Deaton et al v. Napoli et al

Filing 15

MEMORANDUM AND ORDER granting with respect to transfer of venue 8 Motion to Dismiss or, in the Alternative, to Transfer Venue; granting 14 Motion to Dismiss; the remaining claims in this case are hereby transferred to the Eastern District of New York. So Ordered by Chief Judge William E. Smith on 8/4/2017. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
Plaintiffs
)
v.
)
)
MARIE NAPOLI, PAUL NAPOLI,
)
MARC J. BERN, NAPOLI BERN RIPKA
)
SHKOLNIK, LLP, and NAPOLI
)
SHKOLNIK, PLLC,
)
)
Defendants.
)
___________________________________)
JOHN DEATON and
MARIA FERRO DEATON,

C.A. No. 17-167 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court are two motions. The first is Defendants
Marie and Paul Napoli’s Motion to Dismiss for Lack of Personal
Jurisdiction or, in the Alternative, to Transfer Venue.1 The Second
is Defendants Napoli Bern Ripka Shkolnik, LLP (“Napoli Bern”) and
Napoli Shkolnik, PLLC’s (“Napoli Shkolnik”) Motion to Dismiss for
Lack of Personal Jurisdiction and Failure to State a Claim.2 The
Plaintiffs responded to Defendants Marie and Paul Napoli’s Motion,

See Defs. Marie Napoli’s and Paul Napoli’s Mem. of Law in
Support of Mot. to Dismiss or, in the Alternative, to Transfer
Venue (“Napoli Mot. to Dismiss”), ECF No. 8-1.
1

See Defs. Napoli Bern’s and Napoli Shkolnik’s Mem. of Law
in Support of Mot. to Dismiss (“Firm Defs.’ Mot. to Dismiss”), ECF
No. 14-1.
2

1

but failed to respond to Napoli Bern’s and Napoli Shkolnik’s
Motion.3 After considering the evidence and arguments presented by
the parties, and for the reasons set forth herein, Defendants
Napoli Bern’s and Napoli Shkolnik’s Motion to Dismiss for Lack of
Personal Jurisdiction and Failure to State a Claim is GRANTED.
Defendants Marie and Paul Napoli’s Motion is also GRANTED with
respect to transfer of venue; the remaining claims are hereby
transferred to the Eastern District for the District of New York.
I.

Background
The

following

facts

are

gleaned

from

the

Plaintiffs’

Complaint.
Plaintiffs are attorneys in Rhode Island who were previously
married and both reside in Rhode Island.4 Plaintiff John Deaton is
an asbestos litigator and the owner of The Deaton Law Firm, LLC,
headquartered in Rhode Island.5 The Defendants Marie and Paul
Napoli are attorneys who reside in and are citizens of New York.6
The Defendants Napoli Bern and Napoli Shkolnik are law firms that

Pls.’ Mem. of Law in Support of Their Obj. to Mot. to Dismiss
(“Pls. Obj.”) ECF No. 12-1.
3

4

Compl. ¶¶ 2-3, 13 ECF No. 1-2.

5

Id. ¶ 14.

6

Id. ¶ 4-5, 11.
2

are

based

in

New

York

and

are,

according

to

the

Complaint,

competitors to The Deaton Law Firm.7
In November of 2007, John Deaton employed Vanessa Dennis as
an associate/paralegal at his law firm, The Deaton Law Firm.8
Dennis stayed at the firm until January 31, 2011, at which point
she left the firm to work for Napoli Bern.9 According to the
Complaint, during Vanessa Dennis’s tenure at Napoli Bern, Vanessa
Dennis

and

Defendant

Paul

Napoli

had

an

affair,

which

was

discovered by Defendant Marie Napoli.10 On May 21, 2013, Defendant
Marie Napoli sent a Facebook message to both Plaintiffs inquiring
whether John Deaton also had an affair with Vanessa Dennis when
she worked for him, and whether it was the cause of the Plaintiffs’
divorce. While Maria Ferro Deaton did not reply, John Deaton stated
that there was no affair, and that the divorce was underway prior
to him meeting Vanessa Dennis.11
Four years later, according to the Plaintiffs’ Complaint, in
February

of

2017,

“Plaintiffs

were

alerted

by

civil

defense

attorneys . . . that [the Plaintiffs], their divorce and children

7

Id. ¶¶ 7-8, 14.

