Vincent Roggio v. McElroy, Deutsch & Mulvaney ( 2011 )


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                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________
    
                                      No. 10-2121
                                     _____________
    
    
                                  VINCENT ROGGIO,
    
                                             Appellant
    
                                            v.
    
                 MCELROY, DEUTSCH, MULVANEY & CARPENTER;
               LOUIS A. MODUGNO, ESQ.; ANTHONY Z. EMMANOUIL;
                    EUGENIA K. EMMANOUIL; JOHN DOES 1-10
    
                                       __________
    
    
                      On Appeal from the United States District Court
                             for the District of New Jersey
                                (D.C. No. 3-10-cv-00777)
                           District Judge: Hon. Joel A. Pisano
    
                                       __________
    
                        Submitted under Third Circuit LAR 34.1(a)
                                   February 15, 2011
    
             Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges.
    
                                 (Filed February 28, 2011)
    
                                       __________
    
                               OPINION OF THE COURT
                                     __________
    
    ALDISERT, Circuit Judge.
    
    
                                            1
           Appellant Vincent Roggio appeals from the District Court’s denial of his Motion
    
    to Remand and its grant of the Defendants’ Motion to Dismiss. Roggio contends that the
    
    District Court erred by (1) denying his Motion to Remand on the basis that two of the
    
    Defendants were fraudulently joined, and (2) granting the Defendants’ Motion to Dismiss
    
    for failure to state a claim. For the reasons that follow, we will affirm.1
    
           The parties are familiar with the facts and the proceedings in the District Court, so
    
    we will not revisit them in detail here.
    
           Roggio’s Complaint alleges that the Defendants defamed him and invaded his
    
    privacy by making public his “rap sheet.” To determine whether joinder was fraudulent in
    
    this case, we must inquire whether there is a “colorable ground” supporting Roggio’s
    
    claims. See In re Briscoe, 
    448 F.3d 201
    , 216 (3d Cir. 2006) (stating joinder is fraudulent
    
    if, inter alia, “there is no reasonable basis in fact or colorable ground supporting the claim
    
    against the joined defendant”) (citation omitted); Batoff v. State Farm Ins. Co., 
    977 F.2d 848
    , 852 (3d Cir. 1992) (describing that a claim is not colorable if it is “wholly
    
    insubstantial and frivolous”). To determine if the complaint properly stated a claim, we
    
    must inquire whether the claim is “plausible.” Ashcroft v. Iqbal, 
    129 S. Ct. 1937
    , 1949
    
    (2009).
    
    
    
    1
     As we determine below, the District Court had jurisdiction under 28 U.S.C. § 1332. We
    have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s grant
    of a motion to dismiss. E.g., Byers v. Intuit, Inc., 
    600 F.3d 286
    , 291 (3d Cir. 2010). We
    also review de novo a district court’s analysis of fraudulent joinder and its denial of a
    plaintiff’s motion to remand. See Menz v. New Holland N. Am., Inc., 
    440 F.3d 1002
    ,
    1004 (8th Cir. 2006); Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 
    313 F.3d 305
    , 311 (5th Cir. 2002).
    
                                                   2
           The District Court determined that Roggio’s claims against Defendants McElroy,
    
    Deutsch, Mulvaney & Carpenter, LLP (“MDMC”) and Modugno were barred by New
    
    Jersey’s absolute litigation privilege and, consequently, Roggio fraudulently joined them
    
    to defeat diversity jurisdiction. The Court determined that the claims against the
    
    Emmanuoil Defendants were barred by the New Jersey statute of limitations.
    
           We agree with the District Court in all respects. The absolute litigation privilege
    
    applies to communications “(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, 
    661 A.2d 284
    , 289 (N.J. 1995) (citation and quotations omitted). Applying this
    
    test, the District Court properly concluded that publication of Roggio’s criminal history
    
    was protected by the privilege. Because the publication was protected, Roggio’s claims
    
    against Defendants MDMC and Modugno are “wholly insubstantial and frivolous.”
    
    Batoff, 977 F.2d at 852. The District Court therefore did not err in determining MDMC
    
    and Modugno were fraudulently joined, and it properly denied Roggio’s Motion to
    
    Remand. See Briscoe, 448 F.3d at 216 (“If the district court determines that the joinder
    
    was fraudulent . . . the court can disregard, for jurisdictional purposes, the citizenship of
    
    certain nondiverse defendants.”) (citation and quotations omitted).
    
           Regarding the allegations that the Emmanuoil Defendants published Roggio’s
    
    criminal history online in 2006, the District Court correctly determined that Roggio’s
    
    claims were barred by the applicable one-year statute of limitations. See N.J. Stat. Ann.
    
    § 2A:14-3 (West 2010) (one-year limitation on “libel or slander”); Swan v. Boardwalk
    
    
                                                  3
    Regency Corp., 
    969 A.2d 1145
    , 1151-55 (N.J. Super. Ct. App. Div. 2009) (holding that
    
    § 2A:14-3 applies to all false light and defamation claims).
    
           We therefore determine that Roggio’s claims are neither “colorable” nor
    
    “plausible,” and the District Court properly denied his Motion to Remand and granted the
    
    Defendants’ Motion to Dismiss.
    
                                              *****
    
           We have considered all contentions presented by the parties and conclude that no
    
    further discussion is necessary.
    
           The judgment of the District Court will be AFFIRMED.
    
    
    
    
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