]egligent publishing does not satisfy the actual-malice test.”)
9
Actual malice is a “high or strict burden,” Sisler v. Gannett Co., 104 N.J. 256, 269 (1986),
and is necessary to guarantee the “national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open[.]” Sullivan, 376 U.S. at 270; see also Senna v.
Florimont, 196 N.J. 469, 491 (2008) (the actual malice standard ensures “adequate breathing
room” for “speech involving matters of public interest and concern”). As such, New Jersey courts
are directed to dismiss defamation claims at the pleading stage where the plaintiff’s complaint fails
to allege facts showing actual malice, not simply rote recitations of the definition of actual
malice. See, e.g., Darakjian v. Hanna, 366 N.J. Super. 238, 247-48 (App. Div. 2004) (allowing a
defamation claim “to survive on the basis of a mere allegation of knowledge of falsity or reckless
disregard affords insufficient breathing space to the critical rights protected, in the public interest,
by the First Amendment.”); Newton v. Newark Star-Ledger, No. A-3819-11T3, 2014 WL
3928500, at *4 (N.J. App. Div. Aug. 13, 2014) (actual malice not sufficiently alleged merely by
averring a “litany of vague and bare conclusory assertions that the articles contained false
statements of fact and the [defendant] purposely published the articles in reckless disregard for the
truth”) (collecting cases).
Plaintiff’s allegation in their opposition that they pleaded actual malice when they stated
in the Complaint, for instance, that the article was a “hit piece” that aims to attract attention
(Compl. ¶ 44), and was “designed to scare the public, derail passage of the Bill and damage
Plaintiff’s reputation and business prospects,” does not come close to meeting this strict standard.
“Spite, hostility, hatred, or the deliberate intent to harm” may “demonstrate possible motives for
making a statement, but not publication with a reckless disregard for its truth.” See, e.g., Lynch,
161 N.J. at 166–67 (1999); Harte-Hanks, 491 U.S. at 557, 666 n.7, 667 (1989) (“The phrase ‘actual
malice’ is unfortunately confusing in that it has nothing to do with bad motive or ill will”).
10
Next, Plaintiff asserts “that Defendants knew or should have known these statements were
false because any investigation into these assertions would have shown [the falsity].” (Pl’s Br. at
23 (citing Compl. at ¶ 66)). Again, Plaintiff misunderstands what actual malice means and has
failed to plead it because Courts have repeatedly stated that mere proof of failure to investigate,
without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with
a “high degree of awareness of . . . probable falsity.” St. Amant v. Thompson, 390 U.S. 727, 731,
(1968); Gertz v. Robert Welch, Inc., 418 U.S. 323, 332 (1974); Costello v. Ocean County
Observer, 136 N.J. 594, 615 (1994); Lynch, 161 N.J. at 172–73.
Having erroneously alleged ill-motive in writing the Article and failure to investigate, there
is not one other purported statement in the Complaint pleading facts which support knowing falsity.
Instead, there is a drumbeat of statements that reflect only that Defendant printed false and
defamatory statements and therefore must have done so with actual malice. For example:
 Acted with actual malice with false and misleading statements. (Pl’s.
Br. at 24 (citing Compl. ¶¶ 61, 64));
 “Any investigation would have shown. . . .” (Id. (citing Compl.
¶63));
 “With any scrutiny, there are clear false statements . . . so Defendants
must have shown or should have known they were false prior to
publishing.” (Id. (citing Compl. ¶¶ 63-66, 130-131));
 “Defendants made those statements with knowledge or reckless
disregard of falsity.” (Id. (citing Compl. ¶¶ 63, 68-69));
 “Defendants knew, or should have known that their statement as to
the location of food was false.” (Compl. ¶76);
 “Defendants knew, or should have known, that statements were false

because Plaintiff and the LifeVac device clearly instructs users to
call 911 . . . .” (Pl’s Br. at 26 (citing Compl. ¶111)).
In boilerplate fashion, the Amended Complaint pleads for example that “Defendants knew
these statements were false when they wrote and published the Article, or at the very least, made
11
them with reckless disregard as to their truth.” (See, e.g., Compl. ¶¶ 113, 114, 116, 130). But such
a rote recital of the actual malice standard is legally insufficient to meet the basic pleading
requirements for a defamation claim. See, e.g., Darakjian, 366 N.J. Super. at 247-248 (“bare
conclusory assertion” of actual malice “with no other factual reference to lend support to the
contention” is insufficient to plead actual malice); Arista Recs., Inc. v. Flea World, Inc., 356 F.
Supp. 2d 411, 427 (D.N.J. 2005).
None of the factual references contained in the Complaint lend any support to sufficient
pleading of actual malice, and for that reason, the Complaint must be dismissed.
IV. PLAINTIFF’S CLAIM FOR TRADE LIBEL (COUNT III) MUST BE DISMISSED
BECAUSE IT HAS NOT ADEQUATELY PLEAD SPECIAL DAMAGES
As outlined in Defendants’ moving papers, unlike ordinary defamation claims, a claim for
trade libel claim requires a plaintiff to show “special damages in all cases.” Henry V. Vaccaro
Const. Co. v. A. J. DePace, Inc., 137 N.J. Super. 512, 517 (Law. Div. 1975). The necessary showing
for special damages is specific: “plaintiff must establish pecuniary loss that has been realized or
liquidated, such as lost sales, or the loss of prospective contracts with customers.” Patel v. Soriano,
369 N.J. Super. 192, 248–49 (App. Div. 2004). As the New Jersey Appellate Division has held,
Traditionally, plaintiff was required to identify particular business

interests who have refrained from dealing with him, or explain the
impossibility of doing so. However, where requiring such
identification is unreasonable, proof of lost profits resulting from
breach of contract may suffice, especially where the loss is shown
with reasonable certainty and where the possibility that other factors
caused the loss is satisfactorily excluded.
[(Id.)]
In other words, a plaintiff either needs to identify the particular businesses who have
refrained from dealing with the plaintiff as a result of the alleged defamatory statements or show
lost profits as a result. Pursuant to Rule 4:5-8, special damages must be pled with specificity, i.e.,
among other things, “the facts giving rise to any included claim for special damages shall be
12
specially stated[.]” Although there is a dearth of New Jersey state court cases explaining how a
plaintiff may meet this pleading standard in a trade libel case, the district court in Mayflower does,
i.e., a plaintiff must “allege either the loss of particular customers by name, or a general
diminution in its business.” Mayflower Transit, LLC v. Prince, 314 F. Supp. 2d 362, 378 (D.N.J.
2004). If under the general diminution theory, plaintiff must allege specific facts showing, among
other things, “the amount of sales for a substantial period preceding the publication, the amount of
sales for a period subsequent to the publication, and facts showing the plaintiff could not allege
the names of particular customers who withdrew or withheld their custom.” Id.
Plaintiff attempts to skirt its obligation to plead special damages with particularity by going
on a diatribe about how Defendants, by relying upon Mayflower – a federal case – applied the
wrong standard. Plaintiff’s argument is a red herring. As alluded to by Plaintiff, “federal opinions,
including district court decisions, may have significant persuasive effect.” Jusino v. Lapenta, 442
N.J. Super. 248, 252 (Law. Div. 2014) (quoting Pressler & Verniero, Current N.J. Court Rules,
Comment 3.5, on R. 1:36–3). Indeed, “State courts may view as persuasive federal decisions in
similar contexts.” Pressler & Verniero, Current N.J. Court Rules, Comment 3.5, on R. 1:36–3; See
also Gonzalez v. City of Camden, 357 N.J. Super. 339, 347 (App. Div. 2003) (although not required
to do so, court adopted Third Circuit’s formulation of the “state-created danger” doctrine, absent
controlling authority from United State Supreme Court); Capital Safety v. Div. of Bldgs., 369 N.J.
Super. 295, 300 (appropriate to consider federal cases that have addressed similar issues).
Mayflower addressed the very thing the Court now is being asked to address, whether a
plaintiff sufficiently pleaded special damages to state a viable trade libel claim. In fact, when read,
the rational of Mayflower is entirely consistent with the New Jersey Appellate Division’s decision
in Patel – i.e., that a plaintiff must plead special damages with particularity by identifying the
13
particular businesses who have refrained from dealing with the plaintiff as a result of the alleged
defamatory statements or show lost profits as a result – it just more fully fleshes out how a plaintiff
can plead special damages with the requisite particularity.
Nevertheless, the fact remains, Plaintiff did not plead special damages with the requisite
particularity as required by Rule 4:5-8. Instead, and despite the fact that this very specific
information should be readily available to it, plaintiff, without any shred of specificity, identifies
general/broad categories of customers, e.g., “other states and municipalities which had expressed
interest in purchasing LifeVac for their residents and constituents” or “New Jersey School.”
(Compl. 121-124).
For this reason, Plaintiff’s claim for trade libel must be dismissed.
V. PLAINTIFF CANNOT, UNDER ANY CIRCUMSTANCE, SHOW THAT THE

ALLEGED DEFAMATORY STATEMENTS CAUSED DAMAGES
As outlined in Defendants’ moving papers, to establish a trade libel claim, a Plaintiff must
prove causation, that the alleged falsehood “played a material and substantial part in leading others
not to deal with plaintiff.” Patel, 369 N.J. Super. at 248. Plaintiff, in its opposition, ignores –
presumably because there is no viable rebuttal – the thrust of Defendant’s argument, that no amount
of discovery could ever prove that the Article played a material and substantial part in leading
others not to deal with Plaintiff because: (1) the article came out 2 business days before the subject
bills expired, meaning that the bills indisputably would never have passed even if the article never
came out; and (2) it would be impossible to prove that the bills did not pass but for the article
because only a small percentage of bills pass each year – i.e., any argument to the contrary would
be too speculative – and would require Plaintiff to obtain the testimony of a majority of lawmakers
and the governor. Plaintiff does not dispute any one of these points in opposition. Moreover, in
light of the New Jersey Department of Health Office of Emergency Medical Services, which is
14
discussed further below and disapproves of the use of anti-choking devices such as the LifeVac
device, the bills would have never and will never pass. (Certification of Bruce Rosen, Esq. in
Further Support of Motion to Dismiss (“Rosen Reply Cert.”), Ex. A (May 2 2023 Statement)).
For these reasons, which are described more fully in Defendants’ moving papers, dismissal
of Plaintiff’s trade libel claim (Count III) is warranted.
VI. PLAINTIFF’S TORTIOUS INTERFERENCE CLAIM (COUNT IV) MUST BE

DISMISSED AS DUPLICATIVE OF ITS TRADE LIBEL (COUNT III) AND
DEFAMATION CLAIMS (COUNT I)
In an attempt to rebut Defendants’ argument that Plaintiff’s tortious interference claim be
dismissed because it is duplicative of its defamation claims, Plaintiff makes a nonsensical and
unavailing argument, that the tortious interference claim is premised upon an argument that non-
defamatory statements, when coupled with the alleged defamatory statements, damaged plaintiff.
Plaintiff argues:
These [non-defamatory statements] are also intentionally coupled

with actual defamatory statements about Plaintiff’s devices and
other assertions about a category of devices that encompass
Plaintiff’s product. The complaint pleads that the publication of
these non-defamatory statements in this manner ultimately has a
damaging effect on Plaintiff, and that the publication of the Article
serves as a basis for tortious interference independent of the
allegations of defamation and trade libel.
[(Pl’s Br. at 32)]
In effect, Plaintiff admits that its tortious interference claim is inextricably intertwined with
its defamation claim, i.e., proving that the article contains defamatory statements is a condition
precedent to its tortious interference claim. As explained in Defendant’s moving papers, this would
require dismissal of Plaintiff’s tortious interference claim because it is duplicative of Plaintiff’s
defamation claim.
15
In fact, trade libel and tortious interference claims rely on the same definition of falsity as
the defamation claim. Sack on Defamation, Libel, Slander and Related Problems (PLI Press, Fifth
Edition, May 2022 Release #5) at13:1.4. See Patel, 369, N.J. Super at 246-247, citing Henry V.
Vaccaro Constr. Co., 137 N.J. Super. at 514 (noting that “the tort of trade libel is but one part of a
rather amorphous concept” consisting of communication to a third person of false statements
concerning the plaintiff, his property, or his business).
Courts have routinely refused to subvert a defendant’s First Amendment protections by
allowing plaintiffs to repackage defamation claims as other causes of action that are premised on
the same set of facts. Decker v. Princeton Packet, Inc., 116 N.J. 418 (1989) (dismissing negligent
infliction of emotional distress claim that was premised upon the same facts as plaintiffs’ failed
defamation claim because otherwise “plaintiffs would be able to use the tort of negligent infliction
of emotional distress to overcome defenses to defamation actions [.]”); See also Hustler Magazine
v. Falwell, 485 U.S. 46 (1988).
Where claims for tortious interference are predicated on precisely the same facts as are
alleged in the defamation count, “[p]roof or failure of proof of the operative facts of the defamation
count would, therefore, completely comprehend the malicious interference cause.” Bainhauer v.
Manoukian, 215 N.J. Super. 9, 48 (App. Div. 1987); see also Lutz v. Royal Ins. Co. of Am., 245
N.J. Super. 480, 503 (App. Div. 1991) (Dismissing plaintiff’s tortious interference claims since
plaintiff “attempt[ed] to prove his malicious interference claims with precisely the same evidence
that forms the basis for his defamation claim.”).
Thus, the tortious interference claim should be dismissed with prejudice.
16
VII. THE COURT SHOULD CONSIDER MAY 2, 2023 STATEMENTS ON THIS

MOTION TO DISMISS
It is beyond dispute that the New Jersey Department of Health Office of Emergency
Medical Services (“OEMS”) issued a statement relating to LifeVac and anti-choking devices,
which it published on the state’s website (the “Position Statement”). (Rosen Reply Cert., Ex. A).
In the Position Statement, among other things, OEMS states that the LifeVac device is not
approved by the United States Food and Drug Administration and that there is insufficient research
documenting safety and efficacy in the use of the LifeVac Device. The statement goes on to outline
OEMS’s determination to disapprove of the utilization of the LifeVac Device by pre-hospital health
care providers (e.g., EMTs, paramedics, etc.) in pre-hospital settings or during non-emergency
medical transports.
Despite Plaintiff’s arguments to the contrary, the Court should take judicial notice of the
Position Statement. As the Court is aware, courts may take judicial notice of official government
statements, determinations, opinions, and positions that are easily obtainable or publicly published.
See Weiner v. Cnty. of Essex, 262 N.J. Super. 270, 282 (Law. Div. 1992) (judicially noticing a
formal Attorney General Opinion because it had received supervisory approval and was published
and distributed to the bar and easily obtained but refusing to judicially notice informal opinion
because it was approved and published as an official formal opinion of the Attorney General).
Here, the Statement is an official document stating the State’s position on anti-chocking devices.
Further it is published on the State’s website. Ultimately, the Position Statement’s existence cannot
be disputed.
For these reasons, the Court can take judicial notice of the OEMS position statement.
17
CONCLUSION
For these reasons, Plaintiff’s Complaint fails to state a claim upon which relief can be
granted, thus warranting dismissal of Plaintiff’s Complaint.
Respectfully submitted,
_Bruce Rosen__________
Bruce Rosen, Esq.
Dated: May 22, 2023
18
PASHMAN STEIN WALDER HAYDEN, P.C.

Bruce S. Rosen (018351986)
Court Plaza South
21 Main Street – Suite 200
Hackensack, NJ 07601
(201) 488-8200
Attorneys for Defendants
States Newsroom, Inc. and Dana DiFilippo
LIFEVAC, LLC,
SUPERIOR COURT OF NEW JERSEY
Plaintiff, LAW DIVISION: MERCER COUNTY
v. Docket No.: MER-L-000049-23
STATES NEWSROOM, INC., d/b/as the New CERTIFICATION OF BRUCE S. ROSEN

Jersey Monitor, DANA DIFILIPPO, JOHN ESQ. IN FURTHER SUPPORT OF
DOES 1-10, and ABC CORPS 1-10, MOTION TO DISMISS COMPLAINT
PURSUANT TO RULE 4:6-2(e)
Defendants.
Bruce S. Rosen, Esq., of full age, hereby certifies:
1. I am a Partner at Pashman Stein Walder Hayden, P.C., attorneys for Defendants
States Newsroom, Inc., d/b/a the New Jersey Monitor and Dana DiFilippo (collectively
“Defendants”), and am fully familiar with the facts contained herein. I submit this certification in
further support of Defendants’ motion to dismiss Plaintiff’s Complaint pursuant to Rule 4:6-2(e).
2. Attached as Exhibit A is a true and accurate copy of the May 2, 2023 Statement
published by the Director of the New Jersey Department of Health Office of Emergency Medical
Services, which is also publicly available on the State of New Jersey’s website at
https://www.nj.gov/health/ems/documents/Anti_Choking_Device_Position_Statement.pdf. No
contrary unpublished opinions are known to counsel.
3. Attached as Exhibit B is a true and accurate copy of the opinion in L.C. v.
Middlesex Cnty. Prosecutor’s Off., No. A-3654-18, 2021 WL 1327169, at *22-23 (N.J App. Div.
Apr. 9, 2021), cert. denied, 250 N.J. 11 (2022), reconsideration denied, 250 N.J. 493, (2022). No
4. Attached as Exhibit C is a true and accurate copy of the opinion in O’Keefe v.
WDC Media, LLC, No. CIV. 13-6530 CCC, 2015 WL 1472410, at *4 (D.N.J. Mar. 30, 2015). No
5. Attached as Exhibit D is a true and accurate copy of the opinion in Newton v.
Newark Star-Ledger, No. A-3819-11T3, 2014 WL 3928500, at *4 (N.J. App. Div. Aug. 13, 2014).
No contrary unpublished opinions are known to counsel.
I hereby certify that the foregoing statements made by me are true. I am aware that if any
of the foregoing statements made by me are willfully false, I am subject to punishment.
/s/ Bruce Rosen

Bruce S. Rosen
Dated: May 22, 2023
EXHIBIT A
DEPA RTMENT OF HEALTH

OFFICE OF EMERGENCY MEDICAL SERVICES
PO BOX 360
PHILIP D. MURPHY TRENTON, N.J. 08625-0360
Governor
www.nj.gov/health
SHEILA Y. OLIVER JUDITH M. PERSICHILLI, RN, BSN, MA
Lt. Governor Commissioner
To: New Jersey EMS Community
From: Candace Gardner, Director, Office of Emergency Medical Services
Date: May 2, 2023
Subject: Anti-Choking Devices
The New Jersey Department of Health (Department) Office of Emergency Medical

