SCIORE v. PHUNG

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MICHAEL SCIORE, et al., Civil Action No. 19-13775

Plaintiffs,

OPINION

v.

KELLY PHUNG, et al.,

Defendants.

APPEARANCES:

DAVID D. LIN

LEWIS & LIN LLC

77 SANDS STREET

6TH FLOOR

BROOKLYN, NY 11201

Counsel on behalf of Plaintiffs

MATTHEW ADAM GREEN

JOSHUA BENJAMIN KAPLAN

OBERMAYER REBMANN MAXWELL & HIPPELL LLP

1120 ROUTE 73

SUITE 420

MOUNT LAUREL, NJ 08054

Counsel on behalf of Defendants Kelly Phung, Studio KP,

LLC, and Peter Ly

ARIJ H. SYED

ORLOVSKY MOODY SCHAAF CONLON & GABRYSIAK

MONMOUTH PARK CORPORATE CENTER

187 HIGHWAY 36

WEST LONG BRANCH, NJ 07764

Counsel on behalf of Defendant Rachele Tran and Sidney Tran

KEVIN CHING

1309 SOUTH REESE STREET

PHILADELPHIA, PA 19147

Defendant Kevin Ching appearing pro se

HILLMAN, District Judge

Presently before the Court are the motions to dismiss

Plaintiffs’ Amended Complaint filed by pro se Defendant Kevin

Ching (“Ching”) and Defendant Peter Ly (“Ly”) (collectively

“Defendants”). [Dkt. Nos. 87 and 94 respectively]. Defendant

Ching seek to dismiss Plaintiffs’ Amended Complaint pursuant to

Rule 12(b)(2) for lack of personal jurisdiction, or, in the

alternative, pursuant to Rule 12(b)(6) for failure to state a

claim upon which relief can be granted. Defendant Ly also seeks

dismissal pursuant to Rule 12(b)(6).

Plaintiffs Michael Sciore and Old City Pretzel Company, LLC

(collectively “Plaintiffs”) oppose the Ly motion, [Dkt. No.

106], as well as oppose the Ching motion, and cross-move to

transfer the case against Defendant Ching to the United States

District Court for the Eastern District of Pennsylvania pursuant

to 28 U.S.C. § 1631. [Dkt. No. 98].

The Court has considered the parties’ submissions and

decides these matters pursuant to Federal Rule of Civil

Procedure 78. For the reasons stated below, Defendant Ching’s

motion to dismiss for lack of personal jurisdiction will be

granted, Plaintiffs’ motion to transfer will be denied, and the

Court will grant Defendant Ly’s motion for failure to state a

claim upon which relief can be granted.

BACKGROUND

The facts and procedural history of this case are well-

known to the parties and have been fully detailed in the Court’s

January 18, 2021 Opinion, [Dkt. No. 53]. Accordingly, the Court

adopts that background and will not restate the full history

here.

This case concerns negative restaurant reviews posted on

Yelp.com (“Yelp”) about the now defunct restaurant Ardiente.

Amended Complaint, [Dkt. No. 55], at ¶ 1. Ardiente is the

registered fictious name for Plaintiff Old City Pretzel Company,

LLC, a limited liability company of which Plaintiff Sciore, a

New Jersey citizen, was the sole member. Ardiente was located

in Philadelphia, Pennsylvania. Id. at ¶¶ 5-6.

Plaintiffs allege that on July 7, 2018, Defendant Ly posted

the following negative restaurant review (“Ly review”) about

Ardiente on Yelp:

Not highly recommended for having parties,

birthdays, or any type of events here

because they will run out of food even

though they say it’s “unlimited” (you’ll be

lucky if you even get enough food to begin

with). A friend of ours planned a birthday

dinner here a month in advance for her

husband and a group of 40 people. As

promised, there will be unlimited food but

drinks will be charged separately by the

establishment. As the night started,

everyone’s ordering drinks and having a good

time until [sic] food started coming out.

There was countless number of carbs and

veggie dishes of the same 3-4 items but when

we had meats come out, it was literally 4

people to 2 pieces of chicken or 4 people to

1 piece of rib. Let alone there wasn’t even

enough meats to be given to each person for

them to say “we ran out”. [sic] After

confronting the owner, he goes I understand

this table didn’t get it, but do understand

what the other tables got

(LOL Tf exactly), what does that have to do

with the table that didn’t get jack sh*t?

Mind you it was suppose [sic] to be

unlimited food since it was a preset menu,

but they “ran out.” Also to mention, the

meats, portioned for mice, took nearly 45

mins to come out following the countless

UNLIMITED amount of carb dishes (i [sic] get

it [sic] restaurants that do this is [sic]

trying to get you full before the meats come

out), but again, the meats that came out

wasn’t even enough to begin with. Finally,

the bill came out close to $5000 for having

mediocre drinks, unlimited carbs and grass,

and 2 pieces of meat for 40 people to share.

After reducing the price, it came to 100 a

person, in which [sic] still can’t be

justified for what was given to us. At the

end, following the dispute, they had the

audacity to just bring two plates of ribs

when everyone had already lost their

appetite from waiting too long, and yes it

was left there and no one ate anyone [sic]

it. Following the whole “party” many of us

went and got pizza because we were obviously

still hungry. Def not a place to go with

this type of hospitality.

Amended Complaint, [Dkt. No. 55], at ¶¶ 27-28.

Plaintiffs’ Complaint avers the above allegations are false

statements of fact that cannot be interpreted as opinion.

Plaintiffs claim Defendant Ly posted his review to harm

Plaintiffs’ reputation and to cause them to lose revenue.

Plaintiffs further allege that on July 15, 2018, Defendant

Ching posted the following negative restaurant review (“Ching

review”) about Ardiente on Yelp:

Had high expectations after perusing their

menu and reading prior reviews beforehand.

However, not only was I disappointed but

insulted by how our party was treated from

the owner himself. Food itself was mediocre

and too salty to be palatable. Our first 5-

6 courses of the tasting menu consisted of

underwhelming veggie or carb dishes. The

last two courses were supposed to be the

short ribs and Cornish hen but they ran out

after serving only a few morsels of each.

How this restaurant failed to prepare for

this event with a month’s notice is beyond

me and will steer clear from this place

indefinitely.

Id. at ¶¶ 76-77.

Plaintiffs’ Complaint repeats the same allegations

regarding the Ching review as it alleged towards the Ly review,

namely that the review contains false statements of fact that

cannot be interpreted as opinion, and that Defendant Ching

sought to harm Plaintiffs’ reputation and to cause them to lose

revenue.

In response to the Ly and Ching reviews, as well as other

reviews, Plaintiffs filed a complaint in August of 2018 (this

was a prior case, naming only Kelly Phung, Studio KP LLC, and

John Doe fictious parties). Plaintiffs thereafter initiated

this matter, filing the underlying complaint on June 14, 2019.

