EZEIRUAKU v. FIDELITY NATIONAL TITLE INSURANCE COMPANY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VINCENT EZEIRUAKU,

1:20-cv-00177-NLH-KMW

Plaintiff,

v.

OPINION

FIDELITY NATIONAL TITLE

INSURANCE COMPANY and ADAM

THOMASON,

Defendants.

APPEARANCES:

VINCENT EZEIRUAKU

900 MONET COURT

WILLIAMSTOWN, NEW JERSEY 08094

Plaintiff appearing pro se

HUGH A. KEFFER

FIDELITY NATIONAL LAW GROUP

105 EISENHOWER PARKWAY, SUITE 103

ROSELAND, NEW JERSEY 07068

On behalf of Defendants Fidelity National Title Insurance

Company and Adam Thomason

HILLMAN, District Judge

This defamation matter concerns a dispute between an

individual and a title insurance company over whether a property

was encumbered by a mortgage at the time it was sold. Plaintiff

Vincent Ezeiruaku, appearing pro se, filed a one-count claim for

defamation per se, alleging that Defendants Fidelity National

Title Insurance Company and Adam Thomason defamed him in a

letter requesting he indemnify the company against any losses or

expenses associated with the mortgage. Presently before the

Court is Defendants’ motion for dismissal of Plaintiff’s claim,

(Docket No. 7), which Plaintiff has opposed. (Docket No. 8).

For the reasons expressed below, Defendants’ motion will be

granted and the claim will be dismissed with prejudice.

Background

Plaintiff alleges that in 2012 he sold property and

conveyed the deed to third-party purchasers “free of any

outstanding liens or encumbrances.” (Docket No. 4 at ¶ 8).

Nevertheless, on July 22, 2019, Plaintiff received a letter from

Thomason, a Fidelity employee, regarding a potential encumbrance

on the property. Id. at ¶¶ 9, 11. Plaintiff alleges that the

letter accuses him of having committed a crime by fraudulently

and knowingly conveying an encumbered property while stating

that it was free of encumbrances. Id. at ¶¶ 9, 11, 14-20.

According to Plaintiff, this letter was made available not only

to other employees of Fidelity who had access to the claim file

for the property’s title insurance, but also to the purchasers

of the property and a third-party bank. Id. at ¶¶ 12, 17.

Discussion

A. Subject-Matter Jurisdiction

The Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1332 because there is complete diversity of citizenship

between the parties and the amount in controversy exceeds

$75,000.

B. Legal Standards Governing Motions to Dismiss

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

When considering a motion to dismiss, the Court may not

consider “matters extraneous to the pleadings.” Crisdon v. City

of Camden, No. 11-cv-02087, 2012 WL 685874, at *2 (D.N.J. Mar.

2, 2012) (quoting In re Burlington Coat Factory Sec. Litig., 114

F.3d 1410, 1426 (3d Cir. 1997)); Schmidt v. Skolas, 770 F.3d

241, 249 (3d Cir. 2014) (citing Pension Benefit Guar. Corp. v.

White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

“However, an exception to the general rule is that a ‘document

integral to or explicitly relied upon in the complaint’ may be

considered ‘without converting the motion [to dismiss] into one

for summary judgment.’” In re Burlington Coat Factory, 114 F.3d

at 1426 (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194,

1220 (1st Cir. 1996)). Such documents include “matters

incorporated by reference or integral to the claim, items

subject to judicial notice, matters of public record, orders,

[and] items appearing in the record of the case.” Crisdon, 2012

WL 685874, at *2 (quoting Buck v. Hampton Twp. School Dist., 452

F.3d 256, 260 (3d Cir. 2006)). If any other matters outside the

pleadings are presented to the court, and the court does not

exclude those matters, a Rule 12(b)(6) motion will be treated as

a summary judgment motion pursuant to Rule 56. Fed. R. Civ. P.

12(d).

