ROBERT KENNY v. SUSAN M. DENBO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROBERT KENNY,

Plaintiff-Appellant,

v.

SUSAN M. DENBO and

RIDER UNIVERSITY,

Defendants-Respondents.

____________________________

April 1, 2014

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1641-12.

Robert Kenny, appellant pro se.

Gonzalez, Saggio & Harlan, LLP, attorneys for respondents (Steven Gerber, of counsel; Mary Pat Gallagher, on the brief).

PER CURIAM

Plaintiff appeals from a January 9, 2013 order dismissing with prejudice his complaint against Professor Susan M. Denbo (Professor Denbo) and Rider University (the "University") (hereinafter "defendants") for failure to state a claim upon which relief may be granted, pursuant to Rule 4:6-2(e).1 The underlying dispute involves plaintiff's preparation and use of a course syllabus in his capacity as an adjunct professor at the University. He alleged that Professor Denbo, with the acquiescence of the Chair of the University's Business Law Department (the "Department Chair"), falsely accused him of stealing a syllabus (the "Denbo syllabus") and other course materials prepared by Professor Denbo. As a result, plaintiff sought damages asserting three causes of action.2 We reverse.

We review a grant of a motion to dismiss a complaint for failure to state a cause of action de novo, applying the same standard under Rule 4:6-2(e) that governed the trial court. See Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011). A trial court should grant the dismissal "in only the rarest of instances." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989). Such review "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," and, in determining whether dismissal under Rule 4:6-2(e) is warranted, the court should not concern itself with the plaintiff's ability to prove those allegations. Id. at 746. If "the fundament of a cause of action may be gleaned even from an obscure statement of claim," then the complaint should survive this preliminary stage. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995) (citation omitted). "The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach." Printing Mart-Morristown, supra, 116 N.J. at 746. We discern the following facts from plaintiff's first amended complaint, giving plaintiff the benefit of all reasonable factual inferences. Ibid.

In November 2009, the Department Chair submitted to the University administration a model syllabus (the "model syllabus") for one of the courses at the University. In the fall of 2011, Professor Denbo uploaded the Denbo syllabus for the same course to the University's computerized course administration system ("Blackboard"). Professor Denbo consented to plaintiff using the Denbo syllabus. The model syllabus was nearly identical to the Denbo syllabus. The University asked plaintiff to teach the same course and, in October 2011, plaintiff asked the Department Chair for permission to share "his" syllabus. Consistent with the Department Chair's habit and practice of allowing plaintiff to use "either [the Department Chair's] own syllabus or another department member's syllabus for that course," the Department Chair's secretary gave plaintiff a syllabus (the "Department Chair's syllabus") to use for teaching the course, which was the same as the Denbo syllabus. The University and the Department Chair authorized plaintiff to use the Department Chair's syllabus to prepare for the course that plaintiff intended to teach.

In January 2012, plaintiff posted to the Blackboard his own syllabus "after making . . . alterations to adapt it to [plaintiff'] class." We infer from the allegations in plaintiff's first amended complaint that he created his own syllabus by consulting the Department Chair's syllabus, which plaintiff alleged was also ultimately the Denbo syllabus. After plaintiff's class started, Professor Denbo communicated with plaintiff about plaintiff's syllabus. Plaintiff assured the professor that he had not distributed the assignments and resources referenced in the Denbo syllabus and, in an abundance of caution, plaintiff posted a new syllabus to the University Blackboard.

Thereafter, Professor Denbo emailed five administrative officials and faculty members, accusing plaintiff of having unauthorized access to the Denbo syllabus and using or intending to distribute her assignments and resources to students without her permission. Professor Denbo also made similar false claims to the University's Provost. The Department Chair remained silent even though he authorized plaintiff to use the Department Chair's syllabus, which was also the Denbo syllabus, without any restrictions.

Defendants moved to dismiss the first amended complaint pursuant to Rule 4:6-2(e), contending that plaintiff's claims were preempted pursuant to the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C.A. 185(a). Plaintiff argued that the facts in his first amended complaint established a fundament cause of action of defamation. Plaintiff focused on his allegations that: the Department Chair authorized him to use the Department Chair's syllabus and the Denbo syllabus without any restrictions; Professor Denbo consented to plaintiff using the Denbo syllabus; plaintiff posted a new syllabus to Blackboard in an abundance of caution after Professor Denbo contacted plaintiff; and Professor Denbo, with the Department Chair's knowledge of same, falsely accused plaintiff of using or intending to distribute her syllabus, assignments, and resources. He maintained that, at that early stage in the litigation, the judge should have accepted these allegations as true. The judge, however, determined that plaintiff's defamation claim was preempted by the LMRA because it was inextricably intertwined with the collective bargaining agreement (CBA) between the University's professors and the University, which provided that ownership of copyrightable intellectual property vests in the professor who creates it. The judge therefore agreed with defendants' contentions and dismissed the action with prejudice.3

On appeal, plaintiff argues primarily that the judge applied the wrong standard on defendants' Rule 4:6-2(e) motion. Plaintiff contends that the judge erred by unnecessarily referring to the CBA in her analysis, and that he established a fundament cause of action sufficient to defeat defendants' motion.

