RIAD v. DEY EQUINE VETERINARIANS, P.A. et al

Filing 62

OPINION Filed. Signed by Judge Robert Kirsch on 11/15/2023. (jal, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSEPH RIAD,
Plaintiff,
Civil Action No. 22-6927 (RK) (JBD)
V.

DEY EQUIINE VETERINARIANS, P.A. &

OPINION

STEVEN DEY,
Defendants.

KIRSCH, District Judee
THIS MATTER comes before the Court upon a Motion for Judgment on the Pleadings
filed by Dey Equine Veterinarians, P.A. and Stephen Dey (collectively, "Defendants") seeking
judgment against Plaintiff Joseph Riad ("Plaintiff). The Court has considered the parties'
submissions and resolves the matter without oral argument pursuant to Federal Rule of Civil
Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, the Motion for Judgment

on the Pleadings is GRANTED in part and DENIED in part.
I. BACKGROUND
A. PROCEDURAL HISTORY
On May 6, 2022, Plaintiff brought this action in the Eastern District of Pennsylvania.
(CompL, ECF No. 1). On September 29, 2022, Defendants filed an Answer and on October 11,
2022, Defendants moved for judgment on the pleadings. (ECF Nos. 20, 23.) That same day, the

Plaintiff spells Defendant Dey's name "Steven." However, Defendants represent that this spelling is
incorrect and that Defendant Dey's name is spelled "Stephen." (See, e.g,, ECF No. 38 at 1). Therefore, the
Court refers to Defendant Dey using Defendants' spelling.

Honorable Timothy J. Savage ordered Plaintiff to file an Amended Complaint and ordered each
party to submit a memorandum of law by October 25, 2022 showing cause why the action should
not be transferred to this District. (ECF No. 25.) On October 25, 2022, Plaintiff filed an Amended
Complaint, and the next day, Judge Savage denied Defendants' Motion for Judgment on the
Pleadings. (ECF Nos. 27, 28.) After the parties failed to submit memoranda regarding transfer of
this case, the case was transferred to this District where Defendants are located and the operative
facts giving rise to the Plaintiffs claim occurred. (ECF No. 29.)
After the case was transferred, Defendants filed a Motion to Dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6). (ECF No. 31.) On December 12, 2022, Plaintiffs submitted a
"Proposed" Second Amended Complaint. (ECF No. 35.) Defendants answered the Second
Amended Complaint (ECF No. 37), and on March 9, 2023, filed a Motion for Judgment on the

Pleadings based on the Second Amended Complaint, (ECF No. 38). On April 4, 2023, Plaintiff
filed a brief in opposition. (ECF No. 43).2 On June 15, 2023, the Court found that Plaintiffs Second
Amended Complaint serves as the operative pleading in this matter and denied Defendants' Motion
to Dismiss, filed prior to the filing of Plaintiffs' Second Amended Complaint, as moot. (ECF No.
57.) On June 22, 2023, Defendants filed a Reply brief in support of their Motion for Judgment on
the Pleadings. (ECF No. 5 8.)3 Currently pending before the Court is Defendants' Motion for
Judgment on the Pleadings on each of Plaintiff s claims. (ECF No. 38.)

2 Defendants moved to strike Plaintiffs brief as having been filed one hour late. (ECF No. 44; see also ECF
No. 48.) The parties then filed a flurry of letters on the docket pertaining to Defendants' Motion. (ECF Nos.

48-53.) On June 15, 2023, the Court denied Defendants' Motion to Strike. (ECF No. 57.)
3 On July 5, 2023, the parties filed a Stipulation in which they purported to agree that Defendants' Reply
brief should be sealed. (ECF No. 58.) They also purported to stipulate that Plaintiff had forty-eight (48)
hours from execution of the Stipulation to "file a letter response." {Id.) July 7, 2023, Plaintiff submitted a
response in opposition to Defendants' Reply Brief. (ECF No. 60.) However, on July 10, 2023, the Court
declined to execute the parties' Stipulation as it was both procedural ly and substantively deficient. (ECF
No. 61.) Moreover, the Court notes that sur-replies are not permitted without leave of Court. Rule 7.19(d)(6)
Accordingly, the Court will not consider Plaintiffs response to Defendants' Reply.

B. CONCERNS WITH THIS LITIGATION
At the outset, the Court points out that it finds aspects of this litigation somewhat confusing.
The Court will describe the allegations contained in Plaintiffs Second Amended Complaint in
further detail hereinafter. However, by way of brief summary. Plaintiff owns fourteen (14)
standardbred horses. Plaintiff retained two horse trainers to care for his horses who, in turn, hired
Defendants to provide veterinary care to the horses. Plaintiff alleges that Defendants failed to
provide competent veterinary care and brings a number of other claims related to Defendants'
purportedly unauthorized billing of Plaintiff for veterinary services.
The Court notes that, at points in Plaintiffs Second Amended Complaint, Plaintiff appears
to be stating claims against Adams and Dellavecchia, the trainers with whom Plaintiff was
purportedly in a contractual relationship. Nonetheless, Plaintiff does not name Adams or
Dellavecchia as defendants in this action and attempts to bring all of his claims against
Defendants—the veterinarian who the trainers allegedly hired to provide care to Plaintiffs horses.
Plaintiff does not allege that he hired or authorized the selection of Defendants as the veterinary
provider for the horses or was even cognizant that Defendants were providing veterinary services,
and despite the thirty-four (34) pages and one hundred and thirty-seven (137) paragraphs in the
Second Amended Complaint, Plaintiffs allegations against Defendants are, at times, spartan,
vague, and confusing.

4 On another issue, the Court notes that it is unclear how much, if any, of this litigation Plaintiff
has undertaken pro se, and the parties vigorously contest same. Plaintiff argues that he has been a
pro se litigant at "nearly all relevant stages of this litigation." (ECF No. 43 at 39.) He claims that
he was pro se when he commenced this action before retaining counsel, Mikala L. Rector, Esq.,
who was licensed to practice in the Eastern District of Pennsylvania. (Id.) According to Plaintiff,
when this case was transferred to this District, he also filed his Second Amended Complaint pro
se before retaining his current counsel, Ibrahim Ahmed, who is licensed to practice in this
District. (/fi?.) However, as Defendants point out, the Second Amended Complaint bears Ms.

