U N I T E D S T A T E S D I S T R I C T C O U R T 

D I S T R I C T O F N E W J E R S E Y

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE

50 WALNUT STREET, P.O. BOX 419

NEWARK, NJ 07101-0419

(973) 645-6340

WILLIAM J. MARTINI 

 JUDGE

LETTER OPINION

January 19, 2012

Gary I. Lerner

Davidoff Malito & Hutchner LLP

605 Third Avenue, 34th Floor

New York, NY 10158

(Attorney for Plaintiffs Joseph J. DeFalco & Anna DeFalco)

Martin Trevor Lyons

Joanna Susan Rich

Connell Foley LLP

85 Livingston Avenue

Roseland, NJ 07068

(Attorneys for Defendants New Jersey Semi-Conductor Products, Inc. & Robert 

 Hildebrandt)

RE: DeFalco, et al. v. New Jersey Semi-Conductor Products, Inc., et al.

Civ. No. 11-3138 (WJM)

Dear Counsel:

This matter comes before the Court on Defendants’ Motion to Dismiss Counts 

Seven, Eight and Twelve of Plaintiffs’ Complaint pursuant to Federal Rule of Civil

Case 2:11-cv-03138-WJM -MF Document 20 Filed 01/19/12 Page 1 of 6 PageID: 142
Procedure 12(b)(6). For the reasons set forth in this Letter Opinion, Defendants’ motion

is GRANTED in part and DENIED in part.

I. BACKGROUND

The following version of events assumes Plaintiffs’ allegations in the Complaint

are true. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Plaintiffs Joseph

DeFalco and Anna DeFalco are husband and wife. They are also former employees of

Defendant New Jersey Semi-Conductor Products, Inc. (“NJ Semi-Conductor”). 

Defendant Robert Hildebrandt is the company’s president.

Plaintiffs allege that beginning sometime before January 2007, Joseph DeFalco

began to experience discriminatory treatment at NJ Semi-Conductor because of his

national ancestry. In June 2007, he filed formal discrimination complaints with the New 1

Jersey Division of Civil Rights and the United States Equal Employment Opportunity

Commission. These claims were subsequently resolved and Mr. DeFalco and NJ SemiConductor entered into a Stipulation of Settlement. As a result, Mr. DeFalco formally

withdrew his complaints and NJ Semi-Conductor paid $6,500 to Mr. DeFalco’s attorney

for his representation of DeFalco in that matter. Plaintiffs continued to work for NJ 2

Semi-Conductor. 

Plaintiffs claim that Robert Hildebrandt thereafter engaged in a pattern of abusive

supervision of Mr. DeFalco in retaliation for Mr. DeFalco’s June 2007 filings and the

associated litigation expenses. Ultimately, both Plaintiffs were terminated from their

positions at NJ Semi-Conductor in July 2009. Plaintiffs allege that Robert Hildebrandt is

responsible for their unlawful terminations. Plaintiffs do not allege acts of discrimination

by anyone other than Robert Hildebrandt subsequent to the Stipulation of Settlement. 

Since losing his job at NJ Semi-Conductor, Joseph DeFalco has applied for thirty

different jobs, but has been unable to find new employment. 

In January 2007, Mr. DeFalco, through his attorney, sent a letter to Defendant 1

Robert Hildebrandt, complaining about receiving discriminatory treatment from David

Hildebrandt, another NJ Semi-Conductor employee and Robert Hildebrandt’s son. (Compl. ¶

20.) References to “Hildebrandt” in the remainder of the Letter Opinion refer to Robert

Hildebrandt. 

The other terms of the Stipulation of Settlement do not bear on the present 2

motion.

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Plaintiffs assert that Joseph DeFalco has not found a new job because Robert

Hildebrandt says disparaging things about him to prospective employers. Although the

Plaintiffs allege that Hildebrandt has made malicious and defamatory statements to others

about Mr. DeFalco on an ongoing basis since his July 2009 termination, the Complaint

only sets forth one specific occurrence. Namely, that on February 23, 2011, an individual

telephoned Mr. Hildebrandt seeking a reference for Joseph DeFalco. In response, Mr.

Hildebrandt falsely and maliciously told the caller that Mr. DeFalco “was running another

business on the side out of [NJ Semi-Conductor], and he was doing a lot of suspicious

stuff, you know. And I took his keys away from him, and I wouldn’t recommend him for

the job.” (Compl. ¶ 62.) 