Services (OEMS) recognizes that there are several devices marketed to be used in the case of
a foreign body airway obstruction (choking) in the community setting. Such devices include but
are not limited to, Lifevac® and Dechoker®.
After a detailed review of the aforementioned marketed products, OEMS was able to
make the following determinations:
• These devices are not approved by the United States Food and Drug Administration.
• Use of this type of device is not within the National EMS Scope of Practice for the
management of airway obstruction at any provider level.
• These types of devices are not endorsed for use by healthcare organizations, such as
the American Heart Association (AHA).
• There is currently insufficient research documenting safety and efficacy in the use of this
device (Dunne et al., 2020; Dunne, Osman, et al., 2022; Dunne, Queiroga, et al., 2022).
The Department is vested with the responsibility of carrying out the provisions of the
Health Care Facilities Planning Act, N.J.S.A. 26:2H-1 et seq., which was enacted, in part, to
ensure that hospital and related health care services rendered in New Jersey are of the highest
quality.
As defined at N.J.S.A. 26:2H-2b, health care services include pre-hospital Basic Life
Support (BLS) ambulance services and any pre-hospital care rendered by Advanced Life
Support (ALS) services. Furthermore, N.J.S.A. 26:2H5 grants the Commissioner of Health the
power to inquire into health care services and to conduct periodic inspections with respect to the
fitness and adequacy of the equipment and personnel employed by those services. As such, in
furtherance of each of the aforementioned statutory objectives, the Department adopted
regulations that govern the licensure and inspection of BLS and ALS service providers and their
vehicles. Those regulations are set forth in their entirety at N.J.A.C. 8:40, N.J.A.C. 8:41,
N.J.A.C. 8:41A, and N.J.A.C. 8:40A.
In conclusion, OEMS does not endorse, nor approve of the utilization of these devices
by pre-hospital health care providers (EMTs, paramedics, etc.) in pre-hospital settings or during
non-emergency medical transports. As such, OEMS continues to endorse that pre-hospital

providers follow AHA guidelines and the National EMS Scope of Practice for the management of
foreign body airway obstruction appropriate to their level of training.
References
Dechoker. (n.d.). Dechoker - choking airway clearing device. Retrieved March 8, 2023, from
https://www.dechoker.com/
Dunne, C. I., Peden, A. E., Queiroga, A. C., Gomez Gonzalez, C., Valesco, B., & Szpilman, D.
(2020). A systematic review on the effectiveness of anti-choking suction devices and
identification of research gaps. Resuscitation, 153, 219–226.
https://doi.org/10.1016/j.resuscitation.2020.02.021
Dunne, C. L., Osman, S., Viguers, K., Queiroga, A., Szpilman, D., & Peden, A. E. (2022). Phase
one of a global evaluation of suction-based airway clearance devices in foreign body
airway obstructions: A retrospective descriptive analysis. International Journal of
Environmental Research and Public Health, 19(7), 3846.
https://doi.org/10.3390/ijerph19073846
Dunne, C. L., Queiroga, C., Szpiman, D., Viguers, K., Osman, S., & Peden, A. E. (2022). A
protocol for the prospective evaluation of novel suction-based airway clearance devices
in the treatment of foreign body airway obstructions. Cureus.
https://doi.org/10.7759/cureus.20918
Food and Drug Administration. (n.d.). Devices@fda. U.S. Food and Drug Administration.
https://www.accessdata.fda.gov/scripts/cdrh/devicesatfda/index.cfm
Lifevac. (n.d.). Official site of lifevac. LifeVac. Retrieved March 8, 2023, from https://lifevac.net/
U.S. Department of Transportation National Highway Traffic Safety Administration. (2021,

August). National EMS Scope of Practice Model 2019: Including change notices 1.0 and
2.0 [PDF].
https://www.ems.gov/assets/National_EMS_Scope_of_Practice_Model_2019_Change_
Notices_1_and-
_www.ems.gov/assets/National_EMS_Scope_of_Practice_Model_2019_Change_Notice
s_1_and-_2_August_2021.pdf2_August_2021.pdf
2
EXHIBIT B
L.C. v. Middlesex County Prosecutor's Office, Not Reported in Atl. Rptr. (2021)
2021 WL 1327169
Mansukhani, LLP, attorneys; Keith J. Murphy, of counsel and

2021 WL 1327169 on the brief).
Only the Westlaw citation is currently available.
Meredith Kaplan Stoma argued the cause for respondents The
UNPUBLISHED OPINION. CHECK Busch Law Group, LLC, Jonathan Busch, and Ari Schneider
COURT RULES BEFORE CITING. (Lewis Brisbois Bisgaard & Smith, LLP, attorneys; Meredith
Kaplan Stoma and Jeffrey S. Leonard, on the brief).
Superior Court of New Jersey, Appellate Division.
Michael A. Pattanite, Jr., argued the cause for respondent
1
L.C. , Plaintiff-Appellant, Teresa Rafferty (Lenox Law Firm, attorneys; Michael A.
Pattanite, Jr., on the brief).
v.
MIDDLESEX COUNTY PROSECUTOR'S OFFICE, Before Judges Haas and Mawla.
County of Middlesex, New Jersey, Borough of Sayreville,
New Jersey, Andrew Carey, Prosecutor, Middlesex Opinion
County Prosecutor's Office, Christopher Kuberiet,
PER CURIAM
1st Asst. Prosecutor, Middlesex County Prosecutor's
Office, Detective David Abromaitis, Investigator/ *1 Plaintiff L.C. appeals from October 5, 2017, July 23,
Detective, Middlesex County Prosecutor's Office, 2018, and March 15, 2019 orders dismissing his complaint
Sayreville Board of Education (BOE), Dr. Richard for failure to state a claim and a February 23, 2018 order
Labbe, Superintendent, Sayreville Schools (BOE), denying reconsideration of the October 5, 2017 order. He also
challenges a March 28, 2017 order transferring venue and an
Michael Macagnone, President, Sayreville Board of
April 28, 2017 order denying reconsideration of the venue
Education (BOE), The Busch Law Group, Jonathan
transfer.
Busch, attorney for the Sayreville Board of Education
(BOE), Ari Schneider, attorney for the Sayreville Board This matter arises from numerous incidents which occurred
of Education (BOE), Teresa Rafferty, Piscataway in the Sayreville War Memorial High School (SHS) locker
Superintendent of Schools, Defendants-Respondents. room in September 2014, involving plaintiff and several other
juvenile members of the SHS football team regarding the
DOCKET NO. A-3654-18 alleged sexual assault of another juvenile. The Middlesex
| County Prosecutor's Office (MCPO) investigated the incident
Argued March 16, 2021 and charged plaintiff, then a juvenile, with offenses, which
| if committed by an adult, would constitute conspiracy
Decided April 9, 2021 to commit aggravated criminal sexual contact, aggravated
assault, hazing, riot, and criminal restraint. Several other
On appeal from the Superior Court of New Jersey, Law
juveniles on the SHS football team were also charged. MCPO
Division, Monmouth County, Docket No. L-1292-17.
Detective David Abromaitis signed the complaint.
Attorneys and Law Firms
Following the filing of the juvenile complaint and based
Kevin T. Flood argued the cause for appellant (Kevin T. Flood on the allegations contained in the arrest warrant, SHS
and Paul DePetris, on the briefs). suspended plaintiff for violating the Sayreville Board of
Education's (SBOE) code of conduct. The day after plaintiff's
Elisa M. Pagano argued the cause for respondents
suspension, his parents received notice of a disciplinary
Andrew Carey, Christopher Kuberiet, and Detective David
hearing regarding his suspension from the SBOE pursuant to
Abromaitis (Chiesa Shahinian & Giantomasi, PC, attorneys;
N.J.A.C. 6A:16-7.3. On October 21, 2014, plaintiff's counsel
Matthew E. Beck, Elisa M. Pagano, and Chelsea P. Jasnoff,
informed SBOE plaintiff waived the time requirement set
on the brief).
forth in N.J.A.C. 6A:16-7.3(a)(10)(iii), which requires the
Keith J. Murphy argued the cause for respondents Dr. SBOE to hold a hearing no later than thirty days following the
Richard Labbe and Michael Macagnone (Gordon Rees Scully suspension. As a result, the SBOE adjourned the disciplinary
© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1

2021 WL 1327169
hearing until after the final disposition of the juvenile

delinquency matter. Middlesex County Prosecutor Andrew C. Carey announced
today that six of seven teenagers charged with sexually
In October 2014, Abromaitis and First Assistant Prosecutor assaulting and/or abusing four other teammates at [SHS]
Christopher Kuberiet disclosed the records of the charged have been placed on probationary terms and ordered to
juveniles, including plaintiff, to SBOE's attorneys, Jonathan each serve [fifty] hours of community service, but will
Busch and the Busch Law Group (collectively, the Busch avoid being labeled as Megan's Law sex offenders.
defendants). The Busch defendants thereafter disclosed the
The sentences were imposed in New Brunswick by
records to Dr. Richard Labbe, superintendent of Sayreville
a Family Court judge after four of the six football
schools, and Michael Macagnone, president of the SBOE
players pleaded guilty in Family Court to charges of
(collectively, the SBOE defendants).
committing a disorderly persons offense of hazing, and
third degree endangering the welfare of their younger
In April 2015, the MCPO filed a second complaint charging
fellow teammates. Each of those four defendants was
plaintiff with four additional acts of delinquency relating to
placed on probation for two years.
the original incident. Abromaitis signed the complaint.
The two others were placed on one-year probationary terms
On July 1, 2015, plaintiff was adjudicated of offenses, which after they were adjudicated delinquent following a trial in
if committed by an adult, would constitute criminal restraint, Family Court. A seventh juvenile defendant is awaiting a
simple assault, and disorderly conduct, and acquitted of the trial in Family Court. No trial date has been set.
remaining offenses. Following a motion for reconsideration,
the Family Part judge acquitted plaintiff of criminal restraint Prosecutor Carey said that while these juveniles were
on August 7, 2015. In August 2016, the court dismissed the charged with serious sexual offenses, the cases were
adjudications for simple assault and disorderly conduct. resolved in accordance with juvenile laws and in the best
interests of the juvenile defendants, the victims and their
In the interim, on July 13, 2015, plaintiff, his parents, and families. As part of the plea agreements, the [MCPO]
his counsel met with Labbe, Busch, and Schneider regarding did not pursue the imposition of mandatory sex offender
his return to SHS following his suspension. According to registration required under Megan's Law.
plaintiff's complaint, Labbe, Busch, and Schneider stated they
“As was previously disclosed, the [MCPO] determined
would do everything in their power to prevent his return, and
that the defendants would not be tried as adults and that
Busch suggested plaintiff transfer out of SHS, advising him
the Middlesex County Family Court remains the proper
that several of the other juveniles charged already accepted
venue for these cases,” Prosecutor Carey said. “While the
offers of transfer. Plaintiff's parents demanded a hearing and
Code of Juvenile Justice provides confidentiality for the
the meeting ended.
protection of juveniles, that confidentiality, unfortunately,
allows for certain individuals to unscrupulously mislead
*2 SBOE notified plaintiff his disciplinary hearing had been
the public as to what occurred at the school and during
rescheduled for August 31, 2015. Prior to the hearing, SBOE
juvenile proceedings.”
filed an emergent application requesting permission to use
the audio recordings from plaintiff's juvenile delinquency ....
proceeding at the disciplinary hearing, which the Family Part
judge denied. “The facts that were alleged by the [MCPO] at the
beginning of this case have clearly been proven in a court
On August 31, 2015, the MCPO issued a “News Release” of law. The community of Sayreville needs to know that
relating to the four incidents of misconduct at SHS, between these serious crimes occurred, and now must work together
September 9 and September 30, 2014. The release read as to heal. I thank those who went to extraordinary lengths
follows: throughout the proceedings to protect the rights of the
victims, the juvenile delinquents, and the families of those
[News Release,] Sayreville football sex abuse investigation involved,” Prosecutor Carey said.
drawing to a close [(Aug. 31, 2015)]

2021 WL 1327169
played roles in the attacks upon their fellow teammates

The four juvenile defendants who have pleaded guilty have in four separate incidents at the high school between
been ordered to provide truthful testimony against their co- September 19, 2014 and September 30, 2014.
defendants, and were ordered to have no contact with the
victims. During the initial appearances, each time the seven juvenile
defendants were taken into Family Court, their identities
In addition, one of them was placed on curfew while were protected by authorities who transported them in
serving his two year probationary term. undercover vehicles and brought them into court through
security entrances that are outside the public view.
As part of the plea agreements, the [MCPO] did not insist
on having these juvenile defendants registered as Megan's The juvenile defendants were charged during an
Law offenders. The decision was reached after the [MCPO] investigation by the [MCPO].
obtained input from the victims and their families.
The first incident occurred on September 19, 2014, when
The two other juvenile defendants who were adjudicated a [seventeen]-year-old juvenile defendant “body slammed”
delinquent on July 1, 2015, stood trial in a closed Family a [fifteen]-year-old victim to the floor and pretended to
Court trial. Both of them were placed on probation for one stomp and kick the victim, exposing him to bodily injury.
year and were ordered to serve [fifty] hours of community
service. On September 26, 2014, the same [seventeen]-year-old
defendant, along with the two who were adjudicated
*3 During the trial, the high school principal testified as delinquent following the trial, and another [sixteen]-year-
a character witness for both of the juvenile defendants, old male who is awaiting trial, took part in an attack of a
despite having no personal knowledge of the assaults and [fourteen]-year-old boy.
abuses that occurred in the high school locker room.
The victim also was forcibly knocked to the floor. One
One of the trial defendants was deemed delinquent on defendant held the victim, while at least two of the other
charges of a disorderly persons simple assault, disorderly defendants grabbed his penis and attempted to digitally
conduct, hindering his own apprehension by lying to penetrate his anus. Two to five other students, who could
police and hindering the apprehension of his co-defendants not be identified by the victim, surrounded him during the
by lying to police. He also was found delinquent on sexual assault.
counts of obstruction and false swearing. The majority of
the offenses would have been considered fourth degree ....
indictable offenses, if they had been committed by an adult.
Further investigation showed that on September 29, 2014,
.... three [fifteen]-year-old defendants were charged with
sexually assaulting a [fourteen]-year-old boy, whose anus
The other juvenile tried in Family Court was found was digitally penetrated through his clothing by one of the
delinquent on a disorderly persons simple assault charge, defendants, while the other two held the victim down. All
and a petty disorderly persons count of engaging in three defendants have pleaded guilty and admitted to the
disorderly conduct for his role in the hazing and sexual penetration.
conduct.
The final incident occurred on September 30, 2014,
Initially, the Family Court judge had adjudicated them both when the [fifteen]-year-old male charged with the digital
delinquent of criminal restraint. Following a motion by penetration on the previous day, swiped his fingers between
the defense to reconsider the decision, and without the the buttocks of a [fourteen]-year-old boy. The defendant
receipt of any additional testimony, the judge reversed his also pleaded guilty to the lesser charges in that sexual
own findings of fact, and instead found them not guilty assault.
of criminal restraint, thus sparing them from mandatory
registration as Megan's Law offenders. *4 On September 1, 2015, plaintiff filed a petition and
motion for emergent relief with the Commissioner of
The seven juvenile defendants were taken into custody in
Education, seeking dismissal of SBOE's disciplinary charges
October 2014, after the investigation determined they each

2021 WL 1327169
and reinstatement to SHS. The application was transferred By letter dated November 3, 2015, plaintiff's counsel advised
to the Office of Administrative Law (OAL) for adjudication the Family Part judge plaintiff no longer intended to return
by an administrative law judge (ALJ). On September 10, to SHS, and withdrew the request for a disciplinary hearing.
2015, the ALJ issued a written decision denying plaintiff's On November 8, 2015, plaintiff's counsel again wrote to the
application. The judge also ordered SBOE to hold plaintiff's judge reiterating his position the court did not need to conduct
disciplinary hearing by September 16, 2015. The SBOE the remand proceedings to determine if there was good cause
scheduled a hearing for that date. to release plaintiff's records.
On September 3, 2015, the SBOE filed a motion in the Family On November 9, 2015, SBOE's counsel wrote to the judge
Part for leave to admit a portion of MCPO's investigation file with concerns plaintiff would not concede he waived his
at the disciplinary hearing and to introduce testimony from right to a disciplinary hearing and accepted the discipline
Abromaitis relating to his investigation of the underlying imposed by SBOE. SBOE's counsel also voiced concern
incident. The day before plaintiff's disciplinary hearing, plaintiff would later file a civil suit arguing SBOE deprived
the Family Part judge denied SBOE's motion to admit him of a disciplinary hearing or SBOE's disciplinary decision
MCPO's investigation file but permitted the introduction of was arbitrary. MCPO joined SBOE's position.
Abromaitis's testimony limited to matters within his personal
knowledge, not the investigation file. The judge stayed The Family Part judge sought clarification from us as to
plaintiff's disciplinary hearing pending appeal. On September whether a decision on the remand issue was necessary.
15, 2015, SBOE advised plaintiff his disciplinary hearing was We advised the remand hearing was not mandatory,
canceled pending an appeal of the judge's order. unless plaintiff's counsel indicated in writing he required
a determination in order to further litigate the matter. On
On September 17, 2015, we granted plaintiff's application December 7, 2015, plaintiff's counsel sent a letter to the OAL
for leave to appeal, which sought to vacate the stay of the waiving the hearing, stating the matter was moot.
disciplinary hearing. However, pending appeal, plaintiff's
parents transferred custody of him to a family member *5 On January 20, 2017, plaintiff filed a complaint in
residing in Piscataway so plaintiff could attend Piscataway the Law Division against the MCPO, Prosecutor Andrew
High School (PHS) for his senior year, where plaintiff Carey, Kuberiet, and Abromaitis (collectively, the MCPO
wished to play football. SBOE signed waiver forms to defendants); the Busch defendants; the SBOE defendants;
permit the other SHS students involved in the incident, Rafferty; the Borough of Sayreville; and County of
all of whom entered pleas in their juvenile matters and Middlesex. On February 16, 2017, plaintiff filed a first
transferred from SHS, to participate on their new high school amended complaint alleging the following counts: violations
football teams. Although SBOE initially indicated it would of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2
sign a waiver form for plaintiff, it subsequently refused to (NJCRA) (count one); violation of the Juvenile Justice Code,
do so. Piscataway Schools Superintendent Teresa Rafferty N.J.S.A. 2A:4A-20 to -92 (count two); malicious prosecution
permitted plaintiff to enroll at PHS, but precluded him from (count three); abuse of process (count four); negligent
participating in athletics because his juvenile adjudications supervision/respondent superior (count five); defamation-
and participation on the team could endanger PHS's New libel (count six); defamation-slander (count seven); invasion
Jersey State Interscholastic Athletic Association (NJSIAA) of privacy-false light (count eight); negligence (count nine);
eligibility. intentional negligent infliction of emotional distress (IIED)
(count ten); negligent infliction of emotional distress (count
On October 20, 2015, we denied plaintiff's motion to vacate eleven); civil conspiracy (count twelve); punitive damages
the stay and reversed and remanded the part of the Family (count thirteen); and invasion of privacy (counts fourteen and
Part judge's order holding SBOE was not entitled to the fifteen).
records from plaintiff's juvenile delinquency proceedings.
We instructed the judge to determine whether good cause On March 28, 2017, the Middlesex Vicinage Assignment
Judge sua sponte transferred venue to Monmouth Vicinage
existed to release plaintiff's records pursuant to N.J.S.A.
pursuant to Rule 4:3-3(a), in order to “avoid all appearance
2A:4A-60(a)(6).
of any perceived conflict.” Plaintiff filed a motion
for reconsideration, which the Assignment Judge denied

