NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ Nos. 17

- 2737 and 17

- 3254

_____________ VLADKA KOCH, individually; *EUROVID FKK; *HELIOS NATURA; *EUROPA DOCU

- SEARCH, S.R.O.; *EUROVIDFKK, S.R.O., Appellant v. VRATISLAV PECHOTA, JR., Esq., individually; LAW OFFICE OF VRATISLAV PECHOTA JR, Esq.; JEFFREY A. HELEWITZ, individually

*Dismissed pursuant to Clerk's Order dated 8/25/17.

______________ O n Appeal from the United States District Court for the District of New Jer se y (D.C. Civ. Action No. 3

- 16

- cv - 3637 ) District Judge: Honorable Brian R. Martinotti

______________ Submitted Under Third Circui t L

. A

. R

. 34.1(a)

April 20, 2018

______________ Before: GREENAWAY, JR., RENDELL, and FUENTES , Circuit Judges

.

(Opinion Filed: J u ly 30, 2018 )

_______ OPINION * *

_______

* * This disposition is not an opinion of the full Court and pursuant to I.O .P. 5.7 does not constitute binding precedent.2

GREENAWAY, JR., Circuit Judge

. Vladka Koch appeals the District Cou rt’s denial of her m otion to conduct j uris dictional d iscovery (No. 17

- 2737) and the subsequent dismissal of her complaint (No. 17

- 32 5 4 )

. For the reasons set forth below, we will affirm. I. BACKGROUND This case has a long and tortured history , beginning wi th the relationship between Vladka and Robert Koch, and involving multipl e state and federal court cases. 1 Beginning in 1991 , the Koch s were business partners , establishing and operating an “enterprise

. . . composed of several interdependent Cz ech and U S A business entities”
that “ promot [ ed ] naturism (nudism) through various media and actions worldwide.” 2 App. 32

- 3 3 (footnote omitted)

. Ms. Koch , a citizen of the Czech Republic, and Mr. Koch , a United States citizen , resided in the Czech Republic before a nd after their marriage in 2000

. That same year , the Koch s retained Vratislav Pechota , Jr., Esq. and the Law Office of Vratislav Pechota , Jr., Esq. (collectively, “Pechota”) as immigration counsel to apply for and obtain legal permanent resident (“LPR”) s tatus for Ms. Koch

. In 2002, Ms. Koc h obtained conditional status as a n LPR , which would expire in two years

.

1 Som e of the prior litigation occurred in : Koch v. Pechota , 1: 10

- cv - 0 9152

– RWS (S.D.N.Y.) ; Koch v. Sheresky, Index No. 112337/2007 (Sup. Ct. New York County); and Koch v. Koch , Index No. 1805/2004 (Sup. Ct. W estchester County ).

2 The Koch s established Europa Docu

- S earch, Inc.; Eurovid, Inc.; Eurovid FKK; Helios Natura; Europa Docu

- Search s.r.o.; and EurovidFKK, s.r.o . These business entities were joint p laintiffs with Ms. Koch , but were voluntarily dismissed from the appeal

.3

In 2003, Mr. Koch separated from Ms. Koch and moved to the United States where he successfully sued her for divorce in the Supreme Court of New York

. Th at court, however, vacated the divorce decree in May 2007 due to , among other things, Mr. Koch’s fraudulent misrepresentations to the court

. In 2008 , Ms. Koch was awarded custody of their child, sole ownership of their business entities, child su pport, alimony/spousal support , and $25 million to be paid by Mr. Koch

. In June 2007, in the Supreme Court of New York, Ms. Koch sued various attorneys for fraud and malpractice allegedly committed during the divorce proceedings (“State Action”)

. Pechota , while not a defendant in the State Action , was deposed as a fact witness. In 2012, Jeffrey A. Helewitz was appointed as a Special Referee in the
State Action

. Among other duties, H elewitz supervised the depositions of Pechota and Ms. Koch

. In 2010, Ms. Koch sued Pechota for malpractice in the Supreme Court of New York

. Pechota removed the case to the United States District Court for the Southern District of New York ( “ S.D.N.Y. Action” )

