MARINO v. WESTFIELD BOARD OF EDUCATION et al

Filing 43

OPINION. Signed by Judge William H. Walls on 1/17/17. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSEPH MARINO,

Plaintiff,
OPINION
V.

WESTFIELD BOARD OF EDUCATION,
MITCHELL SLATER, MARGARET
DOLAN, SANDY MAMAMRY, RICHARD
MATTESSICH, ROSANNE KURSTEDT,
MARK FRIEDMAN, J. BRENDA
GALLIGAN, ANN ORMSBY CARY,
GRETCHAN OHLIG, LUCY BIEGLER,
BARBARA BALL, JOHN DOE 1-5 (Names
being fictitious), ABC CORP. 1-3 (Names
being fictitious), RICHARD ROE 1-5
(Names being fictitious), and XYZ CORP. 13 (Names being fictitious),

Civ. No. 16-cv-00361 (WHW) (CLW)

Defendants.

Walls., Senior District Judge
Before the Court are two motions to dismiss Plaintiffs Third Amended Complaint. ECF
Nos. 29—30. On September 1, 2016, Defendant Mitchell Slater filed an Opposition to Plaintiffs
Motion for Leave to File a Third Amended Complaint and a Cross-Motion to Dismiss Plaintiffs
First Amended Complaint. ECF No. 29. Though he fashioned his cross-motion as a motion to
dismiss the First Amended Complaint under Fed. R. Civ. P. 12(c), Defendant Slater alternatively
requested dismissal of the counts specific to him in Plaintiffs Third Amended Complaint in the
event the Court granted leave to amend.’ On September 6, 2016, Defendants Westfield Board of

For the sake of efficiency, the Court will treat Defendant Slater’s cross-motion as a 12(b)(6) motion to dismiss the
Third Amended Complaint for “failure to state a claim upon which relief can be granted.” See Sun Co. (R & M) v.
Badger Design & Constructors, Inc., 939 F. Supp. 365, 367 n.3 (ED. Pa. 1996) (considering an initial motion to
dismiss germane to an amended complaint that failed to cure “a majority of the deficiencies alleged”); see also 6

1

NOT FOR PUBLICATION
Education and its individual members other than Mitchell $later (the “Individual Board
Defendants”) filed an Opposition to Plaintiffs Motion for Leave to File a Third Amended
Complaint and a Cross-Motion to Dismiss under Fed. R. Civ. P. 12(b)(6).2 ECF No. 30. On
November 28, 2016, Magistrate Judge Waldor granted Plaintiffs Motion for Leave to File a
Third Amended Complaint. ECF No. 42. The cross-motions to dismiss are now ripe for
adjudication. Decided without oral argument under Fed. R. Civ. P. 78, Defendants’ motions are
granted in part and denied in part.
FACTUAL AND PROCEDURAL HISTORY

The facts of this case have been previously recounted in the Court’s opinion addressing
Defendants’ first motion to dismiss Plaintiffs First Amended Complaint. ECF No. 14. In short,
Plaintiff Joseph Marino, a middle school teacher and former middle school basketball coach, was
fired from his coaching position after fifteen, complaint-free years as the Westfield Girls Varsity
Basketball Coach. Third Am. Compl., ECF No. 25-1

¶J 25—28.

He was replaced by a younger

less experienced female coach who had previously served as his assistant coach. Id.

¶J 30—31.

Mr. Marino now claims that he lost his coaching position due to age and gender discrimination,
Id.

¶J 43—63, and that a member of the Board of Education for the Town of Westfield, New

Jersey published defamatory and invasive comments about his treatment of student-athletes on
facebook and Twitter after an October 21, 2014 meeting of the Westfield Board of Education,
Id.

¶J 64—75,

83—91. Plaintiff Marino’s Third Amended Complaint consequently asserts claims

against Mitchell $later for defamation and invasion of privacy, id., claims against the Westfield

Charles Man Wright & Arthur R. Miller, fed. Prac. & Proc. Civ. § 1476 (3d ed.) (“If some of the defects raised in
the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the
amended pleading. To hold otherwise would be to exalt form over substance).
2 This
motion was incorrectly filed as an opposition, but the text of the motion clearly indicates its intent to serve as
a cross-motion to Plaintiffs Motion for Leave to File a Third Amended Complaint. ECF No. 30.

2

NOT FOR PUBLICATION
Board of Education for age and gender discrimination in violation of state and federal law, id.
43—63, and the individual board members for infliction of emotional distress, Id.

¶J

¶J 76—82,

related to his termination as Westfield’s basketball coach.3
For the purposes of this opinion, the Court assumes the truth of the following allegations
in the Third Amended Complaint: On or about October 21, 2014, the Westfield Board of
Education held a public session regarding Plaintiff Marino’s employment as head coach of the
Westfield girls’ varsity basketball team. Id.