2021 WL 1327169
following oral argument on April 28, 2017. The judge 4:6-2(e). The court made detailed oral findings and entered
reasoned the prosecutors’ regular appearances before the an order granting defendants’ motions dismissing the second
judges in Middlesex Vicinage, the interests of justice, and amended complaint with prejudice on July 23, 2018.
to avoid any appearance of impropriety or perceived conflict
necessitated the transfer. *6 In October 2018, Rafferty moved to dismiss the claims
against her set forth in the second amended complaint
In May 2017, the Busch defendants, MCPO defendants, pursuant to Rule 4:6-2(e). On March 15, 2019, the court made
SBOE defendants, Borough of Sayreville, and Middlesex detailed oral findings and granted the motion, dismissing the
County filed motions to dismiss the first amended complaint claims against Rafferty with prejudice.
pursuant to Rule 4:6-2(e) for failure to state a claim upon
which relief can be granted. On October 5, 2017, the court Plaintiff raises the following points on appeal:
entered an order dismissing several counts by consent against
each defendant and adjudicating dismissal of claims against I. THE TRIAL COURT ERRED BY DISMISSING
the Borough and the County; we address the dismissals VIOLATIONS OF THE [NJCRA] AS TO
related to the parties involved in this appeal. As to the SBOE SUBSTANTIVE DUE PROCESS.
and MCPO defendants, the court dismissed the NJCRA
A. The CRA Generally.
equal protection claim in count one without prejudice, as
well as counts six and seven, and dismissed the NJCRA B. The SBOE Defendants And Busch Defendants Acted
substantive due process claim in counts one, four, eight, ten, Under Color of Law
twelve, thirteen, and fifteen with prejudice. As to the Busch
defendants, the court dismissed counts six and seven without C. The Trial Court Erred By Applying Waiver
prejudice and dismissed counts one, two, four, five, and eight
D. Exhaustion Of Administrative Remedies Is No
through thirteen with prejudice.
Defense
The court also granted plaintiff leave to file a second amended E. The Litigation Privilege Is No Defense
complaint “to allege sufficient facts ... to pursue civil rights
claims against the [SBOE] ... [and] the [MCPO] defendants on F. Kuberiet And Carey Aren't Entitled To Absolute
the basis of violation of equal protection rights” and to further Immunity As They Were Acting In Their Administrative
address the counts which were dismissed without prejudice, Capacities When They Violated Plaintiff's Constitutional
including those against the Busch defendants. Plaintiff filed Rights
a motion for reconsideration, which the court denied on
February 23, 2018, following a two-day oral argument. G. Qualified Immunity Can't Be Decided Yet
Contrary to plaintiff's arguments, the court concluded it made
H. Qualified Immunity Doesn't Bar Declaratory And
adequate findings in support of its October 2017 order and
Injunctive Relief [Not Raised Below As To All
plaintiff's disagreement with the decision was not grounds
Defendants]
for reconsideration. The court granted plaintiff leave to file a
second amended complaint. II. THE TRIAL COURT ERRED BY DISMISSING
VIOLATIONS OF THE [NJCRA] AS TO EQUAL
On April 2, 2018, plaintiff filed a second amended complaint, PROTECTION
restating the original fifteen counts 2 , and adding eight
additional counts including a cause of action under NJCRA III. THE TRIAL COURT ERRED BY DISMISSING
pled with greater specificity against the SBOE and MCPO VIOLATIONS OF THE [FCRA] (PRIVACY,
defendants (count sixteen), and additional claims alleging PROCEDURAL AND SUBSTANTIVE DUE PROCESS)
FOR IMPROPERLY LABELING PLAINTIFF A SEX
violations of the Federal Civil Rights Act (FCRA), 42 OFFENDER WITH PREJUDICE
U.S.C. § 1983 against the SBOE, MCPO, and Busch
defendants (counts seventeen through twenty-two) and IV. THE TRIAL COURT ERRED BY DISMISSING
Rafferty (count twenty-three). The MCPO defendants, Busch VIOLATIONS OF THE [FCRA] (PROCEDURAL
defendants, SBOE defendants, Borough, and County moved DUE PROCESS) FOR IMPROPERLY DISCLOSING
to dismiss the second amended complaint pursuant to Rule JUVENILE RECORDS

2021 WL 1327169
Rieder v. State Dep't of Transp., 221 N.J. Super. 547, 552, 535
V. THE TRIAL COURT ERRED BY A.2d 512 (App. Div. 1987)).
DISMISSING RAFFERTY ALLEGING VIOLATIONS
OF THE [FCRA] (PRIVACY, PROCEDURAL AND “In evaluating motions to dismiss, courts consider
SUBSTANTIVE DUE PROCESS) FOR IMPROPERLY ‘allegations in the complaint, exhibits attached to the
USING PAST JUVENILE ADJUDICATIONS complaint, matters of public record, and documents that form
OF PLAINTIFF TO DISCRIMINATE AGAINST
PLAINTIFF the basis of a claim.’ ” Banco Popular N. Am. v. Gandi,
184 N.J. 161, 183, 876 A.2d 253 (2005) (quoting Lum v.
VI. THE TRIAL COURT ERRED BY
Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir. 2004)). The
DISMISSING RAFFERTY ALLEGING VIOLATIONS
inquiry is limited to examining the legal sufficiency of the
OF THE [FCRA] (PRIVACY, PROCEDURAL AND
facts alleged only on the face of the complaint; neither the
SUBSTANTIVE DUE PROCESS) FOR IMPROPERLY
trial nor appellate court is concerned with the weight, worth,
USING PAST JUVENILE ADJUDICATIONS
OF PLAINTIFF TO DISCRIMINATE AGAINST nature, or extent of the evidence. Dolson v. Anastasia, 55
PLAINTIFF N.J. 2, 5-6, 258 A.2d 706 (1969).
VII. THE TRIAL COURT ERRED BY DISMISSING *7 A “with-prejudice” dismissal of a plaintiff's complaint
CIVIL CONSPIRACY will be reversed if it is “premature, overbroad, ... [or] based
on a mistaken application of the law.” Flinn v. Amboy Nat'l
VIII. THE TRIAL COURT ERRED BY DISMISSING Bank, 436 N.J. Super. 274, 287, 93 A.3d 422 (App. Div.
DEFAMATION (LIBEL AND SLANDER) AGAINST 2014). When we review a trial court's ruling dismissing claims
KUBERIET AND CAREY against a party under Rule 4:6-2(e), we apply a plenary
standard of review which owes no deference to the trial court's
A. Defamation Generally
conclusions. Bacon v. N.J. State Dep't of Educ., 443 N.J.
B. Plaintiff Was a Private Person And Plaintiff [Should] Super. 24, 33, 126 A.3d 1244 (App. Div. 2015).
Be Afforded The Opportunity To Conduct Discovery To
Prove Those Claims “Motions for reconsideration are granted only under very
narrow circumstances ....” Fusco v. Bd. of Educ. of
C. The Defamation Claims Were Sufficiently Pled
Newark, 349 N.J. Super. 455, 462, 793 A.2d 856 (App.
Against Kuberiet And Carey
Div. 2002). Reconsideration should be used only for those
IX. THE TRIAL COURT ERRED BY TRANSFERRING cases where “either (1) the [c]ourt has expressed its decision
THE CASE FROM MIDDLESEX COUNTY TO based upon a palpably incorrect or irrational basis, or (2)
MONMOUTH COUNTY it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent
evidence.” Ibid. (quoting D'Atria v. D'Atria, 242 N.J.
I. Super. 392, 401, 576 A.2d 957 (Ch. Div. 1990)). We review
the trial court's denial of reconsideration for an abuse of
“A motion to dismiss under Rule 4:6-2(e) requires application
discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389,
of ‘the test for determining the adequacy of a pleading:
685 A.2d 60 (App. Div. 1996).
whether a cause of action is “suggested” by the facts.’ ”
Gonzalez v. State Apportionment Comm'n, 428 N.J. Super.
333, 349, 53 A.3d 1230 (App. Div. 2012) (quoting Printing
II.
Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746,
563 A.2d 31 (1989)). “A complaint should be dismissed for In points I and II, plaintiff contends that the trial court erred by
failure to state a claim pursuant to Rule 4:6-2(e) only if ‘the dismissing his substantive due process and equal protection
factual allegations are palpably insufficient to support a claim claims brought pursuant to the NJCRA.
upon which relief can be granted.’ ” Frederick v. Smith, 416
N.J. Super. 594, 597, 7 A.3d 780 (App. Div. 2010) (quoting

2021 WL 1327169
Regarding the substantive due process claims, plaintiff *8 We also reject plaintiff's argument a NJCRA claim was
argues: (1) the SBOE and Busch defendants acted under viable against the SBOE and Busch defendants because they
color of state law; (2) waiver did not bar his claim; (3) the were acting under color of law. Private actions under the
exhaustion of administrative remedies was not a defense to his NJCRA for violation of an individual's substantive rights only
claim; (4) the litigation privilege did not apply; (5) Kuberiet
lie against persons acting under “color of law,” N.J.S.A.
and Carey were not entitled to prosecutorial immunity; and
10:6-2(c), meaning the exercise of power “possessed by virtue
(6) for the first time on appeal asserts qualified immunity does
of state law and made possible only because the wrongdoer
not bar declaratory and injunctive relief as to all defendants.
We address these arguments in turn. is clothed with the authority of state law.” Polk Cnty. v.
Dodson, 454 U.S. 312, 317-18, 102 S.Ct. 445, 70 L.Ed.2d
A plaintiff asserting a claim pursuant to the NJCRA, must 509 (1981) (quoting United States v. Classic, 313 U.S.
allege: (1) the constitution or law of this state conferred on 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). “A private
him a substantive right; (2) defendants deprived him of that actor may be deemed to have acted under color of state law
right or interfered with that right by threats, intimidation or only where his or her conduct is ‘fairly attributable to the
coercion; and (3) the defendants were acting under color of state.’ ” Poling v. K. Hovnanian Enters., 99 F. Supp. 2d 502,
law when they did so. Tumpson v. Farina, 218 N.J. 450, 513 (D.N.J. 2000) (quoting Rendell-Baker v. Kohn, 457
473, 95 A.3d 210 (2014) (quoting N.J.S.A. 10:6-2(c)). U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)). The
“relevant question” is not simply whether a private person or
At the outset, we note plaintiff's brief does not identify group is serving a “public function,” but whether the function
any substantive rights violated by defendants. Generally, performed has been “traditionally the exclusive prerogative of
“[t]he failure to adequately brief the issues requires it the State.” Rendell-Baker, 457 U.S. at 842, 102 S.Ct. 2764
to be dismissed as waived.” Weiss v. Cedar Park (emphasis omitted) (quoting Jackson v. Metro. Edison Co.,
Cemetery, 240 N.J. Super. 86, 102, 572 A.2d 662 (App. Div. 419 U.S. 345, 353, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)).
1990). Notwithstanding, we presume plaintiff's substantive Thus, the fact that “a private entity performs a function which
due process claims are based on the fact his suspension
deprived him of the opportunity to play football. However, serves the public does not make its acts state action.” Ibid.
participation in extracurricular activities, such as athletics,
Concluding the Busch defendants did not act under color of
is a privilege, not a protected interest. See Todd v. Rush law, the trial court stated:
Cnty. Sch., 133 F.3d 984, 986 (7th Cir.) (observing that
extracurricular activities, like athletics, are a privilege), cert. Set forth in the complaint, the Busch defendants were
denied, 525 U.S. 824, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998). contracted to provide legal services to the [SBOE], which
is a private function not performed by the State.
Furthermore, to the extent plaintiff's claims are based on the
argument he was deprived of a timely disciplinary hearing The actions alleged by plaintiff were conducted by the
and his juvenile records were disclosed without prior court Busch defendants during the course of their representation
of the [SBOE]. And no factual basis has been presented
approval in violation of N.J.S.A. 2A:4A-60, which states to attribute to the Busch defendants’ actions which were
the records of “juveniles charged as a delinquent ... shall be performed by the State.
strictly safeguarded from public inspection[,]” such claims
are procedural in nature and not cognizable under the NJCRA. We discern no reversible error. We have stated: “It is clear
See Coles v. Carlini, 162 F. Supp. 3d 380, 402 (D.N.J. that an attorney acts as an agent for his client,” Hewitt v.
2015) (finding NJCRA does not provide for vindication Allen Canning Co., 321 N.J. Super. 178, 184, 728 A.2d 319
of procedural due process rights, only substantive rights); (App. Div. 1999), but a “lawyer, although required to work for
Tumpson, 218 N.J. at 478, 95 A.3d 210 (to recover under the client's benefit, has considerable independence in doing
NJCRA, plaintiffs must show the right allegedly violated was so.” Cohen v. Southbridge Park, Inc., 369 N.J. Super. 156,
substantive, not procedural). 161, 848 A.2d 781 (App. Div. 2004) (quoting Restatement
(Third) of The Law Governing Lawyers, Introductory Note

2021 WL 1327169
to Chapter 2, The Client–Lawyer Relationship (2000)). Thus,

“attorneys are also independent contractors as well as agents.” *9 The [SBOE] and the [MCPO] defendants took issue
with the contention, and sought a ruling on the issue of
Ibid. (quoting McCarthy v. Recordex Serv., Inc., 80 whether plaintiff waived his right to a disciplinary hearing.
F.3d 842, 853 (3d Cir.), cert. denied, 519 U.S. 825, 117 S.Ct.
86, 136 L.Ed.2d 42 (1996)). Therefore, the Busch defendants When plaintiff failed to inform the [c]ourt in writing he
were neither state actors nor acting “under color of law” intended to litigate the matter further, as was ordered by the
Appellate Division, plaintiff effectively waived his right to
because they represented a public entity. Polk Cnty., 454
continue to litigate.
U.S. at 318, 102 S.Ct. 445.
Plaintiff further withdrew his petition before the
We also reject plaintiff's argument the trial court's finding Commissioner wherein he sought dismissal of the
he waived his claims was error. Waiver is the voluntary disciplinary charges, and demanded reinstatement at
and intentional relinquishment of a known right. Knorr v. [SHS], thus failing to exhaust his statutory administrative
remedies prior to filing this case.
Smeal, 178 N.J. 169, 177, 836 A.2d 794 (2003). In Knorr,
the New Jersey Supreme Court explained: Therefore, as plaintiff was clearly provided the opportunity
for a hearing, and informed that he had a right to continue
An effective waiver requires a party to have full knowledge
with the litigation, and chose not to proceed, plaintiff has
of his legal rights and intent to surrender those rights. The
not only failed to allege any viable claim, but cannot now
intent to waive need not be stated expressly, provided the
attempt to re-litigate a challenge to a suspension claiming
circumstances clearly show that the party knew of the right
the [SBOE] violated his rights to a thorough and efficient
and then abandoned it, either by design or indifference.
system of education.
The party waiving a known right must do so clearly,
unequivocally, and decisively. ....
[ Ibid. (citations omitted).] ... [T]he precise issue regarding disclosure of the
records and whether good cause existed for ... the
In holding plaintiff waived his substantive due process claim, [SBOE] defendants to possess the records, was previously
the court stated: remanded by the Appellate Division for a determination by
the [t]rial [c]ourt in the plaintiff's juvenile case.
Plaintiff ... fails to account for the fact that he was
afforded a hearing and had a full opportunity to litigate the Plaintiff informed the [c]ourt the issue was moot, and he
issues raised against the [SBOE] defendants regarding his had no intent further of litigating the matter.
school discipline. N.J.S.A. 18A:37-5 grants the [SBOE] the
Additionally, plaintiff fails to realize that when an
authority to impose a long-term suspension or expulsion.
allegation as serious as sexual misconduct in a school
There is no dispute the [SBOE] followed the processes locker room arises and criminal charges are brought,
enumerated in N.J.A.C. 6A:16-7.3(a), et seq, and afforded the [MCPO] defendants are entitled to all of plaintiff's
plaintiff a formal hearing on the proposed discipline. disciplinary records.
However, the proceedings were originally stayed at The trial court did not err. A Board of Education has the
plaintiff's request pending the outcome of the juvenile authority to suspend or expel a pupil. N.J.S.A. 18A:37-5.
proceedings .... In each instance of a long-term suspension, the Board
must hold a hearing on the proposed discipline and render
The Appellate Division later remanded the matter back to a decision. N.J.A.C. 6A:16-7.3(a). The decision of the
the [t]rial [c]ourt ... [and o]n remand, plaintiff requested the Board may then be appealed to the Commissioner of
[t]rial [c]ourt not issue a ruling on the good cause standard Education. N.J.A.C. 6A:16-7.3(b); N.J.S.A. 18A:37-2.4. The
on the basis that the issue was moot because plaintiff no Commissioner makes the final agency decision, which may
longer intended to return to ... [SHS], and therefore no then be subject to appellate review. N.J.S.A. 18A:6-9.1.
longer desired to have a disciplinary hearing to challenge
his suspension.