. After years of discovery disputes, mostly revolving around the attempts to depose Ms. Koch, the S.D.N.Y. Action was dismissed on the eve of trial. Ultimately, because Ms. Koch did not complete her deposition in the

case , the District Judge would not permit her to testify at trial

. Ms. Koch’s counsel
conceded , absen t Ms. Koch’s testimony, he had no evidence that would show the alleged malpractice fell within the three

- year statute of limitations

. Ms. K och moved to vacate the order dismissing the S.D.N.Y. Action pursuant to Federal Rule of Civil Procedure4

60(b)(2) an d (b)(3). The motion was denied because Ms. Koch, rather than submitting new evidence, simply repeated allegations regarding the impact of the depositions on her
health

. S pecifically , she referenc ed “the ‘unsuitable behavior of the defendants’” as a

reas on for her “worsened medical condition.” Opinion re: Motion to Vacate at 5, Koch v. Pechota , 1:10

- cv - 09152

- R WS Doc. 477 (S.D.N.Y. Dec. 22, 2014)

. The S econd Circuit affirmed the original dismissal as well as the denial of the motion for reconsideration.
T he Supreme Court of the United States denied certiorari

. Koch v. Pechota , 588 F. App ’ x 72 (2d Cir. 2015) , cert. denied , 136 S. Ct. 138 (2015) ; Koch v. Pechota , 632 F. App’x 24 (2d Cir. 2016) , cert. denied , 137 S. Ct. 48 (2016)

. On June 22, 2016, Ms. Koc h ( along with her business entities) filed a complaint in the District of New Jersey naming Pechota and Helewitz as defendants. After Pechota and Helewitz filed motions to dismiss, Ms. K o ch filed an amended complaint asserting thirteen claims. 3 The clai ms, in short, allege d Pechota and Helewitz injured M s. Koch

3 The claims are: 1) n egligence ; 2) i ntentional and reckless conduct ; 3) injurious falsehoods; 4) slander per se; 5) i ntentional and/or negligent infliction of emotional d istress and physical disability; 6) violation of civil r ights by He lewitz on ly, under 42 U.S.C. § 1983; 7) n egligent misrepresen tation or fraud and deceit; 8) future medical expenses; 9) a iding and abetti ng the commission of tort; 10) i ndivisible harm cause d by separate tortfeasors; 11) attorney malpractice; 12) v iolation of New Yor k Judiciary Law § 487; and 13) p unitive damages. The causes of action Ms. Koch sets forth against Pechota can be grouped into four categories . The first category, psychological injury, co mprises the first, second, fifth, sixth, eighth, elevent h, and twelfth causes of action in the complaint. Ms. Koch alleges the injury is a result of Pechota’s conduct in the S.D.N.Y. Action; specifically, Ms. Koch alleges his conduct in the first part of her deposition caused her to be unable to finish the dep osition

. The second category is fraudulent misrepresentations, comprising the seventh, ninth, and twelfth causes of action in the complaint. Ms. Koch alleges Pechota presented fraudulent misrepresentations to5

psychologically by Helewitz’s misconduct in the State Action and Pechota’s misconduct
in her depositions in the S.D.N.Y. Action. This injury, she allege s , caused her inability to participate in t he trial, which le d to the dismissal of the case , thereby also injuring her monetarily

. The complaint also alleged Pechota and Helewitz injured her monetari ly by lying to the court and causing it to rule against her. Pechota and Helewitz filed new moti on s to dismiss

. Pechota filed a 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted and Helewitz filed a 12(b)(2) motion to dismiss for lack of personal jurisdiction. Ms. K och then filed a motion seeking jurisdictional discovery , which Pechota and Helewitz opposed

. On July 31, 2017, t he District C ourt denied the motion, finding jurisdictional disc overy unwarranted

. Ms. K och filed an interlocutory appeal. 4
On September 28, 2017 , the District Court granted both moti ons to dismiss. Ms. Koch timely appeal ed

. We consolidated the appeals.

the court in the S.D.N.Y. Action . The third category is damages , comprising the tenth and thirteenth causes of action in the complaint. Damages claimed relate b ack to the psychological injury. The fourth category is slander, comprising the third and fourth causes of action in the complaint. Ms. K och alleges Pechota’s slanderous statements caused monet ary damages.