8

Id. ¶ 15.

9

Id. ¶¶ 16-17.

10

Id. ¶ 17.

11

Id. ¶ 19.
3

were discussed within court filings by the Defendants.”12 In a
filing in which Defendant Marie Napoli was a plaintiff, Marie
Napoli asserted that an affair took place between John Deaton and
Vanessa Dennis.13 Plaintiffs also allege in their Complaint that,
“the Defendants wrote, sent or caused to be delivered, several
letters [containing false allegations regarding an affair between
John Deaton and Vanessa Dennis] to colleagues and fellow plaintiff
attorneys of Plaintiff Deaton and their wives, who practice within
asbestos litigation.”14 Plaintiffs allege that the statements are
defamatory

and

have

tortuously

interfered

with

Plaintiffs’

business relations.15
The Complaint was originally filed in April of 2017 in Rhode
Island Superior Court, but was removed to this Court on grounds of
diversity jurisdiction.16 As noted above, the Defendants Marie and
Paul Napoli, and the law firms Defendants Napoli Bern and Napoli
Shkolnik, have filed Motions to Dismiss for lack of personal
jurisdiction. The Plaintiffs responded to Defendants Marie and

12

Id. ¶ 20.

13

Id. ¶ 20.

14

Id. ¶ 21.

15

Id. ¶ 25.

16

Notice of Removal, ECF No. 1.
4

Paul

Napoli’s

Motion

but

failed

to

respond

to

the

law

firm

Defendants’ motion.
II.

Personal Jurisdiction

a. Personal Jurisdiction over Marie and Paul Napoli
For this Court to have personal jurisdiction over Marie and
Paul Napoli, Plaintiffs must show that (1) the Rhode Island longarm statute grants jurisdiction over the claim; and (2) exercising
jurisdiction does not violate the Due Process Clause of the
Fourteenth Amendment.17 Rhode Island’s long-arm statute “extends
up to the constitutional limitation.”18 Therefore, this Court need
only focus on the limitations of the Due Process Clause of the
Fourteenth Amendment.
Under the Due Process Clause, Plaintiff has the burden of
showing that Marie and Paul Napoli have had certain “minimum
contacts” with Rhode Island such that this Court’s hearing of the
case would “not offend ‘traditional notions of fair play and
substantial justice.’”19 While Plaintiff can meet this standard by
demonstrating either general or specific jurisdiction, Plaintiffs

17

Daynard v. Ness, et al., 290 F.3d 42, 52 (1st Cir. 2002).

Am. Sail Training Ass’n v. Litchfield, 705 F. Supp. 75, 78
(D.R.I. 1989) (quoting Conn. v. ITT Aetna Finance Co., 252 A.2d
184, 186 (R.I. 1969)).
18

Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26, 27 (1st Cir.
2008) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319
(1945)).
19

5

argue jurisdiction over Marie and Paul Napoli only on specific
jurisdiction grounds.20 For claims of specific jurisdiction, the
Court employs a three-pronged analysis that requires a showing of
“relatedness, purposeful availment, and reasonableness”:
First, the claim underlying the litigation must directly
arise out of, or relate to, the defendant’s forum-state
activities. Second, the defendant’s in-state contacts
must represent a purposeful availment of the privilege
of conducting activities in the forum state, thereby
invoking the benefits and protections of that state’s
laws and making the defendant’s involuntary presence
before the state’s courts foreseeable. Third, the
exercise of jurisdiction must, in light of the Gestalt
factors, be reasonable.21
Plaintiff has the burden of establishing all three prongs.22
Plaintiffs evidence on this issue is reviewed using the prima facie
method:
Under [this] standard, the inquiry is whether the
plaintiff has proffered evidence which, if credited, is
sufficient to support findings of all facts essential to
personal jurisdiction. In order to make a prima facie
showing of jurisdiction, the plaintiff ordinarily cannot
rest upon the pleadings but is obliged to adduce evidence
of specific facts. The court must accept the plaintiff’s
(properly documented) evidentiary proffers as true for
the purpose of determining the adequacy of the prima
facie jurisdictional showing, and construe them in the

