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Cristelli v. Filomena II


December 1, 1999


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



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.


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.


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).


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) statements made by plaintiff to defendants' employees are afforded absolute privilege of immunity from suit.


Plaintiff contends that defendants' counterclaim fails to meet the pleading requirements of Rule 8. Under New Jersey law, defamation is defined as (1) a defamatory statement, (2) concerning the plaintiff, (3) which was false, (4) that was communicated to someone other than the plaintiff, (5)with actual knowledge that the statement was false or with reckless disregard of the statement's truth or falsity or with negligence in failing to ascertain the truth or falsity, and (6) which caused damage. Monroe v. Host Marriott Serv. Corp., 999 F. Supp. 599, 603 (D.N.J. 1998)(citing Feggans v. Billington, 677 A.2d 771 (1996)). Although state law "may define the general substance of the pleading for a claim based on state law, it does not govern the standard of pleading.

Accordingly, the specificity with which a defamation claim brought in federal court must be pled is defined by Rule 8, Fed. R. Civ. P." Palladino v. VNA Southern New Jersey, Inc., No. 96-2252, 1999 WL 793393, at *21 (D.N.J. June 30, 1999). Federal Rule of Civil Procedure 8(a)(2) only requires that the pleadings set forth a "short and plain statement of the claim showing that the pleader is entitled to relief."

According to Rule 8, a defamation pleading does not need to cite precise defamatory statements, it must only provide sufficient notice to the other party of the allegations made against him. Palladino, 1999 WL 793393, at *22; Lynch v. Borough of Ambler, No. Civ. A. 94-6401, 1995 WL 113290, at *5-6 (E.D.Pa. March 15, 1995). Applying the Federal Rules of Civil Procedure's liberal pleading requirements, the Court finds that defendants' counterclaim sufficiently alleges the elements of defamation under New Jersey law with specificity as is required by Rule 8.

In their amended counterclaim, defendants allege that plaintiff falsely told Mr. Quintana that defendant DiVentura sexually harassed her. Therefore, they identified plaintiff as the speaker of the alleged defamatory statement. Also, they allege that the statements were false and published to a third person, Mr. Quintana. Accordingly, defendants have alleged facts with sufficient specificity to put plaintiff on notice of the cause of action against her. Hence, the liberal pleading requirements of Rule 8 have been met.


Plaintiff next asserts that defendants' counterclaim is barred by the one-year statute of limitations for claims of defamation in New Jersey. N.J.S.A. 2A:14-3. Plaintiff claims that because defendants cite "May, 1998 and continuing to the present" in their counterclaim as the time frame of the alleged defamatory statements, they had only until May, 1999 to file their claim. Thus, she argues, they are barred from bringing the instant claim because they did not file their original counterclaim against her until August, 1999.

New Jersey's statute of limitations in defamation cases is to be strictly construed. Miele v. Rosenblum, 603 A.2d 43 (App.Div. 1991). In Miele, the defendant was charged with publishing two articles on specified dates and thereafter "continued to publish facts about plaintiff which placed plaintiff in a false light." Id. at 44-45. In granting the defendant's motion for summary judgment, the Miele court held that "[i]n the case of a complaint charging defamation, the plaintiff must plead facts sufficient to identify the defamatory words, their utterer and the facts of their publication." Id. Because the plaintiff failed to specify any facts with regard to the alleged subsequent defamatory publications, the Appellate Division held that the statute of limitations period relevant to the specifically pled instances of defamation was inapplicable to the entire complaint. See also Monroe, 999 F. Supp. at 604 (holding that because plaintiff failed to state with any specificity when any of the alleged defamatory statements were republished, her claims were barred by the statute of limitations).

In the instant case, although defendants' defamation claim alleges that plaintiff made defamatory statements beginning in May, 1998 and continuing to the present, they also allege that plaintiff made defamatory statements to Mr. Quintana four months ago. Defendants allege that plaintiff called Mr. Quintana "approximately four months ago . . . [and] during the conversation, [told] Mr. Quintana, Jr. that she was suing Counterplaintiff because Mr. DiVentura sexually harassed her." (Def. Counterclaim at ¶ 6.) Unlike the statements made in Miele and Monroe, these specifically pled allegations relate to an instance which allegedly took place around April, 1999. Defendants first filed their counterclaim in August, 1999, which was well within New Jersey's one year statute of limitations.