2021 WL 1327169
It is undisputed plaintiff was provided the opportunity to

challenge his suspension at a disciplinary hearing pursuant [ Atl. City v. Laezza, 80 N.J. 255, 265, 403 A.2d 465
to N.J.A.C. 6A:16-7.3(a). At plaintiff's request, the hearing (1979).]
was deferred until after the juvenile delinquency proceedings
concluded. Thereafter, plaintiff's counsel advised the trial However, “[t]he exhaustion doctrine is not an absolute.”
court the disciplinary matter was moot because plaintiff no
Garrow, 79 N.J. at 561, 401 A.2d 533. “Exceptions exist
longer intended to return to SHS or challenge his suspension.
when only a question of law need be resolved; when the
Plaintiff's actions constituted an unequivocal waiver.
administrative remedies would be futile; when irreparable
harm would result; when jurisdiction of the agency is
Plaintiff contends the court's finding he failed to
doubtful; or when an overriding public interest calls for a
exhaust his administrative remedies was erroneous because
“[a]dministrative courts [do] not have jurisdiction to hear the prompt judicial decision.” Ibid. (citations omitted).
issue regarding access to, and/or disclosure of ... juvenile
records of law enforcement.” He also argues “[a]dministrative The Commissioner of Education has “plenary” authority
[c]ourts do NOT have jurisdiction to award attorney fees
over education-related matters, Archway Programs, Inc.
or monetary damages and therefore it was impossible for
v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 424,
[p]laintiff to exhaust his administrative remedies regarding
800 A.2d 237 (App. Div. 2002), and “fundamental and
his civil cause of action.” Furthermore, he argues “[b]y the
indispensable jurisdiction over all disputes and controversies
time the Appellate Division rendered its decision, the football
arising under the school laws,” Hinfey v. Matawan Reg'l Bd.
season was over, making any attempt of seeking redress for
of Educ., 77 N.J. 514, 525, 391 A.2d 899 (1978). N.J.S.A.
returning to play football through the administrative courts
18A:6-9 states: “The commissioner shall have jurisdiction
futile.”
to hear and determine, without cost to the parties, all
controversies and disputes arising under the school laws,
*10 “[T]he exhaustion of remedies requirement is a rule of
excepting those governing higher education, or under the
practice designed to allow administrative bodies to perform
rules of the State board or of the commissioner.” The
their statutory functions in an orderly manner without
Commissioner's jurisdiction includes the power to resolve
preliminary interference from the courts.” Brunetti v. issues implicating constitutional claims. Desilets v. Clearview
Borough of New Milford, 68 N.J. 576, 588, 350 A.2d Reg'l Bd. of Educ., 137 N.J. 585, 595-96, 647 A.2d
19 (1975). “Exhaustion of administrative remedies before 150 (1994). “[W]ith respect to school-law controversies,
resort to the courts is a firmly embedded judicial principle. particularly where a local board's decision is challenged, it
This principle requires exhausting available procedures, that is the exhaustion of remedies doctrine which requires first
is, ‘pursuing them to their appropriate conclusion and,
resort to the administrative process.” Theodore v. Dover
correlatively ... awaiting their final outcome before seeking
Bd. of Educ., 183 N.J. Super. 407, 414, 444 A.2d 60 (App.
judicial intervention.’ ” Garrow v. Elizabeth Gen. Hosp. Div. 1982).
& Dispensary, 79 N.J. 549, 558-59, 401 A.2d 533 (1979)
(second alteration in original) (citations omitted) (quoting Plaintiff was required to exhaust his administrative remedies
prior to instituting the Law Division action. He commenced,
Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752,
but then withdrew from the administrative dispute resolution
767, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947)). Our Supreme
process, advising the issue was moot. As the trial court
Court has explained
correctly determined, plaintiff's actions prevented a proper
the doctrine of exhaustion of administrative remedies resolution of his challenge to the disciplinary action. We find
serves three primary goals: (1) the rule ensures that no error in the decision to dismiss his complaint accordingly.
claims will be heard, as a preliminary matter, by a
body possessing expertise in the area; (2) administrative Plaintiff contends the court erred by finding the SBOE
exhaustion allows the parties to create a factual record defendants were protected under the litigation privilege.
necessary for meaningful appellate review; and (3) the He argues the privilege did not apply because “[t]he
agency decision may satisfy the parties and thus obviate SBOE, Labbe[,] and Macagnone were[ not] litigants or
resort to the courts. other participants authorized by law at [p]laintiff's juvenile

2021 WL 1327169
delinquency trial.” He contends he “has a procedural due Super. 126, 134, 966 A.2d 1091 (App. Div. 2009) (quoting
process right to not hav[e] the records disclosed without first
Hawkins, 141 N.J. at 215, 661 A.2d 284).
being heard by a court of law or at a minimum, seeking
permission from his parents.”
Plaintiff's arguments are unpersuasive. It is evident, as the
trial court concluded, the statements made by the SBOE
*11 The litigation privilege generally protects attorneys and
defendants, and the evidence disclosed by them, was in
litigants “from civil liability arising from words ... uttered
anticipation of, and preparation for, plaintiff's disciplinary
in the course of judicial proceedings.” Loigman v. Twp.
Comm. of Middletown, 185 N.J. 566, 579, 889 A.2d 426 hearing, which was a quasi-judicial proceeding. See Pa.
R.R. Co. v. N.J. State Aviation Comm'n, 2 N.J. 64, 70, 65
(2006). See also Ruberton v. Gabage, 280 N.J. Super.
A.2d 61 (1949) (“Where the administrative tribunal is under
125, 132, 654 A.2d 1002 (App. Div. 1995) (“A statement
a duty to consider evidence and apply the law to the facts as
made in the course of judicial, administrative or legislative
found, thus requiring the exercise of a discretion or judgment
proceedings is absolutely privileged and wholly immune from
judicial in nature on evidentiary facts, the function is quasi
liability.”). The privilege shields “any communication: (1)
judicial and not merely ministerial.”). Therefore, regardless
made in judicial or quasi-judicial proceedings; (2) by litigants
of the reasons for disclosures, the litigation privilege applied.
or other participants authorized by law; (3) to achieve the
objects of the litigation; and (4) that have some connection
Plaintiff contends Kuberiet and Carey were not entitled to
or logical relation to the action.” Hawkins v. Harris, 141 absolute prosecutorial immunity. He argues their “conduct of
disclosing [p]laintiff's juvenile records to other defendants,
N.J. 207, 216, 661 A.2d 284 (1995) (quoting Silberg v.
along with labeling [p]laintiff a sex offender in a post
Anderson, 50 Cal. 3d 205, 369, 266 Cal.Rptr. 638, 786 P.2d
adjudication press release, do not relate to an advocate's
365 (1990)).
preparation for the initiation of a prosecution or for a judicial
proceeding and therefore, are[ not] entitled to absolute
The privilege is not confined to the courtroom and “extends
immunity.”
to all statements or communications in connection with
the judicial proceeding.” Ruberton, 280 N.J. Super. at Prosecutors enjoy absolute immunity for claims brought
133, 654 A.2d 1002. It “extends not only to testimony under statutory and common law alleging the deprivation of
and documents admitted in evidence but also to documents
rights. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct.
utilized in the preparation of judicial proceedings.” Durand
984, 47 L.Ed.2d 128 (1976). Absolute prosecutorial immunity
Equip. Co. v. Superior Carbon Prods., Inc., 248 N.J. Super.
is granted out of “concern that harassment by unfounded
581, 584, 591 A.2d 987 (App. Div. 1991). See also DeVivo litigation would cause a deflection of the prosecutor's energies
v. Ascher, 228 N.J. Super. 453, 457, 550 A.2d 163 (App. Div. from his public duties, and the possibility that he would
1988) (litigation privilege “may be extended to statements shade his decisions instead of exercising the independence of
made in the course of judicial proceedings even if the words
judgment required by his public trust.” Id. at 423, 96 S.Ct.
are written or spoken maliciously, without any justification or
984. Although absolute immunity “does leave the genuinely
excuse, and from personal ill will or anger against the party
wronged defendant without civil redress against a prosecutor
defamed”). Additionally, pretrial communications by parties
whose malicious or dishonest action deprives him of liberty,”
and witnesses are protected “to promote the development
the broader public interest promoting a prosecutor's “vigorous
and free exchange of information and to foster judicial and
and fearless performance” of the office's duties must prevail.
extrajudicial resolution of disputes.” Hawkins, 141 N.J.
Id. at 427, 96 S.Ct. 984. However, a prosecutor's
at 218, 661 A.2d 284 (quoting Gen. Elec. Co. v. Sargent administrative duties and investigatory functions that do not
& Lundy, 916 F.2d 1119, 1129 (6th Cir. 1990)). “The only relate to the preparation for the initiation of a prosecution or
limitation which New Jersey places upon the privilege is that for judicial proceedings are not entitled to absolute immunity.
the statements at issue ‘have some relation to the nature of
Burns v. Reed, 500 U.S. 478, 494-96, 111 S.Ct. 1934, 114
the proceedings.’ ” Rabinowitz v. Wahrenberger, 406 N.J. L.Ed.2d 547 (1991).

2021 WL 1327169
*12 To determine whether particular actions of government

officials are entitled to absolute immunity, courts apply a Qualified immunity is an affirmative defense that may be
raised where claims are brought against a government official
“functional approach,” see id. at 486, 111 S.Ct. 1934,
which considers “the nature of the function performed, not the pursuant to 42 U.S.C. § 1983 and the NJCRA. Harlow
v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d
identity of the actor who performed it,” Forrester v. White,
484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). See 396 (1982); Gormley v. Wood-El, 218 N.J. 72, 97-98,
also Michaels v. New Jersey, 50 F. Supp. 2d 353, 359 (D.N.J. 113-15, 93 A.3d 344 (2014). Qualified immunity shields
1999). When a prosecutor functions as an administrator rather government officials “from liability for civil damages insofar
than an officer of the court, the prosecutor is entitled only as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
to qualified immunity. Buckley v. Fitzsimmons, 509 U.S.
259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). The have known.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727.
official seeking immunity has the burden to show immunity “The protection of qualified immunity applies regardless of
whether the government official's error is ‘a mistake of law,
is justified for the function in question. Burns, 500 U.S. at
a mistake of fact, or a mistake based on mixed questions of
486, 111 S.Ct. 1934.
law and fact.’ ” Pearson v. Callahan, 555 U.S. 223, 231,
The trial court stated:
129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Groh v.
Here, while plaintiff alleges the [MCPO] defendants Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d
violated his constitutional rights for their alleged wrongful 1068 (2004) (Kennedy, J., dissenting)). “Whether an official
acts in the investigation of him, such investigations were is covered by qualified immunity is a matter of law to be
clearly done in preparation for the prosecution of plaintiff decided by a court.” Gormley, 218 N.J. at 113, 93 A.3d
or anyone else. And plaintiff was, in fact, subsequently 344.
charged.
Qualified immunity, however, is not available if the
However, to the extent that the complaint centers on the
unlawfulness of the official's act is objectively apparent given
[MCPO] defendants[’] individual activity that cannot be
the pre-existing law at the time of the alleged deprivation
argued to be in furtherance or preparation of plaintiff's
prosecution[, t]he doctrine of qualified immunity must be of rights. Anderson v. Creighton, 483 U.S. 635, 640, 107
examined to determine [i]f the defendants are shielded S.Ct. 3034, 97 L.Ed.2d 523 (1987). In other words, “whether
from liability. an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action
It is evident the trial court found this aspect of plaintiff's generally turns on the ‘objective legal reasonableness’ of the
claims was barred by the litigation privilege, not absolute action, assessed in light of the legal rules that were ‘clearly
prosecutorial immunity. Plaintiff's argument to the contrary established’ at the time it was taken.” Id. at 639, 107 S.Ct.
lacks merit.
3034 (quoting Harlow, 457 U.S. at 819 and 818, 102 S.Ct.
Plaintiff contends the court erred by finding Kuberiet and 2727).
Carey were entitled to qualified immunity. He argues “[a]
full analysis of whether qualified immunity applies to *13 “[T]he ‘driving force’ behind creation of the qualified
[p]laintiff's claims against [d]efendants is premature because immunity doctrine was a desire to ensure that “ ‘insubstantial
there are unresolved questions of fact relevant to the analysis, claims’ against government officials [will] be resolved prior
including whether defendants knowingly violated the law, to discovery.” ” Pearson, 555 U.S. at 231, 129 S.Ct. 808
as suggested in the second [amended] complaint.” Plaintiff
(quoting Anderson, 483 U.S. at 640 n.2, 107 S.Ct. 3034).
also argues “[q]ualified immunity does[ not] bar actions for
“Reliance on the objective reasonableness of an official's
injunctive relief. Even where the lower [court] found qualified
conduct, as measured by reference to clearly established law,
immunity for the respective defendants, [he] is still entitled
should ... permit the resolution of many insubstantial claims
to declaratory and injunctive relief under the FCRA and
[NJ]CRA.”

2021 WL 1327169
on summary judgment.” Harlow, 457 U.S. at 818, 102 In re Contest of Nov. 8, 2011, 210 N.J. 29, 48, 40
S.Ct. 2727.
A.3d 684 (2012); Lewis v. Harris, 188 N.J. 415, 442,
908 A.2d 196 (2006). Rather, “[t]o establish a violation of
A right is clearly established when “ ‘[t]he contours of
the equal protection clause, a plaintiff must show that the
the right [are] sufficiently clear that a reasonable official
allegedly offensive categorization invidiously discriminates
would understand that what he is doing violates that right.’
against the disfavored group.” In re Contest of Nov. 8,
” Gormley, 218 N.J. at 113, 93 A.3d 344 (first alteration
2011, 210 N.J. at 48, 40 A.3d 684 (quoting Price v. Cohen,
in original) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 715 F.2d 87, 91 (3d Cir. 1983)). The test involves weighing
3034). “If the law was clearly established, the immunity “the nature of the affected right, the extent to which the
defense ordinarily should fail, since a reasonably competent governmental restriction intrudes upon it, and the public need
public official should know the law governing his conduct.”
for the restriction.” Lewis, 188 N.J. at 468, 908 A.2d 196
Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727.
(quoting Sojourner A. v. N.J. Dep't of Hum. Servs., 177
N.J. 318, 333, 828 A.2d 306 (2003)). “The test is a flexible
As we noted, plaintiff's complaint failed to identify
one, measuring the importance of the right against the need
any substantive right violated in support of his NJCRA
and constitutional claims. Thus, the trial court correctly for the governmental restriction.” Id. at 443, 908 A.2d
determined defendants were entitled to qualified immunity. 196. “Under that approach, each claim is examined ‘on a
We decline to consider plaintiff's argument qualified continuum that reflects the nature of the burdened right and
immunity did not bar his ability to seek injunctive relief the importance of the governmental restriction.’ ” Ibid.
because his complaint did not seek this relief and he did not
raise this argument before the trial court. Therefore we do not (quoting Sojourner A., 177 N.J. at 333, 828 A.2d 306).
consider it on appeal. Nieder v. Royal Indem. Ins. Co., 62 In dismissing plaintiff's equal protection claim against the
N.J. 229, 234, 300 A.2d 142 (1973). SBOE defendants, the trial court stated:
In point II of his brief, plaintiff contends the trial court erred *14 Here, plaintiff's equal protection claims against the
by dismissing his NJCRA equal protection claim. He argues [SBOE] defendants must fail as a matter of law. Applying
“[t]he SBOE has a history and tradition of treating African
the analytical framework established in Greenberg [v.
American students differently from non-African American
Kimmelman, 99 N.J. 552, 494 A.2d 294 (1985)], the [c]ourt
students” and he was treated differently than a white student
finds no equal protection violation because plaintiff has not
(John Doe 1). Plaintiff asserts:
suffered a loss of [a] fundamental right.
....
The MCPO defendants never
disclosed to the SBOE or the Busch Plaintiff fails to make a showing the [SBOE] defendants
defendants the confidential records of unevenly applied Federal or State laws, rather the
John Doe 1 .... The SBOE defendants gravamen in the claim for equal protection violation centers
did[ not] drag John Doe 1 through the on the difference in disciplinary treatment he received in
[c]ourt system in order to have his comparison to another student involved in another matter.
records used at a long term suspension
....
hearing in violation of his due process
rights. ... Plaintiff continues to address the difference in how he
was treated in comparison to that of John Doe 1, yet the
[c]ourt has previously addressed this issue, maintaining no
The fundamental guarantee to equal protection of the laws Federal or State Constitutional rights were infringed upon
embraced by Article I, Paragraph 1 of the New Jersey in this matter.
Constitution does not require all persons be treated alike.
Regarding the MCPO defendants, the court stated:

2021 WL 1327169
Plaintiff argues John Doe 1 received less severe discipline;

Prosecutors are subject to varying levels of official however, John Doe 1 was involved in a wholly unrelated
immunity. Absolute immunity attaches to all actions incident described as an assault during which John Doe 1
performed in a quasi-judicial role, Imbler, [424 U.S. at punched a fellow student more than twenty times. Plaintiff's
430, 96 S.Ct. 984]. complaint does not allege John Doe 1 had a disciplinary
hearing while plaintiff was denied one on the basis of race.
This includes activity taken while in court such as the Indeed, plaintiff fails to identify what disciplinary action was
presentation of evidence or legal argument as well as taken against John Doe 1 or how it differed from the discipline
selected out of court behavior intimately associated with he received.
the judicial phases of litigation, Kulwicki [v. Dawson,
969 F.2d 1454, 1463 (3d Cir. 1992).] *15 Plaintiff's claims against the MCPO defendants fail
for similar reasons. From the Prosecutor's perspective, the
Plaintiff's claims against Kuberiet and Carey's conduct incident involving John Doe 1 was a fist fight between
center on their prosecutorial discretion. As stated in Imbler two high school students, which was wholly different from
absolute immunity attaches for all actions taken in a quasi- plaintiff's alleged conduct. No reasonable inference can be
judicial role. Plaintiff attempts to argue that defendants drawn that plaintiff's race motivated the MCPO defendants
acted arbitrarily and maliciously but offers no proofs other to disclose his information during a quasi-judicial proceeding
than the allegations made in this complaint. or the related investigation because plaintiff and John Doe 1
were not similarly situated “in all relevant respects.”
Again, plaintiff refers to the [p]rosecutor's actions in
handling the John Doe matter[,] but the [c]ourt has already
determined he failed to establish that both were similarly
situated individuals who received unequal treatment of III.
governing law. There are also additional facts and
In points III, IV, and V of his brief, plaintiff argues the trial
differences between the two cases plaintiff fails to address.
court erred in dismissing his FCRA claims against Kuberiet,
To reiterate, school disciplinary actions fail to serve as a Carey, and Rafferty.
basis for equal protection claims. The complaint fails to
establish the [MCPO] defendants were not acting in their
official capacity during the investigation. A.
We affirm substantially for the reasons expressed by the Plaintiff contends the trial court erred by dismissing his
trial court. We add the following comments. Plaintiff's equal section 1983 claims against Kuberiet and Carey because
protection claims failed because his complaint did not identify these defendants labeled him a sex offender in a news release,
the deprivation or violation of any fundamental right. Further, violating his “privacy, procedural and substantive due process
he failed to establish the law was unevenly applied to him rights under the United States Constitution and rights under
in comparison to another similarly situated individual. See the Code of Juvenile Justice.” Plaintiff argues he “pled
e.g., Startzell v. City of Phila., 533 F.3d 183, 203 (3d sufficient facts to suggest a[n] FCRA cause of action for his
Cir. 2008) (“Persons are similarly situated under the Equal being labeled a sex offender.”
Protection Clause when they are alike ‘in all relevant aspects.’
The United States Supreme Court explained the Fourteenth
”) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct.
Amendment Due Process Clause as follows:
2326, 120 L.Ed.2d 1 (1992)). See also In re T.J.S., 419 N.J.
Super. 46, 58-59, 16 A.3d 386 (App. Div. 2011) (“Indeed, the By requiring the government to follow appropriate
constitutional guarantee ‘does not demand that things that are procedures when its agents decide to “deprive any person
different in fact be treated the same in law ....’ ”) (quoting of life, liberty, or property,” the Due Process Clause
State v. Chun, 194 N.J. 54, 103, 943 A.2d 114 (2008), aff'd, promotes fairness in such decisions. And by barring
212 N.J. 334, 54 A.3d 263 (2012)). certain government actions regardless of the fairness of the
procedures used to implement them, ... it serves to prevent

