JAMES KIERNAN v. JAYSON S. WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0531-04T10531-04T1

A-0605-04T1

JAMES KIERNAN,

Plaintiff-Appellant/

Cross-Respondent,

v.

JAYSON S. WILLIAMS,

Defendant-Respondent/

Cross-Appellant.

__________________________________

 

Submitted April 3, 2006 - Decided August 23, 2006

Before Judges Parrillo, Holston, Jr. and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-527-03.

Charles J. Sciarra, attorney for appellant/cross-respondent James Kiernan (Charles J. Sciarra, of counsel; Jeffrey D. Catrambone, on the brief).

William H. Buckman, attorney for respondent/cross-appellant Jayson S. Williams (Mr. Buckman, of counsel and on the brief).

PER CURIAM

On October 30, 2003, plaintiff, James Kiernan, filed a five-count complaint in the Law Division against defendant, Jason S. Williams, and various fictitious John and Jane Doe defendants, alleging slander (Count One); libel (Count Two); defamation (Count Three); violation of privacy (Count Four); and invasion of privacy (Count Five). On March 24, 2004, prior to filing an answer, defendant moved for dismissal of the complaint on the pleadings, Rule 4:6-2(e), or in the alternative, summary judgment, Rule 4:46-2; and for the award of sanctions under the frivolous litigation rule, Rule 1:4-8(b). Both parties submitted exhibits and statements of material facts supporting their respective positions. Following argument on May 28, 2004, the judge granted defendant's motion, dismissing the complaint for failure to state a claim upon which relief could be granted; and denied defendant's motion for sanctions without prejudice, determining that the application required the filing of a separate motion. A confirming order was entered on June 17, 2004. On August 25, 2004, a second judge granted defendant's motion for an award of frivolous litigation sanctions. A conforming order was entered that day awarding defendant $4,995 in attorney's fees and costs.

Plaintiff appeals from the order of June 17, 2004, dismissing his complaint with prejudice, and from the order of August 25, 2004, awarding frivolous litigation sanctions to defendant. Defendant appeals from the order of August 25, 2004, contesting the amount of sanctions awarded. We reverse the order of dismissal, and vacate the order awarding sanctions.

Plaintiff is a New Jersey State Trooper Detective I, and has been employed by the New Jersey State Police since 1987. Earlier in his career, plaintiff was a road trooper assigned to the New Jersey Turnpike. On January 11, 1989, plaintiff made a road stop involving a motor vehicle operated by Michael Lane, a white male, and his friend, Kevin Morrison, a passenger. After ordering the occupants out of the automobile, plaintiff found a bag containing a white substance inside the vehicle. Upon inquiring what the substance was, "Mr. Lane told [plaintiff] that it was salt given to him by his Jewish girlfriend for luck with his new car." Plaintiff instructed Lane to eat the salt. Lane complied, consuming approximately six or seven teaspoonfuls, after which he and Morrison were allowed to proceed without plaintiff issuing any summonses. Upon arriving home, Lane became ill, having followed plaintiff's instructions to eat the salt. Lane subsequently initiated an internal affairs complaint, alleging abusive treatment by plaintiff.

Other than the single reference by Lane to his "Jewish girlfriend," the issues of ethnicity, race, or religious affiliation never arose during the investigation. Plaintiff, having been found guilty of abusive treatment and derogatory conduct, was subsequently suspended from the State Police for one year. Nothing in the investigation, or in the conclusions made by the Superintendent of State Police, asserted violations of anyone's civil rights or any abusive or disparate treatment based upon race, creed, or religious affiliation. Nor did the Superintendent of State Police determine that plaintiff made anti-Semitic remarks directed towards either individual involved in the motor vehicle stop. After completion of his suspension, plaintiff returned to active service with the State Police, and was later promoted to Detective.