Defendants’ motion relies predominantly on four documents

attached to the motion papers but not to the Complaint: a 1990

deed showing that the property in question had been conveyed to

Plaintiff, a 2012 deed showing that Plaintiff had conveyed the

property to third-party purchasers, a 2005 “Mortgage and

Assignment of Rents” naming Plaintiff as the mortgagor and

bearing his signature, and the allegedly defamatory letter sent

by Defendant Thomason to Plaintiff on July 22, 2019. (Docket

No. 7-2, Exs. 2, 3, 6, and 7). Although he does not dispute the

authenticity of any of these documents, Plaintiff argues that,

by presenting to the Court documents not attached to the

Complaint, Defendants have turned the motion to dismiss into one

for summary judgment. (Docket No. 8 at 3-4).

Here, the Court easily finds that it can consider the July

22, 2019 letter, as it is explicitly referenced in the Complaint

and is the document that contains the allegedly defamatory

statements at the heart of the Complaint. (Docket No. 4 at ¶¶

9-12). The Court also finds that it may consider the other

documents described above. The 2005 Mortgage and Assignment of

Rents and the 2012 deed are also explicitly referenced in both

the Complaint and the allegedly defamatory letter, (Docket No. 4

at ¶ 9; Docket No. 7-2, Ex. 7), and are integral to Plaintiff’s

claim that it was defamatory for Defendants to state that he had

granted a mortgage that was outstanding at the time of the 2012

conveyance. Plaintiff cannot “survive the present Motion to

Dismiss simply by failing to attach these documents to his

Complaint.” Inacio v. State Farm Fire and Cas. Co., 2015 WL

457049, at *1 (D.N.J. 2015). Even were they not, however, the

mortgage, as well as both the 1990 and 2012 deeds, can be

considered by the Court as they are “matters of public record”

under New Jersey law. Maturo v. Bank of America, N.A., Case No.

16-350 (CCC), 2017 WL 773878, at *1 n.1 (D.N.J. Feb. 27, 2017);

N.J.S.A. 46:26A-2.1

1 In their initial declaration in support of the motion to

dismiss, and again in a certification accompanying their reply

The Court now looks to Defendants’ arguments in their

moving papers considering these documents.

C. Analysis

Plaintiff alleges that the Defendants defamed him by

“falsely accusing [him] of having conveyed a property that was

encumbered while knowingly and intentionally stating that it was

not encumbered.” (Docket No. 4 at ¶ 16). To plead a prima facie

case of defamation, “a plaintiff must establish (1) the

assertion of a false and defamatory statement concerning the

plaintiff, (2) the unprivileged publication of that statement to

a third party, (3) fault amounting to at least negligence by the

publisher, and (4) damages.” Robles v. U.S. Envt. Universal

Serv., Inc., 469 Fed. Appx. 104, 109 (3d Cir. 2012) (citing

DeAngelis v. Hill, 847 A.2d 1261, 1267–68 (N.J. 2004)); Leang v.

Jersey City Bd. of Educ., 969 A.2d 1097, 1113 (N.J. 2009).

Defendants respond by arguing that the Amended Complaint

fails to sufficiently plead a claim for defamation and must be

dismissed for three reasons: (1) the allegedly false statements

were in fact true; (2) the statements were not defamatory and do

brief, Defendants attach a series of other documents. (Docket

No. 7-2; Docket Nos. 10-1, 10-2, 10-3, 10-4, and 10-5). As the

Court’s ability to consider a number of these documents at the

motion to dismiss stage is questionable, and these additional

documents are not necessary to assess Defendants’ arguments for

dismissal and rule on this motion, the Court declines to

consider them.

not constitute defamation per se, even if they were false; and

(3) the Complaint fails to adequately allege publication of the

statements. The Court agrees with all three of Defendants’

arguments.

The primary element of a defamation claim is that the

offending statements are false. “[T]he truth of the statement is

a complete defense to a defamation action.” Read v. Profeta,

397 F.Supp.3d 597, 651 (D.N.J. 2019) (quoting McLaughlin v.

Rosanio, Bailets & Talamo, Inc., 751 A.2d 1066, 1071 (N.J.

Super. Ct. App. Div. 2000)); G.D. v. Kenny, 15 A.3d 300, 310

(N.J. 2011).