2021 WL 1327169
governmental power from being “used for purposes of opinion. Plaintiff did not attach a copy in violation of [Rule]
oppression[ ]” .... 1:36.
[Daniels v. Williams, 474 U.S. 327, 331 (1986) (quoting *16 Nevertheless, the O'Neill decision discusses whether
there's a privacy right associated with disclosure of juvenile
Den Ex Dem. Murray v. Hoboken Land & Improv. Co.,
records and finds there is a lack of precedent to support a
59 U.S. 18 How. 272, 277, 15 L.Ed. 372 (1856)).]
finding of any such right.
“[T]he substantive component of the Due Process Clause
can only be violated by governmental employees when their Plaintiff also relies on Kirby [v. Siegelman, 195 F.3d
conduct amounts to an abuse of official power that ‘shocks
1285, 1292 (11th Cir. 1999), and Neal v. Shimoda, 131
the conscience.’ ” Fagan v. City of Vineland, 22 F.3d 1296, F.3d 818, 829 (9th Cir. 1997),] in arguing the [p]rosecutors
1303 (3d Cir. 1994) (citations omitted). acted maliciously. The present matter is distinguishable
from both Kirby and ... Neal as both dealt with the
classification of an inmate as [a] sex offender[ ].
“Generally speaking, [ 42 U.S.C.] section 1983 provides
a cause of action in state or federal courts to redress federal Specifically, in ... Neal due process violations were found
constitutional and statutory violations by state officials.” where the inmates were labeled sex offenders prior to being
Bernstein v. State, 411 N.J. Super. 316, 335-36, 986 A.2d convicted of the offense. It should be further noted the
22 (App. Div. 2010) (quoting Gen. Motors Corp. v. City of
Linden, 143 N.J. 336, 341, 671 A.2d 560 (1996), cert. denied, defendants in Neal were ultimately entitled to qualified
519 U.S. 816, 117 S.Ct. 66, 136 L.Ed.2d 27). To prevail on a immunity which this [c]ourt agrees is applicable to the
[MCPO] defendants.
section 1983 claim, a plaintiff must establish the following
elements: (1) a violation of rights, privileges, or immunities As previously stated[,] there's no specific mention of
secured by the Constitution or laws of the United States; and plaintiff's name or specific accusation made against him of
(2) the violation complained of was committed by a person being a sex offender. There's no clearly established privacy
right violated by disclosure of juvenile records and the
acting under color of state law. Harvey v. Plains Twp.
[MCPO] defendants are entitled to qualified immunity.
Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011). Furthermore,
“a plaintiff who wishes to sustain a [ section] 1983 claim The trial court's reasoning is sound. Plaintiff's second
based upon a violation of procedural due process must, at amended complaint alleged the news release stigmatized
a minimum, prove recklessness or ‘gross negligence’ and and portrayed him as a “sexual pariah,” thereby causing
in some instance[s] may be required to show a ‘deliberate him “specific harm by defaming him.” However, damage
decision to deprive’ the plaintiff of due process.” Jordan v. to one's reputation does not give rise to a valid claim
Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1277 (3d under section 1983. See Paul v. Davis, 424 U.S.
Cir. 1994) (quoting Daniels, 474 U.S. at 333-34). 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (holding
reputation alone is not an interest protected by Due Process
The trial court explained its reasons for dismissing plaintiff's Clause). Without demonstrating the deprivation of a federally
due process claims as follows: protected interest, plaintiff could not assert a cognizable
Plaintiff's basis for the claim is that the August 2015 press due process claim under section 1983. See Kelly v.
release labeled him as a sex offender. A review of the press Borough of Sayreville, 107 F.3d 1073, 1078 (3d Cir. 1997)
release shows that plaintiff is not labeled as a sex offender (“[W]e must be careful not to equate a state defamation claim
as no individual defendants are named .... with a cause of action under section 1983 predicated on
Plaintiff asserts a violation of procedural substantive due the Fourteenth Amendment.”); Robb v. City of Phila.,
process rights relying on O'Neill [v. Kerrigan, No. 11-3437, 733 F.2d 286, 294 (3d Cir. 1984) (“Stigma to reputation
2013 WL 654409, 2013 U.S. Dist. LEXIS 24658 (E.D. alone, absent some accompanying deprivation of present or
Pa. Feb. 22, 2013)]. The [c]ourt notes it's an unpublished future employment, is not a liberty interest protected by the
[F]ourteenth [A]mendment”).

2021 WL 1327169
Id. at 1090. The court stated: “The interest ... in

Moreover, as the trial court noted, plaintiff's reliance on
nondisclosure [of juvenile court records] ... is ‘far afield’ from
Kirby and Neal is misplaced. In Kirby, the Circuit those privacy rights that are ‘fundamental’ or ‘implicit in the
Court determined the plaintiff's due process rights were
concept of ordered liberty.’ ” Ibid. See also McCrary
implicated not only because he was classified and stigmatized
v. Jetter, 665 F. Supp. 182, 186 (E.D.N.Y. 1987) (holding
as a sex offender without being convicted of a sex crime,
plaintiff did not have constitutionally protected interest in
but also the classification's negative consequences on his
confidentiality of his youthful offender file, explaining:
conditions of confinement. 195 F.3d at 1291-92. Here, “Plaintiff's federal civil rights claim does not fall within the
plaintiff was neither confined nor classified as a sex offender ‘zones of privacy’ recognized by the Supreme Court.”).
resulting in the deprivation of any rights or liberties.
Here, the trial court stated:
Similarly, Neal involved the designation of inmates as Most of the Federal Courts have considered the issue
sex offenders compelling their participation in Hawaii's “Sex and have found ... considerable doubt as to whether a
Offender Treatment Program” as a precondition to their constitutional right to privacy extends to juvenile arrest
eligibility for parole. 131 F.3d at 821. The Ninth Circuit and related records, see [United States v. T.E.S., 165
held designating a prisoner as a sex offender and requiring F.3d 913 (1998)], finding it doubtful that a State may
him to complete a sex offender treatment program as a create a constitutionally protected reasonable expectation
precondition to parole eligibility violated the prisoner's due of privacy in the nondisclosure of a juvenile's criminal
process rights when the prisoner had never been convicted of record, ... [see also] DeSanti, [653 F.2d at 1088-90] ...,
a sex offense and never had an opportunity to challenge the holding there's no constitutional right to privacy in juvenile
“sex offender” label in an adversarial setting. Id. at 831. court records as the interest in nondisclosure of such
Unlike Neal, plaintiff was not classified as a sex offender or records is far afield from those privacy rights that are
compelled to participate in a sex offender program. Moreover, fundamental or implicit in the concept of ordered liberty.
the news release did not label him a sex offender or name him.
....
Therefore, no protected liberty interests were implicated, and
no privacy rights were violated by Kuberiet or Carey. Here the claim for violation of procedural due process
fail[s] for several reasons. First, the cited cases show
there[ is] no clearly established right of privacy violated
B. by disclosure of a juvenile record. The [c]ourt has already
determined the plaintiff waived his claims related to
*17 Plaintiff contends the trial court erred by dismissing his disclosure of his records and dismissed those claims with
FCRA claims against Kuberiet and Carey for the improper prejudice ....
disclosure of his juvenile records because “[e]very juvenile
has an expectation of privacy in their juvenile records.” He Further, the [c]ourt will not permit the plaintiff an
asserts “[t]he litigation privilege does[ not] protect defendants opportunity to amend both on the improper form and also
from liability for FCRA claims,” because he “has a procedural the case law which shows amendment would be futile ....
due process right to not hav[e] the records disclosed without
first being heard by a court of law or at a minimum, seeking The trial court correctly concluded plaintiff's claim of an
permission from his parents.” FCRA violation relating to the release of his juvenile records
failed as a matter of law. Plaintiff did not have a protected
In J.P. v. DeSanti, juveniles filed suit to enjoin compilation right to the nondisclosure of his juvenile records and there
and dissemination of social histories prepared by state was no violation of a right under the Constitution or federal
probation authorities concerning legal proceedings involving law. Furthermore, plaintiff's argument the MCPO defendants
failed to obtain the court's permission or parental consent
those juveniles. 653 F.2d 1080, 1081 (6th Cir. 1981). The
before disclosing his juvenile records was not a viable claim
Sixth Circuit concluded “the Constitution does not encompass
a general right to nondisclosure of private information.”

2021 WL 1327169
constitutional right which a reasonable person should have

because section 1983 cannot be used to maintain actions
known[.] Harlow, 457 U.S. [at] 818, 102 S.Ct. 2727.
for alleged violations of state law. Harvey, 635 F.3d at 609.
In order for plaintiff to overcome a qualified immunity
defense plaintiff must prove that defendant's conduct
C. violated plaintiff's constitutional rights and that the right
was clearly established at the time of the misconduct.
Plaintiff argues the trial court erred by dismissing his FCRA Plaintiff has identified no fundamental or constitutional
claims against Rafferty for similar reasons as the MCPO right under the facts alleged and Rafferty would be entitled
defendants. Pointing to count twenty-three of the second to qualified immunity had the constitutional claims not
amended complaint, he argues “Rafferty used [p]laintiff's been dismissed ....
past juvenile adjudication on record to discriminate against
[p]laintiff as a student by not allowing him to engage in ... We affirm substantially for the reasons expressed by the trial
sports and/or other extra-curricular activities.” court and in the preceding section of this opinion. We add that
participation in school-sponsored extracurricular activities is
*18 The trial court stated: not a fundamental right under the United States Constitution.
The [c]ourt finds that [c]ount [twenty-three of the second Palmer v. Merluzzi, 868 F.2d 90, 96 (3d Cir. 1989);
amended complaint] must be dismissed because plaintiff Albach v. Odle, 531 F.2d 983, 984-85 (10th Cir. 1976);
has not pled sufficient facts to support a cause of action
Mitchell v. La. High Sch. Athletic Ass'n, 430 F.2d 1155,
under [ section] 1983 .... At oral [argument] plaintiff's 1158 (5th Cir. 1970); Angstadt v. Midd-West Sch. Dist., 286
counsel indicated that plaintiff's due process rights had
been violated because Rafferty had failed to issue a waiver F. Supp. 2d 436, 442 (M.D. Pa. 2003), aff'd, 377 F.3d 338
which would have permitted him to play football and (3d Cir. 2004). Because section 1983 cannot be used to
plaintiff was not given the right of appeal. Defendant's maintain alleged violations of state law, the claims against
counsel offered that the waiver in question had to come Rafferty failed as a matter of law.
from Sayreville, not Piscataway.
Accepting plaintiff's argument as true, it must still fail

because the [c]ourt finds that plaintiff again does not IV.
have a fundamental or constitutional right to participate in
In point VI of his brief, plaintiff challenges the dismissal of his
interscholastic sports. Thus, even assuming that Rafferty
intentional IIED claim. He argues “[t]his tort is[ not] subject
was acting under color of law because she was acting in
to any heightened pleading requirements and the complaint
her capacity as a school Superintendent[,] plaintiff has not
sufficiently pleads the factual predicates for the emotional
identified any fundamental constitutional right violated by
infliction of emotional distress.” He asserts the court erred
Rafferty to support a viable claim under [ section] 1983. because it “cannot make factual determinations about the
severity of the emotional distress that [he] suffered or whether
Plaintiff alleges that Rafferty used his past juvenile record
that distress was intentionally inflicted by defendant. At this
to preclude him from participating in sports in [PHS].
juncture, [he] is entitled to every reasonable inference.” He
However, plaintiff has provided no legal precedent that
asserts he was entitled to discovery before the court dismissed
states he is entitled to a privacy right in his juvenile records
his claim.
under the constitution.
.... *19 To establish a claim for IIED, a plaintiff must show:

(1) the actor intended to inflict emotional distress or the actor
More importantly Rafferty would be entitled to qualified knew or should have known emotional distress was a likely
immunity from plaintiff's claims. As a state public official result of his or her conduct; (2) the conduct was extreme and
performing a discretionary function Rafferty would be outrageous; (3) the actor's conduct was the proximate cause of
immune from suit unless she clearly violated a statutory or plaintiff's distress; and (4) the emotional distress sustained by

2021 WL 1327169
the plaintiff was severe. Cole v. Laughrey Funeral Home, Giving plaintiff's complaint its most expansive reading,
376 N.J. Super. 135, 146-47, 869 A.2d 457 (App. Div. 2005). plaintiff has failed to plead any facts which might
reasonably support a claim for intentional infliction of
The conduct must be “so outrageous in character, and so emotional distress. Plaintiff does not cite any conduct that
extreme in degree, as to go beyond all possible bounds shows Rafferty acted with any intent to cause him to suffer
of decency, and to be regarded as atrocious, and utterly harm or severe emotional distress.
intolerable in a civilized society.” Buckley v. Trenton
To the contrary, Rafferty made the decision to preclude
Sav. Fund Soc., 111 N.J. 355, 366, 544 A.2d 857 (1988)
plaintiff from participating in activities ... [for] several
(quoting Restatement (Second) of Torts § 46 cmt. d (Am.
reasons, among them concern that other students would be
Law Inst. 1965)). The emotional distress must be “so severe
harmed if the school were to lose its NJSIAA eligibility
that no reasonable man could be expected to endure it.”
by permitting [plaintiff] as a juvenile adjudged to be
Ibid. (quoting Restatement, § 46 cmt. j). The standard is an delinquent to participate in the program.
objective one. Turner v. Wong, 363 N.J. Super. 186, 200,
The [c]ourt also notes that ... although the complaint
832 A.2d 340 (App. Div. 2003).
speaks in general terms of “outrageous behavior” there's no
identification of anything beyond the fact[ ] that Rafferty
The severity of emotional distress is a mixed question of
was acting in her capacity as superintendent. It was her job
law and fact, and therefore the court decides whether as a
to make a decision whether or not to permit plaintiff to
matter of law such emotional distress can be found, and the
enroll in school, which she did permit.
jury decides whether, in fact, it has been proved. Buckley,
111 N.J. at 367, 544 A.2d 857. “A[ ] severe and disabling *20 It was within her role as Superintendent to decide
emotional or mental condition which is capable of being whether or not he should be permitted to participate in
generally recognized and diagnosed by professionals trained interscholastic sports. She made the decision and proffered
at least one reasonable basis for the decision ....
to do so qualifies as severe emotional distress.” Hill v. N.J.
Dep't of Corr., 342 N.J. Super. 273, 297, 776 A.2d 828 (App. Accepting those facts as true, ... there is nothing there
Div. 2001) (citing Taylor v. Metzger, 152 N.J. 490, 515, from which a reasonable person might conclude that what
706 A.2d 685 (1998)). Rafferty did was shocking, that it was not something that
would occur in the daily lives [of] people or that the
In dismissing the IIED claim pled in the initial complaint, the conduct was extreme or outrageous.
trial court stated:
The trial court correctly found the conduct alleged by plaintiff
Here plaintiff's allegations regarding the defendants did not did not set forth a cause of action for IIED because it lacked
give rise to any indication the defendants acted with any any indicia of being outrageous and extreme. Moreover,
intent to cause plaintiff to suffer severe emotional distress[ ] plaintiff did not allege a medical or psychological diagnosis
or cause him harm, and failed to rise to the level of extreme or he received treatment as a result of the conduct alleged in
and outrageous conduct. his pleadings.
Although plaintiff claims defendants[’] conduct was We reject plaintiff's contention he should have been afforded
extreme and outrageous, no facts have been alleged that discovery prior to the dismissal of this claim. “It has long
could give rise to any claim that defendants acted in an been established that pleadings reciting mere conclusions
extreme and outrageous way to constitute an intentional without facts and reliance on subsequent discovery do not
infliction of emotional distress claim. Simply providing
plaintiff's ... [c]ounsel's certification and letters from justify a lawsuit.” Glass v. Suburban Restoration Co., Inc.,
plaintiff himself, and plaintiff's mother fails to establish any 317 N.J. Super. 574, 582, 722 A.2d 944 (App. Div. 1998).
entitlement to emotional distress damages. Because plaintiff's claim was precluded as a matter of law,
discovery would be futile as the facts relating to his physical
Dismissing the IIED claim pled against Rafferty in the second and psychological conditions were known to him prior to the
amended complaint, the court stated: commencement of his suit and not pled.

2021 WL 1327169
liable for civil conspiracy there must be an underlying

unlawful act.
V. ... [P]laintiff's claims have been withdrawn or dismissed ...

and as a result there is no predicate act and no underlying
In point VII, plaintiff challenges the dismissal of his civil
activity that can form the basis for the civil conspiracy.
conspiracy claim. Similar to the IIED claim, he asserts he
should be afforded discovery “to further develop the claims
The trial court did not err. Plaintiff's complaint alleged
which are suggested by the facts and pled in the complaint.”
“[d]efendants entered into a real agreement” to “perpetrate a
tort against [him]” and “[d]efendants ... acted together and
Our law defines a civil conspiracy as
in concert to deprive [him of] his civil rights.” However,
a combination of two or more persons acting in concert plaintiff failed to plead any facts identifying the nature of the
to commit an unlawful act, or to commit a lawful act agreement between defendants giving rise to a conspiracy,
by unlawful means, the principal element of which is an when the conspiracy occurred, or how it was accomplished.
agreement between the parties to inflict a wrong against or “Complaints cannot survive a motion to dismiss where the
injury upon another, and an overt act that results in damage. claims are conclusory or vague and unsupported by particular
overt acts.” Delbridge v. Off. of Pub. Def., 238 N.J. Super.
[ Banco Popular, 184 N.J. at 177, 876 A.2d 253 (quoting 288, 314, 569 A.2d 854 (Law Div. 1989), aff'd o.b. sub nom.,
Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 A.D. v. Franco, 297 N.J. Super. 1, 687 A.2d 748 (App. Div.
N.J. Super. 337, 364, 633 A.2d 985 (App. Div. 1993)).] 1993), certif. denied, 135 N.J. 467, 640 A.2d 849, cert. denied,
513 U.S. 832, 115 S.Ct. 108, 130 L.Ed.2d 56 (1994).
Civil conspiracy is not an independent cause of action, but
rather a “liability expanding mechanism” which exists only Because plaintiff failed to establish defendants violated any
if a plaintiff can prove the underlying “independent wrong.” of his substantive rights under the NJCRA or FCRA, there
Farris v. Cnty. of Camden, 61 F. Supp. 2d 307, 326 (D.N.J. was no underlying wrong to support the civil conspiracy
1999). “The gist of an action in civil conspiracy is not the claim. Furthermore, as we noted, immunity and the litigation
conspiracy itself but the underlying wrong, which absent the privilege applied to the respective defendants, which also
prevented a finding of an underlying wrong. As with the
conspiracy, would give a right of action.” Malaker Corp. IIED claim, dismissal did not have to await the completion
Stockholders Protective Comm. v. First Jersey Nat'l Bank, of discovery where plaintiff failed to sufficiently plead facts
163 N.J. Super. 463, 491, 395 A.2d 222 (App. Div. 1978). showing a civil conspiracy.
“The essential element of the tort is not the conspiracy[,] but
the damage inflicted pursuant to it.” Ibid.
VI.
The trial court dismissed plaintiff's civil conspiracy count
against the MCPO defendants in the first amended complaint, In point VIII, plaintiff challenges the trial court's dismissal
finding it was “devoid of any facts to suggest the defendants of his defamation claim against Kuberiet and Carey. He
conspired to cause plaintiff harm,” and “any underlying argues he pled viable defamation claims and was entitled
wrongs [were] additionally barred because of the immunity to discovery prior to dismissal of the claims. He asserts
bestowed upon the public entity defendants.” Because discovery was necessary to determine whether the MCPO
plaintiff's complaint failed to state a claim, the court likewise defendants were entitled to “qualified privilege ... and even
found it could be dismissed prior to obtaining discovery. The then, whether a defendant abused that privilege is an issue
court dismissed the civil conspiracy count against Rafferty in reserved for the jury.”
the second amended complaint, for similar reasons, finding
plaintiff had “A defamatory statement is one that is false and ‘injurious
to the reputation of another’ or exposes another person to
*21 not sufficiently pled the requisite underlying act to ‘hatred, contempt or ridicule’ or subjects another person to
hold Rafferty liable .... In order for [Rafferty] to be held ‘a loss of the good will and confidence’ in which he or she