On February 14, 2002, the New Jersey State Police responded to an emergency call that a man had been shot and killed in the Hunterdon County home of defendant, a former National Basketball Association (NBA) player. Plaintiff was one of the members of the response team that investigated the shooting. Plaintiff's role in the investigation was limited to the taking of sworn tape-recorded statements from witnesses. Defendant was arrested, and charged under Hunterdon County Indictment No. 03-03-0044-I with various crimes relating to the shooting (the criminal action). On May 20, 2003, defendant filed a notice of motion, together with a supporting brief, in the criminal action seeking to obtain employment records of all members of the State Police who had participated in the investigation so that the records could be reviewed in camera by the court and counsel.

In the preliminary statement to the brief, defendant stated: "Another Trooper assigned to the Jayson Williams[] case [and named as a witness] was suspended for one year for improper racial animus against a minority Orthodox rabbi for vulgar statements regarding his personal parts." Point I(b)(7) of the brief was entitled "Det[ective] James Kiernan." The legal argument submitted under that point heading read as follows:

Another trooper on this particular case, Det[ective] James Kiernan, showed his animus to a minority group, an Orthodox rabbi, that formed the subject of an internal investigation in the State Police. The rabbi complained because he believed that Trooper Kiernan made him eat Kosher salt in front of his passenger to support the rabbi's claim that it was not cocaine or heroin. Trooper Kiernan allegedly then made vulgar remarks concerning whether the female passenger licked it off certain private parts of the rabbi. This outrageous behavior formed the basis of only a suspension for a year . . . for the animus and other conduct that is so violative of personal rights. Soon after Kiernan was reinstated after his year's suspension, he was promoted[,] and at this time he has the title of Detective Sergeant Kiernan.

In the Interim Report, . . . the State discussed the fact that troopers were [re]warded for their aggressive nature concerning drugs, and Kiernan's suspension concerning his aggressive nature in what he thought would be a drug arrest, and given promotions that were not given to other troopers who followed the law. Kiernan fits the mold of a trooper who has exhibited [a] confirmed bias and improper conduct towards a minority in the past and who was promoted as a reward after his suspension. . . . This trooper, along with [Trooper] Monticello, was assigned to investigate Jayson Williams'[s] case and had a large part of the investigation, as did Monticello.

Because of the celebrity status of defendant, the criminal action received both local and national press coverage. During the evening of May 20, 2003, USAToday.com published an Associated Press article that began with the paragraph: "Jayson Williams' lawyers have requested personnel files on dozens of state troopers, saying examples of racial profiling or bias would be relevant at the former NBA star's manslaughter trial." The article did not identify plaintiff by name. The article referred to other requests made in the court documents filed that day, including a motion to dismiss the charges or move the trial out of Hunterdon County, a motion for records on the shotgun used in the killing, and a motion to exclude evidence of defendant's blood-alcohol level. It also referred to a "statement" by defendant's lawyers: "'These motions directly challenge the integrity of the second grand jury that indicted Jayson,' defense lawyers Joseph Hayden[, Jr.,] and Billy Martin said in a statement. 'They also challenge the notion of future trial fairness and evidence reliability.'" The news article further stated: "Williams's attorneys said the prosecution witness list includes 70 state police employees. After searching public records and the Internet, the defense said it found racial bias allegations against nearly one in 10. Williams is black."

On May 21, 2003, a paragraph in an article in the Star Ledger newspaper contained the exact same wording and quotes from Hayden's and Martin's statement. That article referred to "an inch-thick stack of motions, surveys and certifications," and quoted the briefs. The article also stated: "Williams's lawyer said more than 70 New Jersey State Police employees have been involved in the investigation of the Christofi shooting, and 65 are on the state's witness list. They believe up to six or seven of them have been involved in allegations or incidents of racial bias." The article did not identify plaintiff by name, and did not identify the source of the statements contained in the motions and supporting materials.