Both the public record and Plaintiff’s own filings

demonstrate that each of the statements regarding Plaintiff in

the letter were true. The July 22, 2019 letter is brief, and

the only statements it makes regarding Plaintiff or his actions

were that he had granted a mortgage on the property while he

owned it, that he conveyed the property in 2012 with a covenant

against grantor’s acts, and that the mortgage was still

outstanding on both the date of the conveyance and the date of

the letter. (Docket No. 7-2, Ex. 7). Based on these statements,

the letter presents Defendants’ position that Plaintiff is

responsible for the outstanding amount of the mortgage and

should indemnify Fidelity against any associated losses or

expenses. Id.

As alleged by the Complaint and confirmed by the publicly

recorded deeds, Plaintiff owned the property in question from

1990 until selling it in 2012. (Docket No. 4 at ¶¶ 6 and 8;

Docket No. 7-2, Exs. 2 and 3). Further, the 2012 deed conveyed

by Plaintiff to the purchasers of the property does include a

“covenant as to grantor’s acts” regarding any outstanding

mortgages granted by Plaintiff. (Docket No. 7-2, Ex. 3).

Finally, the 2005 Mortgage and Assignment of Rents

explicitly describes a mortgage “made February 2, 2005, by and

between, Vincent O Ezeiruaku . . . and Wachovia Bank,” and is

signed by Plaintiff himself. (Docket No. 7-2, Ex. 6).

Plaintiff does not dispute the authenticity of this document,

and in fact states in his brief in opposition to the motion that

a company “has been diligently paying on this loan since

February 2, 2015 up until January of 2020” — not only

acknowledging the existence of the mortgage, but also making

clear that Plaintiff knows that the mortgage was still

outstanding almost 8 years after the 2012 conveyance.2 Because

the statements made in the July 22, 2019 letter are all

2 In his opposition brief, Plaintiff makes a series of arguments

based on the claim that “the loan in question was taken . . .

under a corporation named SABA PRODUCTS USA,” which “Plaintiff

is not an alter ego of.” (Docket No. 8 at 4-6). The Court

need not address these arguments except to note that the

Mortgage and Assignment of Rents lists Plaintiff as the

mortgagor and bears his signature. (Docket No. 7-2, Ex. 6).

demonstrably true and even admitted to by Plaintiff, Plaintiff’s

defamation claim fails.

Although the Court’s finding that the allegedly defamatory

statements were true is dispositive, the Court further finds

that Plaintiff’s Complaint fails to state two other elements of

a viable defamation claim.

First, a viable defamation claim must also show that the

statements in question were defamatory in nature. “Whether

words can reasonably be construed as defamatory is a question of

law for the Court in the first instance.” Reed v. Scheffler,

218 F.Supp.3d 275, 282 (D.N.J. 2016) (citing Ward v. Zelikovsky,

643 A.2d 972, 978 (N.J. 1994)).

New Jersey law defines a defamatory statement as “one that

subjects an individual to contempt or ridicule,” and “harms

[the] person's reputation by lowering the community's estimation

of him or by deterring others from wanting to associate or deal

with him.” G.D. v. Kenny, 15 A.3d 300, 310 (N.J. 2011). A

statement is considered defamatory as a matter of law if the

statement “so clearly denigrate[s] a person's reputation that a

court could decide that the statements are defamatory without

submitting the issue to the jury.” Biondi v. Nassimos, 692 A.2d

103, 105 (N.J. Super. Ct. App. Div. 1997). In particular, “[a]

statement falsely attributing criminality to an individual is

defamatory as a matter of law.” G.D., 205 N.J. at 293 (citing

Romaine v. Kallinger, 109 N.J. 282, 291 (1988)).

Plaintiff’s main allegation is that the statements made in

the July 22, 2019 letter were of this last type, and qualify as

defamation per se. According to the Complaint, the letter

“insinuate[d] that Plaintiff had committed an offense against

the laws of New Jersey and of the United States,” and its

statements regarding Plaintiff were “false accusation[s] [that]

could lead to an offense punishable under the law.” (Docket No.

4 at ¶¶ 11, 18). A close review of the letter itself, however,

reveals that Defendants made no such accusation. The letter

states only that there was an outstanding mortgage on the

property granted by Plaintiff at the time the deed was conveyed,

and that since Plaintiff had conveyed the deed with a covenant

against grantor’s actions, Defendants believed that Plaintiff

should indemnify them against any related losses or expenses.

(Docket No. 7-2, Ex. 2). At no point does the letter state or

imply that Plaintiff had committed a crime.