¶ 22. At the time in question, Mr. Marino was

seeking to keep his job as the head girls’ basketball coach. Id.

¶ 24. Mr. Marino claims that

during the School Board Meeting, Defendant Richard Mattessich, speaking on behalf of the
Board and the Individual Board Defendants, made disparaging and distressing remarks about Mr.
Marino’s treatment of players and failure to communicate as a coach. Id.

¶J 77—82. That same

day, Defendant Slater made allegedly defamatory public statements about Plaintiff Marino on the
social networking websites Facebook and Twitter. Id.

¶ 65. According to the Complaint, $later

stated that “Marino had called a teenage girl worthless,” that Marino “was doing it for years,”
and that “[t]here [was] so much more and hopefully those that aren’t on the Board that know will
come forward.

.

.

.“

Id.

¶ 66 (internal quotation marks omitted).

Despite Slater’s comments, Plaintiff Marino claims that he had not received any
complaints nor been made subject to any disciplinary actions regarding his “behavior and/or
language towards any of his players” during his fifteen years as the basketball coach. Id.

¶ 68.

Mr. Marino denies making the statements alleged by Slater and contends that the statements are
false. Id.

¶ 70.

As a result of Slater’s comments, Marino claims to have lost his coaching position

The Court will refer to these Defendants, including the Westfield Board of Education but not including Mitchell
Slater, as the “Westfield Board Defendants” and all named, individual Defendants other than Mitchell Slater as the
“Individual Board Defendants.”

3

NOT FOR PUBLICATION
and the accompanying salary, as well as money he earned through clinics associated with being
the girls basketball coach. Id.

¶ 73—74. Mr. Marino additionally asserts that he suffered harm “to

his reputation and his profession.” Id.

¶ 69.

At an unspecified date, Plaintiff Marino’s contract for his coaching position was not
renewed. Id.

¶ 28. Plaintiffs supervisors,

Sandy Mamary and Margaret Dolan, decided to hire a

younger female assistant coach as the head coach of the Westfield girls basketball team. Id.

¶ 35.

The Westfield Board of Education, through the defendant members, ratified this decision. Id.

¶

36. Mr. Marino further alleges that his name “may not have been submitted for consideration” by
the Board. Id.

¶ 29. Plaintiff alleges that in previous conversations with defendant, Sandy

Mamary, he “was told that there was a plan to get younger coaches to coach the teams” and that
Ms. Mamary had also stated “that the girls basket ball [sic] team should have a woman’s [sic]
coach.” Id.

¶J 32, 34. Mr. Marino adds that Ms. Mamary “had told other employees that she was

looking to hire new blood in the school district. Id.

¶ 33. As a result of this allegedly unlawful

termination, Marino suffered fear, humiliation, public ridicule, loss of personal reputation, loss
of income, mental anguish, and emotional distress. Id.

¶J 75, 9 1—92.

On October 6, 2015, Plaintiff Marino filed a complaint in the Superior Court of New
Jersey, Law Division, Union County against Defendants Westfield Board of Education, Mitchell
$later, John Doe 1-5, and ABC Corp. 1-3, bringing claims for defamation and emotional distress
in connection with Defendant Slater’s allegedly defamatory statements. Complaint, Notice of
Removal Ex. A, ECF No. 1-1. According to the Westfield Board Defendants, Plaintiff Marino
did not serve any Defendants with the complaint. Notice of Removal, ECF No. 1

¶ 6.

On December 10, 2015, Plaintiff Marino filed an amended complaint in the same court
adding the Individual Board Defendants and seeking to hold Defendants jointly and severally

4

NOT FOR PUBLICATION
liable for seven causes of action. ECF No. 7-4. On January21, 2016, the Westfield Board
Defendants removed the action to this Court under 28 U.S.C.

§

1441(a). ECF No. 1

¶ 9. The

Court exercises federal question jurisdiction over Plaintiff Marino’s ADEA and Title VII claim
under 28 U.S.C.

§

§

1331 and supplemental jurisdiction over the remaining claims under 28 U.S.C.

