April 2, 2009
ASSEM A. ABULKHAIR, PLAINTIFF-APPELLANT,
EDWARD ENGELHART, AND SOMMER & ENGELHART, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2345-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 4, 2009
Before Judges Rodríguez and Payne.
Assem A. Abulkhair (plaintiff) appeals from the June 6, 2008, order granting defendants Edward Engelhart and Sommer & Engelhart's (collectively "defendants") motion for summary judgment. We affirm.
In 1999, plaintiff filed a complaint against TWA in the Special Civil Part, seeking damages for loss of personal property. The judge granted the airline's motion for summary judgment and dismissed the complaint. Subsequently, plaintiff retained Edward Engelhart, of the law firm of Sommer & Engelhart, to represent him in moving for reconsideration. Plaintiff paid a $1,000 retainer. However, the judge denied the motion for reconsideration, relying on the Warsaw Convention*fn1 as dispositive.
Plaintiff then sued defendants in the Special Civil Part, seeking the return of the $1,000 retainer. That suit was dismissed without prejudice. Plaintiff appealed. We dismissed the appeal for failure to prosecute.
Plaintiff then filed a claim with the New Jersey Lawyers' Fund for Client Protection against defendants. That claim was denied for lack of jurisdiction because Engelhart had not been suspended, disbarred, or declared disability inactive.
Plaintiff filed an attorney ethics complaint against defendants. The District Ethics Committee determined that there was "no evidence of unethical conduct that would warrant filing a complaint." Plaintiff challenged that determination to the Disciplinary Review Board. Engelhart wrote to the Disciplinary Review Board in response. Engelhart's letter stated in part that plaintiff's: unfounded comments and false accusations against me... and against the system as a whole must end. It is time for him to stop.
He continues to make outrageous, unsupported statements without knowing what he is talking about. He waited for 7 years to file his ethics complaint. Clearly this was merely to continue his "campaign of terror" against me, the ethics system and the Court system as a whole.
The Disciplinary Review Board upheld the decision by the District Ethics Committee.
On March 6, 2008, plaintiff filed the present complaint against defendants for defamation based on Engelhart's use of the phrase "campaign of terror," alleging that Engelhart used such an "unethical [and] insulting comment" toward plaintiff because plaintiff was a Muslim and the comment was made after September 11, 2001.
Defendants moved to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 4:6-2(e). Engelhart certified that he had not known that plaintiff was a Muslim, and had used the phrase "campaign of terror" to describe plaintiff's continuing conduct. Engelhart also submitted the certification of Michael Pescatore, a former partner at Sommer & Engelhart. Pescatore certified that he overheard plaintiff tell Engelhart that if his $1,000 retainer was not returned, plaintiff would "continue to make Mr. Engelhart's life difficult."
The motion to dismiss was originally scheduled to be heard on June 6, 2008. On that date, Judge Ned M. Rosenberg's staff attempted to reach the parties regarding oral argument, but apparently did not contact plaintiff. The judge addressed the merits of the motion based on the papers, and signed an order granting defendants' motion on June 6, 2008. However, sua sponte, the judge reopened the case and conducted oral argument on June 9, 2008. Both parties appeared. At the conclusion of oral argument, the judge found that Engelhart's comment had been made during a quasi-judicial proceeding and thus was absolutely privileged, and that the lawsuit was frivolous and thus subject to dismissal pursuant to N.J.S.A. 2A:15-59.1(b)(1). The judge also found that there was no cause of action alleged against defendant Sommer and Engelhart.
Plaintiff appeals, contending that the quasi-judicial privilege does not apply to plaintiff's cause of action and that the privilege "cannot be applied to [either a] malicious defamatory statement [or] an act outside the judiciary." Then he argues that summary judgment must be reversed "based on actual malice, common interest and the spirit of judicial fairness." We reject these arguments.
"Defamation imposes liability for publication of false statements that injure the reputation of another." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 765 (1989). The elements of a defamation claim are: "1) the assertion of a false and defamatory statement concerning another; 2) the unprivileged publication of that statement to a third party; and 3) fault amounting at least to negligence by the publisher." DeAngelis v. Hill, 180 N.J. 11, 13 (2004) (citing Restatement (Second) of Torts, § 558 (1977)).
However, "A statement made in the course of judicial, administrative, or legislative proceedings is absolutely privileged and wholly immune from liability." Erickson v. Marsh & McLennan Co., 117 N.J. 539, 563 (1990). "That immunity is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in those settings." Ibid. "This absolute privilege applies 'even if the words are spoken maliciously, without any justification or excuse, and from personal ill will or anger[.]'" Williams v. Kenney, 379 N.J. Super. 118, 134 (App. Div.) (quoting DeVivo v. Ascher, 228 N.J. Super. 453, 457 (App. Div. 1988)), certif. denied, 185 N.J. 296 (2005). "The absolute privilege applies 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.'" Hawkins v. Harris, 141 N.J. 207, 216 (1995) (quoting Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)).
Here, all elements of the absolute privilege are met. First, the comment was made in the context of a quasi-judicial administrative attorney ethics proceedings. See In re Hearing on Immunity for Ethics Complainants, 96 N.J. 669, 679 (1984) (upholding absolute immunity from libel suit pursuant to Rule 1:20-11(b) for statements made in connection with fee arbitration or ethics proceedings); Friedland v. Podhoretz, 174 N.J. Super. 73, 89 (Law Div. 1980) (complaint filed with attorney ethics committee absolutely privileged in libel case).
Second, defendant was a party to the ethics proceeding. See Loigman v. Twp. Comm., 185 N.J. 566, 579 (2006) (privilege protects attorney from civil liability arising from words uttered in course of quasi-judicial proceedings).
With respect to the third and fourth elements, plaintiff argues that the statements were not relevant to the proceedings, but instead were an attack on his Muslim faith. In assessing relevancy, "[t]he question is whether the... statements at issue were in any way relevant to the proceedings." Hawkins, supra, 141 N.J. at 218-19. Courts are "indulgent in favor of relevancy or pertinency." Williams, supra, 379 N.J. Super. at 136.
Here, we conclude that there is little merit to this argument. The comment is clearly an attempt to address plaintiff's motivation in filing complaint. In short, defendant was alleging that the ethics complaint was filed for purposes of harassment. Viewed indulgently, as we must, the comment satisfies the third and fourth element.
We are mindful that plaintiff alleges, but offers no proof, that Engelhart published the "campaign of terror" comments to Pescatore. Engelhart expressly denies that he sent Pescatore anything but the certification Pescatore signed. In the absence of proof, we conclude that the element of publication dehors the ethics proceeding has not been established. To defeat a motion for summary judgment, the opposing party must provide sufficient support based in the record for all disputed issues of material fact. R. 4:46-2.
Given the lack of a sufficient legal or factual basis for plaintiff's claims, the complaint against Engelhart was properly dismissed by grant of summary judgment. Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995).