4 Pechota argues that this Court lacks jurisdi ction over the appeal of the discovery order , but since “interlocutory orders merge into the final judgment and may be challenged on appea l from that judgment,” In re Diet Drugs , 418 F.3d 372, 377 (3d Cir. 2005), the subsequent appeal of the final order and consolidation of the two cases render this argument without merit. Jurisdiction over the order denying jurisdictional discovery is base d on the general rule that an “appeal from a final judgment draws in question all prior non

- final orders and rulings which produced the judgment.” Elfman Motors, Inc. v. Chrysler Corp. , 567 F.2d 1252, 1253 (3d Cir. 197 7).6 II. JURISDICTION The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332

. We have jurisdiction pursuant to 28 U.S.C. § 1291. III. STANDARD OF REVIEW
We exer cise plenary review over a district court’s grant of a 12(b)(2) motion to dismiss for a lack of personal jurisdiction , Metcalfe v. Renaissance Marine, Inc. , 566 F.3d 324, 3 29 (3d Cir. 2009), and of a 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted , Ditri v. Coldwell Banker Residential Affiliates,
Inc. , 954 F.2d 869, 871 ( 3d Cir. 1992). We review the District Court’s denial of a motion for jurisdictional discovery for an abuse of discretion. Toys “R” Us , Inc. v. Step Two , S.A. , 318 F.3d 446, 455 (3d Cir. 2003). IV. DISCUSSION A. All Motions to Dismiss were Unopposed Before the District Court , Ms. Koch did not oppose Pechota’s or Helewtiz’s
motions to dismiss

. Instead, she moved for jurisdictional disc overy to establi sh personal jurisdiction over Helewitz. Although t he District Court observed it “ could grant the motions as unopposed without a nalyzing the merits of Pechota . . . and Helewitz’s argument s , ” App. 10 , the District Court nonetheless addressed the merits of the motions to dismiss. 5

5 I n her reply brief, Ms. Koch ar gues, for the first time, that the District Court erred by failing to issue a scheduling order on the issue of her “request for timing of her7

B. Helewitz’s Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction When a district court is sitting in diversity , it “ may assert personal jurisdiction over a nonresident defendant to the extent allowed under the law o f the forum state.” Metcalfe , 566 F.3d at 330 ; see also Fed. R. Civ. P. 4(k). New Jersey’s long

- arm statute “provides for jurisdiction coextensive with the due process requirements of the United States Constitution.” Miller Yacht Sales, Inc. v. Smith , 3 84 F.3d 93, 96 (3d Cir. 2004) (citing N.J. Court Rule 4:4

- 4(c)). Therefore, New Jersey courts look to federal law to interpret the limits o n personal jurisdiction. IMO Indus. , Inc. v. Kiekert AG , 155 F.3d 254, 259 (3 d Cir. 1998)

. T he Supreme Court has i dentified two types of personal jurisdiction: specific and general. A court has specific jurisdiction when the suit “arises out of or relate [ s ] to the defendant’s contacts with the forum.” Goodyear Dunlop Tires Operations, S.A. v.
Brown , 5 64 U.S. 915, 92 3

- 24 (2011) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 414, n

. 8 (1984) ) (internal alterations omitted). However, a court has general jurisdiction, even if the underlying controversy did not take place in the forum state, wh en a defendant’s “affiliations with the S tate are so ‘continuous and systematic’ as to render them essenti ally at home in the forum State. ” Goodyear , 564

response to . . . Rule 12 motions. ” Appellant’s Reply Br. 11. We need not address this argument, however, becaus e it is well

- settled law that “[a]s a general matter, an appellant waives an argument in support of reversal if it is not raised in the opening brief.” Garza v. Citigroup Inc. , 881 F.3d 277, 284 (3d Cir. 2018) (quoting In re Asbestos Prod. Liab. Litig. (N o. VI) , 873 F.3 d 232, 237 (3d Cir. 2017)).8

U.S. at 919 ( citing International Shoe Co. v. Washington , 326 U.S. 310, 317 (1945)).
Ms. Koch does not asse r t that specific jurisdiction exists over Helewitz , nor could she since all of Helewitz’s alleged actions occurred in New York