2021 WL 1327169
a non-defamatory meaning, it cannot be considered libelous,

is held by others.” Romaine v. Kallinger, 109 N.J. 282,
289, 537 A.2d 284 (1988) (quoting Leers v. Green, 24 N.J. justifying dismissal of the action.” Ibid.
239, 251, 131 A.2d 781 (1957)). See also Salzano v. N. Jersey
Media Grp., Inc., 201 N.J. 500, 512, 993 A.2d 778 (2010) In dismissing without prejudice the defamation claims in the
(“A defamatory statement is one that is false and harms the first amended complaint, the trial court stated:
reputation of another such that it lowers the defamed person
in the estimation of the community or deters third parties Here, plaintiff contends that, “On or about August 31[ ],
from dealing with that person.”). “The law of defamation 2015[,] defendants defamed plaintiff by publishing written
is rooted in the notion that individuals should be free to statements about plaintiff and his case with malice and
enjoy their reputations unimpaired by false and defamatory forethought that were either false, reckless or misleading.”
attacks.” Salzano, 201 N.J. at 505, 993 A.2d 778.
And, “On or about October of 2014 and thereafter
defendants defamed plaintiff by uttering and/or publishing
The elements of a cause of action for defamation are:
statements about plaintiff in this case with malice of
(1) defendant “made a false and defamatory statement
forethought that were either false, reckless or misleading.”
concerning” plaintiff; (2) “the statement was communicated
to another person (and not privileged);” and (3) defendant ....
“acted negligently or with actual malice.” G.D. v. Kenny,
... [T]he Court is satisfied that blanket allegations that
205 N.J. 275, 292-93, 15 A.3d 300 (2011). “[T]he actual
defendants spoke and published defamatory statements
naming of plaintiff is not a necessary element in an action for
about the plaintiff failed to identify any such statements or
libel. It is enough that there is such reference to him that those
provide the context for such statements, and how if at all
who read or hear the libel reasonably understand the plaintiff
they defamed the plaintiff's character.
to be the person intended.” Dijkstra v. Westerink, 168 N.J.
Super. 128, 133, 401 A.2d 1118 (App. Div. 1979). Without properly identifying a slanderous or libelous
statement the plaintiff is unable to sustain a claim for liable
*22 “In the case of a complaint charging defamation, and slander.
plaintiff must plead facts sufficient to identify the defamatory
words, their utterer and the fact of their publication. A Moreover, the attempt to distinguish between public and
private defamation is essentially meritless, as plaintiff
vague conclusory allegation is not enough.” Zoneraich
has failed to properly identify the libelous writings or
v. Overlook Hosp., 212 N.J. Super. 83, 101, 514 A.2d 53
slanderous statements made by the defendants, or even if
(App. Div. 1986). Truth “is an absolute defense to a claim of
any of the statements actually identified him by name.
defamation.” G.D. v. Kenny, 411 N.J. Super. 176, 187, 984
A.2d 921 (App. Div. 2009). ....
“The threshold issue in any defamation case is whether the Additionally[,] plaintiff claims ... that the [MCPO]
statement at issue is reasonably susceptible of a defamatory defendants issued a defamatory press release about the case
meaning,” which is a question of law “to be decided first in that it misled the public into thinking criminal restraint,
of which plaintiff was found not guilty, was a sexually
by the court.” Romaine, 109 N.J. at 290, 537 A.2d
based crime.
284. “In making this determination, the court must evaluate
the language in question ‘according to the fair and natural What plaintiff fails to acknowledge, however, is that,
meaning which will be given it by reasonable persons of “[While] criminal restraint does not in and of itself contain
ordinary intelligence.’ ” Ibid. (quoting Herrmann v. a sexual element, [it] is included under Megan's Law
Newark Morning Ledger Co., 48 N.J. Super. 420, 431, 138 definition of sex offenses when committed against minors.”
A.2d 61 (App. Div.), aff'd on rehearing, 49 N.J. Super. 551, See N.J.S.A. 2C:7-2.
140 A.2d 529 (App. Div. 1958)). “If a published statement
is susceptible of one meaning only, and that meaning is ....
defamatory, the statement is libelous as a matter of law.”
Ibid. “Conversely, if the statement is susceptible of only

2021 WL 1327169
sexual conduct[;]” (6) “[T]he investigation determined they

Moreover, while it may not be expressly required that the each played roles in the attacks upon their fellow teammates
defendants specifically name the plaintiff, the [court] finds in four separate incidents at the high school[;]” and (7) “One
it important to note there's no allegation that any of the defendant held the victim, while at least two of the defendants
defendants ever released plaintiff's name to the public. grabbed his penis and attempted to digitally penetrate his
anus. Two to five other students, who could not be identified
Therefore, because the claim lacks any allegations
by the victim, surrounded him during the sexual assault.”
defendants specifically published any written or oral
statements that were libelous or slanderous the libel and
We address these statements in turn. Statement 1 was
slander claims are dismissed without prejudice.
not defamatory because it was not false; plaintiff was
charged with, among other things, conspiracy to commit
*23 When the court dismissed the defamation claims in the
aggravated criminal sexual conduct, criminal sexual contact,
second amended complaint, it stated:
aggravated assault, hazing, riot, and criminal restraint. The
Here, the [c]ourt again finds no viable cause of action for news release's usage of the phrase “sexual assault” was
defamation against the [MCPO] defendants by application not defamatory because “[t]he law of defamation overlooks
of the law of the case doctrine .... minor inaccuracies, focusing instead on ‘substantial truth.’ ”
G.D., 205 N.J. at 294, 15 A.3d 300 (quoting Masson v.
....
New Yorker Mag., Inc., 501 U.S. 496, 516, 111 S.Ct. 2419,
While plaintiff is correct in contending the application of 115 L.Ed.2d 447 (1991)). “Minor inaccuracies do not amount
the law of the case doctrine is discretionary, the [c]ourt to falsity so long as the substance, the gist, the sting, of
finds this application is necessary here. A claim for the libelous charge be justified.” Ibid. (internal quotation
defamation against the [MCPO] defendants centers on the
marks omitted) (quoting Masson, 501 U.S. at 517, 111
August 31 press release. A review of the first and second
S.Ct. 2419).
amended complaints show the claim is based on the same
set of operative facts. Plaintiff offers no additional facts in
Furthermore, the statement referred to other defendants and
support of the claim and the [c]ourt has already determined
could not reasonably be construed to suggest plaintiff was
that the defamation claims based on the press release are
involved in all four incidents referenced in the release.
barred.
Indeed, the release made clear the juveniles who were
Further, a review of the press release fails to show any tried, including plaintiff, were involved in only one of the
specific reference to the plaintiff by name and the [c]ourt referenced incidents.
cannot agree the statements made constitute defamation per
se. *24 Plaintiff claims statement 2 is defamatory because he
was never subject to waiver to adult criminal court. Whether
On appeal, plaintiff identifies seven statements from the plaintiff was subject to waiver was a minor inaccuracy and
news release he claims are defamatory. We enumerate them did not constitute defamation. Moreover, the balance of the
as follows: (1) “[S]ix of seven teenagers [were] charged statement was true because the Middlesex County Family
with sexually assaulting and/or abusing four other teammates Court was the proper venue for the case.
at [SHS;]” (2) “As was previously disclosed, the [MCPO]
determined that the defendants would not be tried as adults Plaintiff claims statement 3 was false and therefore
and that the Middlesex County Family Court remains the defamatory because the MCPO never proved its case against
proper venue for these cases[;]” (3) “The facts that were him as he was acquitted of the original charges and only
alleged by the [MCPO] at the beginning of the case have adjudicated delinquent on lesser included offenses. However,
clearly been proven in a court of law[;]” (4) MCPO “did the statement does not claim all the charges filed against all
not pursue imposition of mandatory sex offender registration the juveniles were proven, but rather the facts alleged were
required under Megan's law[;]” (5) “The other juvenile tried proven. The statement was not false because it was supported
in Family Court was found delinquent on a disorderly persons by the guilty pleas and the delinquency adjudications of the
simple assault charge, and a petty disorderly persons count of various juvenile defendants. The news release's reference
engaging in disorderly conduct for his role in the hazing and to the “other juvenile” who went to trial, namely, plaintiff,

2021 WL 1327169
clearly stated he was found delinquent on a disorderly persons *25 In context, the statement reads as follows:
simple assault charge and a petty disorderly persons count of
engaging in disorderly conduct. Therefore, the statement was The first incident occurred on September 19, 2014, when
neither false nor constituted defamation. a [seventeen]-year-old juvenile defendant “body slammed”
a [fifteen]-year-old victim to the floor and pretended to
Plaintiff contends statement 4 is “knowingly, willfully stomp and kick the victim, exposing him to bodily injury.
and maliciously false” because he was never eligible for
On September 26, 2014, the same [seventeen]-year-old
registration as a sex offender. However, plaintiff's argument
defendant, along with the two who were adjudicated
ignores the entirety of the statement, which read as follows:
delinquent following the trial, and another [sixteen]-year-
“As part of the plea agreements, the [MCPO] did not
old male who is awaiting trial, took part in an attack of a
pursue the imposition of mandatory sex offender registration
[fourteen]-year-old boy.
required under Megan's Law.” (Emphasis added). This
statement is true. Moreover, the statement does not refer to The victim also was forcibly knocked to the floor. One
plaintiff and is inapplicable to him because he did not enter defendant held the victim while at least two of the
a guilty plea. defendants grabbed his penis and attempted to digitally
penetrate his anus. Two to five other students, who could
Plaintiff claims statement 5 is defamatory because he was not be identified by the victim, surrounded him during the
acquitted of hazing and the charges related to sexual conduct. sexual assault.
This statement is not false because he was adjudicated
delinquent of the disorderly persons offenses of simple assault None of the juveniles were charged, pled, or adjudicated with
and disorderly conduct for his role in the locker room incident. grabbing the victim's penis or attempting to digitally penetrate
His acquittal of the hazing and sexual conduct did not negate his anus. However, as the sole juvenile tried and adjudicated,
his involvement in the incident. the news release, without naming plaintiff, identifies him as
participating in grabbing the victim's genitals and attempting
Plaintiff contends statement 6 is false because he “did not play to anally penetrate him. The news release made sufficient
a role in four separate incidents” and “did not attack any of references to plaintiff such that anyone who read or heard the
his fellow teammates.” However, plaintiff reads the statement statement could reasonably understand the release referred to
out of context. Read in its entirety, statement 6 states: “The plaintiff. Dijkstra, 168 N.J. Super. at 133, 401 A.2d 1118.
seven juvenile defendants were taken into custody in October
2014, after the investigation determined they each played Therefore, this aspect of plaintiff's defamation claim was
roles in the attacks upon their fellow teammates in four pled with enough sufficiency to survive a motion to
separate incidents at the high school between September 19, dismiss pursuant to Rule 4:6-2(e) because statement 7
2014 and September 30, 2014.” A thorough reading of the included accusations of serious criminal activity and sexual
statement shows it intended to convey each juvenile played misconduct, which plaintiff alleges did not occur and the
a role in several incidents—not each juvenile was involved MCPO defendants knew did not occur, yet asserted in the
in every incident. Indeed, the release discussed each of the news release. For these reasons, dismissal of this aspect of
four incidents separately and ascribed only one of the four the defamation claim is reversed and remanded for further
incidents to plaintiff. Contrary to plaintiff's contention, use proceedings. We hasten to add our decision should not be
of the word “attack” was not defamatory and reasonably construed as an opinion on the ultimate merits of plaintiff's
described the underlying incidents. claim.
The trial court did not specifically address statement 7 in

its decision. Plaintiff contends this statement is “knowingly,
VII.
willfully and maliciously false” because neither he nor any
of the other juvenile defendants “were ever charged with Finally, in point IX plaintiff contends the court erred by
grabbing the victim's penis,” nor were they “ever found transferring venue from Middlesex to Monmouth Vicinage
delinquent of grabbing the victim's penis or attempting to and denying his request for reconsideration of the transfer
digitally penetrate his anus.” decision. He asserts the trial court failed to find an actual
conflict of interest, and an appearance of impropriety is not

2021 WL 1327169
perceived conflict ....” On reconsideration, the Assignment

a basis to transfer venue under Rule 4:3-2(a). He argues
Judge explained he denied plaintiff's motion because the
the matter should not have been transferred because the
cause of action arose from, and all defendants are located, in Middlesex County Prosecutor's Office appears before
Middlesex County, and the court should have deferred to his [Middlesex Vicinage] judges on a regular basis and in
choice of venue. the interest of eliminating any appearance of impropriety,
this [c]ourt felt it was necessary to transfer venue from
Judges must avoid actual conflicts of interest as well as the Middlesex County to a sister vicinage ....
appearance of impropriety in order “to promote confidence in
the integrity and impartiality of the Judiciary.” DeNike v. ....
Cupo, 196 N.J. 502, 507, 958 A.2d 446 (2008). Rule 4:3-2
... And if the judge is in ... civil today, [they] could be
provides venue “shall be laid in the county in which the cause
in criminal tomorrow. Again, it's those appearances with
of action arose, or in which any party to the action resides at
which the [c]ourt is concerned.
the time of its commencement, or in which the summons was
served on a nonresident defendant.” Rule 4:3-3(a)(2) states
We discern no error either in the initial decision to transfer
the Assignment Judge may order a change of venue “if there
venue or in the denial of reconsideration. Plaintiff's argument
is a substantial doubt that a fair and impartial trial can be had
lacks sufficient merit to warrant further discussion in a written
in the county where venue is laid.” Decisions relating to a
opinion. R. 2:11-3(e)(1)(E).
change in venue “will not be disturbed on appeal except upon
a showing of an abuse of discretion.” State v. Harris, 282 Affirmed in part, and reversed and remanded in part. We do
not retain jurisdiction.
N.J. Super. 409, 413, 660 A.2d 539 (1995) (citing State
v. Marshall, 123 N.J. 1, 76, 586 A.2d 85 (1991)).
All Citations
*26 The March 28, 2017 order transferring venue to
Monmouth County noted it was made “having considered ... Not Reported in Atl. Rptr., 2021 WL 1327169
[Rule] 4:3-3(a) and ... [to] avoid all appearances of any
Footnotes
1 Pursuant to R.1:38-3(d)(5) initials are continued for plaintiff to maintain confidentiality.
2 The second amended complaint named count three only to indicate it had been dismissed against all
defendants by consent.
End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

EXHIBIT C
O'Keefe v. WDC Media, LLC, Not Reported in F.Supp.3d (2015)
2015 WL 1472410
Court granted Plaintiff's motion to amend the Complaint,

2015 WL 1472410 terminating Defendant's first motion to dismiss, and Plaintiff
Only the Westlaw citation is currently available. filed a First Amended Complaint on June 27, 2014. ECF
NOT FOR PUBLICATION Nos. 18, 19. The First Amended Complaint differs from
United States District Court, D. New Jersey. the original Complaint only insofar as Plaintiff added Mary
Jacoby, owner of WDC Media LLC and Editor in Chief of
James O'KEEFE, III, Plaintiff, MainJustice.com, as a defendant. Compare ECF No. 1–2 with
v. ECF No. 19. Defendants then filed the instant motion to
WDC MEDIA, LLC, et al., Defendants. dismiss the First Amended Complaint. ECF No. 21.
Civil Action No. 13–6530 (CCC). Plaintiff alleges that WDC Media LLC published libelous
| statements about him in an article posted on its website,
Signed March 30, 2015. MainJustice.com. Am. Compl. ¶¶ 10–16. The article
referenced the “Landrieu incident,” an event that occurred
Attorneys and Law Firms on January 25, 2010. See Factual Basis Document, United
States v. Basel et al., Crim. No. 10–081 (E.D.La. May 27,
Matthew Richard Major, Callagy Law, LLC, Paramus, NJ, for
2010), Balin Decl., Ex. D, ECF No. 21–6 (the “Factual
Plaintiff.
Basis Document”) at 3. 1 At that time, disguised as telephone
Robert D. Balin, Davis Wright Tremaine LLP, New York, NY, repairmen, Plaintiff and several associates entered the New
for Defendants. Orleans offices of Senator Mary Landrieu. Id. at 3–4.
According to the Factual Basis Document, which stipulated
the facts underlying Plaintiffs eventual guilty plea, Plaintiff
OPINION and his associates claimed that their purpose in entering the
offices was to follow up on reports of problems with the
CECCHI, District Judge. telephone system. Id. at 4–6. The Factual Basis Document
states that Plaintiff and his associates obtained permission to
I. INTRODUCTION test the phone system, while secretly using a recording device
*1 This matter comes before the Court on the motion of to record the interactions in the office. Id.
Defendants WDC Media LLC, operator of MainJustice.com,
and Mary Jacoby (“Defendants”) to dismiss the First During their visit, Plaintiff and his associates asked to be
Amended Complaint of Plaintiff James O'Keefe, III directed to the “central box” in order to perform repair
(“Plaintiff”). ECF No. 21. No oral argument was heard work on the main telephone system. Id. At that point, the
pursuant to Federal Rule of Civil Procedure 78. For the Government Services Administration questioned the men
reasons discussed below, Defendants' motion to dismiss is regarding their credentials. Id. According to the Factual Basis
granted. Document, Plaintiff and his associates eventually admitted to
federal investigators that they had entered Senator Landrieu's
office under false pretenses, in order to orchestrate and
II. BACKGROUND
record conversations with the Senator's staff. Id. A criminal
On September 18, 2013, Plaintiff filed the Complaint in
complaint was filed against Plaintiff and his associates in
the instant action against the website MainJustice.com, its
the U.S. District Court for the Eastern District of Louisiana,
owner and publisher WDC Media LLC, and several unnamed
alleging that Plaintiff and his associates entered the Senator's
defendants whom Plaintiff believed “caused, contributed and/
offices with the purpose of “willfully and maliciously
or benefited from the conduct of the other Defendants as
interfering with a telephone system.” Criminal Complaint,
set forth [in the Complaint],” in New Jersey Superior Court.
United States v. Basel et al., Crim. No. 10–081 (E.D.La. May
See ECF No. 1–2. Defendant WDC Media LLC subsequently
removed the case to this Court and moved to dismiss the 25, 2010), Balin Decl., Ex. E. 2 Plaintiff and his associates
action for failure to state a claim, pursuant to Federal Rule subsequently pleaded guilty to the misdemeanor of entering
of Civil Procedure 12(b)(6). ECF Nos. 1, 3. On December federal property under false pretenses, and the Factual Basis
2, 2013, while the motion to dismiss was pending, Plaintiff document stipulating the facts underlying the plea was filed
cross-moved to amend the Complaint. ECF No. 10. The

