NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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. , Appellant

v. BRIAN ASHMORE; CATHY ASHMORE; JEFFREY ASHMORE; PATTI AS HMORE; 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

- 1 1

- 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 )

___________

OPINION

___________ 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 Cour t 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 A shmore (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 e vents of the proceedings here. Defendants are family members of Ashmore ’s and Kell y ’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 Guard ian 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. Def endants 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 R ule 12(b)(2), alleging that the court lacked p ersonal jurisdiction

. Finding that Ashmore’s complaint failed to state claims upon which relief could be granted, t he District Court3 granted the motion and dismiss ed the complaint with prejudice. Appellant fi led 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 con tain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal , 5 5 6 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 cl aim for defamation

. New Jersey’s absolute litigation privilege applies to communication s “ (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) t hat 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. 19 88). 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 that4 settlement negotiations are not hindered. See Williams v. Kenney

The first set of statements fall s squarely within the scope of the New Jersey litigation privilege. The defendants communicated with Dr . Lewis , 87 7 A.2d 277, 286

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

1 in the course of a judicial proceeding. See P.T. v. Rich ard 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 w e 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 recomm endation 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 th e 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 p rivilege. .5 The sec ond 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 Nac ht, the children’s Law Guardia n. 2 The District Court determined that the statements to Nacht were made in

connec tion 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 Eschba ch v. Eschbach , 436 N.E.2d 1260 , 1263 (1982) (New York courts base custody decisions on totality of circumstances). As the District Court reasoned, d enying the privilege would deter family members from communicating crucial information in the children’s b est 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 regar ding the underlying proceed ings

. Finally, the District Court reasonably found that t he 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 i d.

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 t heir 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)

.6 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 informati on 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 ri ghts 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, tha t 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.