FACTUAL BACKGROUND
As introduced briefly above, this case arises from an agreement between Plaintiff and two horse
trainers, Katricia Adams and Patrick Dellavecchia. (Second Amended Complaint, ("SAG"), ECF
No. 35 ^ 18-19.) Plaintiff is the owner of fourteen (14) horses: Spy Booth, Boom City, Church
Sout, Year of the Bride, Zinny Mach, Major Deception, Enough Sun, Craft Brew Lindy, Mass
Flow, McBeantown, Protect the Money, Sophie's Candy, Sweet Talker, and Tact Tate N. {Id.
^ 14.) Plaintiffs horses are standardbred horses that participate in races in Pennsylvania, New
Jersey, New York, Maryland, and Ohio. {Id. ^ 15-17.) Plaintiff suffers from a permanent physical
disability and relies on professional trainers to provide day-to-day care of his horses. (Id. at 29).
On or about August 2021, Plaintiff purportedly entered into a verbal agreement with
Adams and Dellavecchia for the care, treatment, and maintenance of Plaintiff s horses. (Id. ^18.)
Pursuant to the agreement, Adams and Dellavecchia agreed to, inter alia, care for the horses,
including feed, water, stalls and bedding, grooms, shoes, and competent veterinary and dental care.
{Id. ^ 22.) They also agreed to pay for the expenses associated with the horses' care. (Id ^ 22.)
During the course of the trainers' care for the horses, they hired Defendants to provide
veterinary services. {Id. ^65.) According to Plaintiff, Defendants assert that from August 2021
until December 2021, they provided ongoing veterinary care to the horses. {Id. ^13). However, in
December 2021, ten (10) of the horses were returned to Plaintiff, and upon inspection of the horses,
Plaintiff discovered that, while under the claimed veterinary care of Defendants:
(a) Each racehorse "lost hundreds of pounds" due to severe neglect and
malnourishment;

Rector's signature, Plaintiff and Ms. Rector appear to share an address, and Ms. Rector has
represented Plaintiff on at least nine (9) previous occasions. (ECF No. 58 at 11-12.)
5 In Plaintiffs Second Amended Complaint, for some reason, the paragraph numbers restart for each of
Plaintiffs causes of action. Therefore, the Court's citations to these portions of the Second Amended
Complaint are to the document's page numbers, rather than paragraph numbers.

(b) The [horses] were so severely dehydrated that each drank five to ten gallons of
water upon arriving at Plaintiffs Ranch;
(c) The [horses] were so severely starved that they shook the 3 3-stall barn with the
pounding of their hooves as grain and hay was being provided to each of them;
(d) At least six of the ten [horses] had severe skin disease (bacterial/fungal), "rain
rot" and open sores;

(e) The [horses] looked emaciated, and their ribs could be seen through their winter

coats[;]
(f) Zinny Mach's hoof had a gaping hole / injury [sic] - the injury was not new.
{Id. ^ 27-28.) After Plaintiff discovered the injuries to the horses, Plaintiff took the horses
to Doctor Tyra Crowley of Stillmeadow Equine Veterinary Service. (M ^ 30.) Dr. Crowley
performed examinations and testing on the horses and confirmed that they had "suffered severe
neglect and/or animal abuse."6 (Id. ^ 33, 36.)
On or about December 7, 2021, Adams and Dellavecchia "secreted away" the four (4)
remaining horses (Spy Booth, Mass Flow, Church Sout, and Year of the Bride) to an undisclosed
location. (Id. ^38.) Adams and Dellavecchia "attempted to use the [horses] to extort an additional
$60,000.00 payment from Plaintiff." (M ^39.) Despite Plaintiffs repeated demands, the
remaining horses were not returned to Plaintiff until on or about January 13, 2022. {Id.} Upon
inspection of the remaining horses. Plaintiff discovered that these horses had also suffered serious
injuries: each horse had lost hundreds of pounds and Spy Booth "could not walk as he was '5/5
lame' from injury to his hind leg." (Id. ^41-^43.) Plaintiff took the horses to see Dr. Crowley who

6 Plaintiff attached Dr. Crowley's clinical summaries of her examinations to the Second Amended

Complaint. (SAG, Ex. 1.) In deciding motions to dismiss under Federal Rule of Civil Procedure 12(b)(6),
courts may consider exhibits attached to the complaint. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010); see also Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006), as amended (June
14,2006).

performed examinations and testing and confirmed that these horses had also been returned in poor
condition.
Plaintiff alleges that the injuries to each of the horses were "obvious" and were "not new,"
and that their condition, as confirmed by Dr. Crowley, was "that of animals who had been [] denied
proper care and veterinary treatment and suffered severe malnutrition, neglect and/or animal
abuse." {Id. ^ 47^8, 50.) Plaintiff alleges that Defendants owed a duty of care in providing
veterinary services and breached that duty by failing to exercise reasonable care and by failing to
provide any and/or competent veterinary care. {Id. ^ 34-35, 51.) Plaintiff alleges that Defendants
did not administer antibiotics, anti-fungal medication, or other treatment for the horses' "rain rot"
and skin conditions; failed to treat the horses' malnutrition and weight loss; failed to order blood
work; did not competently treat the hole in Zinny Mach's hoof; and did not treat the injury to Spy
Booth's leg. {Id. ^ 53-56.) Furthermore, Defendants did not notify anyone or otherwise report the
deteriorating medical conditions of the horses. (Id. ^ 57.) To the contrary, Defendant Dey falsely
represented to Plaintiff and to Dr. Crowley that the horses were in good condition and not in need
of veterinary care. (Id. ^ 59.) Plaintiff alleges that, as a result of Defendant's actions and inactions,
the horses suffered serious and permanent injuries, which has caused Plaintiff to lose earnings,
devalued the horses, and forced Plaintiff to incur costs associated with providing necessary care
and rehabilitation to the horses. {Id. ^ 60-61.)
Plaintiff alleges that the terms of the supposed verbal agreement with non-parties Adams
and Dellavecchia required the trainers to pay for the costs associated with veterinary services
provided to Plaintiffs horses and that he did not enter into any agreement with Defendants to "pay
for or otherwise be financially responsible" for any veterinary services, did not consent or

7 Dr. Crowley's clinical summaries of the horses returned in January are also attached to the Second
Amended Complaint. (SAG, Ex. 2.)

authorize the trainers to incur charges in his name or on his behalf, and did not agree to be
responsible for the trainers' financial obligations. {Id. ^ 62.) However, when Plaintiff demanded
the return of the horses, Defendants "conveniently recalled the existence of $70,000.00 in alleged
bills" for the provision of veterinary care. {Id. ^ 69.)8 Plaintiff alleges that Defendants conspired
with non-parties Adams and Dellavecchia to "run-up unnecessary and unauthorized bills/invoices
for financial gain" even though Defendants knew that payment for veterinary services was not

Plaintiffs obligation and had not been authorized by Plaintiff. {Id. ^[ 71-72.) On April 30, 2022,
Defendants, through their attorney, mailed a letter and invoice demanding payment from Plaintiff
and representing that they intended to file a claim against Plaintiff pertaining to same. {Id, ^ 73-

76.)
Shortly thereafter, Plaintiff brought suit against Defendants. (ECF No. 1.) In Plaintiffs
Second Amended Complaint, Plaintiff brings six (6) claims against Defendants related to their
alleged neglect of the horses and improper billing: (1) "negligence / recklessness / gross negligence
/ malpractice," (2) "negligence / recklessness / gross negligence / fraud," (3) "consumer fraud,"
(4) "fraud / misrepresentation," (5) "defamation / commercial disparagement / false light," and (6)
"tortious interference." (ECF No. 35 at 17-33.) After answering Plaintiffs Second Amended
Complaint, Defendants moved for judgment on the pleadings on each of Plaintiff s claims. (ECF
No. 38.)

