ROY v. BERNSTEIN et al

Filing 5

MEMORANDUM OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 6/15/16. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

FRANK ROY,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-5905 (JBS/JS)

v.
JUSTIN M. BERNSTEIN and KENNETH
R. SCHUSTER AND ASSOCIATES,

MEMORANDUM OPINION

Defendants.

SIMANDLE, Chief Judge:
In this case, Plaintiff Frank Roy alleges that Defendant
Justin Bernstein, an attorney with the Defendant law firm
Kenneth R. Schuster and Associates, made slanderous statements
about him before the Court of Common Pleas, Delaware County, in
the Commonwealth of Pennsylvania. This matter comes before the
Court on Defendants’ motion to dismiss [Docket Item 4] for
failure to state a claim and for lack of subject matter
jurisdiction. For the following reasons, the Court finds it has
diversity jurisdiction and it grants Defendants’ motion to
dismiss for failure to state a claim.
1.

The facts in this case are straightforward. Plaintiff

alleges that during proceedings before the Court of Common
Pleas, Delaware County, Defendant Bernstein and his client both
told the judge that Plaintiff had done “an illegal act” which

resulted in the court vacating a large money judgment1 that had
been entered in Plaintiff’s favor. (Compl. ¶ 1.) Plaintiff
alleges that this “slanderous statement” was made with
Defendants’ “personal negligence.” (Id.)
2.

Defendants argue that this case must be dismissed

under Fed. R. Civ. P. 12(b)(1) for lack of diversity
jurisdiction because the damages in the case do not exceed
$75,000, the amount-in-controversy requirement of 28 U.S.C. §
1332(a). Section 1332(a) provides district courts with subject
matter jurisdiction over civil actions between citizens of
different states “where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interests and costs . . .”
Generally, a party who invokes federal court jurisdiction has
the burden of demonstrating the court’s jurisdiction. Columbia
Gas Transmission Corp. v. Tarbuck, 62, F.3d 538, 541 (3d Cir.
1995) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189 (1936)); Roy v. Ramsey Moving System, No. 15-cv-3330,

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Defendants explain that Plaintiff is referring to a hearing on
a motion to vacate a default judgment in Frank Roy v. Ramsey
Moving Systems, Case No. 12-53172, Court of Common Pleas,
Delaware County, Commonwealth of Pennsylvania. Defendants have
appended a copy of the transcript of this hearing to their
motion to dismiss. (See Def. Mot. Ex. B.) The Court may consider
this transcript on the present motion without converting it to
one for summary judgment because it is a document “integral to
or explicitly relied upon in the complaint” and because it is a
matter of public record. Schmidt v. Skolas, 770 F.3d 241, 249
(3d Cir. 2014); In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997).
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2016 WL 1163932, at *2 (D.N.J. March 23, 2016) (Simandle, J.).
In diversity cases, courts generally rely on the plaintiff’s
allegations of the amount in controversy contained in the
complaint. Columbia Gas, 62 F.3d at 541; see also Suber v.
Chrysler Corp., 104 F.3d 578, 583 (3d Cir. 1997). “[T]he sum
claimed by the plaintiff controls if the claim is apparently
made in good faith.” Feuerstein v. Simpson, 582 F. App’x 93, 98
(3d Cir. 2014). However, if the defendant challenges the
sufficiency of the plaintiff’s amount in controversy, “the
plaintiff who seeks the assistance of the federal courts must
produce sufficient evidence to justify its claims.” Suber, 104
F.3d at 583. Dismissal is appropriate if the defendant can
demonstrate that the jurisdictional amount cannot be met, or if,
from the proof, it appears to a legal certainty that the
plaintiff is not entitled to that amount. Columbia Gas, 62 F.3d
at 541; see also Dolin v. Asian Am. Accessories, Inc., 449 F.
App’x 216, 218 (3d Cir. 2011).
3.

Plaintiff alleges that he is a citizen of New Jersey

and that Defendants are citizens of Pennsylvania. (See Compl.)
He also alleges that he is entitled to judgment “in the amount
of $350,000 plus interest and cost of suit.” (Id.) Defendants
contend that there is no basis for this $350,000 figure and that
this allegation was not made in good faith, and Plaintiff has
not provided in response any evidence of how he was damaged by
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Defendant’s alleged statements sufficient to justify his claims.
The Court has serious doubts about its jurisdiction over this
dispute, but because Defendants have not shown that Plaintiff
would not be entitled to this amount as “a legal certainty,” the
Court will deny Defendants’ motion to dismiss under Fed. R. Civ.
P. 12(b)(1).
4.