Harlow v. Children’s Hosp., 432 F.3d 50, 57 (1st Cir. 2005)
(comparing general and specific jurisdiction); Pls.’ Obj. to
Motion to Dismiss 7, 12.
20

Adelson v. Hananel, 510 F.3d 43, 49 (1st Cir. 2007)
(emphasis added).
21

22

Id. at 48.
6

light most congenial to the plaintiff’s jurisdictional
claim.23
a. Relatedness
“The relatedness inquiry for tort claims focuses on whether
the defendant’s in-forum conduct caused the injury or gave rise to
the cause of action.”24 In determining relatedness “[w]hen physical
presence is lacking, [this Court] look[s] for some other indication
that the defendant reached in the forum, such as mail or telephone
contacts.”25
The Plaintiffs cite two contacts that they believe render
Defendants

Marie

and

Paul

Napoli

subject

to

this

Court’s

jurisdiction. The first contact is a Facebook message that Marie
Napoli sent to Plaintiffs.26 The second, “that the Defendants
wrote,

sent

or

caused

to

be

delivered,

several

letters

to

colleagues and fellow plaintiff attorneys of Plaintiff Deaton and
their wives, who practice within asbestos litigation in the State
of Rhode Island.”27

Phillips, 530 F.3d at 26 (internal citations and quotations
omitted).
23

Untied States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 622
(1st Cir. 2001) (emphasis in original).
24

25

Id.

26

Pls.’ Obj. to Mot. to Dismiss 2, 8.

27

Id. at 8.
7

Regarding

the

first

contact,

the

Facebook

message,

the

message is related to Rhode Island in the sense that it was sent
to

Plaintiffs’

who

reside

in

Rhode

Island.

Nevertheless,

as

discussed above, to satisfy the relatedness prong “the defendant’s
in-forum conduct . . . [must give] rise to the cause of action.”28
A Facebook message sent from Marie Napoli to John Deaton and Maria
Ferro Deaton, however, cannot give rise to a claim for defamation
because it does not involve a third-party.29 Nor can it give rise
to the claim that “publication of such statements to lawyers and
others involved in the nationwide practice of asbestos litigation
.

.

.

tortuously

interfere[ed]

with

Plaintiffs’

business

relationships” because, again, the Facebook message involved no
third-party.30
Personal jurisdiction of Plaintiffs claims over Marie and
Paul Napoli must therefore live or die on the second contact cited
by Plaintiffs, the “several letters.” The first inquiry is whether
these

alleged

letters

constitute

an

“in-forum

conduct.”31

As

discussed above, it is the Plaintiff’s burden to “adduce evidence

Swiss
original).
28

Am.

Bank,

Ltd.,

274

F.3d

at

622

(emphasis

29

See Cullen v. Auclair, 809 A.2D 1107, 1110 (R.I. 2002).

30

in

Compl. ¶ 25.

Swiss
original).
31

Am.

Bank,

Ltd.,

274

8

F.3d

at

622

(emphasis

in

of specific facts” that satisfy all aspects of jurisdiction.32
Furthermore, the Plaintiffs “must do more than simply surmise the
existence of a favorable factual scenario; he must verify the facts
alleged through materials of evidentiary quality.”33
Plaintiffs’ evidence of specific facts related to the alleged
letters is an Affidavit from John Napoli in which he states
essentially the same statement made in the Complaint:
. . . I further learned, from discussions with other
attorneys and from the readings of court filings, that
the Defendants wrote, sent or caused to be delivered,
several letters to colleagues and associates of mine,
who also practice within asbestos litigation in the
State of Rhode Island.”34
Plaintiffs also provided a copy of one of the “several
letters,” which was also provided in the Complaint. Conspicuously
absent from both the copy of the letter, and from John Deaton’s
Affidavit, is any proffer that the letters were actually sent,
delivered or published in Rhode Island. As such, there is no
allegation of an in-forum contact.35 As there is no in-forum

Phillips, 530 F.3d at 26 (internal citations and quotations
omitted).
32

33

Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir. 2001).