. Instead, she argues that the District Court had general jurisdiction over Helewitz. She bases her assertion of
genera l jurisdiction on two allegations made in the complaint. First , she claims that

var ious third parties sell , in New Jersey, books and other publications written or prepared by Helewitz. Second, she alleges that Helewitz teaches continuing legal education (“CLE”) classes to New Jersey attorneys, but does not specify where these classes are taught. N either of these allegations demonstrate that Helewitz himself had any contact with New Jersey, despite Koch’s argument that these alleged facts show Helewitz ha d continuous and system at ic contact with New Jersey. At best, the allegations show that third parties had contact with New Jersey when they sold Helewitz’s CLE materials there

. As t he Distri ct Court decision correctly explained, even if Helewitz had suc h contacts with New Jersey, Koch’s theory of general jurisdiction over Helewitz was flawed because it relied on his continuous and systematic business activities as a CLE instructor.
G eneral jurisdiction based on business activities is only used to determ ine where corporate enti ties can be considered “at home. ” Goodyear , 564 U.S. at 924

. Consideration of business activities to find general jurisdiction has not been applied to individuals. To achieve general jurisdiction over an individual or corporation , affiliations with the forum state must be “so ‘continuous and systematic’ as to render them

es sentially at home in the forum S tate.” Daimler AG v. Bauman , 571 U.S. 117, 1279

(2014) (quoting Goodyear , 564 U.S. at 919 ). The rule enunciated by the Supreme Court subjects a corporation to general jurisdiction beyond its headquarters because corporations can be “at home” in many places. However, an individual is “at home” where they are domiciled

— in other words, an individual’s “true, fixed and permanent
home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning.” McCann v. Newman Irrevocable Trust , 458 F.3d 281, 286 (3d Cir. 2006) (quoting Vlandis v. Kline , 412 U.S. 441, 454 (1973)). Helewitz did not r eside in New Jersey . Teaching CLE classes does not make him “at home” in New Jersey

. Therefore, t o the extent that Ms. Koch believes her requested jurisdictional discovery would disclose that Helewitz taught CLE classes in New Jersey, learning that info rmation would not support a claim of personal jurisdiction. The District Court, in its denial of the motion for jurisdictional discovery, did not abuse its discretion in determining that further discovery would be futile. We will also affirm the District Court’s order granting the motion to dismiss for lack of personal jurisdiction over
Helewitz. C . Pechota’s Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim for which Relief Can be Granted In his motion to dismiss, Pechota asserts numerous b ases for dismissal. The District Court analyzed all of Pechota’s arguments

. Since “[w]e may affirm a judgment on any ground apparent from the record, even if the district court did not reach it, ” William s v. Sec’y, Pa. Dep’t of Corr. , 848 F.3d 549, 572 ( 3d Cir. 2017) (quoting10

Kabakjian v. United States , 267 F.3d 208, 213 (3d Cir. 2001) , we will limit our review to two arguments

— res judicata and litigation privilege

— since these principles dispose of all of Ms. Koch’s allegations. That is, with the excepti on of the slander claim, all the remaining claims made against Pechota were raised and resolved in the S.D.N.Y. Action, thus precluding their resolution here. The slander claim is barred by the principle of litigation privilege. 1. Res Judicata

“ A fund amental precept of common

- law adjudication

. . . is that a ‘right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies

. . . .’” Montana v. United States , 440 U.S. 147, 153 (1979) (quoting S. Pac. R.R. Co. v. United States , 168 U.S. 1, 48

- 49 (1897)). Within this larger doctrine, there are two sub

- doctrines: claim preclusion and issue preclusion. Id . Under claim preclusi on, sometimes referred to as res judicata , once there is a final judgment on the merits, the parties are barred from bringing further claims based on the same cause of action. Id. Under issue preclusion, sometimes referred to as collateral estoppel, once a court has actually and necessarily determined an issue, it is conclusive on subsequent suits involving a party to the prior litigation even if based on different causes of action. Id. The District Court found that an application of claim preclusion was warranted because “[a]ll of the claims in this litigation arise from the same events that gave rise to the SDNY Action, or they took place in the SDNY Action.” App. 14

- 15. On appeal, Ms.11

Koch argues that the claims brought before the District Court could not have been raised in the S.D.N.Y. Action because they are “related to Mr. Pechota’s behavior during the Southern District action.” Appellant’s Br. 27. While we agree with Ms. Koch that the causes of action arise from a different occurrence and t herefore are not barred by claim preclusion, we will still affirm the dismissal because all of the issues raised were already resolved by the adjudication of the S.D.N.Y. Action