Defendants also argue that the bare allegations in the

Complaint fail to state a claim for which relief can be granted.
Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need only
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are not
required, and “the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted). While a complaint is not required to contain detailed
factual allegations, the plaintiff must provide the “grounds” of
his “entitle[ment] to relief”, which requires more than mere
labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). A complaint will survive a motion to dismiss if
it contains sufficient factual matter to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009). Although a court must accept as true all
factual allegations in a complaint, that tenet is “inapplicable
to legal conclusions,” and “[a] pleading that offers labels and
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conclusions or a formulaic recitation of the elements of a cause
of action will not do.” Id. at 678.
5.

To state a claim for relief for defamation under New

Jersey law, a plaintiff must allege “(1) that defendants made a
false and defamatory statement concerning plaintiff; (2) that
the statement was communicated to another person and not
privileged; and (3) that defendants acted negligently or with
actual malice.” G.D. v. Kenny, 15 A.3d 300, 310 (N.J. 2011).
Plaintiff has failed to properly allege all three elements of
his claim.
6.

Plaintiff has not identified any particular statements

made by Defendant Bernstein that could be considered defamatory,
and a review of the transcript of the hearing in question
reveals nothing actionable. False statements of criminality are
defamatory as a matter of law, Romaine v. Kallinger, 537 A.2d
284 (N.J. 1988), but it is apparent that despite Plaintiff’s
allegation, Defendant Bernstein made no such statement at the
hearing. Nor did Defendant Bernstein admit any “words that
subject a person to ridicule or contempt, or that clearly sound
to the disreputation of an individual” that could be considered
defamatory on their face. DeAngelis v. Hill, 847 A.2d 1261, 1268
(N.J. 2004) (citing Lawrence v. Bauer Pub. & Printing Ltd., 446
A.2d 469, 473 (N.J. 1982)). Because he has not identified the
particular statement for which he seeks relief, Plaintiff has
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given the Defendants no “fair notice of what the . . . claim is
and the grounds upon which it rests.’” Erickson, 551 U.S. at 93.
7.

Even if any such statement had been made, it would not

be actionable because it was made during proceedings before the
Court of Common Pleas, Delaware County, and is therefore
protected by the litigation privilege. The litigation privilege
applies to “any communication (1) made in judicial or quasijudicial proceedings; (2) by litigants or by other participants
authorized by law; (3) to achieve the objects of the litigation;
and (4) that have some connection or logical relation to the
action.” Hawkins v. Harris, 661 A.2d 284, 289 (N.J. 1995); see
also Bochetto v. Gibson, 860 A.2d 67, 71 (Pa. 2004) (“Pursuant
to the judicial privilege, a person is entitled to absolute
immunity for communications which are issued in the regular
course of judicial proceedings and which are pertinent and
material to the redress or relief sought.”). Plaintiff alleges
that Defendant Bernstein made a false statement about
Plaintiff’s criminal behavior before the Court of Common Pleas,
and that that statement “manipulated” the judge into vacating
the default judgment granted in his favor. Clearly, any
statement for which Plaintiff seeks relief in this action was
made in a judicial proceeding, by an attorney, in order to
defend his client, Ramsey Moving Systems, in its dispute with
Mr. Roy. Both New Jersey and Pennsylvania, where the statement
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was allegedly made, protect Defendant Bernstein and Defendant
Kenneth R. Schuster and Associates from liability for this
alleged defamation.
8.

Nor has Plaintiff adequately alleged the requisite

level of culpability to state a claim for defamation. Plaintiff
alleges only that Defendant made a “slanderous statement” “with
his personal negligence.” (Compl. ¶ 1.) These are exactly the
kinds of “labels and conclusions” which the Supreme Court held
insufficient to withstand a motion to dismiss under Rule
12(b)(6), Fed. R. Civ. P. Iqbal, 556 U.S. at 678. Without
further allegations setting forth why Defendant Bernstein acted
in a negligent manner by making the purported statement,
Plaintiff has failed to state a claim for defamation. Moreover,
if no defamatory statement is alleged, then it matters not that
a defendant acted “negligently.” Accordingly, Defendants’ motion
to dismiss under Rule 12(b)(6) will be granted. This dismissal
will operate with prejudice, because no amendment could cure the
defects noted above, especially the litigation privilege.
9.

An accompanying order will be entered.

June 15, 2016
Date

s/ Jerome B. Simandle`
JEROME B. SIMANDLE
Chief U.S. District Judge

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