REED v. SCHEFFLER et al

Filing 65

OPINION. Signed by Judge Noel L. Hillman on 12/6/2017. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WILLIAM A. REED, JR.
as personal representative
for ELSIE M. REED, an
incompetent individual, and
WILLIAM A. REED, JR.,
individually,

1:16-cv-00423-NLH-AMD
OPINION

Plaintiff,
v.
KAREN SCHEFFLER
Mayor of the Borough of
Palmyra, TRACY KILMER
Housing Official, Borough of
Palmyra, BOROUGH OF PALMYRA,
Defendants.

APPEARANCES:
PETER M. KOBER
1876 GREENTREE ROAD
CHERRY HILL, NJ 08003
On behalf of Plaintiff
RICHARD L. GOLDSTEIN
ASHLEY L. TOTH
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA
WOODLAND FALLS CORPORATE PARK
200 LAKE DRIVE EAST
SUITE 300
CHERRY HILL, NJ 08002
On behalf of Defendant Karen Scheffler
HILLMAN, District Judge
Pending before the Court is the motion of Plaintiff to
file an amended complaint against Defendant Karen Scheffler,
the Mayor of the Borough of Palmyra.

Plaintiff’s claims arise

from statements Scheffler made in response to Plaintiff’s
statements in the Burlington County Times about his concerns
over the Borough’s ordinance requiring a home owner to obtain
a certificate of occupancy from the Borough prior to the sale
of a home.
Previously, the Court dismissed Plaintiff’s First
Amendment claims because Plaintiff’s complaint contained no
allegations that his free speech rights were chilled, or that
he suffered any sort of retaliation.

The Court also dismissed

Plaintiff’s defamation claim because Scheffler’s factually
true statements were not actionable, and her remaining
statements were opinions that did not rise to the level of
contempt or ridicule, or could be said to harm Plaintiff’s
reputation in the community.
Plaintiff subsequently filed a motion for reconsideration
of that decision relating to the dismissal of his First
Amendment claims – but not as to the dismissal of his
defamation claims - arguing that if pleading deficiencies were
fatal to his claims, he should be granted leave to amend.

The

Court denied that motion, finding that Plaintiff’s proposed
amendments did not change the Court’s prior analysis, see
Docket No. 23 at 7 (explaining that a court cannot credit
either “bald assertions” or “legal conclusions” in a complaint
when deciding a motion to dismiss); Docket No. 23 at 10-11
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(simply adding to his complaint that Plaintiff, or any other
ordinary and reasonable person, would be fearful of exercising
his rights to speak to the council or newspaper in the future
after Scheffler’s remarks is a “bald assertion” or “legal
conclusion,” and does not establish the requisite causal
connection); Docket No. 23 at 14 n.3 (explaining that
Plaintiff’s conclusory statements that his home was in good
repair must be supported by some minimal factual basis).
Plaintiff’s current motion to file an amended complaint
presents, without a supporting brief 1, a proposed amended
complaint, which reasserts the dismissed First Amendment
claims against Scheffler, and adds a claim for false light
invasion of privacy against Scheffler.

The Court has again

reviewed the proposed amendments to his claims against
Scheffler, which provide further support to his allegations

1

Plaintiff filed a brief in response to Scheffler’s opposition
to his motion. (Docket No. 46.) In that responsive brief,
Plaintiff sets forth the law applicable to the relief he
seeks. Amendments to pleadings are governed by Federal Civil
Procedure Rule 15, which provides that the Court “should
freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). An amendment must be permitted in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment. Grayson v. Mayview State Hosp., 293
F.3d 103, 108 (3d Cir. 2002) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). Amendment of the complaint is futile if the
amendment will not cure the deficiency in the original
complaint or if the amended complaint cannot withstand a
renewed motion to dismiss. Jablonski v. Pan American World
Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
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that he kept the home in good repair, despite Scheffler’s
statements to the contrary, and assert that Scheffler’s
statements cast him in a false light (which is a new claim),
and inhibited his desire to speak openly about his views in
the future (a reassertion of his dismissed First Amendment
claims).