8 The Court notes that, while at one point. Plaintiff alleges that the trainers demanded an additional $60,000
from Plaintiff to secure the return of his horses, (SAG ^ 39), in numerous other places in the Second
Amended Complaint, Plaintiff alleges that Defendants demanded $69,981.00, {id. at 19, 21, 25, 27),
$70,000, {id. ^70), "nearly $70,000," {id. ^73, 79; ?6/. at 23), or "in or about $70,000, {id. at 26). As
Plaintiff has not named the trainers as defendants in this action, the Court is only considering Plaintiffs
allegation that Defendants demanded approximately $70,000 in relation to their alleged veterinary services.

II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed—but early
enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c).
"The pleadings are 'closed' after the complaint and answer are filed, along with any reply to
additional claims asserted in the answer." Horizon Healthcare Servs., Inc. v. Allied Nat. Inc., 2007
WL 1101435, at *3 (D.N.J. Apr. 10, 2007). In reviewing a motion for judgment on the pleadings,
courts apply the same standards as when reviewing a motion to dismiss under Federal Rule of Civil

Procedure (12)(b)(6). Turbe v. Gov't ofV.L, 938 F.2d 427, 428 (3d Cir. 1991) (citations omitted);
see also Muhammad v. Sarkos, 2014 WL 4418059, at *1 (D.N.J. Sept. 8,2014).

Under Federal Rule of Civil Procedure (12)(b)(6), a court may dismiss a complaint for
"failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). For a complaint
to survive dismissal, it "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
Ati. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint,
the court must accept all well-pleaded factual allegations in the complaint as true and draw all
reasonable inferences in favor of the non-moving party. See Phillips v. Cnty. of Allegheny,
515 F.3d 224, 231 (3d Cir. 2008); In re Lipitor Antitrust Litig., 336 F. Supp. 3d 395, 406 (D.N.J.
2018). As such, "[a] complaint should not be dismissed unless it appears beyond doubt that 'the
facts alleged in the complaint, even if true, fail to support the claim.'" Syncsort Inc. v. Sequential
Sofrvare, Inc., 50 F.Supp.2d 318, 324 (D.N.J. 1999). However, "[fjactual allegations must be
enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "A
pleading that offers labels and conclusions or a formulistic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it tenders naked assertion^] devoid of further

factual enhancement.'" Iqbal, 556 U.S. at 678 (citations and quotation marks omitted). As with a
motion to dismiss, claims dismissed pursuant to a motion for judgment on the pleadings may be
dismissed with or without prejudice. See, e.g., In re Lipitor Antitrust Litig., 336 F. Supp. 3d at 427.

HI. DISCUSSION
Defendants move for judgment on the pleadings on each of Plaintiff s six (6) claims. The
Court will address the viability of each of Plaintiffs claims in turn, starting with Plaintiffs
negligence claim for medical malpractice found in Count One.
A. Malpractice Claim
In Count One, Plaintiff alleges that Defendants owed a duty to exercise reasonable care in
connection with the veterinary services and treatment provided to Plaintiffs horses. (SAG, at 17.)
Plaintiff alleges that Defendants breached "the standard of veterinary care within the community
and that a reasonable veterinarian would provide" by failing to timely diagnose and treat the
horses' injuries and by falsely representing that the horses were in good condition. (Id. at 17-19.)
Plaintiff also alleges that Defendants' administration and prescription of drugs and substances
listed on Defendants' invoices fell below the standard of reasonable veterinary care. {Id. at 18). As
a result, the horses suffered serious and permanent injuries, malnutrition, neglect, and animal abuse
which have caused Plaintiff to lose earnings associated with the horses and to expend resources
providing them necessary veterinary care. {Id. at 19.)
Defendants argue that Plaintiffs first count should be dismissed for two reasons: (1)
Plaintiff "seems to be alleging the standard of care for veterinarians which would be relative to his
malpractice allegation, but not the claim for negligence," and (2) Plaintiff's malpractice claim must
fail because Plaintiff does not sufficiently plead proximate cause.9 (ECF No. 38 at 8, 10.) At the

9 Defendants do not contest Plaintiffs medical malpractice claim on any other grounds, including that

Defendants did not breach the applicable standard of care. {See ECF No. 38 at 9-11.)

outset, the Court agrees with Defendants that Plaintiffs first claim sounds in malpractice, rather
than ordinary negligence. However, that conclusion alone does not require dismissal of Count One.
Medical malpractice is merely a "subset of a negligence cause of action," in which a plaintiff must
establish that the defendant was subject to an applicable medical standard of care. Reams v.
Johnson, No. 16-3284, 2016 WL 4690386, at *6 (D.N.J. Sept. 6, 2016). Thus, the question before
the Court is whether Plaintiff has made out aprimafacie claim for malpractice.
Neither party cited any case law that provides the legal standard for veterinary malpractice
in New Jersey, and the Court is aware of none.10 Therefore, the Court considers the approach taken
by other states within this Circuit. Courts in Pennsylvania apply the same standard for veterinary
malpractice cases as for ordinary medical malpractice cases. See, e.g., Mires v. Evans, No. 82-

4436, 1986 WL 8117, at *11 (E.D. Pa. July 21, 1986); Durkin v. Equine Clinics, Inc., 313 Pa.
Super. 75, 79 (1983). Courts in Delaware have not articulated a standard for veterinary liability in
malpractice cases, but one court appears to presume the existence of a veterinary malpractice cause
of action. See Ferrell v. Wilmington Animal Hosp., P.A., No. 93C-05-237, 1994 WL 45438, at *1
(Del. Super. Ct. Jan. 19, 1994).
Therefore, the Court will turn to New Jersey's medical malpractice standard to determine
whether Plaintiff has stated a malpractice claim against Defendants relating to their veterinary
services. In New Jersey, a plaintiff in a medical malpractice action must allege "(I) the applicable
standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately
caused the injury." Gardner v. Pawliw, 150 N.J. 359, 375 (1997); see also Zuidema v. Pedicano,

10 Indeed, in the American Law Reports' article discussing veterinary malpractice cases from across the

country there are no cases arising in New Jersey. See 71 A.L.R.4th 811 (Originally published in 1989). The
Court notes, however, that Defendants do not contest whether a claim for veterinary malpractice can be
brought in New Jersey and appear to assume same. {See ECF No. 38 at 9.) Having failed to establish that
no such cause of action exists, the Court will not dismiss Plaintiffs veterinary malpractice claim on this
basis.