2015 WL 1472410
in the U.S. District Court for the Eastern District of Louisiana. Compl. ¶ 13. The full text of the relevant paragraph in the
See generally Factual Basis Document. modified article reads:
*2 On August 26, 2013, MainJustice.com published an

article referencing the 2010 “Landrieu incident.” Am. Compl. In May 2010, O'Keefe and three
¶ 11. According to the Amended Complaint, the original other activists pleaded guilty to
version of the article stated, in relevant part: misdemeanor charges that they entered
the New Orleans offices of Sen.
Mary Landrieu (D–La.) under false
[Plaintiff] pleaded guilty to pretenses. Wearing hard hats, tool
misdemeanor charges that [Plaintiff] belts and reflective vests, the activists
entered the suburban New Orleans had pretended to be telephone
offices of Sen. Mary Landrieu under repairmen and were trying to
false pretenses. Wearing hard hats, tool tamper with Landrieu's phones. Their
belts and reflective vests, [Plaintiff] felony charges were downgraded to
had pretended to be telephone misdemeanors. O'Keefe was sentenced
repairman and were apparently trying to three years probation, 100 hours of
to bug Landrieu's phones. community service and a $1500 fine.
Id. Plaintiff's representative emailed the website, demanding See Balin Decl., Ex. G. Plaintiff alleges that both the original
a correction of the article, specifically objecting to the word version of the article and the modified version are defamatory
“bug,” and directing the publisher to the Factual Basis because the words “bug” and “tamper with” suggest that
Document, which stated, in relevant part: Plaintiff committed a felony. Id. at ¶¶ 15–16. In seeking to
dismiss the complaint, Defendants argue that they cannot
be liable because the article in question is substantially true
[F]urther investigation did not uncover and is incapable of a defamatory meaning. Defs.' Br. 11–13.
evidence that the defendants intended Defendants also argue that Plaintiff's libel claim fails because
to commit any felony after the entry the article is protected by New Jersey's fair report privilege.
by false pretenses despite their initial Id. at 13–16.
statements to the staff of the Senatorial
office and GSA requesting access to
III. DISCUSSION
the central phone system. Instead, the
As a preliminary matter, the Court considers this motion as a
Government's evidence would show
motion to dismiss pursuant to Federal Rule of Civil Procedure
that the defendants misrepresented
12(b) (6), and will rale on it as such. Although Plaintiff
themselves and their purpose for
argues that Defendants have “attempt[ed] to taint the record
gaining access to the central phone
with extraneous material outside of the four comers of the
system to orchestrate a conversation
Complaint,” Opp. Br. 7, in ruling on this motion the Court
about phone calls to the Senator's staff
will only consider the allegations in the Amended Complaint,
and capture the conversation on video,
exhibits attached to the complaint or undisputedly authentic
not to actually tamper with the phone
documents on which the complaint relies, and matters of
system, or to commit any other felony.
public record. See Pension Ben. Guar. Corp. ., 998 F.2d
at 1198.
Id. at ¶ 12; Factual Basis Document at 6.
*3 For a complaint to survive dismissal pursuant to Federal
In response, Defendants modified the article, replacing the Rule of Civil Procedure 12(b)(6), it “must contain sufficient
words “apparently trying to bug” with “trying to tamper.” Am. factual matter, accepted as true, to ‘state a claim to relief

2015 WL 1472410
that is plausible on its face.’ “ Ashcroft v. Iqbal, 556 Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 310
U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(3d Cir.2011) (citing Ward v. Zelikovsky, 136 N.J. 516,
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
529, 643 A.2d 972 (1994)); see also Romaine, 537 A.2d
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In evaluating the
at 290 (“In assessing the language, the court must view the
sufficiency of a complaint, the Court must accept all well-
publication as a whole and consider particularly the context
pleaded factual allegations in the complaint as true and draw
in which the statement appears.”). The Court must look to
all reasonable inferences in favor of the non-moving party.
the “fair and natural meaning which will be given” to the
See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d statements “by reasonable persons of ordinary intelligence.”
Cir.2008). “Factual allegations must be enough to raise a
Romaine, 537 A.2d at 290.
right to relief above the speculative level.” Twombly, 550
U.S. at 555. Furthermore, “[a] pleading that offers labels Statements that clearly “sound to the disreputation” of an
and conclusions will not do. Nor does a complaint suffice individual, including statements that allege that a plaintiff
if it tenders naked assertion[s] devoid of further factual committed criminal conduct, are defamatory on their face.
Lawrence v. Bauer Pub. & Printing Ltd., 89 N.J. 451, 446
enhancement[.]” Iqbal, 556 U.S. at 678 (internal citations
A.2d 469, 473 (N.J.1982). Statements that are substantially
omitted).
true, however, are not defamatory, G.D. v. Kenny, 44 N.J.
Eq. 525, 15 A.,3d 300, 310–11 (N.J.2011); see also Taylor
A. Defamatory Meaning 3 v. Amcor Flexibles, 669 F.Supp.2d 501, 513 (D.N.J.2009)
Under New Jersey law, in order to prevail in a defamation (“Under New Jersey law ... [a] plaintiff cannot make a
action, a plaintiff must demonstrate: “(1) that defendants prima facie case of defamation if the contested statement
made a false and defamatory statement concerning [the is essentially true”). When assessing whether a statement is
plaintiff]; (2) that the statement was communicated to another substantially true, New Jersey law requires courts to overlook
person (and not privileged); and (3) that the defendant acted “minor inaccuracies,” as long as “the substance, the gist,
negligently or with actual malice.” G.D. v. Kenny, 205 the sting of the libelous charge” is true, G.D., 205 N.J.
N.J. 275, 15 A.3d 300, 310 (N.J.2011). Libel is printed 275, 15 A.3d at 311; see also Montefusco v. ESPN, Inc.,
47 F. App'x 124, 125 (3d Cir.2002) (affirming dismissal
defamation. See Taj Mahal Travel, Inc. v. Delta Airlines,
of defamation claim on motion to dismiss, applying New
Inc., 164 F.3d 186, 189 (3d Cir.1998). “A defamatory
Jersey law, where allegedly defamatory statements relating
statement is one that is false and injurious to the reputation
to criminal prosecution were accurate and thus incapable of
of another or exposes another person to hatred, contempt or
defamatory meaning).
ridicule or subjects another person to a loss of the good will
and confidence of others.” See Taj Mahal Travel 164 F.3d *4 In this case, the dispute is not about whether the
at 189 (quoting Romaine v. Kallinger, 109 N.J. 282, 289, alleged libel accused Plaintiff of criminal activity, as Plaintiff
537 A.2d 284 (1988)) (internal quotation marks omitted). The does not contest that he pleaded guilty to a misdemeanor,
threshold for such determination is whether the statement or but rather it is about which type of criminal offense was
article is reasonably susceptible to a defamatory meaning. imputed to Plaintiff in Defendants' article. Plaintiff argues
that Defendants' statements, “apparently trying to bug” and
Romaine, 109 N.J. at 290, 537 A.2d 284. “This question is “trying to tamper with,” constituted “falsely reporting that
one to be decided first by the court,” id., and the court should Plaintiff committed a felony.” Opp. Br. 3. Defendants argue
dismiss the action as a matter of law if the statement is not that these words are incapable of defamatory meaning as
susceptible to a defamatory meaning, Taj Mahal Travel, the relevant portion of the article was substantially true;
164 F.3d at 196. it was abundantly clear that Plaintiff pleaded guilty to
a misdemeanor. Defs.' Br. 12–13. Plaintiff responds that
In determining whether a statement is reasonably susceptible although the ultimate disposition of the Plaintiffs charges
to a defamatory meaning, the statement must be taken in was reported accurately, “Defendants ... paint[ed Plaintiff]
its entirety, considering its content, verifiability and context. to be a bumbling felon who got lucky and pleaded to a

2015 WL 1472410
misdemeanor.” Opp. Br. 2. Notably, Plaintiff does not dispute

more serious wrongdoing); Nanji v. Nat'l Geographic
that he was initially accused of felony charges.
Soc., 403 F.Supp.2d 425, 432–433 (D.Md.2005) (finding
that use of “rape” instead of “more technically precise
Plaintiff cannot satisfy the first element of a libel claim
term, such as ‘sexual assault’ or ‘sexual abuse,’ “ did not
based on the selective examination of the words “bug” and
render article inaccurate, and collecting cases for proposition
“tamper” in the Defendants' article. Plaintiff claims that the
that “technical errors in legal nomenclature in reports on
article in question is libelous because the words “bug” and
matters involving violation of the law are of no legal
“tamper” falsely imputed felony conduct to Plaintiff. See
consequence” in defamation actions) (internal quotations
Opp. Br. 3. The paragraph at issue, however, offering only a
brief background about the Landrieu incident to give context omitted); Lambert v. Providence Journal Co., 508 F.2d
to a larger article, conveyed clearly that Plaintiff pleaded 656, 658–59 (1st Cir.1975) (holding that the term “murder”
guilty to the misdemeanor of entering Senator Landrieu's was incapable of defamatory meaning, even if it implied
that plaintiffs killing of local man was unlawful, because
offices under false pretenses. See G.D., 205 N.J. 275, 15
the articles stated that plaintiff denied the murder charge or
A.3d at 311 (imprecise language stating that plaintiff was “a
made it clear that no determination of plaintiff's involvement
drug dealer who went to jail for five years for selling coke
had been made). As with these cases, the statements at
near a public school” was substantially accurate even though
issue are not capable of a defamatory meaning because
plaintiff pleaded guilty to possession of cocaine with intent to
although Defendants' words may have been imprecise or not
distribute, his guilty plea mentioned nothing about a school,
to Plaintiff's liking, each version of the article taken as a whole
and he did not serve the full five years of his jail sentence).
accurately portrayed Plaintiff's legal standing at the time of
the article.
Regardless of whether the article used the words “apparently
trying to bug” or “trying to tamper,” the few words challenged
by the Plaintiff, taken in context, do not alter the fundamental B. Fair Report Privilege
gist of the paragraph—that Plaintiff was charged with felony The substantial accuracy of the article in question also entitles
conduct but he was ultimately guilty of only a misdemeanor. It Defendants to the protection of the fair-report privilege,
is undisputed that Plaintiff and his associates did in fact enter which provides an absolute defense to defamation for fair
Senator Landrieu's office disguised as telephone repairmen, and accurate reports based on public court filings. Salzano
did handle the telephone, and did request access to the central v. North Jersey Media Group, Inc., 201 N.J. 500, 993 A.2d
phone system, all without proper authorization. See Factual 778, 796–97 (N.J.2010). The determination of whether a
Basis Document at 3–5. Therefore, the words “trying to report is full, fair and accurate, such that it is entitled to the
tamper with,” understood in the colloquial sense, 4 convey protection of the privilege, is an objective determination for
the substantial truth of the Landrieu incident and do not the court. Id. at 792. In assessing the fairness and accuracy
alter the ultimate conclusion of the paragraph—that Plaintiff of a report for the purpose of applying the privilege, the New
was guilty of a misdemeanor. 5 Even the initial version of Jersey Supreme Court has noted that “a reporter is allowed to
the article, which Defendants altered at Plaintiff's request, make factual errors and omissions,” so long as the errors and
conveys the substantial truth of the matter—i.e., that it omissions do not mislead readers. Id. “[I]t is not necessary
appeared that Plaintiff and his associates may have been that [the account] be exact in every immaterial detail ....
trying to bug the phones in question, given that they obtained It is enough that it conveys to the persons who read it a
access to the building disguised as telephone repairmen, were substantially correct account of the [contents of the official
handling the telephones, and were equipped with and planned document].” Id. (citing Costello v. Ocean Cnty. Observer,
to use recording devices. 136 N.J. 594, 643 A.2d 1012, 1012 (N.J.1994)).
*5 Courts addressing analogous situations have reached Courts applying this law have held that reports were not
similar conclusions. See Orr v. Argus–Press Co., 586 entitled to the protection of the fair-report privilege where the
F.2d 1108, 1113 (6th Cir.1978) (use of the word “swindle” articles in question omitted ultimate exculpatory facts in ways
was permissible as a substantially accurate, colloquial that were misleading. See id. at 793; see also Costello,
substitute for “defraud,” despite its potential to imply 643 A.2d at 1019–20 (article was not protected by fair-
report privilege where report inaccurately suggested that legal

2015 WL 1472410
action was pending against plaintiff and omitted that draft all.” Opp. Br. 16. As discussed supra pages 8–9, however,
each version of the article provided a substantially accurate
complaint had never been signed or filed); Schiavone, 847 summary of the events in question and the ultimate legal
F.2d at 1088 (omission of exculpatory language in FBI memo outcome. Moreover, the New Jersey Supreme Court counsels
—that appearance of plaintiff's name in the memo, which against “mincing of the words of the publication” to require
discussed disappearance of Jimmy Hoffa, did not suggest a “verbatim regurgitation of the [court filing in question].”
any criminality or organized crime associations—exceeded Salzano, 993 A.2d at 794. Thus, although Plaintiff may have
bounds of fair reporting); Reilly v. Gillen, 176 N.J.Super. preferred an exact recitation of the language in the Factual
321, 423 A.2d 311, 328 (N.J.Super.Ct.App.Div.1980) (article Basis Document, Defendants' “rough and ready summary” is
about complaint accusing plaintiff of corruption, knowingly entitled to the protection of the fair-report privilege as it is a
republished without reference to later dismissal of complaint, fair and accurate report under New Jersey law. See id. at 792
was not entitled to protection of fair-report privilege). (citing Riley v. Harr, 292 F.3d 282, 296 (1st Cit.2002)).
*6 Here, by contrast, the ultimate exculpatory fact—that Because Plaintiff has failed to meet the threshold
Plaintiff's felony charges were reduced to a misdemeanor requirements needed to establish a libel claim, and because
plea—was accurately reported. Thus, even though the words Defendants are entitled to the protection of the New
“apparently trying to bug” and “trying to tamper” may have Jersey fair-report privilege, the Amended Complaint will be
been imprecise, a reasonable person reading the whole article dismissed.
would not be misled as to the ultimate conclusion that
Plaintiff was guilty only of a misdemeanor. See Salzano,
993 A.2d at 793 (although headline stating that “funds were IV. CONCLUSION
taken” was “imprecise insofar as the ‘taking’ had not been Based on the reasons set forth above, the Defendants'
adjudicated,” language was entitled to protection of fair report motion to dismiss is granted. Plaintiff's Amended Complaint
privilege because a reasonable person reading whole article, is hereby dismissed with prejudice. An appropriate order
which stated that it was reporting on allegations contained accompanies this Opinion.
in court filings, would understand that allegations had not
been adjudicated). Plaintiff argues that “[a] fair report would
have informed the reader that the initial charges that Plaintiff All Citations
had intended to ‘tamper’ or ‘bug’ the phones was unfounded
Not Reported in F.Supp.3d, 2015 WL 1472410
or would not have mentioned those baseless contentions at
Footnotes
1 The Court may properly consider both Defendants' article and the Factual Basis Document, because they are
integral to and explicitly relied upon in the Amended Complaint. See In re Burlington Coat Factory Secs.
Litig., 114 F.3d 1410, 1426 (3d Cir.1997), The Factual Basis document was also submitted as an exhibit
attached to Plaintiff's original Complaint.
2 In ruling on a motion to dismiss, the court may consider “public records, including judicial proceedings,”
Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426–27 (3d
Cir.1999), as well as “an undisputedly authentic document that a defendant attaches as an exhibit to a motion
to dismiss if the plaintiff's claims are based on the document,” Pension Ben. Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1198 (3d Cir.1993).
3 The Court must determine which state's substantive law applies to this matter. Both parties rely upon New
Jersey law and implicitly agree that New Jersey substantive law applies to this diversity action. The Plaintiff is

2015 WL 1472410
a resident of New Jersey and argues that the allegedly defamatory article, available on the internet including in
New Jersey, has harmed his reputation in his community. Am. Compl. ¶¶ 1, 16. Thus, the Court acknowledges
New Jersey's interest In this litigation and will not sua sponte challenge the choice of New Jersey law. See
Schiavone Const. Co. v. Time, Inc., 735 F.2d 94, 96 (3d Cir.1984).
4 Tamper has multiple potential definitions, including: “to interfere so as to weaken or change for the
worse,” or “to try foolish or dangerous experiments with.” Tamper Definition Merriam–Webster.com, http://
www.merriam-webster.com/dictionary/tamper (last visited Mar. 26, 2015); see also Tamper Definition,
Merriam–Webster.com, http://www.merriam-webster.com/thesauras/tamper (last visited Mar. 26, 2015)
(defining “tamper” as “to handle thoughtlessly, ignorantly, or mischievously” and listing synonyms including,
“diddle (with), fiddle (with), fool (with), mess (with), monkey (with), play (with), tinker (with), toy (with)”).
5 Plaintiff's reasoning in his opposition brief appears to support this reading. Plaintiff states that “[t]he allegation
of felony phone tampering, followed by a guilty plea to a misdemeanor, is a distinction likely only recognized
by individuals possessing the requisite knowledge to recognize such legal peculiarities.” Opp. Br. 14–15,
Plaintiff thus appears to argue on the one hand that a layman of ordinary intelligence would not be able to
recognize such “legal peculiarities” as the distinction between a felony and a misdemeanor, but on the other
hand Plaintiff's entire defamation claim is based on the premise that an ordinary layman would attribute felony
wrongdoing to Plaintiff, over and above the misdemeanor charge to which he pleaded guilty, solely as a result
of the word “tamper.” The Court is not convinced that “tamper” alters the substantial accuracy of the article.