Both cases concerned claims of defamation and, based on this

underlying claim for defamation, a claim of tortious

interference with contractual relations and prospective

contractual relations. On February 17, 2021, Plaintiffs filed

the First Amended complaint, which is presently the operative

pleading and is the first pleading to name as Defendants Ching,

Ly, Rachele Tran, Sidney Tran, Michelle Nguyen Tran, Irine Tran,

and Thao Tran (whose identities were unknown by Plaintiffs until

recently).

On April 27, 2021, Defendants Irine Tran, Sidney Tran, and

Rachele Tran filed answers to the first amended complaint. On

May 13, 2021, Defendant Ching filed his motion to dismiss.

Ching Motion to Dismiss (“Ching MTD”), [Dkt. No. 87]. On May

25, 2021, Defendant Ly filed his motion to dismiss. Ly Motion

to Dismiss (“Ly MTD”), [Dkt. No. 94]. Plaintiffs opposed

Defendant Ching’s motion to dismiss and cross-moved to transfer

their case against him to the United States District Court for

the Eastern District of Pennsylvania. Plaintiffs’ Brief in

Opposition to Ching (“Ching Opp. Br.”), [Dkt. No. 98-6].

On June 22, 2021, Plaintiffs filed opposition to Defendant

Ly’s motion to dismiss. Plaintiffs’ Brief in Opposition to Ly

(“Ly Opp. Br.”), [Dkt. No. 106]. Both Defendants Ching and Ly

have filed briefs in reply to Plaintiffs’ opposition to the

requested relief, and, with leave of the Court, Plaintiffs filed

a sur-reply in support of their opposition to Defendant Ching’s

motion to dismiss and cross-motion to transfer. The parties’

motions are therefore ripe for adjudication.

DISCUSSION

A. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction over this

matter pursuant to 23 U.S.C. § 1332 because there is complete

diversity of citizenship, and the amount in controversy exceeds

$75,000. See Amended Complaint, [Dkt. No. 55], at ¶¶ 5-17 and

Prayer for Relief ¶ 5.

B. Standard of Review

1. Ly’s Motion to Dismiss Pursuant to Rule 12(b)(6)

Defendant Ly’s motion to dismiss is governed by Fed. R.

Civ. P. 12(b)(6).

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted, a

court must accept all well-pleaded allegations 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)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

“[W]hen a complaint adequately states a claim, it may not

be dismissed based on a district court’s assessment that the

plaintiff will fail to find evidentiary support for his

allegations or prove his claim to the satisfaction of the

factfinder.” Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v.

Rhoades, 416 U.S. 232, 236 (1974)). Thus, a court asks “not

whether a plaintiff will ultimately prevail but whether the

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

Id. (quoting Scheuer, 416 U.S. at 236).

“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); see also Fowler v. UPMC Shadyside,

578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal . . . provide[d] the

final nail in the coffin for the ‘no set of facts’ standard that

applied to federal complaints before Twombly.”). “The

plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that

a [party] has acted unlawfully.” Iqbal, 556 U.S. at 678.

“A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). It is

ultimately the defendant, however, that bears the burden of

showing that no claim has been presented. Hedges v. United

States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages,

Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

2. Ching’s Motion to Dismiss Pursuant to Rule 12(b)(2)

Defendant Ching’s motion to dismiss is governed by Fed. R.

Civ. P. 12(b)(2).

After a motion to dismiss is filed pursuant to Fed. R. Civ.

P. 12(b)(2), the burden shifts to the Plaintiff to provide

sufficient facts to establish jurisdiction. See O'Connor v.

Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007) (citing

Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001)).

The Plaintiff must “sustain its burden of proof in establishing

jurisdictional facts through sworn affidavits or other competent

evidence” and cannot rely “on the bare pleadings alone in order

to withstand a defendant’s Rule 12(b)(2) motion to dismiss for

lack of in personam jurisdiction.” Weber v. Jolly Hotels, 977

F. Supp. 327, 331 (D.N.J. 1997). At the same time, however,

courts must “accept all of the plaintiff’s allegations as true

and construe disputed facts in favor of the plaintiff.”

Carteret Sav. Bank v. Shushan, 954 F.2d 141, 142 n.1 (3d Cir.

1992).

“When a district court is sitting in diversity, it ‘may

assert personal jurisdiction over a nonresident defendant to the

extent allowed under the law of the forum state.’” Koch v.

Pechota, 744 F. App’x 105, 109 (3d Cir. 2018) (quoting Metcalfe

v. Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009)).

The New Jersey long-arm statute “provides for jurisdiction

coextensive with the due process requirements of the United

States Constitution.” Id. at 110 (quoting Miller Yacht Sales,

Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004)). “New Jersey

courts [therefore] look to federal law to interpret the limits

on personal jurisdiction.” Id. (citing IMO Indus. v. Kiekert

AG, 155 F.3d 254, 259 (3d Cir. 1998)).

Federal due process requires that a defendant have “certain

minimum contacts with [the forum state] such that the

maintenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.’” Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer,

311 U.S. 457, 463, (1940)). A defendant establishes minimum

contacts by “purposefully avail[ing] itself of the privilege of

conducting activities within the forum State,” thereby invoking

“the benefits and protections of [the forum State's] laws.”

Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 109 (1987)

(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475

(1985)). This “purposeful availment” requirement assures that

the defendant could reasonably anticipate being haled into court

in the forum and is not haled into a forum as a result of

“random,” “fortuitous,” or “attenuated” contacts with the forum

state. Burger King, 471 U.S. at 472, 475; see also World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

There are two types of personal jurisdiction that satisfy

the minimum contacts standard: specific and general

jurisdiction. Koch, 744 F. App’x at 110. “A court has specific

jurisdiction when the suit ‘arises out of or relate[s] to the

defendant's contacts with the forum.’” Id. (quoting Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923–24

(2011)). “[A] court has general jurisdiction . . . when a

defendant's ‘affiliations with the State are so “continuous and

systematic” as to render them essentially at home in the forum

State.’” Id. (quoting Goodyear, 564 U.S. at 919). As such,

general jurisdiction does not require the cause of action to

have a relationship with the defendant’s forum contacts.

C. Analysis

1. Ly’s Motion to Dismiss Pursuant to Rule 12(b)(6)

a. Plaintiffs’ Defamation Claim Against Ly

Plaintiffs assert a claim for defamation against Ly,

alleging the Ly review was a knowingly and maliciously false

statement published on Yelp to third parties about Plaintiffs

and that said statement was intended to harm Plaintiffs’

reputation and business activities. Defendant Ly responds by

arguing the Amended Complaint fails to sufficiently plead a

claim for defamation and must be dismissed because: (1) the Ly

review is just that, a restaurant review, constituting nothing

more than the author’s opinions about the quality of the

restaurant; (2) the hyperbolic words and phrases do not give

rise to a defamation claim; and (3) even if the review contains

statements of fact, said statements are not defamatory because

they are objectively unverifiable. The Court agrees with all

three of Ly’s arguments.

To plead a prima facie case of defamation under New Jersey

law,1 “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.

