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Cristelli v. Filomena II

December 1, 1999

JUDY A. CRISTELLI,
PLAINTIFF,
V.
FILOMENA II, INC., T/A FILOMENA'S RUSTIC CUCINA RESTAURANT AND GIUSEPPE DIVENTURA A/K/A PEPPI DIVENTURA,
DEFENDANTS



The opinion of the court was delivered by: Irenas, District Judge:

HONORABLE JOSEPH E. IRENAS

OPINION

Plaintiff Judy A. Cristelli moves to dismiss defendants' Guiseppe DiVentura and Filomena's Rustic Cucina Restaurant t/a Filomena II, Inc., defamation counterclaim. In response, defendants' move to amend their answer and counterclaim. Although the Court grants defendants' motion to amend their answer and counterclaim and relies on it in this opinion, plaintiff's motion to dismiss defendant's counterclaim is granted.

I.

On June 18, 1999, Judy A. Cristelli ("plaintiff") filed a three count complaint with this Court against her employer, Guiseppe DiVentura and Filomena's Rustic Cucina Restaurant t/a Filomena II, Inc. ("defendants"). Ms. Cristelli's complaint alleges that Mr. DiVentura sexually harassed her while she was employed as a waitress at Filomena's Rustic Cucina Restaurant. Specifically, plaintiff alleges that defendants violated her rights pursuant to Title VII, 42 U.S.C. § 2000 et al. and the New Jersey Law Against Discrimination, N.J.S.A. 10:5- 27.1. She also charges defendants with intentional infliction of emotional distress.

On August 17, 1999, defendants filed an answer which denied all of plaintiff's allegations. They also filed a counterclaim against plaintiff, charging her with defamation. Plaintiff replied by filing the instant motion to dismiss defendant's defamation counterclaim and/or for a more definite statement. In response to plaintiff's motion, on September 17, 1999, defendants moved to amend their answer and submitted an amended answer and counterclaim.

Defendants' amended answer sets forth a counterclaim against plaintiff which still accuses her of defamation for "represent[ing] orally to persons that Guiseppe DiVentura committed acts that give rise to violations of Title VII and New Jersey Law Against Discrimination." (Def. Amended Counterclaim at ¶ 5.) But, different from their first defamation counterclaim against plaintiff, defendants' amended counterclaim cites to a conversation plaintiff had with defendants' employee, Ricardo Quintana, Jr. In this conversation, plaintiff allegedly asked Mr. Qunitana to testify on her behalf in her sexual harassment suit against defendant DiVentura. He also alleges that plaintiff contacted other of defendants' employees and made similar disclosures. (Def. Counterclaim at ¶ 6,7.)

Following defendants' cross motion to amend his answer and counterclaim, plaintiff still requests that the Court dismiss defendants' amended counterclaim pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, for a more definite statement. Because of the liberal interpretation of Fed. R. Civ. P. 15 and because plaintiff makes no objections, the Court grants defendants' motion to amend their answer and counterclaim. See Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires"); see also Heyl & Patterson Int'l v. F.D. Rich Housing, 663 F.2d 419, 425 (3d Cir. 1981) (holding that leave to amend is usually denied only where the party opposing the amendment can show undue prejudice, bad faith, or undue delay). Because the Court grants defendants' motion to amend their answer and counterclaim, it finds that plaintiff's motion for a more definite statement is moot. In addressing plaintiff's motion to dismiss below, the Court will rely on defendants' amended answer and counterclaim submitted on September 17, 1999.

II.

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, the court will accept the allegations of the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although the court must assume as true all facts alleged, "[i]t is not . . . proper to assume that the [plaintiff] can prove any facts that it has not alleged." Associated General Contractors of Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

Finally, when "[c]onfronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988) (emphasis added).

III.

In defendants' counterclaim, they allege that plaintiff defamed Mr. DiVentura when she asked his employees to testify on her behalf in her sexual harassment suit against him. Plaintiff moves to dismiss this amended counterclaim on the grounds that: (1) defendants fail to set forth an appropriate claim under Fed. R. Civ. P. 8; (2) defendants' claim is barred by the statute of limitations; and (3) ...


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