During the September 16, 2003 argument on the motion seeking plaintiff's employment records, defense counsel identified plaintiff by name, and informed the court that "we found information, we were advised that he was involved in a racial bias incident sometime early [19]90, . . . and that he was suspended for that incident." The motion judge granted the motion for plaintiff's records stating: "The defense alleges that Trooper Kiernan made vulgar remarks to an Orthodox Jew, [and] as a result was suspended without pay for a year, in violation of certain articles within the State Police Conduct Code." The judge granted the motion determining "[t]he courts have found that the disciplinary actions found in a witness'[s] employment files would be impeachable material."

The next day, the Star Ledger printed an article saying:

The personnel records of five state troopers who participated in the investigation that led to manslaughter charges against former Nets star Jayson Williams will be reviewed privately by a judge to determine if the officers have disciplinary histories involving racial bias.

. . . .

Defense attorney Joseph Hayden[, Jr.,] said his legal team found evidence that four of the five were involved in previous investigations of racial profiling. The fifth had been suspended for a year in the early 1990s for a bias comment made to an Orthodox Jew, he said.

. . . .

The five troopers whose records will be reviewed are:

Detective James Kiernan, who was among the first officers to respond to a 911 call and conducted an initial interview with Williams'[s] brother, Victor Santiago. Kiernan was the trooper suspended for the bias comment toward an Orthodox Jew, Hayden[, Jr.,] said.

A February 15, 2004, article published in the Courier News discussed the "issue of race," and contained the following statements:

Part of the defense's case is the allegation that investigators acted improperly the night of the shooting at Williams'[s] estate in Alexandria Township. [Judge] Coleman agreed to review the personnel files of five state police officers who investigated the fatal shooting at Williams'[s] home, after defense attorneys claimed they had previously been accused of racial bias.

Defense attorneys argued that the personnel and employment records of Detective James Kiernan and troopers Nicolas Monticello, Mark Ganter, Dante Nini and Christopher Wagner will show that they have arrested a disproportionately higher percentage of minorities during traffic stops on the New Jersey Turnpike.

Although the matter is still pending, if [the judge] finds evidence that the troopers conducted racial profiling, the defense plans to introduce the evidence during cross-examination. Articles regarding the defense's request for a bias study appear on Williams'[s] wife Tanya's newly launched Web site.

The site, created to thank her husband's supporters, also includes profiles of the defense team, trial updates and transcripts of motions the defense has filed during the last two years. (emphasis added).

Defendant's wife created a Website with the domain name "www.myjaysonwilliams.com" called "My Jayson Williams - Tanya Young's Story." One section of the Website contained a list of the criminal case events. Although no part of the Website named plaintiff, it did provide links to other sections called "Documents," "The Team," "Others Speak," and "Let's Make a Deal."

On appeal, plaintiff raises the following issues for our consideration:

POINT I.

APPELLANT HAS PLED A CAUSE OF ACTION FOR LIBEL AND SLANDER, AS THE ADMITTEDLY DEFAMATORY STATEMENTS, WHICH WERE MADE IN A CONCERTED AND CAREFULLY CALCULATED MEDIA CAMPAIGN ON BEHALF OF RESPONDENT, ARE NOT ENTITLED TO THE PROTECTION OF THE LITIGATION PRIVILEGE.

A. UNDER R. 4:6-2(e), APPELLANT IS ENTITLED TO EVERY REASONABLE INFERENCE OF FACT AND THE COURT IS TO READ APPELLANT'S COMPLAINT WITH LIBERALITY TO DETERMINE IF A CAUSE OF ACTION IS SUGGESTED.

B. APPELLANT HAS PLED A PRIMA FACIE CLAIM OF DEFAMATION.

C. RESPONDENT'S ADMITTEDLY DEFAMATORY STATEMENTS REGARDING APPELLANT ARE NOT ENTITLED TO THE PROTECTION OF THE LITIGATION PRIVILEGE, AS THOSE STATEMENTS WERE NOT MADE DURING JUDICIAL PROCEEDINGS.