1367.
On February 10, 2016, the Westfield Board Defendants moved to partially dismiss the

amended complaint under Fed. R. Civ. P. 12(b)(6). Westfield Def.’s Mot. Dismiss, ECF No. 5.
On February 16, 2016, Defendant Slater also moved to dismiss the amended complaint under
Fed. R. Civ. P. 12(b)(6). Slater Mot. Dismiss, ECF No. 7. On May 18, 2016 the Court issued an
opinion granting in part and denying in part Defendants’ motions to dismiss. ECF No. 14. The
Court dismissed Plaintiffs defamation claims against the Individual Board Defendants as time
barred, Id. at 9, dismissed Plaintiffs common law tort claims against the Westfield Board
Defendants for failure to state a claim, Id. at 10—12, dismissed Plaintiffs claims under the Age
Discrimination in Employment Act (“ADEA”) and Title VII with prejudice as to Defendant
Slater and the Individual Board Defendants because the statutes do not provide a cause of action
against non-employer individuals, Id. at 13, dismissed claims of gender discrimination brought
under New Jersey law as to Plaintiffs supervisors Dolan and Mamary and the Westfield Board
of Education, and dismissed all claims under the NJLAD with respect to Defendant Slater and
Defendants Mattessich, Kurstedt, Freidman, Galligan Ormsby Cary, Ohlig, Biegler, and Ball, Id.
at 16—19. The Court granted Plaintiff leave to seek to amend within 90 days of the date of the
opinion. Id. at 20; ECF No. 15 at 2.
On July 20, 2016, Plaintiff filed a Second Amended Complaint without seeking leave to
amend as required by the Court. Second Am. Compl., ECF No 8. On August 15, 2016,

5

NOT FOR PUBLICATION
Defendant Slater filed a motion to dismiss the Second Amended Complaint, ECF No. 22, but he
withdrew the motion on August 17, 2016 after Magistrate Judge Waldor held a telephonic
conference during which she expressed her intent to strike the Second Amended Complaint for
being filed without permission, ECF No. 24. On August 17, 2016, Plaintiff filed a motion
seeking leave to file a Third Amended Complaint. ECF No. 25. In response, Defendant Slater
filed a cross-motion to dismiss the First Amended Complaint, which included an opposition to
Plaintiffs motion seeking leave to file a third amended complaint, and alternatively argued for
dismissal of the Third Amended Complaint if leave to file was granted. ECF No. 29. The Board
and Individual Board Defendants filed their own cross-motion fashioned similarly on September
6, 2016. ECF No. 30.
Plaintiffs Motion for Leave to File a Third Amended Complaint was granted on
November 28, 2016. ECF No. 42. Plaintiffs Third Amended Complaint contains six counts.4
Count One seeks judgment against the Westfield Board of Education for gender discrimination
in violation of Title VII of the Civil Rights Act of 1964. ECF No. 25-1

¶J 43—49. Count Two

seeks judgment against the Westfield Board of Education for age discrimination in violation of
the Age Discrimination in Employment Act. Id.

¶J 50—56.

Count Three seeks judgment against

the Westfield Board of Education for discrimination in violation of the New Jersey Law Against
Discrimination (N.J.S.A. 10:5-12). Id.
Slater for defamation. Id.

¶J 64—75.

¶J 57—63.

Count four seeks judgment against Defendant

Count Five seeks judgment against the Individual Board

Defendants for infliction of emotional distress. Id.

¶J 76—82. And, Count Six seeks judgment

against Defendant Slater for invasion of privacy. Id.

¶J 83—91.

“The Complaint incorrectly labels both the “Libel and Slander” charge as well as the “Infliction of Emotional
Distres” [sic] charge as “Count IV,” ECF No. 25-1. The Court will refer to the counts not as they are labeled, but in
the order in which they are alleged.

6

NOT FOR PUBLICATION
Defendants’ motions to dismiss ripened with the granting of Plaintiffs Motion for Leave
to file a Third Amended Complaint. Defendant Slater argues that Plaintiffs defamation claim
should be dismissed because Plaintiff fails to allege special damages or actual malice; that
Plaintiffs NJLAD claims fails because Slater was not Plaintiffs supervisor; that Plaintiffs
invasion of privacy claim fails because it improperly rests on an alleged violation of the New
Jersey Open Public Meetings Act (“OPMA”); that Plaintiffs gender and age discrimination
claims fail because they were previously dismissed with prejudice; and that Plaintiffs infliction
of emotional distress claim fails because it fails to state a claim under either negligent or
intentional infliction of emotional distress. ECF No. 29-2 at 2—3. Plaintiff responds that special
damages are not required to state a claim for defamation against Defendant Slater, but that the
Complaint adequately pleads special damages and actual malice if required. ECF No. 36 at 1.
Plaintiff also clarifies that his invasion of privacy claim is not brought under the OPMA and that
he has not brought NJLAD claims or Title VII and ADEA claims against Defendant Slater. Id. at
1—2. Finally, Plaintiff concedes that he cannot make a claim of infliction of emotional distress as
to Defendant Slater. Id. at 2.
The Westfield Board Defendants argue that the Court should dismiss Plaintiffs claims
against the Individual Board Defendants for aiding and abetting liability under the NJLAD; for
gender discrimination under Title VII; for age discrimination under the ADEA; and for infliction
of emotional distress. ECF No. 30 at 9—16, 19—26. They additionally argue that the Court should
dismiss Plaintiffs claims against the Board for gender discrimination under Title VII and the
NJLAD.Id. at 17—19.