. Williams , 848 F.3d at 572 ( “[w]e may affirm a judgment on any ground apparen t from the record, even if the district court did not reach it.” )

. Ms. Koch argues that the S.D.N.Y. Action “did not pass upon any of the facts
all eged in the instant action ” and that it only ruled on the “ basis of the statute of limitations .” Appellant’ s Br. 27. While it is true that the case was ultimately decided on that basis, Ms. Koch fails to mention the vast number of hearings , orders, and opinions produced in the S.D.N.Y. Action which do, indeed, “pass upon . . . the facts alleged in the instant action

. ” Consequently , the claims in Ms. Koch’s complaint are collaterally estopped by issue preclusion

. To determine the co llateral effect of prior judgments, the court must ask whether “an issue of fact or law [has been] actually litigated and deter mine d by a valid and final judg ment, and the determinat ion [was] essential to the judg ment .” Nat’l R .R. Passenger Corp. v. PA Pub. Util. Com m ’n , 288 F.3d 519, 525 (3d Cir. 2002) (quoting Restatement (Second) of Judgments § 27 ( Am. Law Inst. 1980)). This inqui ry delineates four
pre requisites : (1) the issue is the same as the one in the prior action ; (2) t he issue was12

actually litigated; (3) a final and valid judgment determined the issue; and (4) that determin ation was essential to the judg ment in the prior act ion. Id. Here, each of the
prerequ isites is satisfied

. First, with the exception of the slande r claim , 6 the issues here were all raised in the S.D.N.Y. Action as part of the discovery disputes and other pretrial motions. 7 In the
S.D.N .Y. Action, Ms. Koc h’s attorney s argued that her inability to complete her deposition was caused by Pechota’s conduct. Her attorneys also claimed Pechota lied to the court in the S.D.N.Y. Action by making false statements about what had happened in the deposition. These ar e the same issues that are being brought before this Court. In fact, Ms. Koch attempted to revive her discovery disputes in the S.D.N.Y. Action by filing a Rule 60 (b) motion, in which she argued she had “new evidence” that her deposition triggered her psy chological injury. In denying the 60(b) motion, the District Judge observed, “[n]ot only was the issue of [Ms. Koch]’s medical and psychological condition litigated at length in general, but the allegation that the depositions impacted [Ms. Koch]’s abilit y to attend trial was explicitly provided to the Court as a basis for one

6 As discusse d later, these claims will be dismissed because Pechota’s statements are protected by litigation privilege.

7 Although most of the orders and opinions from the S.D.N.Y. Action were not included in the pleadings to the New Jersey District Court , this Court may consider them as they are “integral to or explicitly relied upon in the complaint.” In re Bu rlington Coat Factory Secs. Litig. , 114 F.3d 1410, 1426 (3d Cir. 1997 ) (emphasis omitted) (quoting S haw v. Dig. Equip. Corp. , 82 F.3d 1194, 1220 (1st Cir. 1996)). Further, the y are judicial decisions and matters of public recor d, and therefore may be considered by the court. Maiden Creek Assocs., L.P. v. U.S. Dept. of Transp. , 823 F.3d 184, 189 (3d Cir . 2016).13

of [Ms. Koch]’s adjournment requests.” Opinion re: Motion to Vacate at 4, Koch v. Pechota , 1:10

- cv - 09152

- RWS Doc. 477 (S.D.N.Y. Dec. 22, 2014)

. The District Judge
also stated that “[n]or has [Ms. Koch] established by clear and convincing evidence that [Pechota] ha[s] engaged in misconduct.” Id. at 5. Furthermore, the District Judge stated in an opinion that even if “her illness had been established by competent evidence, which
it has not, the condition was in no way caused by the actions of [Pechota].” Opinion at 15, Koch v. Pechota , 1 :10

- cv - 09152

- RWS Doc. 440 (S.D.N.Y. Nov. 11, 2013)

. Second, these issues not only a rise out of the S.D.N.Y. Action, but they also were actually lit igated there. The District J udge in the S.D.N.Y Action held numerous pretrial hearings on Ms. Koch’s psychological condition during which he examine d evidence and arguments offered by Ms. Koch