Affidavit of John Deaton, Ex. A (“Affidavit of John Deaton”)
¶ 13; Compl. ¶ 21.
34

See, e.g. Donatelli v. UnumProvident Corp., 324 F. Supp.
2d 153, 159 (D. Me. 2004) (finding that alleged defamatory letter
sent from Tennessee to New York did not create personal
jurisdiction over Defendant in Maine because “[u]ltimately,
35

9

contact,

Plaintiffs

have

not

satisfied

their

burden

on

the

relatedness prong and it is unnecessary to discuss purposeful
availment and reasonableness. Accordingly, there is no personal
jurisdiction over Marie and Paul Napoli.36
b. Personal Jurisdiction over Napoli Bern and Napoli Shkolnik
As

discussed,

the

framework

for

analyzing

personal

jurisdiction is clear: it is the Plaintiffs’ burden to demonstrate
personal

jurisdiction.

Napoli

Bern

and

Napoli

Shkolnik

have

contested jurisdiction, and Defendants have failed to respond. The
only information Plaintiffs provided in their Complaint regarding
personal jurisdiction pertaining specifically to Napoli Bern and
Napoli Shkolnik is that:
“(1) the defendant, Napoli Shkolnik PLLC, a firm at which
defendant Maria Napoli is a partner and defendant Paul
Napoli is of-counsel, advertises as conducting business
in Rhode Island [and]; (2) the Defendant Napoli Bern
Ripka Shlonik, LLP, a firm at which Paul Napoli and Marc
Bern were partners, practiced law within Rhode Island
[Defendant had] not offered any evidence of an in-forum defamatory
publication”).
It is worth noting that Plaintiffs’ argument that “this
Court also has the power to exercise personal jurisdiction over
the Defendants based upon the ‘effects test’ established by the
United States Supreme Court” in Calder v. Jones, 465 U.S. 783
(1984), is unavailing. (Pls. Obj. 1, 12-14.) The argument fails
because the “effects test” of Calder does not form an independent
basis for jurisdiction. It is well established “that Calder’s
‘effects’ test was adopted ‘for determining purposeful availment
in the context of defamation cases.” Swiss Am. Bank, Ltd., 274
F.3d at 623 (citing Noonan v. Winston Co., 135 F.3d 85, 90 (1st
Cir. 1998). “[It] is to be applied only after the relatedness prong
has already been satisfied.”36
36

10

and appeared
courts.”37

on

behalf

of

clients

in

Rhode

Island

Because the Plaintiffs’ outline their jurisdictional claim
over Defendants Napoli Bern and Napoli Shkolnik in their Complaint
based on the firms’ contacts with Rhode Island that are not related
to the claim, this Court assumes the Plaintiffs sought personal
jurisdiction over the law firms based on a theory of general
jurisdiction.
To have general jurisdiction over a defendant, “in which the
cause of action may be unrelated to the defendant’s contacts,
[first] the defendant must have continuous and systematic contacts
with the state. Second . . . the defendant’s contacts with the
state must be purposeful. And third, the exercise of jurisdiction
must be reasonable under the circumstances.”38 Again, it is the
Plaintiffs responsibility to establish personal jurisdiction. The
Court “accept[s] the plaintiff’s (properly documented) evidentiary
proffers as true”39 and “[t]hose facts put forward by the defendant
become part of the mix [if] . . . they are uncontradicted.”40

37

Compl. ¶ 11.

Harlow v. Children’s Hosp., 432 F.3d 50, 57 (1st Cir. 2005)
(citations omitted).
38

39

Phillips, 530 F.3d at 26.