7

NOT FOR PUBLICATION
Plaintiff responds that he has not asserted claims against the Individual Board Defendants
for aiding and abetting liability under the NJLAD or discrimination under the ADEA or Title
VII. ECF No. 37 at 5—6. Plaintiff further responds that he sufficiently states a claims against the
Westfield Board of Education for gender discrimination and against the Individual Board
Members for negligent infliction of emotional distress. Id. 7—10.
STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
‘to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (internal quotations and alterations omitted). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘shown’—that the pleader is entitled to relief.” Id. at 679.
If a complaint fails to state a claim upon which relief can be granted, a plaintiff should
ordinarily be granted the right to amend its complaint. The Supreme Court has instructed that:
The grant or denial of an opportunity to amend is within the discretion of
the District court, but outright refusal to grant the leave without any
justifiing reason.. is not an exercise of discretion; it is merely abuse of
that discretion and inconsistent with the spirit of the Federal Rules.
.

Foman v. Davis, 371 U.S. 178, 182 (1962). In the Third Circuit, plaintiffs whose complaints fail
8

NOT FOR PUBLICATION
to state a cause of action are entitled to amend their complaint unless doing so would be
inequitable or futile. Ftetcher-Harlee Corp. v. Pote Concrete Contrs., Inc., 482 F.3d 247, 252
(3d Cir. 2007). In Shane v. fauver, 213 F.3d 113 (3d Cir. 2000), the Third Circuit stated:
[W]e suggest that district judges expressly state, where appropriate, that the
plaintiff has leave to amend within a specified period of time, and that application
for dismissal of the action may be made if a timely amendment is not forthcoming
within that time. If the plaintiff does not desire to amend, he may file an
appropriate notice with the district court asserting his intent to stand on the
complaint, at which time an order to dismiss the action would be appropriate.
Shane, 213 F. 3d at 116 (citing Borelti v. City ofReading, 532 F.2d 950, 951 n.1 (3d Cir. 1976)).
DISCUSSION
I.

Counts One, Two, and Three: Gender and Age Discrimination as to the
Individual Board Defendants and Mitchell Slater

Both the Individual Board Defendants and Defendant Slater seek dismissal of Plaintiff’s
claims against them for age and gender discrimination. ECF No. 29-2 at 20—23; ECF No. 30 at
9—16. The Third Amended Complaint makes no claims against either the Individual Board
Defendants or Defendant $later for age and gender discrimination under Title VII, the ADEA, or
the NJLAD. ECF No. 25-1; ECF No. 36 at 14; ECF No. 37 at 5—6. Defendants’ motions to
dismiss are therefore denied to the extent that they seek dismissal of discrimination claims not
asserted against them.
II.

Counts One and Three: Gender Discrimination under Title VII and NJLAD as
to the Westfield Board of Education.

The fletcher-Harlee court stated that “to request leave to amend a complaint, the plaintiff must
submit a draft amended complaint to the court so that it can determine whether amendment
would be futile.” The court also noted that the longstanding rule that leave to amend a complaint
must be granted sua sponte stands in tension with the longer-standing rule that a plaintiff must
submit a draft amended complaint to the court to allow the court to determine whether
amendment would be futile. fletcher-Harlee, 482 F.3d at 252-53.
9

NOT FOR PUBLICATION
The Westfield Board of Education seeks dismissal of Plaintiffs claim against it for
gender discrimination under Title VII and the NJLAD. ECF No. 30 at 17—19. The NJ LAD and
Title VII prohibit the unjustified “discharge” of an employee by an employer because of sex.
Title VII 42 U.S.C.