While Plaintiff only styles his claim as one for defamation

per se, the Complaint also alleges that Defendants’ statements

“clearly defamed Plaintiff's character and paints plaintiff as a

bad person in the eyes of the public, a negative stigma to

carry,” because they falsely accused him of having

“fraudulently” conveyed an encumbered property “while knowingly

and intentionally stating that it was not encumbered.” (Docket

No. 4 at ¶ 15). However, contrary to the allegations in the

Complaint, the letter does not accuse Plaintiff of having acted

fraudulently or of having conveyed an encumbered property

knowingly or intentionally — in fact, the letter makes no

statements or accusations whatsoever regarding Plaintiff’s

knowledge, intent, or character. Instead, acting consistently

with Fidelity’s business as a title insurance company, the

letter simply informed Plaintiff of Defendants’ view regarding

which party was responsible for the outstanding amount of the

mortgage, and provided him the opportunity to explain why he

disagreed. The Court finds that these statements could not

reasonably be construed as accusing Plaintiff of criminal

conduct or as being defamatory in nature.

Finally, the Complaint also fails to sufficiently plead

publication or communication of the statements. “To satisfy the

communication element of a defamation claim a plaintiff must

plead facts that enable the defendant to identify the defamer

and the circumstances of the publication.” JNL Mgmt., LLC v.

Hackensack University Medical Center, Case No. 18-5221

(ES)(SCM), 2019 WL 1951123, at *6 (D.N.J. May 2, 2019) (citing

Printing Mart–Morristown v. Sharp Elec. Corp., 563 A.2d 31, 46

(N.J. 1989)). These facts must be sufficient to demonstrate

“when, where, by which defendants and by what words, written or

oral, plaintiff was defamed.” Cruz v. HSBC, Case No. 10–135

(JBS/JS), 2010 WL 2989987, at *3 (D.N.J. July 26, 2010) (quoting

Zoneraich v. Overlook Hosp., 514 A.2d 53, 62 (N.J. Super. Ct.

App. Div. 1991)).

The Complaint attempts to allege publication of the

allegedly defamatory statements in two ways: that the letter was

filed under a claim number for the property and therefore

“readily accessible to hundreds of workers of Fidelity Title

Insurance Company,” and that it was “made available to multiple

third parties . . . not limited to . . . the current owners of

the property[] and the banking Institution that owns the alleged

liens.” (Docket No. 4 at ¶ 12). The first allegation is

nothing more than vague speculation that Fidelity employees

might be able to access the letter, and does not actually allege

that the statements were communicated to any Fidelity employees.3

While the second allegation does specify the parties that

the statements were allegedly communicated to, it provides no

further information. The Complaint does not allege when or how

3 In his brief in opposition to the motion, Plaintiff claims for

the first time that he “made a call” to Fidelity “and all he did

was state his name and a secretary in that office pulled up the

letter,” arguing that this demonstrates publication of the

statements. However, this allegation has no effect on the

sufficiency of his Complaint for the purposes of this motion, as

a plaintiff may not amend his complaint through arguments in a

brief. Hall v. Revolt Media & TV, LLC, No. 17-2217 (JMV) (MF),

2018 WL 3201795, at *3 (D.N.J. 2018) (citing Com. Of Pa. ex rel.

Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)).

the statements were communicated to either the owners of the

property or the bank, and does not make clear whether Plaintiff

is alleging that these parties simply had the ability to access

the letter by requesting it from Fidelity, or that the

Defendants separately sent copies of the letter to the owners

and bank. Without further detail regarding “the circumstances

of the publication,” these allegations are insufficient to plead

the publication element. JNL Mgmt., LLC, 2019 WL 1951123, at *6.

For this reason as well, Plaintiff has failed to state a claim

for defamation and his claim must be dismissed.

Conclusion

Defendants request that the Court dismiss Plaintiff’s

defamation claim with prejudice. (Docket No. 7 at 15). As the

Court finds that Defendants’ statements were true, Plaintiff’s

claims are not capable of being cured and further amendments

would be futile. Accordingly, for the reasons expressed above,

the Court will dismiss Plaintiff’s claim with prejudice.

An appropriate Order will be entered.

Date: September 18, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.