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June 14, 1999


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 entirety:

  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 ...

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