App’x 104, 109 (3d Cir. 2012) (citing DeAngelis v. Hill, 180

N.J. 1, 12-13 (2004)); Leang v. Jersey City Bd. of Educ., 198

1 As the parties present their arguments under New Jersey law,

they tacitly agree that New Jersey law applies, and as they fail

to argue otherwise, the Court applies New Jersey law to this

matter. Indeed, a court sitting in diversity must apply the

substantive law of the forum. Robeson Indus. Corp. v. Hartford

Accident & Indem. Co., 178 F.3d 160, 165 (3d Cir. 1999).

However, the Court recognizes that New Jersey conflict-of-law

analysis might suggest that the Commonwealth of Pennsylvania

have a greater interest in this action. Nonetheless, there is

“no conflict between New Jersey and Pennsylvania law: both rely

on the Restatement (Second) of Torts and require similar

elements for defamation.” Kerrigan v. Otsuka Am. Pharm., Inc.,

560 Fed. App’x 162, 167 (3d Cir. 2014). Thus, the Court is

confident in its application of New Jersey law because there is

no material difference between New Jersey and Pennsylvania law

as it relates to Plaintiff’s core claim of defamation.

N.J. 557, 585 (2009). The elements of defamation in New Jersey

comport with the Restatement (Second) of Torts. DeAngelis, 180

N.J. at 12.

As to the first element, a viable defamation claim must

show that the statements at issue were defamatory in nature,

which is a question of law for the Court. Reed v. Scheffler,

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

Zelikovsky, 136 N.J. 516 (1994)). As determined by the Supreme

Court of New Jersey, “[w]hether a statement is defamatory

depends on its content, verifiability, and context.” Lynch v.

N.J. Educ. Ass’n, 161 N.J. 152, 167-68 (1999) (citing Ward, 136

N.J. at 529). Assessing a statement’s content “involves

consideration not merely of a statement’s literal meaning, but

also of the fair and natural meaning that reasonable people of

ordinary intelligence would give to it.” Lynch, 161 N.J. at

167. Thus, “the critical consideration is what a reasonable

reader would understand the statement to mean.” Id. (citing

Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990)). In

addition, in assessing the content, courts will “distinguish

‘between genuinely defamatory communications as opposed to

obscenities, vulgarities, insults, epithets, name-calling, and

other verbal abuse.’” Ward, 136 N.J. at 530 (citation omitted).

“Loose, figurative or hyperbolic language is not likely to imply

specific facts, and thus is not likely to be deemed actionable.”

Lynch, 161 N.J. at 168 (citing Ward, 136 N.J. at 532).

Further effecting a statement’s content, is the context in

which it is issued, since “[t]he context of a statement can

affect significantly its fair and natural meaning.” Lynch, 161

N.J. at 168 (citing Ward, 136 N.J. at 532). The third level of

analysis, namely verifiability, goes to whether the statement is

one of fact or opinion, because statements of opinion, which

cannot be proved true or false, like unverifiable statements of

fact, are not actionable. Lynch, 161 N.J. at 167.

While opinions are not necessarily afforded “a wholesale

defamation exemption,” Milkovich, 497 U.S. at 18; see also Ward,

136 N.J. at 531, opinions are not defamatory “unless they imply

false underlying objective facts.” Lynch, 161 N.J. at 168

(citing Restatement (Second) of Torts § 566 (1977)). “The

higher the ‘fact content’ of a statement, the more likely that

the statement will be actionable.” Id. at 531–32 (citation

omitted). The Supreme Court of New Jersey identifies an opinion

as a statement “based on stated facts or facts that are known to

the parties or assumed by them to exist,” Dairy Stores, Inc. v.

Sentinel Publ’g Co., 104 N.J. 125, 147 (1986) (citations

omitted); while a “mixed opinion” is a statement “not based on

facts that are stated or assumed by the parties to exist,” id.

at 147–48. Importantly, defendants are not held liable if the

statement can be construed as either fact or opinion. Lynch,

161 N.J. at 168. And, a defendant will not be held liable for

an opinion that is “accompanied by its underlying nondefamatory

factual basis.” Kotlikoff v. The Community News, 89 N.J. 62,

72-73 (1982).

The Court finds that the challenged Ly statement does not

constitute defamation under any of the standards discussed

above. It is undisputed that the Ly review was published on

Yelp in the form of a restaurant review regarding Ly’s

experience dining at Ardiente. Accordingly, after assessing the

contents, context, and verifiability, the challenged review

constitutes a statement of opinion rather than fact, making it

not defamatory.

i. Context of the Ly Review

Beginning with the context of the Ly review, the Court

notes that the allegedly defamatory statement is first and

foremost a restaurant review, and, second, the statement is a

Yelp review. These two lenses help focus this Court’s analysis.

As pertains to the ordinary understanding and context of

reviews on Yelp, a recent opinion from the United States

District Court for the Eastern District of New York is

informative. See Mirza v. Amar, 513 F. Supp. 3d 292 (E.D.N.Y.

2021). There, a medical practice and its operating physician

brought an action for defamation, trade libel, and tortious

interference with contractual relations against a patient who

had written a negative review on Yelp. In addition to

considering the content, Judge Cogan of that court also

considered the context of the review, which he found to be a

nondefamatory opinion, holding:

Here, the context is a review on Yelp, an

Internet forum. “New York courts have

consistently protected statements made in

online forums as statements of opinion

rather than fact.” Ganske[ v. Mensch,] 480

F. Supp. 3d [542,] 552 [(S.D.N.Y. 2020)].

Statements made on Internet forums are made

in a unique context in that they are

generally informal and unedited. See id.

This context leads “readers [to] give less

credence to allegedly defamatory remarks

published on the Internet than to similar

remarks made in other contexts.” Id.

(quoting Sandals Resorts Int'l Ltd. v.

Google, Inc., 86 A.D. 3d 32, 44, 925

N.Y.S.2d 407 (1st Dep't 2011)). That

defendant's allegedly defamatory statements

appeared on Yelp – an Internet forum

specifically designed for the publication of

crowd-sourced opinionated reviews about

businesses – “conveys a strong signal to a

reasonable reader” that the statements are

defendant's opinion. Id. When a posting

“viewed in its full context, reveals that

defendant is a disgruntled consumer and that

[her] statements reflect [her] personal

opinion based upon [her] personal dealing

with plaintiff,” the context strongly

suggests that the statements are merely

“subjective expressions of consumer

dissatisfaction” and thus nonactionable

opinion. Penn Warranty Corp. v. DiGiovanni,

10 Misc. 3d 998, 1005, 810 N.Y.S.2d 807, 815

(Sup. Ct. 2005).

Because Yelp reviews are used by consumers

to provide their positive or negative

opinions of businesses, the context strongly

signals to readers that the review merely

reflects the writer's opinion. As described

below, the allegedly defamatory statements

here do not overcome that context and are

not actionable. Defendant's language is

full of opinion and hyperbole and, to the

extent that any isolated statement within

the review might be construed as factual,

when the review is read as a whole and in

context, the message conveyed is merely the

negative but protected opinion of a

disgruntled customer.

