NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4334

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BENJAMIN ASHMORE, individually and a father of F.A. and B.A.,

Appellant

v.

BRIAN ASHMORE; CATHY ASHMORE; JEFFREY ASHMORE; 

PATTI ASHMORE; ANNE SHEPPARD; JAN WAGNER; THOMAS WAGNER

____________________________________

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

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Submitted Pursuant to Third Circuit LAR 34.1(a)

June 8, 2012

Before: JORDAN, HARDIMAN and ALDISERT, Circuit Judges

(Opinion filed: June 12, 2012 )

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OPINION

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PER CURIAM

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.
2

I.

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 
3

granted the motion and dismissed the complaint with prejudice. Appellant filed a timely 

notice of appeal.

II.

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.” 

III.

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 
4

settlement negotiations are not hindered. See Williams v. Kenney

The first set of statements falls squarely within the scope of the New Jersey 

litigation privilege. The defendants communicated with Dr. Lewis

, 877 A.2d 277, 286-87 

(N.J. Super. Ct. App. Div. 2005).

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

 1 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.

.
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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.

 2 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.

at 290 

(relevancy required is a general frame of reference and relationship to the subject matter 

of the action).
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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

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.

id.

Accordingly, we will affirm the District Court’s judgment dismissing 

Ashmore’s claims of defamation. His request for oral argument is denied as unnecessary.