On May 31, 2011, Plaintiffs filed a twelve-count Complaint in District Court,

asserting claims against Robert Hildebrandt and NJ Semi-Conductor for violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., and the New

Jersey Law Against Discrimination (“LAD”), N.J.S.A. § 10:5-1, et seq. The Complaint

also asserts a claim against Robert Hildebrandt for defamation. 

Presently, Defendant Hildebrandt moves to dismiss Counts Seven and Twelve, 3

which allege that he aided and abetted in the unlawful discrimination of Joseph DeFalco

and Anna DeFalco, respectively, in violation of the LAD. Additionally, Defendant moves

to dismiss Count Eight, which alleges that Hildebrandt is liable for defamation. 

II. DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of the Complaint,

in whole or in part, if Plaintiffs fail to state a claim upon which relief can be granted. 

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Here, Counts Seven, Eight, and Twelve

will be dismissed if Plaintiffs’ Complaint fails to set forth “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Although Counts Seven, Eight and Twelve are only asserted against Hildebrandt, 3

NJ Semi-Conductor joins in this motion. For purposes of clarity, the Letter Opinion will refer to

Defendant Hildebrandt only.

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B. Counts Seven and Twelve: Aiding and Abetting in Violation of the LAD

Counts Seven and Twelve allege LAD aiding and abetting violations by Defendant

Hildebrandt. Hildebrandt moves for dismissal of these counts because he cannot aid and

abet his own wrongful conduct. The Court agrees and will dismiss these counts. 

Under the LAD, Hildebrandt, Plaintiffs’ supervisor, may be held personally liable

if he acted to “aid, abet, incite, compel, or coerce the doing of any of the acts forbidden

[by the LAD].” N.J.S.A. § 10:5-12(e). Tarr v. Ciasulli, 181 N.J. 70 (2004), set the

standard to be applied for § 10:5-12(e) aiding and abetting claims against workplace

supervisors. Under Tarr and its progeny, such liability cannot be established unless a

supervisor provides substantial assistance to another individual committing LAD

violations. Leang v. City Bd. Of Education, 198 N.J. 557, 576 (2009); Putterman v.

Weight Watchers Int’l, Inc., No. 10-1687, 2010 WL 3310706, at *2 (D.N.J. Aug. 19,

2010). Thus, if a supervisor is also the sole LAD violator, that supervisor does not, as a

logical matter, embolden others to violate the LAD and there is no prima facie § 10:5-

12(e) violation. Putterman, at *2; see also In re Trobert, No. 10-33457, 2011 WL 61666,

at *2 (Bankr. D.N.J. Jan. 7, 2011).

Turning to the present matter, aside from the discrimination against Mr. DeFalco

that occurred sometime before January 2007 and was resolved by settlement, Plaintiffs

plead no facts showing that a person other than Hildebrandt unlawfully discriminated

against Plaintiffs. Because Plaintiffs do not allege that Hildebrandt provided substantial

assistance to another LAD violator, their Complaint fails to set forth sufficient facts to

support a prima facie aiding and abetting violation. As such, Hildebrandt’s motion to

dismiss Counts Seven and Twelve will be GRANTED. See Putterman, at *2 (dismissing

counts against supervisor/defendant for LAD aiding and abetting violations because

complaint failed to “allege that other employees discriminated against her and that

[supervisor defendant] emboldened them”); In re Trobert, at *2 (same result); see also

Londono v. City of Elizabeth, 2010 WL 3720299, at *1, *2 (N.J. Sup. Ct. App. Div. Sept.

17, 2010) (no prima facie 10:5-12(e) violation where supervisor was only principal LAD

violator). 

C. Count Eight: Defamation

Count Eight alleges that Hildebrandt is liable for making defamatory statements

about Mr. DeFalco to potential future employers. Defendant moves to dismiss this count

because the alleged statements are too vague to establish a right to relief, or, in the

alternative, are protected by a qualified privilege. Because the Court finds neither of

these arguments convincing, it will deny Hildebrandt’s motion to dismiss Count Eight.