§ 2000e-2(a)(1); N.J.S.A. 10-:5-12(a). All retaliation and discrimination

claims brought under Title VII and the NJLAD, which rely on circumstantial evidence, are
controlled by the three-step burden shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802—03 (1973). Atkinson v. LaFayette Coil., 460 F.3d 447, 454 & n.7 (3d
Cir.2006) (applying the McDonnell Douglas framework to a Title VII gender discrimination
claim); Viscik v. Fowler Equip. Co., 173 N.J. 1, 800 A.2d 826, 833 (2002) (adopting the
McDonnell Douglas framework for NJLAD employment discrimination cases).
In general, to establish a prima facie case for unlawful termination on the basis of sex
under Title VII or the NJ LAD, a plaintiff must demonstrate that he: (1) belongs to a protected
class, (2) was qualified for the position held, (3) was terminated despite adequate qualifications,
and (4) after termination the position remained open and the employer continued to seek
applications.” Armstrong v. Burdette Tomlin Mem’lHosp., 438 F.3d 240, 249 (3d Cir.2006);
Monaco v. American General Assur. Co., 359 F.3d 296, 301 (3d Cir. 2004) (citing Bergen
Commercial Bank v. Sisler, 157 N.J. 188, 201 (N.J. 1999)). In a case where the plaintiff is not a
member of a protected class, such as a gender discrimination claim brought by a man, the first
element is subject to an alternative analysis.
Under the NJLAD, the first element is satisfied when a defendant shows “background
circumstances support{ing] the suspicion that the defendant is the unusual employer who
discriminates against the majority.” Sisler, 157 N.J. at 214 (quoting Erickson v. Marsh &
McLennan Co., Inc., 117 N.J. 539, 551 (N.J. 1990)). “An employee can demonstrate background

10

NOT FOR PUBLICATION
circumstances sufficient to raise an inference of discrimination by establishing either that the
plaintiff was better qualified for the position than the minority candidate selected or that the
defendant had some reason or inclination to discriminate against the majority class.” Id. Under
Title VII, the first element requires a plaintiff to “present[] sufficient evidence to allow a
reasonable fact finder to conclude (given the totality of the circumstances) that the defendant
treated plaintiff less favorably than others because of his.

.

.

sex.” Jadimarco v. Runyon, 190

F.3d 151, 163 (3d Cir. 1999) (internal quotation marks omitted) (citing Furnco Construction
Corp. v. Waters, 438 U.S. 567, 577 (1978)).
The Court dismissed Plaintiff’s first attempt at asserting gender discrimination under the
NJLAD for failure to “allege that Marino’s gender had anything to do with his termination.” ECF
No. 14 at 15—16. Specifically, the Court found Marino’s allegation that he was replaced by a
woman insufficient to state a claim in light of Sisler. Id. The Westfield Board of Education
argues that the Third Amended Complaint relies on the same facts previously found insufficient
to state a claim ECF No. 30 at 18.6 This is not the case.
The Third Amended Complaint alleges facts sufficient to raise an inference of
discrimination capable of surviving Defendant’s motion to dismiss. First, Plaintiff alleges facts to
plausibly show he was better qualified than his minority group replacement. He alleges that he
had fifteen years of complaint and discipline-free experience in the position of the Westfield girls
head basketball coach, ECF No 25-1

¶J 25—27,

and that his replacement had one year of

experience as his assistant, Id. ¶30. Additionally, the Third Amended Complaint cures the defect
of the First Amended Complaint because it ties Plaintiff’s firing to his gender through the

The Board argues that the only new fact asserted is Marino’s contention that he was replaced by a female coach.
Though the Westfield Board of Education refers to this fact as a new fact, it was alleged in Plaintiffs previous
complaint. Am. Compl., ECF No. 7-4, Count Six ¶ 7.

11

NOT FOR PUBLICATION
allegation that his supervisor, Sandy Mamary, had previously told him that “she would like to
have girls teams coached by a woman coach.” ECF No 25-1

¶J 34, 47.

This comment and

Plaintiffs allegation that a female coach was brought in to replace him because of her gender are
sufficient to make out a prima fade case under the requirements of the NJLAD and Title VII.
III.

Count Four: “Libel and Slander” Against Defendant Slater

Defendant Slater argues that Plaintiffs defamation action fails as a matter of law because
Plaintiff does not make sufficient factual allegations to establish that the statement was untrue,
that the statement was made with malice, or that the statement caused actual harm in the form of
special damages. ECF No. 29-2 at 13. Because the Court agrees that Plaintiff fails to plead facts
sufficient to establish actual malice, Count Four is dismissed.
In New Jersey, an action for defamation requires the plaintiff to establish: “(1) the
assertion of a false and defamatory statement concerning another; (2) the unprivileged
publication of that statement to a third party; and (3) fault amounting to at least negligence by the
publisher.” DeAngelis v. Hill, 180 N.J. 1, 13 (N.J. 2004) (citing Restatement (Second) of Torts

§

558 (1977)). Plaintiffs burden of proof for each of the elements of defamation is clear and
convincing evidence. Rocci v. Ecole $econdaire MacDonald-Cartier, 165 N.J. 149, 159 (2000).
Libel is defamation by written or printed words, or by the embodiment of the communication in
some tangible or physical form, while slander consists of the communication of a defamatory
statement by spoken words, or by transitory gestures.” WJA. v. D.A., 210 N.J.
Defendant Slater challenges the sufficiency of Plaintiffs defamation claim on three
grounds all of which rely on the theory that Plaintiffs Third Amended Complaint alleges causes
of action supported by “mere conclusory statements” rather than sufficient facts. Iqbal, 556 U.s.
at 663. Slater first argues that Marino fails to establish defamation because he has not