Mass. Sch. Of Law at Andover, Inc. v. Am. Bar Ass’n, 142
F.3d 26, 34 (1st Cir. 1998).
40

11

Both of the law firm defendants, which are based out of New
York, as part of their Motion to Dismiss, which was not responded
to, provided evidence that Napoli Bern’s contacts with Rhode Island
do not meet the above standard. For example, the Defendants claim
that Napoli Bern has represented clients in litigation in Rhode
Island twice (through local counsel)41, have never had a Rhode
Island office, and have not specifically targeted advertisements
at Rhode Island.42 Additionally, the law firm Defendants provide
evidence that Napoli Shkolnik has never represented a client in
litigation in Rhode Island and has never targeted advertisements
specifically at Rhode Island.43 These types of contacts generally
do

not

amount

to

a

finding

of

general

jurisdiction

over

defendants.44 As this evidence is uncontradicted, Plaintiffs have

Paul Napoli, in his Affidavit, states: “Napoli Bern
attorneys have represented a client in litigation pending in a
Rhode Island Court through local counsel on approximately two
occasions.” (Firm Defs.’ Mot. to Dismiss Ex. A, Affidavit of Paul
Napoli, Esq. ¶10). Plaintiffs’ have provided a list of cases in
Rhode Island that Napoli Bern was/is involved in. (Pls. Obj. Ex.
1, ECF No. 12-2.) While there are nineteen entries on this list,
all of the entries appear to refer back to two case numbers and
one Master Case.
41

Firm Defs.’ Mot. to Dismiss 8; Firm Defs.’ Mot. to Dismiss,
Ex. A, Affidavit of Paul Napoli, Esq. ¶¶ 6, 8, 10, ECF No. 14-2.
42

43

Id.

See, e.g., Cossaboon v. Me. Med. Ctr., 600 F.3d 25, 34-39
(1st Cir. 2010) (concluding that a medical center located in Maine
that provided medical services exclusively in Maine was not subject
to general jurisdiction in New Hampshire, despite a degree of
44

12

not met their burden to demonstrate personal jurisdiction over the
law firm defendants.
III. Venue
Having found that this Court lacks personal jurisdiction over
Plaintiffs’ claims over Marie and Paul Napoli, and Napoli Bern and
Napoli Shkolnik, the Court must now determine whether the claims
should be dismissed or transferred. Under 28 U.S.C. § 1631,
[w]henever a civil action is filed in a court . . . and
that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice,
transfer such action . . . to any other such court in
which the action . . . could have been brought at the
time it was filed . . . .
The statute creates a “rebuttable presumption in favor of
transfer.”45 This presumption is rebutted only where the Court
finds, after consideration of the entire record, that the interests
of justice favor dismissal.46 The Court should consider whether the
“transfer

would

unfairly

benefit

the

proponent,

impose

an

unwarranted hardship on an objector, or unduly burden the judicial

advertising in New Hampshire and treating some New Hampshire
residents, among other contacts).
Fed. Home Loan Bank of Boston v. Moody's Corp., 821 F.3d
102, 119 (1st Cir.), cert. denied, 137 S. Ct. 304 (2016) (citing
Britell v. United States, 318 F.3d 70, 73 (1st Cir. 2003)).
45

Britell, 318 F.3d at 74 (“Thus, even though transfer is the
option of choice, an inquiring court must undertake case-specific
scrutiny to ferret out instances in which the administration of
justice would be better served by dismissal.”).
46

13

system.”47 These considerations

require

review of whether the

claimant has “acted in bad faith” or has brought a claim that “is
fanciful or frivolous.”48
Based on the facts before the Court, the jurisdiction in which
it is clearest that Plaintiffs’ claim “could have been brought at
the time it was filed,” 28 U.S.C. § 1631, is the Eastern District
of New York. Defendants Marie and Paul Napoli, and the law firm
Defendants,

have

indicated

that

the

claims

would

be

more

appropriate in New York.49 The Plaintiffs, in their Complaint,
discuss statements made in litigation in the Eastern District of
New York and recognize that Paul and Marie Napoli reside in New
York, and that the Napoli Bern law firm is a New York entity and
Napoli Shkolnik’s principal office is in New York.50 Therefore, the
only question remaining for this Court is whether transferring the
case

to

the

Eastern

District

of

New

York

would

disrupt

the

interests of justice.
Having reviewed the totality of the record, the Court finds
no factors that favor dismissal over transfer of the claim against
the Defendants Marie and Paul Napoli. For instance, the Court finds

47

Id. (internal citations omitted).