10

373 N.J. Super. 135, 145 (App. Div. 2004) (a medical malpractice claim must allege "the improper
performance of a professional service that deviated from the acceptable standard of care"). The
parties agree in their briefing that Plaintiffs claims center on Defendants' alleged failure to
diagnose and treat the horses' preexisting conditions. (ECF No. 38 at 10; ECF No 43 at 19.) Thus,
the Court will focus on the standard used in New Jersey to establish proximate cause in malpractice
cases involving preexisting conditions.
Courts in New Jersey have explained that "the causation element ... is the most complex
[as] there are different tests for determining proximate cause." Verdicchio v. Ricca, 179 N.J. 1, 23
(2004). While in a routine tort claim, a plaintiff must allege that the injury complained of would
not have occurred "but for" the negligent conduct of the defendant, Gardner, 150 N.J. at 377,
courts in New Jersey have held that the "but for" test "has its limitations in situations where two
or more forces operate to bring about a certain result and any one of them operating alone would
be sufficient." Verdicchio, 179 N.J. at 23 (quotation marks and citation omitted). Indeed, courts
have cautioned against the "potentially insurmountable obstacle" of applying the "but for"
standard in cases involving preexisting conditions. Id. at 24; see also Gardner, 150 N.J. at 377
("[PJroximate cause can be difficult to prove in the context of harm that results from a combination
of a plaintiff s preexistent condition and a defendant's negligent discharge of a duty related to that
condition, because the preexistent condition itself serves as a 'but for' cause of the ultimate injury."
(citation omitted)). Thus, for cases involving preexisting conditions, New Jersey has adopted a
"modified standard" called the "substantial factor" test. Verdicchio, 179 N.J. at 23. The substantial
factor test asks "whether the defendant's deviation from standard medical practice increased a

11

patient's risk of harm or diminished a patient's chance of survival and whether such increased risk
was a substantial factor in producing the ultimate harm." Gardner, 150 N.J. at 376.
The Court acknowledges that this is a close call but finds that Plaintiff sufficiently pled
Count One to survive Defendants' Motion for Judgment on the Pleadings. Namely, Plaintiff has
pled that Defendants' deviation from the standard of reasonable veterinary care was a substantial
factor in producing the horses' injuries. Plaintiff alleges that Defendants failed to administer
antibiotics, anti-fungal medication, or other treatment for the horses' skin conditions, failed to treat
the horses' malnutrition and weight loss, failed to order bloodwork, and failed to treat a hoof injury
to Zinny Mach and a leg injury to Spy Booth. Plaintiff alleges that Dr. Crowley, who examined
the horses after they were returned from Defendants' alleged care, observed that the horses had
been returned in poor condition: each of the horses was underweight and each horse except one
was in need of shoeing. (SAG, Ex. 1 at *2-10, Ex. 2 at *2-5.) Dr. Crowley also identified the
following additional and specific injuries: "hair loss, dry skin, rain rot[,] & open sores," hoof
defects, bums, suspected gastric ulcers, soreness and sensitivity, unshod feet, scrapes, elevated
muscle enzymes and liver values, lameness, and a broken toe. (SAG, Ex. 1 at *2-10; SAG, Ex. 2
at *2-5).

Critically for the proximate cause inquiry. Dr. Crowley stated that the horses' "significant
weight loss and poor conditioning are likely a result o/lack of providing proper nutrition and care."
(SAG, Ex. 1 at *2, 3 (emphasis added)). She also "[s]trongly recommend[ed] these horses return

The Court notes that, in their motion. Defendants fail to provide any legal standard for proximate cause.
Rather, Defendants argue, without citation to legal authority, that Plaintiff "fails to allege proximate cause,
i.e. how the alleged deviation from the standard of care—failing to treat preexisting conditions—actually
caused the 'serious and permanent injuries' to the [h]orses." (ECF No. 38 at 10.) The standard in New
Jersey is not whether Defendants' acts or omissions "actually caused" the horses' injuries—rather, as noted
above, the standard is whether Defendants' negligence increased the horses' risk of harm and whether that
risk was a substantial factor in the horses' injuries. Defendants attempt to clarify their argument in their
Reply brief where they, for the first time, cite the proper standard for proximate cause. (ECF No. 58 at 3.)

12

to owner's care so they can be properly fed & managed as the condition of the horses [she]
examined today has deteriorated significantly over a short period of time." {Id. at *3). The Court
finds that Plaintiff has sufficiently alleged that Defendants' failure to diagnose and treat the horses'
injuries increased the risk of harm to the horses, which was a substantial factor in producing their
ultimately serious and permanent injuries. Therefore, Defendants' Motion is DENIED as to
Count One.

B. Fraud Claims
In Counts Two and Four, Plaintiff attempts to state claims for fraud. The Court will first
address the allegations in Count Two.
1. Fraud Claim in Count Two
In this count, entitled "negligence / recklessness / gross negligence / fraud," Plaintiff
alleges that Defendants owed a duty of care in connection with invoicing and billing, including
billing the correct party, billing only for authorized services, charges, and amounts,
communicating with Plaintiff, verifying customer identities, only allowing authorized persons to
incur charges, and keeping Plaintiff reasonably informed as to the condition of the horses. (SAG,

at 20.) Plaintiff alleges that Defendants violated this duty "when [they] charged Plaintiff the sum
of $69,981.00." (Id. at 21.)

12 Defendants also argue in their Reply brief, again without citation to legal authority, that Plaintiffs
malpractice claim must fail because a "failure to treat or diagnose preexisting injuries must result in a new

injury" (ECF No. 58 (emphasis in original)). Claims pertaining to failure to diagnose or treat preexisting
injuries impose no such requirement. Indeed, the District of New Jersey, applying New Jersey malpractice
law, has noted:
Where a claim ... is based on the failure to diagnose or treat a pre-existing condition
. . . the injury is the development of the problem into a more serious condition which poses
greater danger to the patient or which requires more extensive treatment.
PagliaroU v. New Jersey Dep't ofCorr., No. 18-12412, 2023 WL 1361094, at *6 (D.N.J. Jan. 31,2023)

(quoting Hughes v. United States, 263 F.3d 272, 276-77 (3d Cir. 2001) (emphasis in original)).

13

Defendants argue that Count Two should be dismissed for two reasons: (1) Plaintiff has
failed to state a claim for fraud, and (2) Plaintiff suffered no damages because Plaintiff did not pay
the alleged bill. (ECF No. 38 at 9, 12.) To the extent that Plaintiff is attempting to establish a claim
for fraud in Count Two, the Court agrees that Plaintiffs claim fails.
In order to state a claim for fraud, a plaintiff must establish the following five elements:
"(I) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by
the defendant of its falsify; (3) an intention that the other person rely on it; (4) reasonable reliance
thereon by the other person; and (5) resulting damages." Hons. Auth. of City ofBayonne v. Hanna,
No. A-0788-10T2, 2011 WL 5828521, at *3 (N.J. Super. Ct. App. Div. Nov. 21, 2011) (quoting
Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997)). Moreover, for allegations sounding
in fraud, Federal Rule of Civil Procedure 9(b) imposes a heightened pleading standard: a party
alleging fraud "must state with particularity the circumstances constituting fraud or mistake,"
although "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged
generally." Fed. R. Civ. P. 9(b). A plaintiff must plead fraud with sufficient particularity to put
the defendant on notice of the "precise misconduct with which [he is] charged." Lum v. Bank of
Am., 361 F.3d 217, 223-24 (3d Cir. 2004), abrogated in part on other pounds by Twombly, 550
U.S. at 557. "To satisfy this standard, the plaintiff must plead or allege the date, time, and place of
the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud
allegation." Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007). Rule 9(b) requires "at a
minimum, that the plaintiff identify the speaker of allegedly fraudulent statements." Id. (quoting
Klein v. General Nutrition Co., Inc., 186 F.3d 338, 345 (3d Cir. 1999)).

Although Plaintiff's claims arise under New Jersey state law, the Court must apply federal procedural

law, including the pleading requirements found in the Federal Rules of Civil Procedure. See Chamberlain
v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkms, 304 U.S. 64, 78 (1938)).

