The opinion of the court was delivered by: Ackerman, District Judge.
This matter comes before the court on defendants' motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(2)
for lack of personal jurisdiction, or in the alternative, for failure to
state a cause of action pursuant to Rule 12(b)(6). The defendants joining
in this motion are the Va'ad Harabonim of Great Monsey ("Va'ad"), Moses
Tendler, Berel Wein, Avrohom Pessin, Hirsch Chapler, and Alfred Cohen.*fn1
For the reasons discussed more fully below, this court will consider
the defendants' motion to dismiss under Rule 12(b)(6) for failure to
state a cause of action as one made pursuant to Rule 12(b)(1) for lack of
subject matter jurisdiction. The court will grant the Rule 12(b)(1)
motion and dismiss the complaint for lack of subject matter
jurisdiction. Accordingly, the defendants' motion to dismiss for lack of
personal jurisdiction is rendered moot.
At the outset, this court notes that the defendants' Rule 12(b)(6)
motion should be viewed more appropriately as one made under Rule
12(b)(1). In substance, they argue that the plaintiffs' defamation action
should be dismissed because it implicates concerns which are
ecclesiastical in nature. Consequently, they argue, the First
Amendment to the Constitution prohibits this court from adjudicating this
matter. Various other courts considering similar issues appear to have
grounded their analyses on whether they had subject matter jurisdiction
over the claim, rather than on whether the plaintiffs claim stated a
viable cause of action. See, e.g., Bell v. Presbyterian Church (U.S.A.),
126 F.3d 328 (4th Cir. 1997); Hutchison v. Thomas, 789 F.2d 392 (6th
Cir. 1986); 40th St. and Fairmount Ave. Church of God v. Stover,
316 F. Supp. 375 (E.D.Pa. 1970).
A motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) is separate and distinct from one for failure to state a cause
of action under Rule 12(b)(6). See Johnsrud v. Carter, 620 F.2d 29, 32-33
(3d Cir. 1980). A Rule 12(b)(1) motion goes to the court's "`very power
to hear the case.'" Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.
1997) (quoting Mortensen v. First Federal Sav. and Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)). A dismissal under Rule 12(b)(6), on
the other hand, is a disposition on the merits, and therefore presumes
the court's power to hear the matter. See Johnsrud, 620 F.2d at 33
(citing Hubicki v. ACF Indus., Inc., 484 F.2d 519, 523 (3d Cir. 1973)).
Accordingly, they should not be confused or used interchangeably. This
court will follow the lead of the other courts cited above and consider
the defendants' present motion, which appears to directly challenge this
court's power to entertain this matter, under Rule 12(b)(1). As one
treatise has acknowledged, Rule 12(b)(1) "like Rule 12(b)(6), . . . is
flexible, often serving as a vehicle for raising various residual
defenses." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1350 (2d ed. 1990 & Supp. 1998). of course, this
court is permitted to consider the defendants' motion, ostensibly filed
pursuant to Rule 12(b)(6), under Rule 12(b)(1). See Oldham v. ACLU Found.
of Tenn., Inc., 849 F. Supp. 611, 613 n. 3 (M.D.Tenn. 1994) (converting
Rule 12(b)(6) motion to Rule 12(b)(1) motion, noting that "a party is not
to be prejudiced for misidentifying a Rule 12(b)(1) motion"); Riddle v.
Trans World Airlines, Inc., 512 F. Supp. 75, 77 (W.D.Mo. 1981).
The present libel and slander action arises from what appears to be a
long and bitter dispute concerning the dissolution of the marriage of
Seymour and Shulamith Klagsbrun. At the heart of the complaint is the
allegation that a flyer or notice circulated by the Va'ad and the
individual defendants defamed the plaintiffs. The Va'ad is an
unincorporated association of Orthodox rabbis who serve a segment of the
Orthodox Jewish community in the greater Monsey/Spring Valley area of
Rockland County, New York, and is comprised, inter alia, of the
individual defendants in this case, with the exception of Shulamith
Klagsbrun. The individual defendants are ordained Orthodox rabbis who
occupied various leadership positions in the Va'ad. At this point, a
brief description of the Va'ad may be helpful.
The Va'ad, as a body comprised of Orthodox rabbis, was designed to
facilitate common practices among its member congregations in the
relatively insulated Orthodox Jewish community in Rockland County.