EXHIBIT D
Newton v. Newark Star-Ledger, Not Reported in A.3d (2014)
2014 WL 3928500, 42 Media L. Rep. 2468
tenant court proceedings. Believing that Carter had obtained

2014 WL 3928500 negative information from his adversaries, plaintiff declined
to be interviewed for the article. Instead, on March 21, 2011,
UNPUBLISHED OPINION. CHECK COURT RULES he filed a verified complaint and order to show cause in the
BEFORE CITING. Chancery Division, seeking to restrain the Star Ledger from
Superior Court of New Jersey, publishing the article. In an April 8, 2011 order, the Chancery
Appellate Division. court denied the application.
Mark NEWTON, Plaintiff–Appellant, Thereafter, on May 15, 2011, the Star–Ledger published
v. an article entitled, “The Tenant Who Won't Get Out” (the
NEWARK STAR–LEDGER, Newark Morning Ledger first article). The first article reported the results of the
and all Parent Ownership, Corporations, David Tucker, in Star–Ledger's “exhaustive” review of court records wherein
his Professional capacity both as Editor and Individually, plaintiff's former landlords alleged that plaintiff refused
and Barry Carter, Reporter both in his Professional to pay rent, intentionally damaged their property in order
to create habitability issues to avoid eviction and paying
capacity and Individually, Defendants–Respondents.
rent, and used tactics to prolong the litigation. The first
A-3819-11T3 article also reported other allegations made by plaintiff's
| former landlords, the landlords' family members, plaintiff's
Argued Oct. 9, 2013. neighbors, and adversary attorneys that plaintiff abused them
| and the legal system and wasted judicial resources by filing
Decided Aug. 13, 2014. numerous frivolous civil and criminal complaints.
On appeal from the Superior Court of New Jersey, Law On June 30, 2011, plaintiff filed an amended complaint
Division, Essex County, Docket No. L–6997–11. in the Chancery Division, adding a defamation claim.
He specifically referenced the first article and alleged,
Attorneys and Law Firms
without any supporting facts, that it was “riddled with
willful lies, false statements, and contorted half-truths with
Mark Newton, appellant pro se.
the express purpose of intentionally harming [his] fame,
Michael J. Gesualdo argued the cause for respondents reputation, and character.” He also alleged, without any
(Robinson, Wettre & Miller, LLC, attorneys; Mr. Gesualdo supporting facts, that the Star–Ledger “purposely authored
and Keith J. Miller, on the brief). and published false statements” in “reckless disregard for
the veracity[ ] and truthfulness of the statements published.”
Before Judges SIMONELLI, FASCIALE and HAAS. In a mechanical fashion, he quoted statements contained in
the first article and generally concluded they were “wholly
Opinion
false, mendacious, contorted, and otherwise misrepresented,”
PER CURIAM. and that defendants' conduct “constitute[d] actual malice,
malice, gross negligence, negligence, libel, slander, and an
*1 Plaintiff Mark Newton brought a defamation action intentional defamation of character and reputation, as well
against defendant Newark Morning Ledger Co., publisher as pure unadulterated defamation, and was intentionally
of the Star–Ledger newspaper, its editor, defendant David engaged in pursuant to flagrant libel, slander, and defamation
Tucker, and a reporter, defendant Barry Carter relating to of character, fame, reputation[.]”
two published articles concerning plaintiff. 1 Plaintiff appeals
from the February 17, 2011 Law Division order, which In lieu of filing an answer, the Star–Ledger filed a motion
dismissed the matter with prejudice pursuant to Rule 4:6–2(e). pursuant to Rule 4:6–2(e) to dismiss the amended complaint
We affirm. for failure to state a claim upon which relief could be
granted. In support of the motion, the Star–Ledger relied
The record reveals the following facts. Sometime prior to May on the amended complaint, the April 8, 2011 Chancery
15, 2011, plaintiff learned that Carter was writing an article Division order, and the first article, copies of which were
about plaintiff's involvement as a pro se litigant in landlord- attached to defense counsel's supporting certification. The

2014 WL 3928500, 42 Media L. Rep. 2468
Star–Ledger argued that plaintiff failed to plead that the first denying him pre-trial discovery, the fair-comment and fair-
article contained any false statements of fact. It also argued report privileges do not apply, and he need not show actual
that the fair-comment and fair-report privileges applied and malice because he was not a public figure. We reject all of
plaintiff failed to plead facts showing actual malice or that these contentions.
the first article did not fairly and accurately report the judicial
proceedings. When a motion to dismiss pursuant to Rule 4:6–2(e) relies
upon facts outside the pleadings, the motion should be treated
*2 Prior to disposition of the motion, the matter was as one for summary judgment pursuant to Rule 4:46 and
transferred to the Law Division. Thereafter, on September 25, supported by affidavits made in compliance with Rule 1:6–
2011, the Star–Ledger published an article entitled, “Carter: 6. Pressle & Verniero, Current N.J. Court Rules, cmt. 4.1.2
Even on a family outing, woman can't escape the nuisance on R. 4:6–2(e) (2014). However, the court's consideration
next door” (the second article). The second article reported the of documents specifically referenced in the complaint does
on-going dispute between plaintiff and his family members not convert a motion to dismiss into a summary judgment
and their next-door neighbors, which resulted in the parties
motion. E. Dickerson & Son, Inc. v. Ernst & Young, LLP,
filing criminal charges against each other. The second article
also reported information contained in police reports, as well 361 N.J.Super. 362, 365 n. 1 (App.Div.2003), aff'd, 179
as what the neighbors alleged about their confrontations with N.J. 500 (2004). “In evaluating motions to dismiss, courts
plaintiff. consider ‘allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form
On October 11, 2011, plaintiff filed a second amended the basis of a claim.’ “ Banco Popular N. Am. v. Gandi,
complaint, incorporating the allegations in the first amended
complaint and adding a defamation claim regarding the 184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am., 361
second article. In the second amended complaint, plaintiff F.3d 217, 222 n. 3 (3d Cir.), cert. denied, 543 U.S. 918, 125
specifically referred to and quoted statements contained in the S.Ct. 271, 160 L. Ed.2d 203 (2004)). “It is the existence of
second article. As with the amended complaint, the second the fundament of a cause of action in those documents that is
amended complaint contained general conclusions and no pivotal; the ability of the plaintiff to prove its allegations is
supporting facts. not at issue.” Ibid. (citation omitted).
On February 17, 2012, the motion judge granted the motion *3 Here, the first and second articles formed the sole basis
and dismissed the matter with prejudice. The judge found of plaintiff's claims in the amended and second amended
the motion was properly brought pursuant to Rule 4:6–2(e), complaints. Plaintiff referred to the articles throughout both
and determined the amended complaint had no facts showing pleadings and quoted statements contained in them. The judge
the articles contained any false statements of fact. The considered only the content of the amended complaints and
judge emphasized that plaintiff did not deny the allegations the first and second articles referenced therein in deciding the
made against him existed and that the articles did not state motion. Accordingly, the motion did not rely on facts outside
that the allegations were true. In addition, the judge found the record and no affidavits were required to support it. The
that the fair-comment privilege applied because the articles judge properly declined to convert the motion to a summary
commented on matters of public interest, and plaintiff pled no judgment motion and correctly decided the motion pursuant
facts showing actual malice. The judge also determined that to Rule 4:6–2(e). 2
the fair-report privilege applied, and plaintiff pled no facts
showing that the articles did not fairly and accurately report We now address the motion to dismiss. “In any defamation
the judicial proceedings. This appeal followed. action, the plaintiff bears to burden of establishing, in addition
to damages, that the defendant ‘(1) made a defamatory
On appeal, plaintiff contends that because the motion relied statement of fact (2) concerning the plaintiff (3) which
on facts outside the record or not judicially noticeable, the was false, and (4) which was communicated to a person
judge should have converted it to a summary judgment or persons other than the plaintiff.’ “ Petersen v. Meggitt,
motion and denied it for lack of supporting affidavits or 407 N.J.Super. 63, 74 (App.Div.2009) (quoting Feggans
certifications as required by Rule 1:4–4(b), Rule 1:6–2(a) and v. Billington, 291 N.J.Super. 382, 390–91 (App.Div.1996)).
Rule 1:6–6. Plaintiff also contends that the judge erred in

2014 WL 3928500, 42 Media L. Rep. 2468
“Fault, either negligence or malice, must also be proven.”

Ibid. Plaintiff pled no facts supporting his allegation that the
articles contained false statements of fact. The allegations
In deciding a motion pursuant to Rule 4:6–2(e), “[t]he in both complaints were limited to the fact of publication
motion judge must accept as true all factual assertions in and a litany of vague and bare conclusory assertions that the
the complaint ... [and] accord to the non-moving party every articles contained false statements of fact and the Star–Ledger
reasonable inference from those facts.” Malik v. Ruttenberg, purposely published the articles in reckless disregard for the
398 N.J.Super. 489, 494 (App.Div.2008). The judge must truth. The essential facts that were utterly lacking in this case
examine the complaint “ ‘in depth and with liberality to could not be dredged up in pre-trial discovery.
ascertain whether the fundament of a cause of action may be
gleaned even from an obscure statement of claim, opportunity In addition, the fair-comment privilege applies. “Generally,
the fair-comment privilege provides a defense to a libel or
being given to amend if necessary.’ “ Green v. Morgan
slander action when the words in question are a fair comment
Props., 215 N.J. 431, 452 (2013) (quoting Printing Mart– on a matter of public interest or concern, even though the
Morristown v. Sharp Electronics Corp ., 116 N.J. 739, 746 words are of or concerning a private individual.' “ Petersen,
(1989)).
supra, 407 N.J.Super. at 76 (quoting Senna v. Florimont,
196 N.J. 469, 484, 486 n. 12 (2008)) (internal quotation marks
Despite this generous and hospitable standard of review, in
omitted). The privilege is extended to investigative news
deciding a Rule 4:6–2(e) motion to dismiss a defamation
stories that address matters of public concern or legitimate
action, we have held that
public interest, “requiring proof of actual malice to impose
when the allegations of a defamation complaint ... are liability.” Ibid. (citing Dairy Stores, Inc. v. Sentinel Publ'g
limited to the fact of publication and a bare conclusory
assertion that the press defendants knew and/or reasonably Co., 104 N.J. 125, 156–57 (1986); Sisler v. Gannett Co.,
should have known that the statement ... was false, with no 104 N.J. 256, 271–76 (1986)).
other factual reference to lend support to the contention,
the court may not simply take the facial assertion as The actual-malice standard applies to statements involving
a given, but rather must evaluate the circumstances as matters of public concern or legitimate public interest
best it can to determine whether there is any reasonable regardless of whether the plaintiff is a public figure or private
basis upon which the defamation claim can be seen to be person. Durando v. Nutley Sun, 209 N.J. 235, 250 (2012).
viable. Were it otherwise, any person or entity claiming Thus, the plaintiff must plead facts showing that the media
First Amendment protection would be at the mercy of defendant acted “with knowledge that [the statement] was
a claimant's empty assertions unsupported even by any false or with reckless disregard of whether it was false or
contentions regarding surrounding facts. This is especially not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84
so where the circumstances involve an account of a public S.Ct. 710, 726, 11 L. Ed.2d 686, 706 (1964). Mere conclusory
proceeding and implicate the values protected by the fair- allegations of “[s]pite, hostility, hatred, or the deliberate intent
report privilege. to harm demonstrate possible motives for making a statement,
but not publication with a reckless disregard for its truth.”
It is not enough for [a] plaintiff[ ] to assert ... that
any essential facts that the court may find lacking can Lynch v. N .J. Educ. Ass'n, 161 N.J. 152, 166–67 (1999).
be dredged up in discovery. A plaintiff can bolster a Moreover, allegations “[t]hat an editor or reporter ‘should
defamation cause of action through discovery, but not [ ] have known’ or ‘should have doubted [the] accuracy’ of an
file a conclusory complaint to find out if one exists.... [A] article before publishing it is insufficient to show reckless
plaintiff must plead the facts and give some detail of the disregard for the truth.” Durando, supra, 209 N.J. at 251–
cause of action. 52 (quoting Lawrence v. Bauer Publ'g & Printing Ltd., 89
N.J. 451, 467, cert. denied, 459 U.S. 999, 103 S.Ct. 358, 74
*4 [ Darakjian v. Hanna, 366 N.J.Super. 238, 248 L. Ed.2d 395 (1982)). “To act with reckless disregard of the
truth, a defendant must “ ‘actually doubt[ ]’ the veracity of the
(App.Div.2003) (quoting Printing Mart, supra, 116 N.J. article.” Id. at 252 (quoting Lawrence, supra, 89 N.J. at 468).
at 768) (internal quotation marks omitted).]

2014 WL 3928500, 42 Media L. Rep. 2468
accurately report statements made in judicial or other public

“When published by a media ... defendant, a news story
concerning public health and safety, a highly regulated proceedings. Salzano v. N. Jersey Media Group, Inc., 201 N.J.
industry, or allegations of criminal or consumer fraud or a 500, 522 (2010), cert. denied, ––– U.S. 1045, 131 S.Ct. 1045,
substantial regulatory violation will, by definition, involve 178 L. Ed.2d 864 (2011). Whether the report is full, fair, and
accurate is the only relevant inquiry, and once that condition is
a matter of public interest or concern.” Senna, supra, met, the privilege becomes absolute. Id. at 530. “[S]o long as
196 N.J. at 496–97. In all other cases, to determine whether the publisher fully, fairly, and accurately reports the contents
the speech “involves a matter of public concern or interest of a public proceeding, he has done what is necessary and is
that will trigger the actual-malice standard, a court should immune from a suit for defamation based on false statements
consider the content, form, and context of the speech.” Id. made, not by him, but by the participants in the proceeding.”
at 497 (citation omitted). For content, a court must “look at Id. at 532.
the nature and importance of the speech[,]” and for context, a
court must “look at the identity of the speaker, his ability to Here, the articles reported the allegations made against
exercise due care, and the identity of the targeted audience.” plaintiff in judicial proceedings and police reports. The
Ibid. articles did not state the allegations were true or had been
adjudicated. Plaintiff did not deny his involvement in the
*5 Newspaper articles, such as the articles here, concerning judicial proceedings or that the allegations made against him
allegations of abuse of the legal system, non-payment of existed, and he pled no facts showing that the articles did not
rent and intentional damage of private residences in landlord- fully, fairly, and accurately report the judicial proceedings and
tenant matters, the causing of general disharmony in the reports.
community, and potential fraud and other criminal or civil
wrongdoing, implicate matters of legitimate public interest. For all of these reasons, we conclude that the judge properly
False statements of fact concerning matters of legitimate dismissed this matter with prejudice pursuant to Rule 4:6–
public interest are privileged absent proof of actual malice. 2(e).
Thus, even if the articles contained false statements of fact,
plaintiff pled no facts supporting his allegation that the Star– Affirmed.
Ledger acted with knowledge that the statements were false
or with reckless disregard of whether they were false or not.
All Citations
The fair-report privilege also applies. This privilege insulates Not Reported in A.3d, 2014 WL 3928500, 42 Media L. Rep.
media defendants from liability for otherwise defamatory 2468
statements in their news stories when they fully, fairly, and
Footnotes
1 We shall sometimes refer to defendants collectively as the Star–Ledger.
2 Having reached this conclusion, we reject plaintiff's additional contention that the motion was defective
because it was returnable less than twenty-eight days after it was filed. Because Rule 4:6–2(e) governed the
motion, the sixteen-day requirement of Rule 1:6–3(a), not the twenty-eight day requirement of Rule 4:46–
1, applied.

5/22/23, Defendant's Reply Memorandum in Support of Motion To Dismiss, LifeVac LLC v. States Newsroom Inc. Et Al

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MER-L-000049-23 05/22/2023 2:55:13 PM Pg 1 of 23 Trans ID: LCV20231601333

PASHMAN STEIN WALDER HAYDEN, P.C.

v. Docket No.: MER-L-000049-23

STATES NEWSROOM, INC., d/b/as the New

REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Arista Recs., Inc. v. Flea World, Inc.,

Plaintiff misunderstands the role of the court in acting as a gatekeeper on a Motion to

mechanism for evaluating whether a statement is defamatory as opposed to proving truth as a

which, by themselves, constitutes actual malice.

various public entities having bought their product—is beyond speculative. 1

countenance such a frivolous effort to silence critics.

516, 529 (1994).

Courts begin their review to determine whether a statement is susceptible of a defamatory

quotation marks omitted).

discusses matters of public concern – is a summary of an important public issue of anti-choking

come to their own conclusions about the credibility of each.

An opinion is “pure”—and therefore not actionable—when “the maker of the comment

for defamation.” Kotlikoff, 89 N.J. at 69-71.

Plaintiff’s complaint must be dismissed.

of official action based on a description by a government official outside of an actual meeting). If

of most of the Complaint based on Fair Report.

B. Studies of the Safety and Efficacy of Plaintiff’s device.

Live Humans.” (Pl’s Br. at 16).

capabilities of “reasonable persons of ordinary intelligence” by claiming it was defamed by

otherwise accurate report).

the LifeVac Device.” (Pl’s Br. at 18).

U.S. 1, 19-20 (1990).

primary definition of “problematic” is “constituting or presenting a problem or difficulty.” It is

or false whether such a relationship makes the study “problematic.”

C. Statements from “Unreliable Sources”

Plaintiff completely ignores argument in Defendant’s moving papers that address

standards cited above and in Defendants’ moving brief.

II. PLAINTIFF FAILS TO STATE A CLAIM FOR DEFAMATION (COUNT 1)

a plaintiff with personal misconduct, or imputes to plaintiff reprehensible personal characteristics,

product, or on the character of plaintiff's business as such, it is disparagement.).

study supporting the LifeVac device. (See Pl’s Br. at 20-22).

None of these statements explicitly impute corporate fraud, deceit, dishonesty, or

For these reasons, Count I for defamation must be dismissed.

by the First Amendment.”); Newton v. Newark Star-Ledger, No. A-3819-11T3, 2014 WL

truth”) (collecting cases).

 “Defendants knew, or should have known, that statements were false

Supp. 2d 411, 427 (D.N.J. 2005).

Traditionally, plaintiff was required to identify particular business

can plead special damages with the requisite particularity.

V. PLAINTIFF CANNOT, UNDER ANY CIRCUMSTANCE, SHOW THAT THE

of Plaintiff’s trade libel claim (Count III) is warranted.

VI. PLAINTIFF’S TORTIOUS INTERFERENCE CLAIM (COUNT IV) MUST BE

These [non-defamatory statements] are also intentionally coupled

require dismissal of Plaintiff’s tortious interference claim because it is duplicative of Plaintiff’s

rather amorphous concept” consisting of communication to a third person of false statements

concerning the plaintiff, his property, or his business).

Courts have routinely refused to subvert a defendant’s First Amendment protections by

v. Falwell, 485 U.S. 46 (1988).

that forms the basis for his defamation claim.”).

Thus, the tortious interference claim should be dismissed with prejudice.

VII. THE COURT SHOULD CONSIDER MAY 2, 2023 STATEMENTS ON THIS

granted, thus warranting dismissal of Plaintiff’s Complaint.

PASHMAN STEIN WALDER HAYDEN, P.C.

v. Docket No.: MER-L-000049-23

STATES NEWSROOM, INC., d/b/as the New CERTIFICATION OF BRUCE S. ROSEN

Bruce S. Rosen, Esq., of full age, hereby certifies:

1. I am a Partner at Pashman Stein Walder Hayden, P.C., attorneys for Defendants

contrary unpublished opinions are known to counsel.