. There are hundreds of pages of transcripts from these hearin gs, in which Ms. Koch’s and Pechota’s attorneys litigated these exact issues. 8 The allegation that Pechota presented “lies” and “fraudulent misrepresentations” to the District Judge in the S.D.N.Y. Action simply reflect s Ms. Koch’s displeasure in the

8 Ms. Koch’s attorneys did not bring any of the orders , transcripts, and opinions issued in the S.D.N.Y. Action to the attention of either this Court or the District Court in New Jersey

. This failure borders on an attempt to intentionally mislead this Court and the District Court in New Jersey in furtherance of M s . Koch’s efforts to relitigate issues already decided. While we will assume the failure to provide these materials , along with counsels ’ actions in this case, were based on their efforts to zealously represent their client, we find it necessary to remind counsel of the ir duty of candor to the Court

. This duty includes not only bringing relevant facts and cases to the Court’s attention, but also avoiding the filing of frivolous litigation

. See N.J. R.P.C. 3.3 (setting forth requirement that counsel disclose material facts and relevant legal authority to the court) and N.J. R.P.C. 3.1 (prohibiting counsel from bringing frivolous claims). We do not find the present case so baseless as to b e completely frivolous, but we note it comes quite close.14

Dist rict Judge ’s decisions , all of which were affirmed by the Second Circuit. Ms. Koch cannot obtain additional review of these decisions by filing a new case in the District of New Jersey

. Third, there were final and valid judgments on the issues. T h e Dist rict J udge in the S.D.N.Y Action ruled on discovery moti ons relating to Ms. Koch’s deposition and issued a number of opinions constituting final and valid judgments. A review of the docket of the S.D.N.Y. Action reveals there were approximately twenty hea rings, over fifteen orders (not including scheduling and other non

- substantive orders), and six judicial opinions. These rulings determined the issues Ms. Koch attempted to bring before the New Jersey District Court

. Fourth , the aforementioned determinat ions were essential to the adjudication of the S.D.N.Y. Action. Ms. Koch argues that dismissal on statute of limitations grounds was not a decision on any of the causes of actions brought in the present action

. We disagree

. In dismissing the action as b arred by the statute of limitations, t he District Judge in the S.D.N.Y. Action considered Ms. Koch’s claims of psychological injury in the deposition and Pechota’s alleged lies to the court. Ms. Koch claimed her psychological injury was such that she was unable to finish her deposition

. T he District Judge necessarily had to conclude these claims were not supported by evidence in order to rule that without a completed deposition, Ms. Koch’s testimony would be precluded

. This conclusion was essential to th e final decision because Ms. Koch’s attorneys conceded that , absent her testimony , they could provide no evidence showing the alleged15

malpractice fell within the statute of limitations

. Therefore, these factual and legal determinations were essential to t he dismissal of the S.D .N.Y. Action

. Since all four requirements for demonstrating issue preclusion are satisfied, we will affirm the District Court’s decision in dismissing cou nts one , two, five and seven through thirteen. 2. Litigation Privilege
The D istrict Court dismissed Ms. Koch’s claims for slander and injurious falsehood as barred by litigation privilege. Ms. Koch specifically complained of Pechota’s association of her video businesses with child pornography in depositions and court proceedings in the S.D.N.Y. Action

. 9 We will affir m . Attorneys have absolute privilege to “publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the

9 In reviewing the record in the S.D.N.Y. Action , the only mention of child pornography this Court could find was made by Ms. Koch’s counsel in connection with a motion in limine seeking a protecti ve order prohibiting Pechota “from expressing any negative comments or linking naturism or Ms. Koch’s way of life to sexual or pornographic activities

. ” First Motion in Limine at 2, Koch v. Pechota , 1 :10

- cv - 09152

- RWS Doc. 380 (S.D.N.Y. Sep. 6, 2013). Dur ing argument on that motion, Ms. Koch’s counsel stated that the reference to child pornography was “raised in deposition and we expect it fully to come out at trial.” Transcript of Proceedings re: Conference at 25, Koch v. Pechota , 1: 10