12

NOT FOR PUBLICATION
successfully plead the first requirement of defamation: “a false and defaming statement
concerning another.” ECF No. 29-2 at 15. In support of his argument, Slater states that Plaintiff
only alleges the conclusion that the purportedly defaming statement is false. Id. The Court
disagrees. While it is true that Plaintiff could not establish his cause of action with such a bare
and conclusory statement, see Cruz v. H$BC, et al., Civ. No. 10-135, 2010 WL 2989987, *2
(D.N.J. July 26, 2010), the Third Amended Complaint does not solely rely on this conclusion to
establish Plaintiffs defamation claim. Plaintiff denies making the statement that Defendant
$later attributes to him, ECF No. 25-1

¶ 70, and alleges that he has never received complaints

“regarding his behavior and! or language towards any of his platers.” Id.

¶ 68. These factual

allegations are sufficient to establish the falsity requirement for a defamation claim.
Defendant next argues that Plaintiffs claim fails as a matter of law because he fails to
“demonstrate actual harm to his reputation through the production of concrete proof; i.e. special
damages.” To succeed in an action for libel, Marino must “demonstrate actual harm to reputation
through the production of concrete proof. Ward v. Zelikovsky, 136 N.J. 516, 540 (1994) (citing
Sisler v. Gannett Co., Inc., 104 N.J. 256, 261 (1986). “Special damages are defined as harm of a
material or pecuniary nature.” Ward, 136 N.J. at 540. Marino argues that he does not need to
plead special damages, or, in the alternative, that he has sufficiently plead them. The Court finds
that he has successfully plead special damages.
Plaintiff alleges that “as a result of these false statements made by the defendant [Slater],
[]he was caused to lose his position as [sic] the Westfield Board of Education as the Girls High
School Basketball Coach.” ECF No. 25-1

¶ 73. Defendant Slater does not dispute that this

allegation, if true, would establish special damages sufficient to survive a 1 2(b)(6) motion to
dismiss. Instead, Slater argues that this allegation is contradicted by documents previously

13

NOT FOR PUBLICATION
submitted to the Court by the plaintiff and therefore it should be disregarded. ECF No. 29-2 at
17. Specifically, Slater argues that Plaintiff has admitted in a notice of claim form filed under
New Jersey Tort Claims Act, ECF No. 10, that he lost his coaching position nearly two weeks
before the Facebook and Twitter posting was made. Id. at 16. Defendant Slater does not establish
a basis for our consideratidn of this document at the motion to dismiss stage. Nowhere is it
argued that this document is attached to or referenced in the complaint, see Sentinel Trust Co. v.
Universal Bonding Ins. Co., 316 f.3d 213, 216 (3d Cir. 2003), or that the notice of claim is a
matter of public record, see Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
The Court is not inclined to dismiss Plaintiffs defamation claim at this time based on
evidence offered without legal justification to contradict the allegations made on the face of the
Third Amended Complaint. Such evidence is best saved for a motion for summary judgment. As
example, after discovery has taken place, Plaintiff may be able to demonstrate that even if he was
informed by his principal before the October 21, 2014 meeting that his contract would not be
renewed, he had an opportunity to be heard and have that decision reconsidered by the Board.
Though Defendant may eventually be able to refute any causal connection between the allegedly
defaming statement and Plaintiffs job loss, Plaintiff has succeeded in pleading special damages
to survive a motion to dismiss as of now.
Finally, Defendant Slater argues that Plaintiffs claim should be dismissed for failure to
meet the third element of a defamation claim by establishing that Slater “either knew his
statement was false or recklessly disregarded its falsity.” ECF No. 29-2 at 18. The third element
of a defamation claim requires a plaintiff to show that the defendant “had a sufficient degree of
fault.” Mangan v. Corporate Synergies Grp., Inc., $34 F.Supp.2d 199, 204 (D.N.J.201 1).

In support of this argument, S later cites law applicable to the dismissal of habeas petitions in the event the claims
presented by them are “patently frivolous or contradicted conclusively by the record.” ECF No. 29-2 at 17.

