D.C v. THE STAR-LEDGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1676-09T3

D.C.,

Plaintiff-Appellant,

v.

THE STAR-LEDGER and AL

FRANK, Individually,

Defendants-Respondents.

__________________________________

November 16, 2010

Submitted October 20, 2010 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No.

L-4642-09.

Peter A. Ouda, attorney for appellant.

Robinson, Wettre & Miller, LLC, attorneys for respondents (Keith J. Miller, on the brief).

PER CURIAM

Plaintiff D.C. appeals from an order of the Law Division dated October 23, 2009, dismissing with prejudice her defamation complaint. We affirm.

Because the dismissal was pursuant to Rule 4:6-2(e) for failure to state a claim, we view the "complaint in depth and with liberality" to determine whether a cause of action is "'suggested' by the facts." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989).

Plaintiff's complaint alleges that in September 2008, she and her then husband, M.N., were charged with abuse of animals that were kept on property owned by her husband in the Township of Parsippany-Troy Hills. Defendant Al Frank, a reporter for defendant The Star-Ledger newspaper, wrote an article on October 24, 2008, reporting on dismissal of the animal abuse charges. According to plaintiff's complaint, the article defamed her because it implied that she had been guilty of abusing the animals and that the charges against her were dismissed only because she had relocated from the property. In fact, she alleges, she relocated because of domestic violence by her husband and that Frank knew or should have known that fact.

In lieu of an answer to the complaint, defendants filed a motion under Rule 4:6-2(e) to dismiss the complaint for failure to state a claim upon which relief can be granted. They attached to their motion a copy of the allegedly defamatory October 24, 2008 article and a transcript of the proceedings in the Parsippany-Troy Hills Municipal Court at which the animal abuse charges against plaintiff were dismissed.1 Most of the article concerns disposition of the charges against M.N., not plaintiff, by means of a settlement with the Township's animal control officer. Only one sentence of the article refers to plaintiff. It states: "[N.]'s wife, [D.], 35, also faced abuse charges, but they were dismissed yesterday after [Judge] Silver was told she had relocated."

As shown by the transcript, a brief proceeding occurred in the municipal court on October 23, 2008, pertaining to dismissal of the animal abuse charges against plaintiff. The municipal prosecutor and the animal control officer informed the judge that they were in agreement that the charges against plaintiff would be dismissed "because she's no longer at that residence." They also informed the judge that dismissal of the charges against plaintiff was not part of the settlement agreement they had reached with M.N. Neither plaintiff nor her attorney made any statements about the circumstances of the dismissal, or any other matters.

Based on the contents of the article and the transcript of municipal court proceedings reported in the article, defendants argued that they had not made any false statements regarding plaintiff, and that they had accurately and fairly reported what occurred in the municipal court on the previous day.

In opposition to defendants' motion to dismiss the defamation complaint, plaintiff filed a certification in which she alleged facts beyond the contents of her complaint. She referred to her marriage of only a few weeks to M.N., the allegations of neglect of the animals by him over a long period of time before their marriage, her obtaining a domestic violence restraining order against him in August 2008, her filing for divorce some weeks later, and her moving out of M.N.'s property because of the domestic violence. The certification also asserted that Frank was a friend of M.N. who knew or should have known those facts, and that he wrote an earlier defamatory article on August 21, 2008, when the animals were first seized by the animal control officer. The complaint, however, had made no reference to the August 21, 2008 article and alleged only that the October 24, 2008 article defamed plaintiff.

Journalists are protected by a fair-report privilege. They are not liable for otherwise defamatory content of their news stories when they fairly report matters that occur in the courts or other public proceedings. Costello v. Ocean County Observer, 136 N.J.594, 607 (1994). "[F]or the privilege to apply, the publication must be a 'full, fair, and accurate account of the official proceeding.'" Salzano v. N. Jersey Media Group Inc., 201 N.J. 500, 522 (2010) (quoting Costello, supra, 136 N.J.at 607).

Here, the October 24, 2008 article fairly reported the proceedings that occurred in the municipal court the previous day. There had been no discussion in those proceedings of the reasons that plaintiff had moved out of the property. There was no record made of domestic violence allegations or orders. The proceedings were limited in scope, especially with respect to plaintiff, and that is how the single sentence pertaining to plaintiff reported them. The Law Division correctly ruled that the alleged defamatory article was protected by the fair-report privilege.2

Moreover, plaintiff cannot show any false statement in the relevant part of the article pertaining to her. A defamatory statement is one that is false and injurious to a person's reputation. Romaine v. Kallinger, 109 N.J. 282, 289 (1988). Without alleging falsity in the statement that the article made about her, plaintiff's complaint does not state a claim for defamation entitling her to recover damages from defendants.

The Law Division correctly dismissed plaintiff's complaint, which was based only on the October 24, 2008 Star-Ledger article, for failure to allege the required elements of a claim for defamation.

Affirmed.

1 See Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) ("In evaluating motions to dismiss, courts consider 'allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.'") (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir.), cert. denied, 543 U.S. 918, 125 S. Ct. 271, 160 L. Ed. 2d 203 (2004)).

2 Because of equipment malfunction, appellant was not able to provide to us a transcript of the Law Division's oral ruling, but the general substance of that ruling is understood from the context of the issues and arguments on appeal.