- cv - 09152

- RWS Doc. 465 (S.D.N.Y. Dec. 19, 2013). This Court has reviewed the deposition transcripts and found no mention of child pornography. Furthermore, the affirmation in support of the motion in limine cites Pechota’ s reference to the Kochs’ video businesses as being “involved in the adult film production business , ” but provides no citation or record reference for the accusation that Koch’s counsel made regarding Pechota’s alleged statements regarding child pornography

. Reply Affirmation in Support of Motion for Summa ry Judgment, Koch v. Pechota , 1:110

- cv - 09152

- RWS , Doc. 371, (S.D.N.Y. Aug. 20 , 2013).16

institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Restatement (Second) of Torts § 586 (Am. Law Inst. 1977). The precise scope of l itigation privilege is determined by state law. Because this Court is sitting in diversity j urisdiction, we must apply the choice

- of

- law rules of New Jersey as the forum state. Berg Chilling Sys., Inc.v. Hull Corp. , 435 F.3d 455, 462 (3d Cir. 2006) (citing Klaxon Co. v. Stentor Elec. Mfg.
Co. , 313 U.S. 487, 496 (1941) )

. He re, the District Court concluded there was no conflict between New York and New Jersey law. The parties do not challenge that conclusion. New Jersey and New York’s l itigation privilege is absolute. Peterson v. Ballard , 679 A.2d 657, 659 (N.J. Super. Ct. App. Div

. 199 6) ; Martirano v. Frost , 255 N.E.2d 693, 694 (N.Y. 1969)

. This privilege extends to defamatory statements as long as they have some relation to the proceedings. Hawkins v. Harris , 661 A.2d 284, 28 8 ( N.J. 1995) ; see also Martirano , 255 N.E.2d at 694 (“ a statement made

. . . in the course of a judicial proceeding is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation.”)

. New Jersey and New York define pertinence or relevance to a p roceeding in a broad sense, rather than on the basis of “technical legal relevancy.” Hawkins , 661 A.2d at 2 9 0 (quoting Fenning v. S.G. Holding Corp. , 135 A.2d 346, 350 (N.J. Super. Ct. App. Div. 1957)); see also Martirano , 255 N.E. 2d at 694

. The privile ge’s broad scope is motivated by the same policy in both state s , “to encourage parties to litigation, as well as counsel and witnesses, to speak freely in the course of judicial proceedings.” Martirano , 255 N.E. 2d at 695; see also Loig man v. Twp. Comm.17

of Twp. of Middletown , 889 A.2d 426, 435

- 36 (N.J. 2006 )

. Because both states provide absolute litigation privilege, it affords immunity from liability regardless of motive

— so that even if a party acted out of malice his or her statements are protected. Par k Knoll
Assoc s . v. Schmidt , 451 N.E.2d 182, 184 (N.Y. 1983); see also Front, Inc. v. Khalil , 28 N.E.3d 15, 18 (N.Y. 2015). In applying the absolute litigation privilege, the District Court correctly concluded Pechota ’ s alleged statements referring to Ms . Koch’s businesses as child pornography were protected

. Both New Jersey and New York include within litigation privilege any statement made in jud icial or quasi

- judicial proceeding s that have some pertinence to the litigation, applying a fle xible

— rather than technical

— definition of pertinent. Martirano , 255 N.E. 2d at 695; Loigman , 889 A.2d at 435

- 36 . Before the Distric t Court, Ms. Koch claimed Pechota equated her video busi nesses with child pornography. Ms. Koch argues the decision of the District Cour t should be remanded for factual determinations; however, this is unnecessary. Even if Pechota’s alleged statements mischaracterized or inaccurately described the videos, the videos are relevant to the litigation

. All that is needed for the protection of litigation privilege is a “ general frame of reference and relationship to the subject matter of the action.” Hawkins , 661 A.2d at 290 (quoting Fenning , 135 A.2d at 350 ). Furthermore, the policy behind litigation privilege, to encourage parties to speak unencumbered by the fear of civil litigation, applies here.
Martirano , 255 N.E.2d at 695; Loigman , 889 A.2d at 4 3 5

- 36

. Pechota’s alleged
statements , therefore, are protected by the litigation privilege.18 V. CONCLUSION For the foregoing reasons, we will affirm the District Court’s order grant ing Pechota and Helewitz’s motions to dismiss. W e will also affir m the District Court’s
denial of the motion for jurisdictional discovery.