Mirza, 513 F. Supp. 3d at 297-98. The Court views Ly’s review

in the same light. In the context of Yelp, a reasonable reader

would understand that the review at issue here was Defendant

Ly’s subjective opinion as a disgruntled customer.

Turning next to the context of restaurant reviews and how

this field of publication may inform the Court’s analysis, the

Court again turns to the views of New York courts, which appear

particularly well-versed in actions for defamation based on

negative restaurant reviews. For example, a panel of the

Supreme Court of New York, Appellate Division, First Department

plainly held that “restaurant ratings and reviews almost

invariably constitute expressions of opinion.” Themed

Restaurants, Inc. v. Zagat Survey, LLC, 801 N.Y.S.2d 38, 39–40

(1st Dep't 2005).2 Likewise, in the more seminal decision of Mr.

2 Themed Restaurants, Inc. concerned claims of defamation and

trade libel by a restaurant against the restaurant review survey

Zagat for publishing a review that stated, “God knows ‘you don’t

go there for the food,’” and “weary well-wishers suggest that

Chow of New York v. Ste. Jour Azur S.A., the Second Circuit

vacated judgment and remanded the case back to the district

court with instructions to dismiss the complaint because the

Defendant-Appellants’ negative restaurant review was opinion and

Plaintiff-Appellee had failed to demonstrate how even the one

factual averment contained within the review was in any way

defamatory. 759 F.2d 219 (2d Cir. 1985).

The Defendants in Mr. Chow of New York included the

publisher of a restaurant guide called the Gault/Millau Guide to

New York and the guide’s two editors. 759 F.2d at 221.

Contained within the guide was a negative review of the New York

restaurant Mr. Chow. Id. The review made several negative

statements, which are more or less analogous to the instant

action, for example: (1) the review noted that the owner Mr.

Chow is “clever” from a culinary perspective for opening a

Chinese restaurant that is not actually about eating Chinese

food – let alone good Chinese food; (2) the review called the

restaurant chain’s London branch “clearly overrated;” (3) the

review claimed the service is bad since you will “have to wait

they ‘freshen up the menu and their makeup.’” Themed

Restaurants, Inc., 801 N.Y.S.2d at 39–40. The appellate panel

found the “allegedly libelous statements can only be construed

as statements of opinion and thus are constitutionally protected

. . . [particularly since] restaurant ratings and reviews almost

invariably constitute expressions of opinion.” Id. (citations

omitted).

ten minutes to obtain chop-sticks” and because “it is impossible

to have the basic condiments (soy sauce, hot sauce, etc.) on the

table;” (4) the review claimed the “principal concern of the

waiters (Italians) is to sell you expensive alcoholic drinks;”

and (5) the review was highly critical of the food, stating the

food is not only bad but has “only the slightest relationship to

the essential spirit of Chinese cuisine,” with descriptions

like: (a) “heavy and greasy dough” that “resembled bad Italian

ravioli;” (b) “disturbingly gamy taste;” (c) “contain[ing] more

dough (badly cooked) than meat;” (d) “remained still frozen on

the plate;” (e) “rubbery . . . soaking . . . totally insipid;”

(f) Peking duck prepared in one form instead of the traditional

three ways, which included “pancakes the size of a saucer and

the thickness of a finger;” and (g) “egg-rolls the thickness of

andouillette sausages, and the dough the thickness of large

tagliatelle.” Id. at 221-22.

Assessing this review, the Second Circuit found that five

of the six allegedly defamatory statements submitted to the jury

were pure opinion, and that the only non-opinion, factual

statement, namely that Mr. Chow served the duck one way instead

of three, was not shown to be defamatory. In reaching this

conclusion, the Second Circuit specifically found that

restaurant reviews are, as they are understood by a reasonable

reader and by their very nature, largely opinion:

Restaurant reviews are also the well

recognized home of opinion and comment.

Indeed, “[b]y its very nature, an article

commenting upon the quality of a restaurant

or its food, like a review of a play or

movie, constitutes the opinion of the

reviewer.” Greer v. Columbus Monthly Pub.

Corp., 4 Ohio App.3d 235, 238 (1982). The

natural function of the review is to convey

the critic’s opinion of the restaurant

reviewed: the food, the service, the décor,

the atmosphere, and so forth. Such matters

are to a large extent controlled by personal

tastes. The average reader approaches a

review with the knowledge that it contains

only one person’s views of the

establishment.

Mr. Chow of New York, 759 F.2d at 227-28.

The Court agrees with the Second Circuit’s reasoning and

finds that the context of the Ly review, as a restaurant review,

strongly supports Ly’s argument that the review is a

nondefamatory opinion. Further, Plaintiffs here, like the

Plaintiff-Appellee in Mr. Chow of New York, fail to cite a

single case that found a restaurant review libelous. Granted,

Ly only cites an unpublished, out-of-district opinion.3

Nonetheless, the Court’s independent research reveals a

significant weight of authorities holding restaurant reviews as

nondefamatory opinion. In addition to the aforementioned New

3 See Clancy v. Vacation Estates, Inc., No. 18-cv-2249, 2019 WL

955113, at *11 (D. Minn. Feb. 27, 2019) (holding the Google

restaurant review of “[l]ow quality food, cold fries, soggy fish

and undercooked hamburgers,” to be “subjective descriptions that

constitute opinions, not defamation”).

York cases, in Mr. Chow of New York, the Second Circuit cites to

numerous other cases that reached similar decisions. 759 F.2d

at 228 n.7 (citing Golden v. Elmira Star Gazette, 9 Med.L.Rep.

(BNA) 1183 (N.Y.Sup.Ct. Ontario County 1983); Greer v. Columbus

Monthly Publishing Corp., 4 Ohio App.3d 235, 448 N.E.2d 157

(1982); Kuan Sing Enterprises v. T.W. Wang, Inc., 86 A.D.2d 549,

446 N.Y.S.2d 76 (1st Dep't), aff'd, 58 N.Y.2d 708, 444 N.E.2d

1008, 458 N.Y.S.2d 544 (1982); Pritsker v. Brudnoy, 389 Mass.

776, 452 N.E.2d 227 (1983); Havalunch, Inc. v. Mazza, 294 S.E.2d

70 (W.Va.1981); Ihle v. Florida Publishing Co., 5 Med.L.Rep.

(BNA) 2005 (Fla.Cir.Ct.1979); Mashburn v. Collin, 355 So.2d 879

(La.1977); Steak Bit of Westbury, Inc. v. Newsday, Inc., 70

Misc.2d 437, 334 N.Y.S.2d 325 (Sup.Ct. Nassau County 1972);

Twenty-Five East 40th Street Restaurant Corp. v. Forbes, Inc.,

37 A.D.2d 546, 322 N.Y.S.2d 408 (1st Dep't 1971), aff'd, 30

N.Y.2d 595, 331 N.Y.S.2d 29, 282 N.E.2d 118 (1972)). While none

of the cases mentioned above are binding authority in this

court, the aforementioned rulings on the context of Yelp reviews

and restaurant reviews is highly persuasive in assessing the

case at bar.

