Benjamin Ashmore v. Brian Ashmore ( 2012 )

  •                                                                 NOT PRECEDENTIAL
                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                           No. 11-4334
              BENJAMIN ASHMORE, individually and a father of F.A. and B.A.,
                         On Appeal from the United States District Court
                                  for the District of New Jersey
                             (D.C. Civil Action No. 1-11-cv-05708)
                           District Judge: Honorable Jose L. Linares
                        Submitted Pursuant to Third Circuit LAR 34.1(a)
                                         June 8, 2012
                Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges
                                  (Opinion filed: June 12, 2012 )
           The appellant, Benjamin Ashmore, proceeding pro se, appeals the order of the
    District Court dismissing his complaint for failure to state a claim of defamation against
    any of the defendants. For the reasons that follow, we will affirm.
           Appellant Benjamin Ashmore filed a complaint in the Superior Court of New
    Jersey, Bergen County, in August 2011. Defendants removed the case to District Court
    on the basis of diversity jurisdiction in September 2011. Ashmore’s claims arise out of a
    long divorce and custody dispute in New York with his ex-wife, Kelly Ashmore (not a
    party to the litigation). Because we write for the parties, who are familiar with the
    background of the divorce proceedings, we will not recount the detailed events of the
    proceedings here.
           Defendants are family members of Ashmore’s and Kelly’s, who Ashmore alleges
    made three sets of defamatory statements during the course of the proceedings, including:
    (1) communications between defendants and Dr. Wilma Cohen Lewis, a court appointed
    psychologist; (2) statements to Brad Nacht, the Law Guardian for Ashmore’s children,
    and to Howard Yagerman, Kelly’s attorney; and (3) defendants Jan and Thomas
    Wagner’s (Kelly’s parents) referral of Ashmore to the New York City Administration for
    Children’s Services (“ACS”) under allegations of child abuse.
           Defendants filed a motion to dismiss for failure to state a claim pursuant to Fed. R.
    Civ. P. 12(b)(6), claiming broadly that all of the statements at issue were protected by
    New Jersey’s absolute litigation privilege. Defendants also based their motion on Rule
    12(b)(2), alleging that the court lacked personal jurisdiction. Finding that Ashmore’s
    complaint failed to state claims upon which relief could be granted, the District Court
    granted the motion and dismissed the complaint with prejudice. Appellant filed a timely
    notice of appeal.
           We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s
    order is plenary. See Dique v. N.J. State Police, 
    603 F.3d 181
    , 188 (3d Cir. 2010). “To
    survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
    as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (quoting Bell Atl. v. Twombly, 
    550 U.S. 544
    , 570 (2007)). In
    deciding a motion to dismiss, a court must determine whether the complaint “pleads
    factual content that allows the court to draw the reasonable inference that the defendant is
    liable for the misconduct alleged.” Id.
           We agree with the District Court that the complaint failed to state a claim for
    defamation. New Jersey’s 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). New Jersey courts have interpreted the first prong of the test broadly. See
    DeVivo v. Ascher, 
    550 A.2d 163
    , 165 (N.J. Super. Ct. App. Div. 1988). The privilege
    extends beyond in-court proceedings so that litigants can engage in discovery and
    investigation, so that witnesses are not prohibited from coming forward, and so that
    settlement negotiations are not hindered. See Williams v. Kenney, 
    877 A.2d 277
    , 286-87
    (N.J. Super. Ct. App. Div. 2005).
           The first set of statements falls squarely within the scope of the New Jersey
    litigation privilege. The defendants communicated with Dr. Lewis 1 in the course of a
    judicial proceeding. See P.T. v. Richard Hall Cmty. Mental Health Ctr., 
    837 A.2d 436
    449-50 (N.J. Super. Ct. Law Div. 2002) (communications by a court-appointed
    psychologist in child custody case to judges, a state agency, and custodial mother were
    made in context of litigation and protected by the litigation privilege). The court
    appointed Dr. Lewis to speak with Ashmore, Kelly, their children, and their family
    members to gather information to aid the court. The District Court considered this task to
    be akin to “pre-trial discovery,” and we find no error with that characterization. The
    defendants, while not litigants in the underlying proceedings, were all participants
    authorized by law. Indeed, the court tasked Dr. Lewis with interviewing the defendants
    so that she could provide a recommendation concerning custody. Their statements were
    made to achieve the object of the litigation (a custody order), and had a logical relation to
    the action. Accordingly, the defendants’ statements to Dr. Lewis meet the four-part test
    in Hawkins.
             Each of the defendants made statements to Dr. Lewis, many of which depicted
    Ashmore as abusive, a liar, a “psychopath,” and other epithets. The District Court
    acknowledged that a jury might find the statements defamatory, were they not protected
    by the litigation privilege.
           The second set of statements—those made to Nacht and Yagerman—are also
    protected by the privilege. Defendants Cathy Ashmore (the appellant’s sister-in-law) and
    Jeffrey and Patti Ashmore (the appellant’s parents) wrote letters to Nacht, the children’s
    Law Guardian. 2 The District Court determined that the statements to Nacht were made in
    connection with judicial proceedings, as they were intended to provide information about
    the children to the court for its review of the totality of the circumstances. See Eschbach
    v. Eschbach, 
    436 N.E.2d 1260
    , 1263 (1982) (New York courts base custody decisions on
    totality of circumstances). As the District Court reasoned, denying the privilege would
    deter family members from communicating crucial information in the children’s best
    interest to guardians, attorneys, and advocates. See Hawkins, 661 A.2d at 289. The
    District Court also determined that the defendants were “participants authorized by law”
    since they had been solicited for information regarding the underlying proceedings.
    Finally, the District Court reasonably found that the statements satisfied the third and
    fourth elements of the Hawkins test in that they were intended to influence the court’s
    custody decision and were relevant to the underlying proceedings. See id. at 290
    (relevancy required is a general frame of reference and relationship to the subject matter
    of the action).
              Cathy detailed her concerns about the welfare of the children and her opinions on
    Ashmore’s parenting and his treatment of other family members. Jeffrey and Patti’s
    letter informed Nacht of their petition to the court to allow them access to their
    grandchildren and that they were supporting Kelly through the proceedings.
              Jeffrey and Patti forwarded their letter to Nacht to Yagerman. They also wrote a
    letter directly to Yagerman regarding the circumstances of their support for Kelly instead
    of their son. Cathy wrote a letter to Yagerman about a motion Ashmore had filed and to
    express her reasons for supporting Kelly. We find no error with the District Court’s
    conclusion that the statements were made in the course of the proceedings. Each letter
    references the proceedings, their role in the children’s lives and their rights affected by
    the proceedings, and their responses to Ashmore’s motion in which he named them. The
    defendants all had relevant information and opinions to share with her attorney. Thus,
    the statements to Yagerman meet the first prong of the Hawkins test. The District Court
    also reasonably concluded that the defendants were participants authorized by law, given
    that Jeffrey and Patti’s rights were at issue and that Cathy (and Jeffrey) was a collateral
    witness to the proceedings. Like the statements to Nacht, the statements to Yagerman
    satisfied the third and fourth elements of the Hawkins test in that they were intended to
    influence the court’s custody decision and were relevant to the underlying proceedings.
    See id.
              As to the third set of statements, persons who report child abuse “have immunity
    from any liability, civil or criminal, that might otherwise be imposed.” N.J. Stat. Ann. §
    9:6-8.13. Thus, Jan and Thomas Wagner are immune from Ashmore’s defamation claim.
              Accordingly, we will affirm the District Court’s judgment dismissing
    Ashmore’s claims of defamation. His request for oral argument is denied as unnecessary.