POINT II.

APPELLANT HAS PLED A CAUSE OF ACTION FOR INVASION OF PRIVACY.

POINT III.

EVEN IF THIS COURT WERE TO UPHOLD THE DISMISSAL OF APPELLANT'S COMPLAINT, THE CLAIMS CONTAINED THEREIN ARE NOT FRIVOLOUS AS THEY ARE MADE IN GOOD FAITH AND WITH A REASONABLE BASIS IN LAW; HENCE, THE AWARD OF ATTORNEYS' FEES SHOULD BE REVERSED.

On his cross-appeal, defendant argues: "The Court Below Properly Awarded Counsel Fees, but Unjustifiably Reduced the Hourly Rate as Well as Number of Hours Awarded."

Plaintiff argues that the motion judge erred in dismissing his claim for defamation, whether viewed under the standard for dismissal on the pleadings or summary judgment. Because we agree that the judge erroneously dismissed plaintiff's complaint, we do not address the issues concerning the award of frivolous litigation sanctions, nor the sufficiency thereof.

On a Rule 4:6-2(e) motion to dismiss a complaint for failure to state a claim, the court applies an indulgent standard. "'[T]he plaintiff is entitled to a liberal interpretation of [the] contents [of the complaint] and to the benefits of all its allegations and the most favorable inferences which may be reasonably drawn'" therefrom. Burg v. State, 147 N.J. Super. 316, 319 (App. Div.) (quoting Rappaport v. Nichols, 31 N.J. 188, 193 (1959)), certif. denied, 75 N.J. 11 (1977). "[E]very reasonable inference" is accorded the plaintiff, Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989), "and the motion is granted only in rare instances and ordinarily without prejudice." Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2006). While the "inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," Printing Mart-Morristown, supra, 116 N.J. at 746 (citing Rieder v. State, Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)), the "reviewing court [must] 'search[] the complaint in depth and with liberality'" to determine whether the foundation for a cause of action exists "'even [in] an obscure statement of claim . . . .'" Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). "We must view the allegations with great liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). Accordingly, "the test for determining the adequacy of a pleading [is] whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).

"The plaintiff's obligation on a motion to dismiss is 'not to prove the case but only to make allegations which, if proven, would constitute a valid cause of action.'" Sickles, supra, 379 N.J. Super. at 106 (quoting Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001)). In light of the standard of review, we are required to treat plaintiffs' version of the facts as set forth in his complaint as uncontradicted and accord it all legitimate inferences. We do not "pass . . . judgment on the truth of the facts alleged;" but rather "accept them as fact . . . for the purpose of reviewing the motion to dismiss." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).

Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). In determining whether there is a genuine issue of material fact for summary judgment purposes, the trial court must ascertain "what reasonable conclusions a rational jury can draw from the evidence . . . ." Id. at 535. To make the determination, the judge must accept as true all evidence that supports the position of the party defending against the motion and accord him or her the benefit of all legitimate inferences which can be deduced therefrom. Ibid. "'[I]f reasonable minds could differ, the motion must be denied.'" Ibid. (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)). "It [is] not the court's function to weigh the evidence and determine the outcome[,] but only to decide if a material dispute of fact exist[s]." Gilhooley v. County of Union, 164 N.J. 533, 545 (2000). "Only when the evidence is utterly one-sided may a judge decide that a party should prevail as a matter of law." Ibid.