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Under New Jersey law, Hildebrandt will be liable for defamation if he: (1) made a

false and defamatory statement concerning Mr. DeFalco, (2) communicated that statement

to a third party, and (3) was at least negligent in doing so. Singer v. Beach Trading Co.,

379 N.J. Super. 63, 80 (App. Div. 2005); Feggans v. Billington, 291 N.J. Super. 382, 390

(App. Div. 1996). A statement that tends “to deter third persons from associating or

dealing with [plaintiff]” is defamatory. Ward v. Zelikovsky, 136 N.J. 516, 529 (1994)

(quoting Restatement (Second) of Torts, § 559). Under federal pleading standards,

Plaintiffs must plead facts sufficient to identify the defamatory words, their utterer, and

the fact of their publication. F.D.I.C. v. Bathgate, 27 F.3d 850, 875 (3d Cir. 1994)

(citations omitted); see also Cristelli v. Filomena II, Inc., No. 99–2862, 1999 WL

1081290, at *3 (D.N.J. Dec. 1, 1999) (“According to [F. R. Civ. P.] 8, a defamation

pleading does not need to cite precise defamatory statements, it must only provide

sufficient notice to the other party of the allegations made against him.”). If the

Complaint fails to set forth facts supporting a prima facie defamation claim, or fails to

meet federal pleading standards, dismissal of Count Eight will be proper. 

In this case, Plaintiffs claim that Mr. DeFalco remains unemployed because of the

disparaging statements that Mr. Hildebrandt made to Mr. DeFalco’s prospective

employers. Plaintiffs’ Complaint discusses a February 23, 2011 telephone conversation

in which Hildebrandt intentionally lied about Mr. DeFalco’s operation of a side business

in order to prevent Mr. DeFalco from finding a new job. Thus, Plaintiffs allege that Mr.

Hildebrandt (1) made a false statement concerning Mr. DeFalco’s operation of a side

business, (2) communicated that statement to a third party – one of Mr. DeFalco’s

prospective employers, and (3) did so intentionally. 

On these facts, the Complaint properly alleges a prima facie defamation claim

which provides sufficient notice to Hildebrandt of the allegations made against him. See

Gardner v. U.S. Food Service, Inc., No. 08-5381, 2010 WL 1050168, at *4-5 (D.N.J.

Mar. 19, 2010) (properly pled prima facie defamation claim where plaintiff alleged that

defendant told unidentified “individuals seeking job inquiries” that plaintiff “was a

careless and dangerous driver and was therefore terminated”); Cruz v. HSBC, No. 10-135,

2010 WL 2989987 (D.N.J. Jul. 26, 2010) (prima facie defamation claim properly pled

where supervisor allegedly told plaintiff’s unnamed former co-workers that plaintiff

violated company policy on computer usage); see also Knechtel v. Choicepoint, Inc., No.

08-5018, 2009 WL 4123275, at *1, *6 (D.N.J. Nov. 23, 2009) (amended complaint

alleging that defendants communicated inaccurate and negative credit information to

“unnamed ‘third parties’” was sufficiently pled for plaintiff’s defamation claim to survive

12(b)(6) dismissal). Thus, dismissal of the defamation claim as being too vague to

establish a right to relief is improper. 

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Defendant asserts that Count Eight should nevertheless be dismissed because

Hildebrandt’s remarks about Mr. DeFalco are non-actionable privileged communications. 

The Court recognizes that under certain circumstances, “a qualified privilege extends to

[an otherwise defamatory statement when] an employer . . . responds in good faith to the

specific inquiries of a third party regarding the qualifications of an employee.” Erickson

v. Marsh & McLennan Co., 117 N.J. 539, 562 (1990). This privilege does not, however,

attach to a supervisor’s false and defamatory statements about a former employee, made

in bad faith to prospective employers. Williams v. Bell Tel. Lab. Inc., 132 N.J. 109, 121

(1993). Assuming the facts alleged by Plaintiffs are true, Mr. Hildebrandt made false and

defamatory statements about Mr. DeFalco in bad faith, and thus, these statements are not

privileged.

Accordingly, Defendants motion to dismiss Count Eight on the basis of qualified

privilege will be denied. See Gardner, at *4-5 (D.N.J. Mar. 19, 2010) (denying 12(b)(6)

dismissal of defamation claim because qualified privilege for employer communications

is subject to limitation); Cruz, at *4-5 (D.N.J. Jul. 26, 2010) (declining to find statement

made to plaintiff’s former co-workers was privileged workplace communication on

12(b)(6) motion to dismiss because facts alleged in complaint were insufficient to show

why qualified privilege was applicable as a matter of law). 

In short, Plaintiffs have pled facts to form the basis of an actionable defamation

claim. Accordingly, Defendants’ motion to dismiss Count Eight will be DENIED.

III. CONCLUSION

For the reasons stated above, Defendant’s motion to dismiss Counts Seven and

Twelve of Plaintiffs’ complaint will be GRANTED. Defendant’s motion to dismiss

Count Eight will be DENIED. An appropriate order follows.

s/William J. Martini 

WILLIAM J. MARTINI, U.S.D.J.

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