Therefore, the Court finds the context of the Ly review

strongly supports Ly’s argument that the review is a

nondefamatory opinion. This alone provides a sufficient and

independent basis for the conclusion that the Ly review does not

support a valid claim, though the content and verifiability

issues also support the Court’s conclusion.

ii. Content and Verifiability of the Ly Review

Turning next to the Ly review’s actual statements, the

Court finds the review’s content and verifiability support Ly’s

argument that the review is a nondefamatory opinion. As a

preliminary matter, Plaintiffs fail to specify which parts of

the allegedly defamatory Ly review are false or constitute

defamation. Thus, the Court will assess the statement in its

entirety.4

While select portions of various statements may be

verifiable, the overwhelming majority of the Ly review is pure

opinion. More importantly, after applying the literal meaning

as well as the fair and natural meaning that a reasonable person

of ordinary intelligence would give to the review’s content, and

considering the sentences within the proper context, this Court

finds there are no defamatory statements.

4 Plaintiffs’ brief in opposition to the motion to dismiss

specifically objects to Ly’s fifth, sixth, and eight sentences.

While the Court could limit its analysis to only these sentences

since Plaintiffs fail to aver the remaining sentences are

defamatory, the Court will assess each sentence for the sake of

completeness.

When broken down to each component sentence,5 Ly’s review

reads:

1. Not highly recommended for having parties, birthdays, or

any type of events here because they will run out of food

even though they say it’s “unlimited” (you’ll be lucky if

you even get enough food to begin with).

2. A friend of ours planned a birthday dinner here a month

in advance for her husband and a group of 40 people.

3. As promised, there will be unlimited food but drinks will

be charged separately by the establishment.

4. As the night started, everyone’s ordering drinks and

having a good time until [sic] food started coming out.

5. There was countless number of carbs and veggie dishes of

the same 3-4 items but when we had meats come out, it was

literally 4 people to 2 pieces of chicken or 4 people to

1 piece of rib.

5 Plaintiffs’ brief in opposition to Ly’s motion to dismiss takes

issue with Ly’s “pars[ing] out each of the ‘discrete 14

sentences,’” arguing the statements when read as a whole

constitute defamation. Ly Opp. Br., [Dkt. No. 106], at 4-5.

The Court disagrees with Plaintiffs’ view and their reading of

Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186 (3d

Cir. 1998). To the extent Plaintiffs argue the Court’s

defamation assessment cannot include analysis of each challenged

phrase or statement separate and apart from the entire

statement, they are incorrect. The Court is called to assess

each statement’s content both at the individual level and

holistically. The Court considers the statements as a whole,

but this assessment is used to assess the statement’s context –

as Defendant Ly correctly points out.

The Court thus agrees with Defendant Ly’s reading of Taj Mahal,

as it stands for the proposition that courts do not consider

allegedly defamatory phrases in isolation, but rather must also

consider the context in which the statement is made. However,

this consideration does not result in the conclusion that

Plaintiffs suggest, namely that a collection of otherwise non-

defamatory statements can somehow become defamatory when read as

a whole – the total cannot be greater than the sum of its parts.

6. Let alone there wasn’t even enough meats to be given to

each person for them to say “we ran out”. [sic]

7. After confronting the owner, he goes I understand this

table didn’t get it, but do understand what the other

tables got (LOL Tf exactly), what does that have to do

with the table that didn’t get jack sh*t?

8. Mind you it was suppose [sic] to be unlimited food since

it was a preset menu, but they “ran out.”

9. Also to mention, the meats, portioned for mice, took

nearly 45 mins to come out following the countless

UNLIMITED amount of carb dishes (i [sic] get it [sic]

restaurants that do this is [sic] trying to get you full

before the meats come out), but again, the meats that

came out wasn’t even enough to begin with.

10. Finally, the bill came out close to $5000 for having

mediocre drinks, unlimited carbs and grass, and 2 pieces

of meat for 40 people to share.

11. After reducing the price, it came to 100 a person, in

which [sic] still can’t be justified for what was given

to us.

12. At the end, following the dispute, they had the

audacity to just bring two plates of ribs when everyone

had already lost their appetite from waiting too long,

and yes it was left there and no one ate anyone [sic] it.

13. Following the whole “party” many of us went and got

pizza because we were obviously still hungry.

14. Def [sic] not a place to go with this type of

hospitality.

Of these fourteen sentences, numbers 6, 7, 9, 11, and 14

are plainly opinions. Sentence 6 concerns Ly’s opinion that the

quantity of meat served was too small.6 Sentence 7 concerns Ly’s

6 Plaintiffs take issue with sentence 6, arguing the sentence

stands as a statement of fact, namely that Plaintiffs did not

provide meat as promised. However, Ly’s review plainly states,

opinion about his experience dining at Ardiente, expressing his

feelings of dissatisfaction and insult. Sentence 9 again

concerns Ly’s opinion about the quantity of the food, employing

hyperbolic language, remarking there wasn’t enough meat and that

the meat was “portioned for mice.” Sentence 11 asserts Ly’s

opinion that the meal was overpriced – an entirely subjective

view. Sentence 14 expresses Ly’s opinion that he does not

recommend the restaurant.

These are all opinions expressing Ly’s subjective belief

that the food, service, and the restaurant overall were bad

quality and overpriced. These are not factual statements. The

average reader would understand Ly’s review as a simple attempt

to voice his disappointment, albeit with some hyperbolic or

figurative language such as “meats[] portioned for mice.”

As for sentences 2, 3, 4, and 13, the Court agrees with

Ly’s assessment that they are not defamatory, since they are

mostly factual statements about the background leading up to the

dinner and the party’s post-dinner actions. As none of the

statements contain specific references to Plaintiffs, let alone

false or defamatory statements about Plaintiffs, these sentences

“there wasn’t even enough meats,” making this is a subjective

complaint about the quantity of food served. What is enough

meat for one person may not be enough meat for another person.

This is not an objectively verifiable statement of fact, making

it pure opinion.

are not defamatory. Robles, 469 Fed. App’x at 109. This point

is further buttressed by the fact that Plaintiffs’ opposition

brief takes no issue with Ly’s characterization of these

statements as nondefamatory.

However, the Court notes that sentences 4 and 13 do contain

opinions, noting: (1) Ly believed the party was having a good

time until the food service, and (2) Ly believed the party was

still hungry after the dinner because they went out for pizza.

As sentences 4 and 13 may be interpreted as either fact or

opinion, this supports the conclusion they are not actionable

under a claim of defamation. Lynch, 161 N.J. at 168.

Furthermore, as sentences 4 and 13 present opinions and the

sentences do not contain specific references to Plaintiffs, this

issue is a merely academic question.