To prove a cause of action in defamation, "'a plaintiff must establish, in addition to damages, that the defendant (1) made a defamatory statement of fact (2) concerning the plaintiff (3) which was false, and (4) which was communicated to a person or persons other than the plaintiff.'" Singer v. Beach Trading Co., Inc., 379 N.J. Super. 63, 80 (2005) (quoting Feggans v. Billington, 291 N.J. Super. 382, 390-91 (App. Div. 1996)). "Fault must also be proven." Ibid. "A defamatory statement is published when it is communicated, either intentionally or negligently, to one other than the person defamed." Abella v. Barringer Res., Inc., 260 N.J. Super. 92, 99 (Ch. Div. 1992) (citing Restatement (Second) of Torts, 577(1) (1977)). Accord Bender v. Smith Barney, Harris Upham & Co., Inc., 901 F. Supp. 863, 871 (D.N.J. 1994), aff'd, 67 F.3d 291 (3d Cir. 1995). "In order to impose liability for such publication, the statement must have been made by the defendant either directly or through some agency relationship." Abella, supra, 260 N.J. Super. at 99; see also Restatement (Second) of Torts, 577(1), comment f (1977) ("One is liable for the publication of defamation by a third person whom as his servant, agent, or otherwise, he directs or procures to publish defamatory matter."). Third parties who republish defamatory matters are themselves generally subject to liability. Costello v. Ocean County Observer, 136 N.J. 594, 606 (1994). However, not all publications of defamatory statements are actionable at law.

The litigation privilege provides complete immunity from liability and an absolute privilege to defamatory statements made in the course of a judicial proceeding, so long as the statement is relevant to the proceeding. Hawkins v. Harris, 141 N.J. 207, 213-15 (1995); Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 563 (1990). The determination of whether the privilege applies "is a question of law" for the court to decide. Peterson v. Ballard, 292 N.J. Super. 575, 589 (App. Div.), certif. denied, 147 N.J. 260 (1996). The court must analyze whether the communication was "'(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, supra, 141 N.J. at 216 (quoting Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)).

The privilege encourages the search for the truth in the fact finding process by providing the participants with the "absolute freedom to express the truth" as they see it, without fear of recrimination. Id. at 217. The privilege extends beyond those statements made in a courtroom during a trial. Id. at 216. It includes statements made in settlement negotiations and attorney conferences, Dello Russo v. Nagel, 358 N.J. Super. 254, 266-67 (App. Div. 2003); communications by court-appointed psychologists to judges or others in the court system within the context of child custody proceedings, P.T. v. Richard Hall Cmty. Mental Health Care Ctr., 364 N.J. Super. 561, 583-84 (Law Div. 2002), aff'd o.b., 364 N.J. Super. 460 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004); and attorney investigator's statements to third parties made during the course of pretrial discovery, Hawkins, supra, 141 N.J. at 219-21. The privilege extends to witnesses, litigants, their attorneys and representatives, and the attorney's employees. Id. at 214-20. However, the protection extends only "'insofar as [the representative or employee] was engaged in a function which would be protected had it been undertaken by an attorney.'" Id. at 220 (quoting Leavitt v. Bickerton, 855 F. Supp. 455, 458 (D. Mass. 1994)).

The "extraordinary scope" of the privilege requires that it be "'limited to situations in which authorities have the power both to discipline persons whose statements exceed the bounds of permissible conduct and to strike such statements from the record.'" Id. at 220-21 (quoting Moore v. Smith, 578 P.2d 26, 29 (Wash. 1978)). The privilege does not protect an attorney from professional discipline for unprofessional conduct; nor does it foreclose criminal penalties against the party or witness who commits perjury. Id. at 215. Nor does it insulate a litigant from civil liability for malicious prosecution, or other tort-based claims arising from the improper initiation of administrative proceedings. Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 564-66 (1955).

The potential damage from a privilege that allows the declaration of harmful defamatory statements "is mitigated by the comprehensive control" afforded a trial judge over judicial proceedings and the conduct of the participants. Peterson, supra, 292 N.J. Super. at 588. For that reason, the privilege does not encompass "'statements made in situations for which there are no safeguards against abuse.'" Hawkins, supra, 141 N.J. at 221 (quoting Demopolis v. Peoples Nat'l Bank, 796 P.2d 426, 430 (Wash. Ct. App. 1990)). Distribution to the press of court-filed documents is not protected because it bears no relation to the purpose of the privilege, and only serves the interest of the distributor. Williams v. Kenney, 379 N.J. Super. 118, 135 (App. Div.), certif. denied, 185 N.J. 296 (2005).