14

The Court finds that Plaintiff has not alleged fraud with the level of precision required

under the Federal Rules. While Plaintiff has alleged that (1) Defendants represented that Plaintiff
owed Defendants $69,981.00 for veterinary services and (2) Defendants "knew that payment for
veterinary services was not the obligation of Plaintiff and had not been authorized by Plaintiff,"
Plaintiff has not alleged that Defendants knew Plaintiff would rely upon their representations
regarding Plaintiffs debt. Rather, Plaintiff only alleges reliance pertaining to Plaintiffs
expectation that the horses would receive proper care. Plaintiff claims only that Defendants knew
that Plaintiff would rely on them "to provide proper treatment for any injuries, malnutrition^] or
other medical condition" and "to keep Plaintiff reasonably informed about the condition of the
horses . ..." {Id. at 13.) However, the basis of Plaintiff s fraud claim is not Defendants' allegedly
incompetent veterinary treatment—it is Defendants' allegedly improper and unauthorized billing
of $69,981.00 for their veterinary services. Plaintiff fails to allege that he reasonably relied upon
Defendants' representations regarding the alleged debt or that he suffered damages as a result. By
contrast. Plaintiff alleges that he objected to Defendants' bill, and indeed, never paid same.
To the extent that Plaintiff is attempting to, in the alternative, plead a claim for ordinary
negligence based on Defendants' improper billing, that claim also fails. To sustain a cause of action
for negligence, a plaintiff must establish four elements: '"(1) a duty of care, (2) a breach of that
duty, (3) proximate cause, and (4) actual damages." Polzo v. Cnty. of Essex, 196 N.J. 569, 584
(2008) (quotation marks and citations omitted). As noted above, Defendants argue that Plaintiff

suffered no damages because Plaintiff did not pay the alleged bill. (ECF No. 38 at 9.) Plaintiff
responds that Defendants' failure to exercise reasonable care with respect to billing indeed caused
damages "including, but not limited to diminution of value of the [ho]rses, loss of earnings and/or
opportunities, cost of veterinary treatment and medications and legal fees." (ECF No. 43 at 16.)

15

While these damages may be cognizable for Plaintiffs veterinary malpractice claim, they do not
flow from Defendants' alleged attempt to charge Plaintiff $69,981.00: an amount Plaintiff
concedes he never paid. Therefore, Defendants' Motion is GRANTED without prejudice as to
Count Two.

2. Fraud Claim in Count Four
Plaintiff attempts to state another claim for fraud in Count Four of the Second Amended
Complaint. In this count, entitled "fraud / misrepresentation," Plaintiff alleges that Defendants
made two false representations: (1) "Plaintiff owes a debt in or about $70,000.00" and (2) the
horses "were in good condition and not in need of medical / veterinary care." (SAG, at 26.) Plaintiff
also alleges that Defendants "concealed and/or materially omitted the condition of the horses," and
as a direct and proximate result of Defendants' misrepresentations and omissions, the horses were
entered into races rather than receiving much-needed veterinary treatment, causing the horses to
suffer injuries and be devalued and causing Plaintiff to incur costs for veterinary care and to lose
earnings. (Id. at 26-27.) With respect to the first alleged misrepresentation (that Plaintiff owed a
$70,000 debt), Defendants argue that Plaintiffs fraud claim fails because Plaintiff cannot plead
reasonable reliance and resulting damages. (ECF No. 38 at 15.) The Court agrees. As discussed
above, Plaintiff does not allege that he relied on the invoice provided by Defendants; instead,
Plaintiff alleges that he objected to the invoice, did not pay the amount allegedly owed, and
commenced this action.
Turning to the second alleged misrepresentation (that the horses were in good condition),
Defendants argue that Plaintiff fails to allege Defendants had knowledge of the false statement and
an intent that Plaintiff rely on same. (ECF No. 38 at 16.) The Court notes that Plaintiff does allege
that the horses' injuries were "obvious," which suggests that Defendants at least should have

16

known the horses were not in good condition. (SAG, ^ 46; see also ECF No. 43 at 26-27.)
However, this allegation does not meet Rule 9(b)'s "stringent" pleading standard for fraud claims.
Frederico, 507 F.3d at 200. Moreover, Plaintiff does not allege with specificity when or where
Defendants' alleged statement took place. Rather, Plaintiff alleges that Defendant Dey made this
statement to Plaintiff "and/or" Dr. Crowley. (SAG, at ^ 59.) Plaintiffs Second Amended
Complaint also does not clearly identify the speaker of the allegedly fraudulent misrepresentation.
At some points, Plaintiff alleges that Defendant Dey made this misrepresentation, {id. at ^ 59,
85), but elsewhere Plaintiff alleges generically that "Defendants" made the misrepresentation, (id.
at 18, 26). The Court finds that Plaintiffs allegations do not meet Rule 9(b)'s requirements, and
accordingly, Defendant's Motion is GRANTED without prejudice as to Count Four.
C. Consumer Fraud Claim
In Count Three, Plaintiff alleges that Defendants violated the New Jersey Consumer Fraud
Act ("NJCFA"), The NJCFA prohibits, inter alia, "any unconscionable commercial practice,
deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment,
suppression, or omission of any material fact with intent that others rely upon [same]" in
connection with the sale or advertisement of merchandise. N.J.S.A. 56:8-2. Under the NJCFA,
merchandise includes "services." Id. 56:8-1 (c). Plaintiff alleges that Defendants violated the
NJCFA by "falsely claiming that Plaintiff owed nearly $70,000"; "falsely representing that they
provided veterinary care to the [h]orses"; "providing unauthorized care" to the horses; and "failing
to notify any racing authority or the owner" about the condition of the horses. (SAG, at 23—24.)
Defendants argue that Plaintiffs' NJCFA claim fails because Defendants are exempt from
the NJCFA based on the "learned professionals exception." (ECF No. 38.) At the outset, the Court
notes that Plaintiff did not respond to Defendants' arguments regarding Plaintiffs consumer fraud
claims. By failing to respond to Defendants' arguments, Plaintiff has conceded them, and Count

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Three may be dismissed on that basis alone. See, e.g., Millner v. Bayada Nurses, Inc., No. 05-

3164, 2006 WL 231993,at *2 (D.N.J. Jan. 30, 2006); Noramco LLC v. Dishman USA, Inc., No.
21-1696, 2022 WL 2817876, at *5 (D. Del. July 19, 2022). However, even if the Court were to
assess the merits of Defendants' arguments, the Court would find that Plaintiffs NJCFA claim
must be dismissed.
Courts in New Jersey have determined that services provided by "learned professionals"
fall outside the scope of the NJCFA. Macedo v. Dello Russo, 178 N.J. 340, 346 (2004,); Lee v.
First Union Nat. Bank, 199 N.J. 251, 263 (2009). Those who have been exempted from NJCFA
claims include physicians, lawyers, dentists, accountants, and engineers. Id. (citation omitted).
This exception has also been extended to ambulance service providers, nursing homes, insurance
brokers, and hospitals. See Ati. Ambulance Corp. v. Cullum, 451 N.J. Super. 247, 255 (App. Div.
2017) (collecting cases). In deciding whether the learned professional exception applies, courts in
New Jersey ask whether the professional group is subject to "testing, licensing, regulations, and
penalties through other legislative provisions." Id. (citation omitted) (applying the exception to
ambulance service providers because they "are regulated by the Department of Health and
reasoning that there is "no purpose to a requirement that [certain] services be within the purview
of the [NJCFA] when those same services fall within the purview of the Department of Health"),
Neither party points the Court to a case in New Jersey considering whether veterinarians
constitute learned professionals within the meaning of the NJCFA, and the Court is aware of none.
However, the Court concludes that veterinarians are exempt from NJCFA claims. As Defendants
point out, veterinarians are licensed and regulated by the New Jersey State Board of Veterinary
Examiners, which is part of the Division of Consumer Affairs within the Department of Law and
Public Safety. The board oversees the licensure of veterinaries, supervises the practice of