14

NOT FOR PUBLICATION
Normally, a showing of negligence is adequate. Id. at 206. But when a matter of public concern
is involved or the statement concerns public figures, the standard is heightened to one of “actual
malice.” Senna v. Florimont, 196 N.J. 469, 492 (2008). Actual malice requires that the defendant
made the statement “knowing that it was false or with a reckless disregard for the truth.”
DeAngelis, 180 N.J. at 17—18. “The defendant’s motivation for making the statement is
irrelevant, and thus hostility and ill will on the part of the defendant are not considered.” Lipsky
v. Connecticut Gen. Life Ins. Co., No. 13-CV-00105 DMC JBC, 2013 WL 5354511, at *2
(D.N.J. Sept. 24, 2013).
The Parties do not dispute that Plaintiff must establish actual malice. Defendant contends
that the Third Amended Complaint fails to provide more than a conclusory statement that
Defendant maliciously posted defamatory comments about Mr. Marino. The Court agrees.
Plaintiff raises several new facts in its brief that purport to establish actual malice, but these new
facts can have no place in the Court’s 12(b)(6) analysis. Pennsylvania ex rel Zimmerman v.
PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (It is “axiomatic that a complaint may not be
amended by the briefs in opposition to a motion to dismiss.”). The Third Amended Complaint
only contains the allegation that Slater “negligently and! or maliciously published false,
defamatory statements of fact about the plaintiff.” ECF No. 25-1

¶ 71. This conclusory statement

does not establish the actual malice needed to make a valid defamation claim in this case. See
Darakjian v. Hanna, 366 N.J. Super. 238, 250—51 (App. Div. 2004) (“[T]he single conclusory
assertion in the third paragraph of the second count of the complaint, that defendants ‘knew
and!or reasonably should have known that [Hanna’s] statement

...

was false,’ even coupled with

the balance of the third paragraph and the damages alleged in the fourth paragraph, does not pass
muster.”); see also Lipsky, 2013 WL 5354511, at *3 (“Simply stating that the statement was

15

NOT FOR PUBLICATION
made with malice without additional facts that support the notion that Defendants knew the
statement was false or had a reckless disregard for the truth is insufficient to survive a motion to
dismiss.”). Defendant Slater’s motion to dismiss is granted as to Count Four of the Third
Amended Complaint.
IV.

Count Five: Infliction of Emotional Distress Against Defendant Slater and the
Individual Board Members

Count Five alleges that Defendant Slater and the Individual Board Members made and! or
ratified remarks “which were disparaging and caused emotional distress as to the plaintiff,
Joseph Marino.” ECF No. 25-1

¶ 78.

Defendants move to dismiss this count for failure to state a

claim. ECF No. 29; ECF No. 30-1. Plaintiff opposes the motion to dismiss this count as to the
Individual Board Members, ECF No. 37 at 8—10, but consents to dismissal as to Defendant
Slater, ECF No. 36 at 13. Count Five is dismissed with prejudice as to Defendant Slater.
Marino’s claim for infliction of emotional distress against the Individual Board Members
is based on a statement made by Richard Mattessich at the October 21, 2014 Westfield Board of
Education meeting. ECF No. 25-1 ¶J76—82. The Individual Board Members argue that Plaintiff
fails to state a claim against them for either intentional infliction of emotional distress or
negligent infliction of emotional distress. ECF No. 30 at 19—26. In his opposition brief, Marino
clarifies that his claim is only for negligent infliction of emotional distress. ECF No 37 at 10.
Because Plaintiff fails to establish that his distress resulted from the fear of being harmed while
in the “zone of risk” created by Defendants’ alleged negligent conduct or that Mr. Mattessich’s
statements amounted to defamation per Se, Count Five is dismissed as to the Individual Board
Members.

16

NOT FOR PUBLICATION
Negligent infliction of emotional distress “can be understood as negligent conduct that is
the proximate cause of emotional distress in a person to whom the actor owes a legal duty to
exercise reasonable care.” Decker v. Princeton Packet, Inc., 116 N.J. 418, 429 (N.J. 1989). To
establish liability, “a plaintiff must prove that defendant’s conduct was negligent and proximately
caused plaintiffs injuries.” Id. Negligence “depends on whether defendant owes a duty of care to
the plaintiff, which is analyzed in terms of foreseeability.” Id. In negligent infliction of emotional
distress cases, “liability should depend on the defendant’s foreseeing fright or shock severe
enough to cause substantial injury in a person normally constituted.” Caputzal v. The Lindsay
Co., 48 N.J 69, 76 (1966). foresseability is crucial in NEID cases because courts are concerned
with the genuineness of an injury consisting of emotional distress without consequent physical
injury. Decker, 116 N.J. at 429. “In these situations, there must be an especial likelihood of
genuine and serious mental distress, arising from special circumstances, which serves as a
guarantee that the claim is not spurious.” Id. at 429—30 (internal quotation marks omitted)
(quoting Prosser and Keeton on the Law of Torts,