The remaining sentences of 1, 5, 8, 10, and 12 are mixed

opinions containing both statements of fact and opinion.

Sentence 5 claims “[t]here was [sic] [a] countless number of

carbs and veggie dishes . . . but . . . [the] meats [were] . . .

literally 4 people to 2 pieces of chicken or 4 people to 1 piece

of rib.” Although sentence 5 contains factual allegations, the

statement is plainly “[l]oose, figurative or hyperbolic

language,” and the facts alleged are likely unverifiable (the

Court deems it virtually impossible that Plaintiffs possess even

a scintilla of evidence capable of verifying the ratio of diners

to chicken and ribs), thus making it unactionable. Lynch, 161

N.J. at 168 (citing Ward, 136 N.J. at 532).

Likewise, sentence 10, which includes the factual averment

that the bill was close to $5,000 as well as several opinions,7

also fails to rise to the level of an actionable defamatory

statement as Ly merely employed “[l]oose, figurative or

hyperbolic language” that is otherwise unverifiable. Id. Given

the context as a Yelp restaurant review, a reasonable reader

would clearly understand sentences 5 and 10 from the context

that Ly was expressing his opinion that the restaurant served

too many carb and veggie dishes and not enough meat, and charged

too much money, making sentences 5 and 10 more or less

statements that can fairly be construed as either fact or

opinion making them unactionable and nondefamatory. Id.

Sentence 1 is a closer question as it is debatable whether

it contains both a statement of fact and opinion. “Not highly

recommended for having parties, birthdays or any type of events

here,” is definitively an opinion. However, this is followed by

an arguably factual averment that such events “will run out of

food even though they say it’s ‘unlimited,’” and the sentence is

7 Claiming that Ardiente served “mediocre drinks, unlimited carbs

and grass, and 2 pieces of meat for 40 people to share,” is

clearly loose, figurative or hyperbolic opinion expressing Ly’s

dissatisfaction with the quality and quantity of food served by

Ardiente.

closed with the opinion that “you’ll be lucky if you even get

enough food to begin with.”

Parsing this sentence and reading it in context leads the

Court to reject the statements as anything more than an opinion

posing a hypothetical conclusion utilizing hyperbolic language.

Another way of reading this sentence is: “if one has an event at

Ardiente, then they will run out of food, which makes the venue

not recommended.” There is no way of verifying the statement as

it is a hypothetical and, more importantly, when read in

context, can be interpreted as mere opinion. See Lynch, 161

N.J. at 167-68 (statements are nondefamatory if they can be

construed as either fact or opinion, which is interpreted based

upon the statement’s fair and natural meaning from a reasonable

reader).

Here, a reasonable reader would understand from the context

of the review that Ly was merely expressing his opinion that the

restaurant is not recommended as they do not serve enough food.

And, as a Yelp restaurant review, the context of sentence 1

supports the conclusion that it is a nondefamatory opinion.

Moreover, as the sentence is capable of being construed as fact

or opinion, the Court concludes it is not actionable pursuant to

the Supreme Court of New Jersey’s ruling in Lynch.

Facially, the remaining sentences of 8 and 12 appear to

consist of largely factual statements. However, a closer review

of the sentences in the context of the review as a whole leads

the Court to conclude that these too are unactionable,

nondefamatory statements. In essence, sentence 12 claims

Ardiente “had the audacity” to bring out two plates of ribs

after previously claiming to run out, and as the diners lost

their appetites from waiting too long, no one ate the ribs.

Read against the other sentences, Sentence 12 contradicts Ly’s

other sentences, namely sentence 8, which claims the restaurant

ran out of food, and sentence 13, which claims the diners went

out for pizza because they were obviously still hungry. It is

therefore illogical to read sentence 12 on its face as a

statement of fact, given that the preceding and subsequent

sentences directly contradict the averments.

Instead, sentence 12 more accurately reads as an opinion

that Ly was offended and frustrated by Ardiente bringing out

ribs after claiming to run out and because, in his opinion, the

diners had waited too long for food to served. The sentence

thus can be interpreted as Ly’s opinion that the restaurant had

bad service and did not serve enough food or served it too late

in the meal. This reading comports with the Ly’s other

sentences, which all present the same opinion: not enough food

and bad service. A reasonable reader, understanding the context

of sentence 12 would therefore appreciate that the sentence

expresses Ly’s opinion.

Likewise, a reasonable reader would not take sentence 8 as

a pure statement of fact, which essentially claims the

restaurant was supposed to serve unlimited food but ran out. As

with the analysis of sentence 12, Ly does not literally claim

Ardiente ran out of food when it was supposed to serve unlimited

food; after all, how could the restaurant run out when it served

countless, unlimited carb dishes, as per sentences 9 and 10, and

two subsequent plates of ribs, as per sentence 12. Sentence 8,

therefore, would be interpreted by a reasonable reader as Ly’s

opinion, again expressing his dissatisfaction with the

restaurant and claiming Ardiente did not serve enough meat.

Moreover, as the Court has noted with other sentences, the

verifiability of this sentence is highly unlikely under the

circumstances presented in the record. Accordingly, these

sentences are not actionable under Lynch.

In sum, in assessing the Ly review’s content both as a

whole and at the individual sentence level, as well as the

verifiability of any arguably factual statements contained in

the Ly review, the Court finds that the review lacks a

sufficient basis to maintain Plaintiffs’ claim of defamation

against Ly.

b. Plaintiffs’ Claim for Trade Libel Against Ly

Plaintiffs argue they sufficiently plead a claim for trade

libel, thus Ly’s motion to dismiss should be denied. While Ly

does not directly address the issue of trade libel, based on his

arguments regarding defamation, the Court finds he presents a

valid basis for dismissal.8

Ly’s failure to directly address trade libel can be

explained by Plaintiffs’ failure to properly plead such a claim.

Plaintiffs’ Amended Complaint asserts a cause of action for

defamation per se and trade libel. However, these are generally

independent claims and Plaintiffs fail to demonstrate, let alone

argue, that the claims can be muddled together based on the

present record. See Dairy Stores, Inc., 104 N.J. at 133-35; see

also Gillon v. Bernstein, 218 F. Supp. 3d 284, 294 (D.N.J.

2016). The Court could view this action as merely one for

defamation, as this view is entirely supported by the record

because Plaintiffs repeatedly emphasize this is a defamation

action. Putting aside this obvious deficiency, the Court

nonetheless has assessed the Amended Complaint and finds

Plaintiffs fail to plead a claim of trade libel.

In New Jersey, a claim of trade libel requires that

Plaintiffs prove: “(1) publication, (2) with malice (3) of false

allegations concerning plaintiff’s property or product (4)

8 In fact, no party articulates the elements of trade libel or,

beyond Plaintiffs’ conclusory averments, claims the record even

presents trade libel. However, Ly’s arguments on nondefamatory

opinions and the verifiability of his review also applies to the

claim of trade libel and presents a basis for the Court to grant

dismissal.

causing special damages, i.e., pecuniary harm.” Intervet, Inc.

v. Meleutis, Ltd., 2016 WL 740267, at *6 (D.N.J. Feb. 24, 2016)

(quoting Sys. Operations, Inc. v. Sci. Games Dev. Corp., 555

F.2d 1131, 1140 (3d Cir. 1977). In particular, “[s]pecial

damages is an ‘essential’ element of trade libel[,]” Wolfe v.