Lastly, plaintiff claims that defendants counterclaim should be dismissed because she was protected in making the alleged defamatory statements by an absolute privilege of immunity.

Under New Jersey law, a publisher of a defamatory statement is protected from liability if the statement is made "in the course of judicial proceedings." Petty v. General Accident Fire & Life Assur. Corp., 365 F.2d 419, 421 (3d Cir. 1966). The New Jersey Supreme Court has said that "absolute privilege or immunity is that afforded in judicial proceedings where judges, attorneys, witnesses, parties and jurors are fully protected against defamation actions based on utterances made in the course of the judicial proceedings and having some relation thereto." Rainier's Dairies v. Raritan Valley Farms, 117 A.2d 889, 891-92 (N.J. Sup. Ct. 1955). Furthermore, the absolute privilege given to participants in judicial proceedings has been extended to private investigators employed by the parties or their representatives. Hawkins v. Harris, 661 A.2d 284, 286 (N.J. Sup. Ct. 1995).

In Hawkins, defendants hired an investigator to gather information about the accidents at issue in the case. Plaintiff alleged that during the course of the investigator's investigation, he defamed her. The Court applied the underlying principles of California's litigation privilege which afforded absolute privilege to "`any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.'" Id. at 289 (quoting Silberg v. Anderson, 786 P.2d 365 1990)). In holding that the investigator's statements were made in the course of judicial proceeding and were afforded absolute immunity, the Court stated, "[j]ust as we wish witnesses to have absolute freedom to express the truth as they view it, we wish parties to have an unqualified opportunity to explore the truth of a matter without fear of recrimination." Id. at 289-90.

In the instant case, plaintiff's alleged defamatory statements against Mr. DiVentura are protected by the absolute immunity privilege. Defendants, themselves, assert in their counterclaim that plaintiff's statement "that she was suing [defendants] because Mr. DiVentura sexually harassed her," was made in a phone conversation in which plaintiff asked Mr. Quintana to testify on her behalf. (Def. Counterclaim at ¶ 6, 7.) There is no indication from defendants counterclaim that plaintiff said anything beyond that to Mr. Quintana or to any other of defendants' employees. In fact, defendants do not allege that in speaking with defendants' employees, plaintiff discussed inappropriate details about defendants' alleged discriminatory behavior nor do they allege that she made any further disparaging comments about Mr. DiVentura.

Plaintiff initiated her suit against Mr. DiVentura by filing a Charge of Discrimination with the New Jersey Division of Civil Rights and the Equal Employment Opportunity Commission back in July of 1998. Approximately ten months later, she allegedly telephoned Mr. Quintana to ask him to testify on her behalf. Defendants have asserted nothing to indicate that by reaching out to Mr. Quintana, plaintiff was doing more than contacting a potential witness in preparation for bringing her case to court.

As explained above, a defamatory statement made in the course of judicial proceedings by a party or his investigator is protected by absolute immunity. Here, plaintiff's actions in contacting defendants' employees could be considered either an act by a party or by an investigator in the course of a judicial proceeding. See Devlin v. Greiner, 371 A.2d 380 (Law Div. 1977)(holding that absolute privilege applies to defamatory matter uttered that has "some relation to the nature of the proceeding."); Hawkins, 661 A.2d at 289-90 ("We are satisfied that the pretrial discussions between the investigator [] and the witnesses were made in the course of the underlying [] litigation."). Under either characterization, plaintiff's statement to Mr. Quintana or any other employee is protected by the absolute immunity privilege. Accordingly, plaintiff's motion to dismiss defendants' defamation counterclaim is granted.


For the reasons set forth above, this Court grants both defendants' motion to amend their answer and counterclaim and plaintiff's motion to dismiss defendants' counterclaim. This Court will enter an appropriate order.

Date: December 1, 1999



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