At the outset, the judge did not limit her review to the pleadings as required on a Rule 4:6-2(e) motion. If a judge relies on matters outside the pleadings, a Rule 4:6-2(e) motion is automatically converted into a Rule 4:46 summary judgment motion. See Roa v. Roa, 200 N.J. 555, 562 (2010) (reviewing a Rule 4:6-2(e) dismissal as if it were summary judgment because the trial judge looked to matters outside the pleadings). The judge examined the parties' certifications, requested that Professor Denbo produce a supplemental certification, and referred extensively to the parties' oral arguments, briefs, and certifications in her oral decision. The judge did not, however, grant defendants summary judgment. Rather, she dismissed the complaint for failure to state a claim upon which relief can be granted. Even if she had granted summary judgment, we conclude that there are genuine issues of disputed fact that preclude such relief at this point in the litigation. We focus therefore on whether plaintiff established a fundament cause of action thereby precluding dismissal under Rule 4:6-2(e).

To prove defamation, a plaintiff must establish that a defendant (1) made false and defamatory statements concerning the plaintiff, (2) made an unprivileged publication of the statement to a third party, and (3) acted with at least negligence. G.D. v. Kenny, 205 N.J. 275, 292-93 (2011). In determining whether plaintiff established a fundament cause of action, the judge was required to give plaintiff the benefit of all reasonable inferences. Green v. Morgan Props., 215 N.J. 431, 452 (2013). At this early stage in the litigation, the facts in plaintiff's first amended complaint suggest that Professor Denbo, with the Department Chair's knowledge and acquiescence, negligently made false and defamatory statements about plaintiff to numerous individuals.

We disagree with the judge that plaintiff's defamation claims are preempted by the LMRA. The judge reached that conclusion because she determined that resolution of plaintiff's claims were inextricably intertwined with provisions in the CBA pertaining to intellectual property rights. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). Pursuant to 301(a) of the LMRA,

[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

[29 U.S.C.A. 185(a).]

Interpreting this provision, the Supreme Court of the United States has stated that "Congress has mandated that federal law govern the meaning given [labor] contract terms." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 218-19, 105 S. Ct. 1904, 1915, 85 L. Ed. 2d 206, 220 (1985). The determination of whether plaintiff's state law claims are preempted is based on "[w]hether the [state tort action] confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract." Id. at 213, 105 S. Ct. at 1912, 85 L. Ed. 2d at 216. "[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a 301 claim, or dismissed as pre-empted by federal labor-contract law." Id. at 220, 105 S. Ct. at 1916, 85 L. Ed. 2d at 221 (emphasis added) (citation omitted).

Here, plaintiff is not contending that the CBA gave him the right to use the syllabuses in question. He concedes that University professors possess certain intellectual property rights in materials they prepare for courses. Plaintiff's defamation claim is not dependent on construction of the CBA. As the allegations in the first amended complaint suggest, plaintiff alleges Professor Denbo and the Department Chair consented to his use of the syllabuses, he consulted those documents to prepare his own syllabus, and despite Professor Denbo's allegations, he did not attempt to distribute her course materials and resources to the students. As a result, his defamation claim is not substantially dependent on interpreting the CBA.

The Court has stated clearly that 301

merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements. In other words, even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is 'independent' of the agreement for 301 pre-emption purposes.

[Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 409-10, 108 S. Ct. 1877, 1883, 100 L. Ed. 2d 410, 420-21 (1988) (emphasis added).]

Interpreting the CBA is unnecessary to determine whether (1) the Department Chair authorized plaintiff to use the syllabuses; (2) Professor Denbo authorized plaintiff to use her syllabus; or (3) Professor Denbo negligently or recklessly accused him of using her syllabus, course materials, and resources without permission. Thus, resolution of plaintiff's claims at this point in the litigation does not require the court to interpret the terms of the CBA. Allis-Chalmers, supra, 471 U.S. at 220, 105 S. Ct. at 1916, 85 L. Ed. 2d at 221.

We reject defendants' argument that resolution of plaintiff's claims will still require the court to interpret the CBA at some point because Professor Denbo can raise defenses to the defamation claim of truth, see Restatement (Second) of Torts 581A (1977) (stating that truth is a defense to defamation), and privilege, see Erickson v. Marsh & McLennan Co., 117 N.J. 529, 563 (1990) (quoting Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 375 (1959)) (defining qualified privilege defense to defamation). The United States Supreme Court has stated that a defendant cannot seek preemption of a plaintiff's state law cause of action by raising a federal question, "even a 301 question," in its defensive argument. Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99, 107 S. Ct. 2425, 2433, 96 L. Ed. 2d 318, 331 (1987). Plaintiff's claims constitute a state law cause of action that is sufficiently independent of the CBA. Lingle, 486 U.S. at 409-10, 108 S. Ct. at 1883, 100 L. Ed. 2d at 420-21. Defendants may have a substantive defense of truth or privilege at trial, but under Caterpillar, they cannot raise these issues to seek preemption.

After a thorough review of the record and consideration of the controlling legal principles, we conclude that defendants' remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed.

1 Although at oral argument before the trial judge the parties and the court were unsure whether plaintiff had filed his first amended complaint, they agreed to treat defendants' Rule 4:6-2(e) motion as seeking to dismiss the first amended complaint. Because of this uncertainty, the judge allowed plaintiff to proceed as if he had moved to amend the complaint. No order was entered adjudicating that motion.

2 The three counts in plaintiff's first amended complaint include: libel and libel per se; and two counts of invasion of privacy. Plaintiff's arguments on appeal relate solely to his defamation claim. Therefore, he has waived any contention that the judge erred by dismissing the invasion of privacy counts in the first amended complaint. Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).

3 Dismissals pursuant to Rule 4:6-2(e) "should ordinarily be without prejudice and . . . plaintiffs generally should be permitted to file an amended complaint." Nostrame v. Santiago, 213 N.J. 109, 128 (2013). Here, the judge dismissed the complaint with prejudice without giving plaintiff the opportunity to file a second amended complaint as she could have done had she determined that the pleading unnecessarily referred to the CBA.