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veterinary medicine, ensures that veterinary medicine is performed in a manner consistent with
medical and ethical standards, and adjudicates complaints brought against veterinarians by
consumers. See State Board of Veterinary Medical Examiners, New Jersey Division of Consumer
Affairs, njconsumeraffairs.gov/vet (last modified October 30, 2023, 11:31 AM). Based on the
Department's thorough regulation of veterinary services, the Court concludes that the learned
professional exception precludes consumer fraud claims brought against veterinarians.
Accordingly, Defendants' Motion is GRANTED with prejudice as to Count Three.
D. Claims for Defamation, Commercial Disparagement, and False Light
In Count Five, Plaintiff brings three alternative tort claims pertaining to allegedly false and
defamatory statements made by Defendants about Plaintiff. Plaintiff alleges that Defendants made
the following false statements about Plaintiff to professional horse trainer, Jordan Miller: (1) Mr.
Miller should not train Plaintiffs horses; (2) Plaintiff was in debt to Defendants and was "a

debtor"; and (3) Plaintiff does not pay his bills because Plaintiff "is broke." (SAG, at 28.) Plaintiff
alleges that Defendants also made the following similar statements about Plaintiff to another horse

trainer, Michael Hall: (1) Mr. Hall "should stay away from [Plaintiff]"; (2) Plaintiff was in debt to
Defendants and was "a debtor"; and (3) Plaintiff does not pay his bills because Plaintiff "has no
money." {Id.} Plaintiff further alleges that Defendants knew at the time that they made these
statements that Plaintiff is physically disabled and is reliant on trainers to provide care for his
horses. (M) Plaintiff also alleges that Defendants made similar statements to veterinarian, Dr.
Blauner, and to a race judge at Harrah's Casino (a racetrack at which Plaintiff's horses participate
in races). (Id. at 30.) Plaintiff alleges that each of these statements was false because: (1) Plaintiff

is not a debtor; (2) Plaintiff is not broke; (3) Plaintiff has money; and (4) Plaintiff is not in debt to
Defendants. (Id.) Plaintiff alleged that each of these statements was intended to defame Plaintiff,

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damage his reputation, lower him in the estimation of the standardbred racing community, and
deter third parties from dealing with him. {Id. at 29, 31.)
First, Defendants argue, without citation to legal authority, that Plaintiffs claims for
defamation, commercial disparagement, and false light should all be dismissed because Plaintiff
fails to allege that the statements "were published anywhere." (ECF No. 38 at 17.) As Defendants
seem to concede that at least one of the alleged statements was communicated to a third party, (see
ECF No. 38 at 17), Defendants appear to be arguing that these statements were not published
because they were not published in writing. Defendants misinterpret the requirement that false
statements be "published." For all three of the torts at issue in Count Five, a statement need only
be communicated to a third party for it to be considered published, and thus the Court will not
dismiss Plaintiffs claims on this basis. See, e.g., D'Agostino v. Musical Heritage Soc., No. 3480-

12T2, 2015 WL 5090862, at *11 (NJ. Super. Ct. App. Div. Aug. 20, 2015) (explaining the
elements of defamation); Patel v. Soriano, 369 N.J. Super. 192, 247 (App. Div. 2004) (explaining
the elements of commercial disparagement); Van v. Ati. Health Sys., No. 17-4254, 2018 WL
11452543, at *6 (D.N.J. Nov. 1, 2018) (explaining the elements of false light).
1. Defamation
The Court turns first to Plaintiffs defamation claim. In order to state a claim for defamation
in New Jersey, a plaintiff must establish that: (1) a false statement was made concerning [the

plaintiff]; (2) the statement was published to a third party and not otherwise privileged; (3) the
publisher was at least negligent in publishing the statement; and (4) damages." Robles v. U.S. Envt.
Universal Serv., Inc., 469 Fed.Appx. 104, 109 (3d Cir. 2012) (citing DeAngelis v. Hill, 180 N.J. 1
(2004)). "A defamatory statement, generally, is one that subjects an individual to contempt or
ridicule, one that harms a person's reputation by lowering the community's estimation of him or

20

by deterring others from wanting to associate or deal with him." G.D. v. Kenny, 205 N.J. 275, 293

(2011) (citations omitted); see also Restatement (Second) of Torts § 559 (defining a defamatory
statement as one that "tends so to harm the reputation of another as to lower him in the estimation
of the community or to deter third persons from associating or dealing with him.") "To determine
if a statement has a defamatory meaning, courts look "to the fair and natural meaning [to be given
to the statements] by reasonable persons of ordinary intelligence." Romaine v. Kallinger, 109 N.J.
282, 290, 537 A.2d 284 (1988). Vague conclusory allegations are insufficient to plausibly plead
defamation. Chun v. Sushi Maru Express Corp., No. 17-6411, 2018 WL 3158815, at *5 (D.N.J.
June 28, 2018) (citing Zoneraich v. Overlook Hosp., 212 N.J. Super. 83, 101 (App. Div. 1986)).
Defendants argue that they indeed told Mr. Miller that Plaintiff owes Defendants money.
(ECF No. 38 at 17.) However, Defendants contend that the statement was not defamatory because
it was truthful. (Id.) Defendants further argue that they did not make the other alleged statements
and that they do not know the individuals to whom Plaintiff refers. (Id.} Finally, Defendants argue
that, even if they did make each of the alleged statements, each should be characterized as an
opinion and therefore immune from defamation claims. {Id. at 18.)
First, the Court declines Defendants' invitation to accept their version of events, rather than
Plaintiffs. On a Rule 12(c) motion, the Court must accept all well-pleaded factual allegations in
Plaintiffs Second Amended Complaint as true and draw all reasonable inferences in favor of
Plaintiff. Phillips, 515 F.3d at 231; In re Lipitor Antitrust Litig., 336 F. Supp. 3d at 406. It is not
for the Court to decide at this stage whether Plaintiff in fact owed Defendants money, whether
Defendants made the alleged statements, or whether Defendants know the people to whom
Plaintiff refers. The Court is only empowered to determine whether Plaintiffs allegations,
accepted as true, state a claim for defamation.

