# EZEIRUAKU v. FIDELITY NATIONAL TITLE INSURANCE COMPANY

> District Court, D. New Jersey · September 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10269027

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10269027. Public record. Not legal advice.