Gooding & Co., Inc., 2017 WL 3977920, at *4 (D.N.J. Sept. 11,

2017) (quoting Mayflower Transit, LLC v. Prince, 314 F. Supp. 2d

362, 379 (D.N.J. 2004), and “must be in the form of pecuniary

harm and must be pled with particularity[.]” Canfield Sci.,

Inc. v. Melanoscan, LLC, 2017 WL 2304644, at *7 (D.N.J. May 25,

2017).

“To show special damages, Plaintiff must ‘allege either the

loss of particular customers by name, or a general diminution of

business, and extrinsic facts showing that such special damages

were the natural and direct result of the false publication.’”

Gillon, 218 F. Supp. 3d at 298 (quoting Bocobo v. Radiology

Consultants of S. Jersey, P.A., 477 Fed. App’x 890, 901 (3d Cir.

2012)).

When predicating a damages claim on the

general diminution in business, Plaintiff

must prove ‘facts showing an established

business, the amount of sales for a

substantial period preceding publication,

the amount of sales for a [period]

subsequent to the publication, facts showing

that such loss in sales were the natural and

probable result of such publication, and

facts showing the plaintiff could not allege

the names of particular customers who

withdrew or withheld their custom.’

Gillon, 218 F. Supp. 3d at 299 (quoting Mayflower Transit, LLC,

314 F. Supp. 2d at 378). “General, implied, or presumed damages

of the kind available in personal defamation actions do not

satisfy the requirement of special damages needed for

disparagement causes of action.” Patel v. Soriano, 369 N.J.

Super. 192, 249 (App. Div. 2004).

Assessing the elements of trade libel, the Court finds that

Plaintiffs’ fail to plead a prima facie case.9 In particular,

the Court finds Plaintiffs have not pled special damages with

9 Instead of supporting the elements of trade libel through

factual allegations, Plaintiffs merely plead bald assertions and

legal conclusions. See, e.g., Amended Complaint, [Dkt. No. 55],

¶ 104, (“These statements were made maliciously and willfully

and were intended to cause harm to Plaintiffs’ business and

reputation”); ¶ 106 (“These statements were made maliciously and

willfully and were intended to cause harm to Plaintiffs’

personal and professional reputation”); ¶ 111 (“As a result of

the Non-Phung Defendants’ acts, Plaintiffs have suffered

irreparable damage to its reputation and further damages in the

form of lost sales and profits, in an amount to be determined at

trial”); ¶¶ 31, 80 (the Ly and Ching reviews “harm[ed]

Plaintiffs’ reputation and causing them to lose revenue”); ¶ 84

(the Ly and Ching reviews posted “to interfere with Plaintiffs’

contractual relationships with its customers and vendors . . .

by inducing Plaintiffs’ customers and vendors and prospective

diners to cease doing business with Plaintiffs); ¶ 85 (“several

diners have claimed to have read the reviews and have called or

messaged to inquire about the truth of the false statements

therein and . . . cancelled scheduled appointments with

Plaintiffs”); ¶ 86 (the Ching and Ly reviews caused “a number of

Plaintiffs’ customers (or prospective customers) [to] refuse to

patronize and/or continue to patronize Plaintiffs’ business”);

and ¶ 87 (the reviews caused Plaintiff Ardiente to close).

the requisite level of particularity by merely alleging

generally that Ardiente lost customers, prospective customers,

and vendors. See Gillon, 218 F. Supp. 3d at 298-99; see also

Intervet, 2016 WL 740267, at *6 (dismissing trade libel

counterclaim where defendant alleged “[a]s a direct and

proximate result of the trade libel of [Plaintiff], [Defendant]

has incurred and will continue to suffer damages”) (internal

quotation marks omitted); see also Zim v. Seruga, 2006 WL

2135811, at *11 (D.N.J. July 28, 2006) (dismissing trade libel

claim where plaintiff stated “a general allegation that the

statements published on the website ‘caused Plaintiffs to

sustain damages’”). Plaintiffs neither present the loss of

particular customers by name, demonstrate a general diminution

of their business, nor explain how the Ly review - from a

clearly disgruntled customer - could cause the general and broad

claims of damages Plaintiffs assert. Thus, they have failed to

allege sufficient facts to make out a plausible claim for

special damages.10

10 As noted above, proving a general diminution in business

requires Plaintiffs to prove the existence of an established

business and present sales figures for a “substantial period

preceding publication” against the sales figures for the period

after the publication. As this case concerns a new restaurant

that had just opened (hardly an established business) and closed

within 9 months of the review, it is highly unlikely that the

restaurant existed long enough for Plaintiffs to prove a general

diminution. What is clear is that Plaintiff has failed to

More importantly, since the Court has found that the Ly

review constitutes an opinion not capable of being proven false,

Plaintiffs’ trade libel claim must fail as a matter of law. “A

plaintiff alleging trade libel ‘must demonstrate that

Defendant’s statements were false or that they were written with

reckless disregard for the truth or falsity.’” Read v. Profeta,

397 F. Supp. 3d 597, 651 n.37 (D.N.J. 2019) (quoting Mayflower

Transit, LLC, 314 F. Supp. 2d at 378). In order for Plaintiffs

to prevail on the trade libel claim, Ly’s statements may not be

expressions of opinion. NXIVM Corp. v. Sutton, 2007 WL 1876496,

at *7 (D.N.J. June 27, 2007) (citing Cassidy v. Merin, 244 N.J.

Super. 466, 479 (App. Div. 1990); Themed Restaurants, Inc., 801

N.Y.S.2d at 39–40).

Moreover, as explained by this Court in NXIVM Corp., the

New Jersey Supreme Court has held “[i]nsofar as defenses to

product disparagement are concerned, a qualified privilege

should exist whenever it would exist for a defamation action . .

. it follows that the right to make a statement about a product

should exist whenever it is permissible to make such a statement

about the reputation of another.” NXIVM Corp., 2007 WL 1876496

at *7 (quoting Dairy Stores, Inc., 104 N.J. at 137; and citing

Guerrero v. Carva, 779 N.Y.S.2d 12, 17 (1st Dep't 2004)

allege sufficient facts to make out a plausible claim for

special damages.

(recognizing constitutional protection for statements of

opinion); and citing Penn Warranty Corp. v. DiGiovanni, 810

N.Y.S.2d 807, 814 (N.Y.Sup.2005) (noting that courts have been

“loathe to stifle's one's criticism of goods or services”)).