§

111 at 773-78 (5th ed. 1984)). A claim for

NEID “requires that it must be reasonably foreseeable that the tortious conduct will cause
genuine and substantial emotional distress or mental harm to average persons.” Id. at 430.
Generally, a Plaintiff must establish four elements to state a claim for negligent infliction
of emotional distress in New Jersey: “1) the death or serious physical injury of another caused by
defendant’s negligence; (2) a marital or intimate, familial relationship between plaintiff and the
injured person; (3) observation of the death or injury at the scene of the accident; and (4)
resulting severe emotional distress.” Smith v. Grandsen, No. CW.A. 08-45 17 JET, 2011 WL
7777106, at *4 (D.N.J. Nov. 3, 2011) (internal quotation marks omitted) (citing Portee v. Jaffee,
84 N.J. 88, 101 (1980)). But the New Jersey Supreme Court has held that such a claim can be

17

NOT FOR PUBLICATION
based on the publication of a false statement if the plaintiff demonstrates that the defendant
engaged in per se defamation. Decker, 116 N.J. at 432. Plaintiff fails to meet this standard.8
According to the New Jersey Supreme Court, “[t]here is

...

a certain symmetry or parallel

between claims of emotional distress and defamation that calls for consistent results.” Decker,
116 N.J. at 429. “New Jersey courts do not permit claims for infliction of emotional distress to
proceed when the factual basis for the claim is non-actionable alleged defamation.” Edelman v.
Croonquist, Civ. No. 09-1938 (MLC), 2010 WL 1816180, at *8 (D.N.J. May 4, 2010). “A
defamatory statement is one that is false and injurious to the reputation of another or exposes the
person to hatred, contempt, or ridicule or subjects another person to a loss of the good will and
confidence in which he or she is held by others.” Id. at *3 (quoting Petersen v. Meggitt, 407
N.J.Super. 63, 74 (N.J.App.Div.2009). To determine whether a statement is defamatory, the
Court considers “the content, verifiability, and context of the challenged statements.” Ward, 136
N.J. at 528 (1994). “The verifiability determination goes to whether the statement is one of fact
or opinion, because statements of opinion and name-calling, which cannot be proved true or
false, are not actionable.” Edelman, 2010 WL 1816180 at *3 (internal quotation marks omitted)
(quoting Knierim v. Siemens Corp., No. 06—4935, 2008 WL 906244, at *15 (D.N.J. Mar.31,
2008).

Here Mattesich’ s comments register his beliefs about the important characteristics of a
high school coach. ECF No. 25-1

¶ 79. Mr. Marino is not referred to by name or position and the

comments merely constitute Mr. Mattesich’s opinion about coaching and the Board’s decision-

8

Defendants also argue that Plaintiffs negligent infliction of emotional distress claim is time-barred because the
Court previously dismissed Plaintiffs defamation claim as time-barred. ECF No. 30 at 22. The Court disagrees with
Defendants’ reading of Decker, which does not compel this conclusion.

18

NOT FOR PUBLICATION
making. This does not constitute defamation per se. The Individual Board Members’ motion to
dismiss is granted with respect to Count five.
Count Six: Invasion of Privacy Against Defendant Slater

V.

Defendant Slater moves to dismiss Count Six based on the argument that Plaintiff cannot
state a claim for invasion of privacy under New Jersey’s Open Public Meetings Act (“OPMA”)
N.J.S.A.

§ 10:4-12. ECF No. 29-2 at 24-26. Plaintiff clarifies that he alleges that Defendant

Slater has invaded his privacy by placing him in a false light before the public. ECF No. 36 at 9.
To prove the tort of false light, a plaintiff must satisfy two elements: “(1) that the false light in
which [he] was placed would be highly offensive to a reasonable person and (2) that the
defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized
matter and the false light in which the [plaintiff] would be placed. Durando v. Nutley Sun, 209
N.J. 235, 249 (2012) (citing Restatement (Second) of Torts, supra,

§ 652E) (internal quotation

marks omitted). Under New Jersey law, the knowledge requirement parallels the actual-malice
standard of defamation. Id. For the reasons discussed, see discussion supra Section III, Marino
has also failed to properly allege actual malice in relation to his false light claim. Defendant
Slater’s motion is granted on this basis as to Count Six.

19

NOT FOR PUBLICATION
CONCLUSION
Defendants’ motions to dismiss are granted in part and denied in part. Counts Four and
Six are dismissed without prejudice as to Defendant Slater. Count Five is dismissed with
prejudice as to all claims against Defendant Slater and the Individual Board Defendants. Plaintiff
is granted leave to seek to amend within 90 days of the date of this opinion. An appropriate order
follows.

DATE: /%h77

4J

William H. ails
Senior United States District Court Judge

20