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Peterson v. Ballard

July 15, 1996

DEBORAH SCORESE PETERSON, PLAINTIFF-APPELLANT,
v.
WAYNE BALLARD, INDIVIDUALLY AND AS VICE-PRESIDENT OF SALES OF RUSS BERRIE CO., INC. AND RUSS BERRIE COMPANY, INC. DEFENDANTS, AND TRENT S. DICKEY, ESQ., INDIVIDUALLY; JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County.

Approved for Publication July 15, 1996.

Before Judges Keefe, Wefing and Bilder. The opinion of the court was delivered by Keefe, J.A.D.

The opinion of the court was delivered by: Keefe

The opinion of the court was delivered by KEEFE, J.A.D.

We granted plaintiff Deborah Peterson's motion for leave to appeal from the entry of summary judgment dismissing her complaint against defendant Trent Dickey. The issue to be decided on appeal is whether the common law litigation privilege applies to the facts of this case, and, if so, whether it was nonetheless abolished by the Law Against Discrimination (LAD), specifically N.J.S.A. 10:5-5a and -12d. Law Division Judge Victor Ashrafi held that the privilege was not abrogated, and that defendant Dickey was entitled to its protection. We affirm for the reasons stated herein.

Plaintiff is an employee of defendant Russ Berrie Company, Inc. (Russ Berrie), and defendant Wayne Ballard (Ballard) was her supervisor. A suit was instituted by plaintiff's co-employee, Maureen Gammino, against Russ Berrie and Ballard alleging sexual harassment in violation of the LAD. Plaintiff was identified by Gammino as a witness to an incident of sexual harassment committed by Ballard. Defendant Dickey, an attorney, was retained by Russ Berrie as outside counsel to represent it in the litigation.

The current litigation by plaintiff against Dickey arises out of two interviews conducted by Dickey of plaintiff in connection with Dickey's investigation into the Gammino complaint against Russ Berrie. Although there is a factual dispute as to what actually transpired during those interviews, we accept plaintiff's version for the purpose of this opinion.

Dickey's first interview with plaintiff took place on May 23, 1995, in the presence of Arnold Bloom, general counsel for Russ Berrie. Plaintiff was assured that her cooperation and truthful recounting of the facts would not affect her job status. Accordingly, she was asked and responded to questions concerning the Gammino claim. Plaintiff also indicated during the interview that she had been the subject of sexual harassment by Ballard. The first meeting was otherwise unremarkable from plaintiff's point of view.

As a result of certain information provided to Dickey during discovery of the Gammino claim, he decided to re-interview plaintiff. That interview took place on June 12, 1995, also in the presence of Arnold Bloom. Plaintiff alleges that during that interview, Dickey threatened, intimidated, and coerced her in an attempt to prevent her from making her own LAD claim and from assisting in Gammino's LAD action. Specifically, plaintiff claimed that she was interrogated instead of interviewed. Her loyalty to Russ Berrie was questioned because she did not report the harassment before Gammino brought suit, and, as a result, Dickey accused her of "costing the company a lot of money[.]" She was also accused of being less than forthright during her first interview while giving Gammino's attorney damaging information. Dickey also suggested that plaintiff was going to get "a cut" of Gammino's lawsuit in return for her cooperation. Plaintiff felt that Dickey's "badgering" her on issues of company loyalty and honesty was an attempt by Dickey to get her to "recant" her prior statements on Gammino's behalf. Further, when plaintiff asked Dickey if her job was in jeopardy, Dickey simply "glared" at her, instead of reassuring her that her job was secure. Dickey's tone of questioning was loud and "intimidating" throughout the interview.

Plaintiff filed a complaint against Ballard, Russ Berrie and Dickey, alleging LAD violations. Count four specifically names Dickey and alleges that the conduct and statements described above were violations of N.J.S.A. 10:5-12d and e, in that "they were designed to coerce, intimidate threaten and/or interfere with Peterson's exercise or enjoyment of rights granted and protected by the LAD . . ." Count seven also names Dickey specifically, and charges that his conduct and statements constituted intentional infliction of emotional distress.

Shortly after suit was instituted, Dickey moved to dismiss the complaint against him based upon the common law litigation privilege. A certification and brief were filed by plaintiff in opposition to the motion. In a written opinion, Judge Ashrafi held that the absolute immunity granted to an attorney in judicial or quasi-judicial proceedings extends to claims under the LAD and for the intentional infliction of emotional distress. Further, the court held that the privilege applied to Dickey on the facts of this case. We granted plaintiff's motion for leave to appeal.

I

Plaintiff maintains that when the Legislature enacted N.J.S.A. 10:5-5a and N.J.S.A. 10:5-12d, it abrogated the litigation privilege under the LAD, and therefore the trial court erred in dismissing the LAD claim as to Dickey. Plaintiff also asserts that the litigation privilege does not apply to her claim for intentional infliction of emotional distress.

The litigation privilege is firmly established in New Jersey case law. Hawkins v. Harris, 141 N.J. 207, 215, 661 A.2d 284 (1995). Statements by attorneys, parties and their representatives made in the course of judicial or quasi-judicial proceedings are absolutely privileged and immune from liability. Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 563, 569 A.2d 793 (1990).

That immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in those settings.

[Ibid.]

The privilege extends to all statements made in connection with judicial proceedings and is not limited to what a person says under oath. Ruberton v. Gabage, 280 N.J. Super. 125, 133, 654 A.2d 1002 (App Div.), ...


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