As explained in Citizens State Bank of N.J. v. Libertelli, 215 N.J. Super. 190, 198 (App. Div. 1987), the reason for this exclusion is that "[i]f publication outside the judicial proceeding were immune from suit, 'a person need only file false and defamatory statements as judicial pleadings and then proceed to republish defamation at will under the cloak of immunity.'" (quoting Asay v. Hallmark Cards, Inc., 594 F.2d 692, 698 (8th Cir. 1979)). In response to the argument that litigants should be able to furnish to the press and public information contained in a judicial record, the court observed:

[T]hey can. But they cannot claim an absolute immunity created to safeguard the judicial process on the thesis that relations with the press and public are a part of it. Distribution to the press and public of pleadings and other documents may be a tactic chosen by litigators, but it is not immunized as a part of the judicial process.

[Id. at 199.]

In Citizens State Bank of N.J., the plaintiff-bank had provided to the press a copy of the complaint that contained false allegations regarding the defendant, who was the bank's top executive, publishing the complaint "almost verbatim" on the day it was filed. Id. at 196. In a counterclaim to the bank's declaratory judgment action regarding the executive's employment contract, the executive sued the bank for breach of contract; fraud; and libel based on the republication of the complaint. Id. at 192. The trial court denied the bank's motion to dismiss the libel claim based on the litigation privilege, and this court affirmed, determining that the privilege did not protect the plaintiff's publication of the complaint outside a judicial proceeding to persons not connected with the proceeding. Id. at 192-99.

In Williams, supra, 379 N.J. Super. at 123-30, plaintiff, a newspaper reporter, asserted that she had been defamed by a letter the defendants, an attorney and her client, had sent to the reporter's editor. Attached to the letter was a transcript of a taped conversation that alleged the reporter was having a sexual relationship with an individual who served as a news source. Id. at 127-28. The letter urged the editor to investigate whether the alleged relationship had caused the reporter to be biased in her coverage of a discrimination lawsuit that the client had filed against his employer. Id. at 128. It also informed the editor that defendants planned to hold a press conference the next day on the issue of "slanted" coverage. Id. at 128. The trial court dismissed the plaintiff's defamation action on the basis that the letter and transcript were sent in furtherance of the previously filed discrimination action, and therefore, protected by the litigation privilege. Id. at 123.

We reversed, observing that the newspaper, the recipient of the previously filed transcript, and letter, had neither "inject[ed] itself into the pending litigation," nor had any "interest in the outcome." Id. at 140. The newspaper's records were never subpoenaed, nor had the newspaper asserted any claims against the attorney's client. Ibid. We concluded that the absolute privilege should not be extended "to novel situations unless the underlying policy on which the privilege is based compels this result." Ibid. A line should be drawn "between bona fide litigation activities and a public relations campaign." Ibid. "[T]he litigation privilege should not be extended to 'litigating in the press.'" Ibid. (quoting Rothman v. Jackson, 57 Cal. Rptr. 2d 284, 294 (Cal. Ct. App.), review denied, No. 505210, 1 996 Cal. LEXIS 7079 (Cal. Dec. 18, 1996)).

Here, plaintiff opposed the motion arguing that the litigation privilege did not apply because the defamatory statements were made and repeated in press releases by defendant's attorneys or other agents, as well as posted on the website maintained by defendant's wife. In considering the motion, the judge determined that the contents of the brief filed in the criminal action "unquestionably" fell within the litigation privilege. He then phrased the issue as: "The only element of the privilege in serious contention is whether the allegedly defamatory statements in the criminal brief filed by the defendant were reproduced [or] uttered . . . outside the context of the judicial proceedings by the defendant[] or his agents."