21

Nonetheless, the Court finds that the Second Amended Complaint fails to state a claim for
defamation because Plaintiff fails to plead any facts purporting to show that Plaintiff was subjected
to contempt or ridicule, that his reputation was harmed, or that others were deterred from seeking
to deal with him. To survive a Rule 12(c) motion, Plaintiff must provide "more than labels and
conclusions, and a formulate recitation of the elements of a cause of action will not do." Twombly,
550 U.S. at 555. Plaintiff alleges that Defendants' statements "were made to defame [Plaintiff],
lower him in the eyes of Mr. Miller and the standardbred racing community and convince Mr.
Miller not to train the plaintiffs horses." (SAC, at 29). Plaintiff recites the exact same allegation
with respect to Mr. Hall: he alleges that Defendants' statements "were made to defame the plaintiff,
lower him in the eyes of Mr. Hall and the standardbred racing community and convince Mr. Hall
not to train the plaintiffs horses." (M) Likewise for Dr. Blauner and for the Harrah's Casino judge.
{Id. at 30.) This kind ofconclusory recitation of the legal elements is insufficient. Iqbal, 556 U.S.
at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." (citation omitted)).
Moreover, with respect to the Harrah's Casino judge. Plaintiff fails to allege to whom the
statement was made, merely indicating that it was made to an unnamed judge affiliated with
Harrah's. See Chun, 2018 WL 3158815, at *5 (granting defendants' motion to dismiss because
plaintiff did not plausibly allege when or to whom the alleged statement was made). And while
Plaintiff identifies other recipients of Defendants' allegedly defamatory statements, including Mr.
Miller, Mr. Hall, and Dr. Blauner, Plaintiff does not allege when those statements were made.
Id.; see also Alexander v. Hackensack Meridian Health, No. 19-18287, 2020 WL 5810526, at * 10
(D.N.J. Sept. 30, 2020) (dismissing plaintiffs' defamation claim for, inter alia, failing to allege

14 The Second Amended Complaint does not include Dr. Blauner's first name.

22

when the statement was made). Accordingly, the Court finds that Plaintiff has failed to state a
claim for defamation.
2. Commercial Disuarasement

Plaintiff alleges, in the alternative, that Defendants' purported false statements constitute
commercial disparagement (also known as trade libel). Defendants argue that Plaintiffs' claim for
commercial disparagement fails because the alleged statements, even if made, do not pertain to
Plaintiff's property or business as Plaintiff does not allege that he owns any type of business. (ECF
No. 38 at 19.)
"A plaintiff alleging trade libel must prove publication of a matter derogatory to the
plaintiffs property or business, of a kind designed to prevent others from dealing with him or
otherwise to interfere with plaintiffs relations with others." Patel v. Soriano, 369 N.J. Super, at
247 (citing Prosser & Keeton on Torts § 128 at 967 (5th ed. 1984)); see also Sys. Operations, Inc.
v. Sci. Games Dev. Corp., 555 F.2d 1131, 1140 (3d Cir. 1977). "The communication must be made
to a third person and must play a material part in inducing others not to deal with plaintiff." Id.
(citations omitted).
In an action for trade libel, a plaintiff must "plead and prove special damages with
particularity." Intervet, Inc. v. Mileutis, Ltd., No. 15-1371, 2016 WL 740267, at *6 (D.N.J. Feb.
24, 2016) (quoting Mayflower Transit, LLC v. Prince, 314 F. Supp. 2d 362, 378 (D.N.J. 2004)).
This requires that a plaintiff "allege either the loss of particular customers by name, or a general
diminution in its business, and extrmsic facts showing that such special damages were the natural
and direct result of the false publication." Id. (quoting Mayflower Transit, 314 F. Supp. 2d at 378);
see also Patel, 369 N.J. Super, at 247 (plaintiff must prove "special damages," and the "necessary
showing is specific: plaintiff must establish pecuniary loss that has been realized or liquidated such

23

as lost sales, or the loss of prospective contracts with customers.") "When predicating a damages
claim on the general diminution in business, Plaintiff must prove 'facts showing an established
business, the amount of sales for a substantial period preceding publication, the amount of sales
for a [period] subsequent to the publication, facts showing that such loss in sales were the natural
and probable result of such publication, and facts showing the plaintiff could not allege the names
of particular customers who withdrew or withheld their custom.'" Gillon v. Bernstein, 218 F. Supp.
3d 285, 299 (D.N.J. 2016). "General, implied, or presumed damages of the kind available in
personal defamation actions do not satisfy the requirement of special damages needed for
disparagement causes of action." Patel, 369 N.J. Super, at 249.

The Court finds that Plaintiff has not pled special damages with sufficient particularity to
survive Defendants' 12(c) Motion. Plaintiff claims that Defendants' alleged statements lowered
him in the eyes of trainers, Mr. Miller and Mr. Hall, and that, as a result, Plaintiff had to "increase
the training compensation." (SAG, at 29-30.) As for Dr. Blauner, Plaintiff alleges that he "cannot
obtain veterinary services from the veterinarian contacted by [Defendants]." (Id. at 30.) Plaintiff
further alleges that he has "suffered direct harm, including but not limited to emotional distress
and pecuniary harm." {Id. at 31.)
First, Plaintiffs emotional distress damages are "strictly excluded" as a recovery for
commercial disparagement claims. Fate!, 369 N.J. Super, at 253 ("Recovery for emotional distress
under this cause of action is barred.") Second, the Court finds that Plaintiff has not plead pecuniary
harm with sufficient particularity. Plaintiff seems to be alleging that his relationships with Mr.
Miller, Mr. Hall, and Dr. Blauner were either lost or damaged as a result of Defendants'
statements. However, courts in New Jersey require plaintiffs not only to allege the loss of

15 Furthermore, Plaintiff has not alleged the loss of any relationship with Harrah's Casino as a result of
Defendants' alleged false statements made to unnamed judge affiliated with same.

24

particular customers by name but also allege extrinsic facts showing that such special damages
were the natural and direct result of the defendants' false statements. Plaintiff has alleged no such
facts. Moreover, to the extent that Plaintiff is attempting to allege a general diminution in business
based on the devaluation of his horses, he has also failed to plead these damages with particularity
as he has not showed an established business, his earnings for a substantial period preceding the
alleged statements, his earnings for a period subsequent to the alleged statements, and that his loss
in earnings were the natural and probable result of the alleged derogatory statements. Accordingly,
Plaintiffs Second Amended Complaint fails to adequately allege commercial disparagement.
3. False Light
Finally, Plaintiff also alleges, in the alternative, that Defendants' statements amount to the
tort of false light. Defendants argue that Plaintiffs' claim for false light fails because the alleged
statements, even if made, would not be highly offensive to a reasonable person. (ECF No. 38 at
18-19.) "New Jersey recognizes a privacy tort when '[a defendant] gives publicity to a matter
concerning another that places the other before the public in a false light.'" G.D, 205 N.J. at 307

(2011) (quoting Romaine v. Kallinger, 109 N.J. 282, 294 (1988)). "A defendant 'gives publicity
to a matter' by 'communicating it to the public at large, or to so many persons that the matter must
be regarded as substantially certain to become one of public knowledge.'" Van, 2018 WL
11452543, at *6 (quoting Dz^'vonar v. McDevitt, 348 N.J. Super. 164, 177 (App. Div. 2002), off d,
177 N.J. 451 (2003) (citation omitted)). "However, a defendant does not 'give publicity to a matter'
simply by 'communicating] a fact concerning the plaintiff s private life to a single person or even
to a small group of persons.'" Id. (quoting Dz\\>onar, 348 N.J. Super, at 177).
Plaintiffs allegations only involve supposed representations made to four people: Mr.
Miller, Mr. Hall, Dr. Blauner, and the umiamed Harrah's Casino judge. While not expressly argued