(Docket No. 45 at 6-7.)

There is a conceptual affinity between the causes of
action based on defamation and false light invasions of
privacy.

Even though a false light claim does not need to

assert that the untrue material injures the plaintiff’s
standing in his community, both causes of action require that
the plaintiff show that the statements were “highly offensive
to a reasonable person,” Romaine v. Kallinger, 537 A.2d 284,
290, 109 N.J. 282, 295 (N.J. 1988) (providing that this
protection of privacy does not extend to the “hypersensitive
person,” and the material publicized must be something that
would be objectionable to the ordinary person under the
circumstances) (citations and quotations omitted); G.D. v.
Kenny, 984 A.2d 921, 933 (N.J. Super. Ct. App. Div. 2009)
(quoting Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585,
969 A.2d 1097 (2009)) (“‘The tort of false light has two
elements: (1) the false light in which the other was placed
would be highly offensive to a reasonable person; and (2) the
actor had knowledge of or acted in reckless disregard as to
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the falsity of the publicized matter and the false light in
which the other would be placed.’”).
In order to prevail on a First Amendment retaliation
claim, a plaintiff must show: (1) constitutionally protected
conduct, (2) retaliatory action sufficient to deter a person
of ordinary firmness from exercising his constitutional
rights, and (3) a causal link between the constitutionally
protected conduct and the retaliatory action.

Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003) (quotations and
citations omitted).
Even if the Court were to find that Plaintiff’s
allegations regarding the condition of the house establish,
when accepted as true, that Scheffler’s statements about the
state of repair of his mother’s home were false, Plaintiff’s
other amendments do not state a cognizable claim under the
First Amendment or for the tort of false light, for the same
reasons articulated in the Court’s original opinion.
As the Court previously noted after discussing two cases
that rejected plaintiffs’ claims against their mayors for
their alleged false statements about them, 2 “[a]ccepting as
true that Scheffler’s statements imply that plaintiff was

2

McCausland v. City Of Atlantic City, 2006 WL 1451060, at *1
(N.J. Super. App. Div. 2006); Ferraro v. City of Long Branch,
714 A.2d 945, 949 (N.J. Super. Ct. App. Div. 1998).
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derelict in taking care of his mother’s home, these statements
do not rise to the level of contempt or ridicule, or of such a
nature to harm plaintiff’s reputation in the community.”
Moreover, “the statements Scheffler made to the Burlington
County Times, although arguably harsh, related to a municipal
ordinance, the reasons for its enforcement and existence, and
the effect non-compliance could have on property values in the
town” – “[a]ll of these issues related directly to her duties
and responsibilities as mayor.” (Docket No. 23 at 15, 19.)
Even accepting Plaintiff’s argument that Scheffler is entitled
to at best qualified immunity for those statements, no facts
are alleged in the proposed amendment to suggest actual malice
or any other basis to abrogate that immunity.

Such immunity

applies whether the claims are couched as defamation or its
legal cousin, false light.

Plaintiff’s proposed amendments

would therefore be futile as a matter of law.
Accordingly, the Court finds that Plaintiff’s conclusory
allegations that Scheffler’s statements would be highly
offensive to a reasonable person and chilled his First
Amendment rights insufficient as a matter of law to state a
claim for false light invasion of privacy, or to reassert his
First Amendment claims.

See In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997) (providing
that a court need not credit either “bald assertions” or
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“legal conclusions” in a complaint when deciding a motion to
dismiss); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (discussing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009)) (explaining that a district court must accept all of
the complaint's well pleaded facts as true, but may disregard
any legal conclusions).
Plaintiff’s motion for Leave to File Amended Complaint
will therefore be denied.

An Order consistent with this

Opinion will be entered.

Date:
December 6, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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