48

Id. at 75.

49

Napoli Mot. to Dismiss 8; Firm Defs.’ Mot. to Dismiss 18.

50

Comp. ¶¶ 4-5, 7-8, 20.
14

no evidence in the record to suggest that the claimants have “acted
in bad faith” or have brought a claim that “is fanciful or
frivolous” in regards to Marie and Paul Napoli.51 Moreover, the
Court

finds

that

transferring

Plaintiffs’

claims

against

Defendants Marie and Paul Napoli, as opposed to dismissing them,
would not “unfairly benefit” Defendants, “impose an unwarranted
hardship on” Plaintiffs, or “unduly burden the judicial system.”52
To the contrary, transferring this claim would “further[] the
salutary policy favoring the resolution of cases on the merits,”
as was the intent of 28 U.S.C. § 1631.53
While the claims over Defendants Marie and Paul Napoli should
be transferred, the Court does not take the same position regarding
the claims against Napoli Bern and Napoli Shkolnik. “[I]f an action
or appeal is fanciful or frivolous, it is in the interest of
justice to dismiss it rather than to keep it on life support (with
the inevitable result that the transferee court will pull the
plug).”54 There is ample evidence that Plaintiffs’ claims against
the law firm Defendants are frivolous.

51

Britell, 318 F.3d at 75.

52

Id. at 74.

53

Id.

54

Id. at 75.
15

The Plaintiffs assert that, “[w]ithin Court filings, the
Defendant

Maria

Napoli

and

Napoli

Shkolnik

PLLC

maliciously,

without cause and in complete disregard for the truth, [made
defamatory statements] which [were] repeated in several versions
in the various courts Defendant Maria Napoli filed lawsuits.”55 The
Plaintiffs then cite the Complaint from a case of the Eastern
District of New York, Napoli v. Ratner, in which Marie Napoli is
the Plaintiff. The problem with this, as Defendants point out, is
that Napoli Shkolnik PLLC was not involved in representing Marie
Napoli in that case.56 After reviewing the Complaint from Napoli
v. Ratner et al, which the law firm Defendants attached as Exhibit
to their Motion to Dismiss, it appears it was Napoli Law, PLLC,
not Napoli Shkolnik PLLC that represented Marie Napoli in that
case.57
Regarding Napoli Bern, the basis for Plaintiffs claim against
the Defendant is a mystery. The law firm Defendants note that,
“the [C]omplaint does not allege that any defamatory statements
concerning the plaintiffs were made by an employee or agent of

55

Compl. ¶ 20.

Firm Defs.’ Mot. to Dismiss 18; Firm Defs.’ Mot. to Dismiss
Ex. B, Affidavit of Paul Napoli, Esq. ¶ 12; Firm Defs.’ Mot. to
Dismiss, Ex. C, Marie Napoli Compl., Compl. Napoli v. Ratner Docket
No2:16-cv-06483 (E.D.N.Y.) (“Marie Napoli Compl.”).
56

57

Marie Napoli Compl.
16

Napoli Bern.”58 Indeed, after reviewing the documents, there is no
accusation of any specific action by Napoli Bern in the facts of
the Complaint or in John Deaton’s Affidavit.59 Plainly put, the
actions

are

frivolous.

Accordingly,

the

claims

over

these

Defendants are dismissed for failure to state a claim.
IV.

Conclusion
For the reasons described above, Defendants Napoli Bern’s and

Napoli

Shkolnik’s

Motion

to

Dismiss

for

Lack

of

Personal

Jurisdiction and Failure to State a Claim (ECF No. 14) is GRANTED.
Defendants Marie and Paul Napoli’s Motion to Dismiss for Lack of
Personal Jurisdiction or, in the Alternative, to Transfer Venue
(ECF No. 8) is GRANTED with respect to transfer of venue; the
remaining claims in this case are hereby transferred to the Eastern
District for the District of New York.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: August 4, 2017

58

Firm Defs.’ Mot. to Dismiss 16.

59

Compl. ¶¶ 13-28; Affidavit of John Deaton ¶¶ 1-21.
17