The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.
This matter was recently removed from the Superior Court of New Jersey to the District Court because of a federal question raised in the complaint. The plaintiffs allege in the complaint a violation of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), together with three common law causes of action for defamation, assault and harassment, and tortious interference with contract. The complaint was originally filed in New Jersey Superior Court, Middlesex County. Once the action was removed, plaintiffs filed a motion to remand.*fn1 Defendant, Edward Heyburn, has also filed a motion to dismiss plaintiffs' complaint as to himself and his law firm, Edward Harrington Heyburn, Esq. pursuant to Fed. R. Civ. P. 12(b)(6). The Court will review the sole federal cause of action under the motion to dismiss standard.
The facts are as follows: Plaintiffs, Rocco and Laura Garruto, own and operate a pet store called Fancy Pups, Inc. located in Avenel, New Jersey. Evidently, Fancy Pups sold a German Shepard puppy to defendant, Doreen Longo ("Longo"), for the amount of $850.00 plus tax. Immediately thereafter, the puppy contracted the parvo virus and died. The plaintiffs contend that there is no proof that the puppy contracted the parvo virus at the pet store. Plaintiffs allege, as a result of the puppy's death, the defendants "began an internet crusade to run Fancy Pups out of business." Compl. ¶ 15. According to the complaint, defendant Longo posted photos of the dead puppy on the internet and called Mr. Garruto a "puppy killer" and Fancy Pups a "puppy mill." Compl. ¶ 17. Specifically, defendant Longo accessed websites such as "Yelp" and "Manta Media" and published disparaging comments about Fancy Pups. Defendant Longo also published Buyer Beware Statements in the Asbury Park Press, which stated "Yes, this is Rocco Garruto's ad. Here we go again, more sick/dead puppy mill puppies. When will this MONSTER stop????" Compl. ¶ 17. According to the complaint, the advertisement also included a picture of the dead puppy. Furthermore, defendant Longo allegedly used these websites to present her issue to the public. The complaint states:
Manta Media Inc. is an internet web service which assist businesses in creating a company profile for advertising purposes on the internet. Defendant Longo created a company profile on the internet for Fancy Pups and printed under the heading "Products & Services" the following list, "Selling seriously ill puppies, Refuse to give refunds, LIES" and under the heading "About Fancy Pups" she printed the following statement, "We sell sick puppies at top dollar that will die. I am an unscruplious [sic] man who will take your money and leave you with a dead dog. I am evil LIAR." Compl. ¶ 18.
Additionally, the complaint alleges that defendant Longo posted negative updates on "Yelp" about court proceedings involving Rocco Garruto and Fancy Pups in Woodbridge Municipal Court.
Defendant Longo retained the services of the law firm of Edward Heyburn to represent her in this matter. Mr. Heyburn filed an action in the Special Civil Part of New Jersey Superior Court. Evidently, "Defendant Longo secretly recorded her attorney, Defendant Heyburn, serving the complaint on Plaintiff Garruto, and the video has since been posted on Defendant Heyburn's website for his law firm under a link entitled, 'You've been Served Rocco Garruto.'" Compl. ¶ 22.
In addition to the video, Defendant Heyburn also placed several links on his law firm's website to make comments about Rocco Garruto and Fancy Pups as follows:
"Certified Convictions for Rocco Garruto"- Once this link is clicked, there appear 27 separate pages of purported convictions against Rocco Garruto. However, these "convictions", are against Fancy Pups and not Rocco Garruto. Out of the 27 pages of "certified convictions", approximately 5 are "convictions" against Fancy Pups for consumer complaints, not criminal convictions. Twenty-two are dismissed. Compl. ¶ 27a. "Consumer Fraud Action filed Against Fancy Pups and Owner Rocco Garruto"- This link contains a picture of 3 German Shepard puppies and states, "The Avenel Puppy Mill run by Rocco Garruto sold puppies infected with the deadly virus known as the Parvo. While customers though [sic] they were taking home a Christmas present, they were actually taking home a dying dog that was set to drain their emotions and their bank accounts. Although Rocco Garruto was well aware that the puppies he was selling [sic], he continued to sell them to unsuspecting customers . . . if you or someone you know has been a victim of this fraud, please call my office immediately. (609) 259-7600 or email@example.com." Compl. ¶ 27b. "Middlesex County Consumer Affairs files Charges against Rocco Garruto and Fancy Puppies" Under this link he states that "a significant number of Consumer Fraud Complains [sic] against the proprietor of Fancy Puppies for selling sick and dying dogs. Below is a link to those complaints." Compl. ¶ 27c.
According to the complaint, Defendant Heyburn has concluded, without any proof, that Defendant Longo's puppy contracted the parvo virus while in the care of Fancy Pups. The complaint further alleges that the link is self-serving to Mr. Heyburn and serves no other purpose but to harm Plaintiffs and promote himself as some form of public advocate or crusader. Additionally, a viewer can easily confuse the statements because (i) they must be true because he's an attorney and (ii) the links give an appearance that Defendant Heyburn has something to do with the "certified convictions" and the "significant number of Consumer Fraud complains [sic] . . ." filed against Plaintiff Rocco Garruto. Compl. ¶ 27.
Interestingly, the complaint does not allege that plaintiffs registered Fancy Pups as a trademark or is a famous mark that everyone knows.
When an action is removed to federal court pursuant to 28 U.S.C. § 1441, the removing party bears the burden of demonstrating that the federal court has subject matter jurisdiction over the action." Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004); Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). However, Section 1441 must be strictly construed against removal, with all doubts to be resolved in favor of remand. Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992). The federal statute governing removal mandates that "if any ...