25

by Defendants, the Court finds that Plaintiffs allegations are insufficient to demonstrate that the
allegedly false facts communicated about Plaintiff became public knowledge. Thus, as with
Plaintiffs defamation and commercial disparagement claims, Plaintiffs false light claim must fail.
Accordingly, Defendants' Motion is GRANTED without prejudice as to Count Five.
E. Claim for Tortious Interference
In Count Six, Plaintiff states a claim for tortious interference. Plaintiff alleges that
Defendants "interfered with one or more contracts between Plaintiff and one or more third parties,
including, but not limited to the above listed trainers and prospective trainers and Dr. Blauner."
(SAG, at 32.) Plaintiff alleges that Defendants' interference was "intentional" and "without
justification." (M) Plaintiff alleges that, as a result, his training bills increased and he lost his
relationship with one of his veterinarians. {Id. at 33.) Defendants argue that Plaintiffs claim must
be dismissed because Plaintiff "fails to plead the existence of a contractual relationships or attach
a copy of these alleged contracts to his Second Amended Complaint." (ECF No. 38 at 19-20.)
Moreover, Defendants argue that Plaintiff fails to allege the interference was malicious, that he
lost a contract, or that a contract was breached as a result of the alleged interference and fails to
adequately allege any damages resulting from the alleged interference. (Id. at 20.)
To state a claim for tortious interference with prospective economic advantage, a plaintiff
must allege "(I) [the] plaintiffs reasonable expectation of economic benefit or advantage, (2) the
defendant's knowledge of that expectancy, (3) the defendant's wrongful, intentional interference
with that expectancy, (4) in the absence of interference, the reasonable probability that the plaintiff
would have received the anticipated economic benefit, and (5) damages resulting from the
defendant's interference." Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 186 (3d
Cir. 1992) (citing Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 751-52
(1989)). In order to demonstrate that the interference was intentional, a plaintiff must allege that

26

the tort was done with malice: namely, that the "harm was inflected intentionally and without
justification or excuse." Printing Mart-Morristown, 116 N.J. at 751. In order to state a claim for
tortious interference with contractual relations, plaintiff must further allege "an existing contract."
Carpet Grp. Int 7 v. Oriental Rug Importers Ass 'n, Inc., 256 F. Supp. 2d 249, 288 (D.N.J. 2003).

In Plaintiffs Response, Plaintiff indicates that he is only bringing a claim related to
interference with prospective economic relations—not existing contractual relations. Even so,
Plaintiffs formulaic recitation of the elements of this tort do not suffice. Plaintiff alleges merely
that Defendants interfered with "one or more contracts between Plaintiff and one or more third
parties," that Defendants' interference was intentional, and that the interference was without
justification. Plaintiff provides no facts to bolster these conclusoiy allegations. Defendants'
Motion is therefore GRANTED without prejudice as to Count Six.
F. Leave to File a Third Amended Complaint
Having addressed each of Plaintiffs claims, the Court will briefly address Defendants'
request that Plaintiffs claims be dismissed with prejudice. In his Response to Defendants' Motion
for Judgment on the Pleadings, Plaintiff asks that he be permitted to amend his Second Amended
Complaint to cure any deficiencies identified by the Court in ruling on Defendants' Motion. (ECF
No. 43 at 39.) Plaintiff argues that justice requires that he be permitted to file an amended pleading
because he was pro se at nearly all relevant stages of this litigation. Defendants object to Plaintiffs
request. (ECF No. 58 at 11.) Defendants contest whether Plaintiff is, in fact, pro se, and argue that
"he should not be permitted to amend for a third time on the basis of his alleged status as a 'pro

16 If Plaintiff was attempting to state a claim for tortious interference with contractual relations, that claim
would fail because Plaintiff has not alleged the existence of a contract. Carpet Grp. Int'l v. Oriental Rug
Importers Ass'n, Inc., 256 F. Supp. 2d 249, 288 (D.N.J. 2003) ("the tortious interference with contractual
relations claim requires proof of an existing contract"); Ingi'is v. Drexler, No. 14-2404, 2015 WL 1472657,
at *5 (D.N.J. Mar. 30, 2015) ("Plaintiff has not stated a claim for interference with contractual relations
because he has not alleged the existence of a contract.").

27

se' litigant." {Id. at 12.) As the Court noted above, Plaintiff s representation that he filed the Second
Amended Complaint as apro se litigant appears to be inaccurate. However, the Court nonetheless
finds it unnecessary to resolve this dispute, as the Court's outcome would be unchanged: regardless
of whether Plaintiff is pro se, the Court would permit Plaintiff to submit an amended pleading.
The Third Circuit has held that district courts may dismiss claims with prejudice where
amendment would be "inequitable or futile." Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002); see also Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) ("Among the grounds
that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice,
and futility." (citations omitted)). With respect to Plaintiffs NJCFA claim in Count Three, the
Court finds dismissal with prejudice appropriate because amendment of this claim would be futile.
As noted above, consumer fraud claims are not cognizable against the named Defendants.
However, although Plaintiffs remaining claims in Counts Two, Four, Five, and Six are
wanting and vague, in an abundance of caution, the Court grants Plaintiff leave to amend these
claims. See Kundratic v. Thomas, 407 F. App'x 625, 629 (3d Cir. 2011) (counseling that leave to
amend should be given where the basis for dismissal is a lack of factual specificity). Nonetheless,
the Court points out that Plaintiff has previously twice amended his Complaint, and it appears as
though Plaintiff has had the benefit of counsel, at least for a portion of this litigation. The Court is
also cognizant of the fact that this case has been pending since May 2022. Accordingly, Plaintiffs

amended pleading must be filed within thirty (30) days. Failure to file a Third Amended Complaint
within the allotted time will result in dismissal of Counts Two, Four, Five, and Six with prejudice.

28

IV. CONCLUSION
For the reasons set forth above, Defendants' Motion for Judgment on the Pleadings, (ECF
No. 38), is GRANTED in part and DENIED in part. Defendants' Motion is DENIED as to
Plaintiffs malpractice claim in Count One. However, Defendants' Motion is GRANTED as to
Plaintiffs claims in Counts Two, Three, Four, Five, and Six. Plaintiffs claims in Counts Two,
Four, Five, and Six are DISMISSED without prejudice, while Plaintiffs NJCFA claim in Count
Three is DISMISSED with prejudice. An appropriate Order accompanies this opinion. Plaintiff

may file an amended pleading that cures the deficiencies identified in this Opinion within thirty
(30) days of the date of this Opinion and accompanying Order. Failure to file a Third Amended
Complaint within thirty (30) days will result in dismissal of Counts Two, Four, Five, and Six with
prejudice.

^'^

/

/

^'""

ROBERT KlRSCH
UNITED STATES DISTRICT JUDGE
Dated: November 15, 2023

29