The motion judge acknowledged the two standards of review depending upon whether "matters outside the [complaint] are presented to and not excluded by the court. . . ." R. 4:6-2(e). However, after considering the evidentiary materials submitted outside the complaint by the parties, the judge granted defendant's motion to dismiss under the standard for dismissal on the pleadings, determining that "[d]efendant cannot be held responsible for actions for third parties in the media that are unconnected to him." The judge determined that the complaint failed to allege that: 1) the defamatory content of the brief filed in the criminal action was caused to be reproduced or republished in the media by defendant or his "public relations team;" and 2) defendant's wife defamed plaintiff by statements published on her website. In ruling on the motion, the judge found "[plaintiff's] assertions concerning the alleged republication contrived and untrue. Moreover, plaintiff's arguments that defendant should have filed the subject motion [in the criminal action] under seal is wholly without merit and unsupported in defamation law." While we agree with the judge's determination that defendant was not obligated to have filed his brief in the criminal action under seal, we disagree with the judge's conclusion that the complaint should have been dismissed.

Because evidentiary materials were submitted outside of the complaint, the motion should have been determined under the summary judgment standard. R. 4:6-2(e). The judge was required to accept as true all evidence that supported plaintiff's position and accord him the benefit of all legitimate inferences that could have been deduced therefrom. Brill, supra, 142 N.J. at 535. To the contrary, the judge determined that plaintiff's "assertions concerning the alleged republication contrived and untrue." If the judge had correctly applied the summary judgment standard, we are satisfied the motion record was sufficiently conflicted to withstand the summary judgment dismissal. Brill, supra, 142 N.J. at 528-29.

The Star Ledger newspaper article published on September 17, 2003, references a statement by defendant's criminal attorney that plaintiff, a State Trooper, "had been suspended for a year in the early 1990s for a biased comment made to an Orthodox Jew." The article was ambiguous as to whether the attorney's statement was one voiced in the courtroom at time of argument on the motion, or whether it was made during a separate press conference. Under the summary judgment standard, plaintiff was entitled to the more favorable inference. In addition, defendant's wife created a website published on the Worldwide Web that appeared to link court documents for viewing by the public, which for the purpose of the motion, the judge should have inferred, included the brief and transcript of arguments on the criminal motion. Accepting as true all evidence supporting plaintiff's position against the motion, and according him the benefit of all legitimate inferences which can be deduced therefrom, we determine that reasonable minds could differ as to whether defendant, through his attorney and his wife, caused republication of the alleged defamatory statements outside of the courtroom. Brill, supra, 142 N.J. at 535. It was not for the motion judge to determine the ultimate outcome of the case, but only to decide if there was a material dispute of fact. Gilhooley, supra, 164 N.J. at 545.

Because plaintiff was not required on the motion "'to prove [his] case[,] but only to make allegations which, if proven, would constitute a valid cause of action," Sickles, supra, 379 N.J. Super. at 106 (quoting Leon, supra, 340 N.J. Super. at 472), we are satisfied that even under the standard governing dismissal on the pleadings, the motion should have been denied. The motion judge was required to assume all of the allegations as true, and as such, we are satisfied that plaintiff pled a cause of action upon which relief could be granted. Even if we are in error, if the judge believed that the allegations of the complaint were insufficient as to defendant causing republication of the alleged defamatory statements outside of court, the motion should have been dismissed without prejudice, not with prejudice. Printing Mart-Morristown, supra, 116 N.J. at 746.

The order dismissing the complaint entered on June 17, 2004, is reversed; the order of August of 25, 2004, awarding frivolous litigation sanctions, is vacated; and the matter is remanded to the trial court for further proceedings.

 

On March 4, 2005, this court entered an order consolidating the two appeals, and designating the appeal filed under Docket No. A-0605-04 as a cross-appeal.

(continued)

(continued)

25

A-0531-04T1

 

August 23, 2006