According to the affidavit of Rabbi Moses Tendler, Orthodox Jewry
presently has no central religious authority. Each synagogue's rabbi,
therefore, acts as the supreme authority for his particular synagogue.
His enforcement power, however, extends only so far as his decrees are
voluntarily accepted by members of his congregation. Because each
Orthodox congregation is independent, the ability of individual rabbis to
maintain and enforce religious standards in matters which affect the
Orthodox community as a whole is quite limited. While the Va'ad
membership does not represent every Orthodox congregation, its members
serve the largest number of Orthodox Jews in the greater Monsey area. As
a body of Orthodox rabbis, the Va'ad's proceedings are
governed exclusively by the Shulchan Arukh, the Code of Jewish law.
The plaintiff Seymour Klagsbrun describes himself in the complaint as
an adherent of the Orthodox Jewish religion. Seymour Klagsbrun and
Shulamith Klagsbrun were married in an Orthodox Jewish ceremony in June,
1957. After nearly thirty years of marriage, Shulamith Klagsbrun obtained
a civil divorce in May, 1995. The defendants contend that in addition to
the civil divorce, Shulamith Klagsbrun sought a religious divorce, or
what is known as a get, from a rabbinical court in conformance with her
religious beliefs. The defendants further contend that a rabbinical court
ordered Mr. Klagsbrun to grant his wife a get. Mr. Klagsbrun, however,
refused to grant a get, which under Jewish law must be given at the free
will of the husband. Mr. Klagsbrun's refusal has precluded Shulamith
Klagsbrun from remarrying in conformity with the tenets of her faith.
Although he never provided a get to Shulamith Klagsbrun, there is no
dispute that Seymour Klagsbrun has remarried. Seymour Klagsbrun
contends, however, that he obtained a special rabbinic dispensation
permitting him to remarry.
In May, 1996, the children of Seymour and Shulamith Klagsbrun
approached Rabbi Hirsch Chapler and informed him that Judith Oshry, a
congregant in his synagogue, was married to their father. Rabbi Chapler,
a defendant in this action, is an ordained Orthodox Rabbi, and since
1989, has been the official rabbi of the Young Israel of Spring Valley,
an Orthodox Jewish congregation in Spring Valley, New York. The children
further informed Rabbi Chapler that Seymour Klagsbrun had not given their
mother a get and allegedly provided the rabbi with various documents from
rabbinic tribunals and individual rabbis confirming this fact. Rabbi
Chapler has stated in his affidavit that he confirmed the authenticity of
one of those documents, and further, that Rabbi Avrohom Pessin, another
defendant in this action, confirmed the validity of the other documents.
Upon receiving this information and reviewing the documents provided by
the children, Rabbi Chapler referred the matter to the Va'ad.
The Va'ad thereafter convened a meeting with Seymour Klagsbrun.
According to Rabbi Chapler, the Va'ad acted as a Beis Din, or a religious
court, when it met with Mr. Klagsbrun. The Beis Din was conducted in
accordance with the requirements of Shulchan Arukh, the Code of Jewish
law for a rabbinic court. The Va'ad informed Seymour Klagsbrun that he
had to either give his wife a get or present evidence that he had
obtained a valid rabbinic dispensation permitting him to remarry. Seymour
Klagsbrun objected and attempted to attack the validity of the prior
rabbinic judgment ordering him to give a get. The Va'ad refused to
reconsider the, prior rabbinic court's judgment, determining that such an
endeavor was beyond its competence. The Va'ad asked Mr. Klagsbrun to
produce the special rabbinic dispensation permitting him to remarry. Mr.
Klagsbrun allegedly refused to do so.
Specifically at issue in this case is a notice, dated June 21, 1996 and
written on the letterhead of "Va'ad Harabonim of Greater Monsey,"
circulated by various members of the Va'ad after Seymour Klagsbrun
refused their entreaties. That notice provides as follows in its
Mr. Seymour Klagsbrun has taken up residence in the
Monsey/Spring Valley community. After numerous
conversations with Mr. Klagsbrun the following facts
are clear to us:
1. Mr. Klagsbrun has never given a Jewish divorce to
his wife Shulamith Klagsbrun.
2. Mr. Klagsbrun has since remarried claiming that he
has the necessary permission from a rabbinical court
to do so
3. Seymour Klagsbrun has refused to tell us the name
of the Rabbi who
performed the ...