Therefore, for the reasons expressed above in the Court’s

defamation analysis, the Ly review does not form the basis for a

valid claim of trade libel. See Read, 397 F. Supp. 2d at 653

(dismissing the trade libel claim because the statement at issue

“is more of a legal conclusion or an opinion-based

characterization of the facts, rather than a statement of fact

that itself could be verified or disproved”) (citing Ward, 136

N.J. at 530 (emphasizing the distinction between actionable

statements that are capable of verification and “rhetorical

hyperbole” and “statements that are in form statements of

opinion . . . which cannot reasonably be understood to be meant

literally and seriously and are obviously mere vituperation and

abuse.”) (citation omitted)); see also Dairy Stores, Inc., 104

N.J. at 137.

Accordingly, the Court will dismiss Plaintiffs’ claim of

trade libel against Ly. The Court’s ruling is twofold: (1)

Plaintiffs have not plead the necessary elements to establish a

false allegation concerning Plaintiffs’ property and (2) have

failed to allege sufficient facts to establish special damages.

c. Plaintiffs’ Claim of Tortious Interference

Against Ly

Plaintiffs also bring a claim for tortious interference

with contractual relations and prospective contractual

relations. Ly argues the claim fails as a matter of law and the

Court should grant dismissal.

Here, Plaintiffs again conflate separate and distinct

claims into one, as the Amended Complaint alleges “Tortious

Interference with Contractual Relations and Prospective

Contractual Relations”; yet the parties’ papers addressing the

motions to dismiss concern only a claim for “tortious

interference with prospective economic advantage.” Nonetheless,

like the claim for defamation, the Court, regardless of the

theory upon which it premised, agrees with Ly that Plaintiffs’

claim fails as a matter of law.

Even after an amended complaint and an unsuccessful second

amended complaint, Plaintiffs have failed to identify which, if

any, contract or contracts were interfered with as a result of

the Yelp reviews. Despite having these opportunities to present

a prima facie case of tortious interference with contractual

relations, the amended complaint fails to articulate a single

existing contract, let alone attach one as an exhibit. The

Court has thoroughly reviewed the pleadings and finds Plaintiffs

presents only bald assertions and legal conclusions as to this

theory of liability however framed. As the existence of a

contract between Plaintiffs and others is a prerequisite to this

claim, there is nothing before the court to support a claim for

tortious interference with contractual relations. Dello Russo

v. Nagel, 358 N.J. Super. 254, 268 (App. Div. 2003) (to set

forth a cognizable claim for tortious interference with

contractual relations, Plaintiffs must establish: “(1) actual

interference with a contract; (2) that the interference was

inflicted intentionally by a defendant who is not a party to the

contract; (3) that the interference was without justification;

and (4) that the interference caused damage”); see also Printing

Mart–Morristown v. Sharp Electronics Corp., 116 N.J. 739, 751–

752 (1989).

Likewise, a claim for tortious interference with

prospective economic advantage also fails as presented. To

state a valid claim for tortious interference under New Jersey

law, Plaintiffs must establish “(1) a reasonable expectation of

economic advantage to plaintiff; (2) interference done

intentionally and with malice; (3) causal connection between the

interference and the loss of prospective gain; and (4) actual

damages.” Luttmann v. Tiffany & Co., 2009 WL 197520, at *2

(D.N.J. Jan. 26, 2009) (quoting Varrallo v. Hammond, Inc., 94

F.3d 842, 848 (3d Cir. 1996)). Yet Plaintiffs allege no

specific facts in support of any of these elements and instead

rely on legal conclusions that cannot form the basis for stating

a plausible claim. If such a claim is plausible, Plaintiffs

should have presented specific examples of diners, patrons,

customers, prospective diners, or vendors who Plaintiffs had

actual or a reasonable expectation of economic advantage with,

let alone how the Yelp restaurant review interfered and caused

them to lose this opportunity. This pleading deficiency is

fatal.

Moreover, the claim, regardless of the underlying theory,

must be dismissed as Defendant Ly correctly points out since, as

with trade libel, “when a tortious interference claim ‘is based

on allegedly defamatory statements and the defamation cause of

action fails for lack of evidentiary support, the tortious

interference claim necessarily fails as well.’” Perez v.

Factory Direct of Secaucus, LLC, 2013 WL 5770734, at *7 (D.N.J.

Oct. 23, 2013) (quoting Prof’l Recovery Servs., Inc. v. Gen.

Elec. Capital Corp., 642 F. Supp. 2d 391, 408 (D.N.J. 2009)).

Because Plaintiffs’ tortious interference claim is predicated on

the Ly review, and the Court finds the Ly review to be an

unactionable nondefamatory statement, the Ly review cannot form

the basis for a valid claim of tortious interference. See,

e.g., LoBiondo v. Schwartz, 323 N.J. Super. 391, 415-17 (App.

Div. 1999) (dismissing a claim for tortious interference, after

finding the challenged statement as nondefamatory, because “if

the alleged defamation is not actionable, then its consequences

are also not actionable because the conduct that caused those

consequences was privileged”); Bainhauer v. Manoukian, 215 N.J.

Super. 9, 47-48 (App. Div. 1987) (“Proof or failure of proof of

the operative facts of the defamation count would, therefore,

completely comprehend the malicious interference cause. Thus,

if no abuse of privilege is found, then the ‘malicious'

predicate of the interference count would also fail.”);

Binkewitz v. Allstate Ins. Co., 222 N.J. Super. 501, 537 (App.

Div. 1988) (finding qualified privilege applies to tortious

interference claim based on the defamatory statements).

Therefore, the Court will dismiss Plaintiffs’ claim of

tortious interference. While Plaintiffs could potentially cure

their pleading deficiencies by asserting the missing details

(existence of specific contract(s) with third parties, patrons,

vendors, etc. who cancelled or withheld their business and

patronage after and as a result of the Ly review), the claim

must fail as a matter of law because the Ly review is an

unactionable nondefamatory statement of opinion.

2. Ching’s Motion to Dismiss Pursuant to Rule 12(b)(2),

and Plaintiffs’ Requests for Jurisdictional Discovery

or Cross Motion to Transfer

Ching argues that since the Court lacks personal

jurisdiction over him, Plaintiffs’ claims against Ching must be

dismissed pursuant to Rule 12(b)(2). Ching argues he resides in

Pennsylvania, works in Pennsylvania, and the activities that

gave rise to Plaintiffs’ claims occurred in Pennsylvania. Ching

MTD, [Dkt. No. 87], at 14-16; Declaration of Kevin Ching, [Dkt.

No. 87-1], at ¶¶ 1-6. Ching further avers that he has no: (1)

“continu[ous] contact with New Jersey,” (2) “property or assets

located in New Jersey,” (3) “interaction[s] with the State of

New Jersey,” (4) activities “otherwise engaging with New

Jersey,” and (5) he “has done absolutely nothing which could be

considered availing himself of New Jersey.” Id. at ¶¶ 3-4;

Ching MTD, [Dkt. No. 87], at 15.

Ching notes the only connection this matter has to New

Jersey is the fact that Plaintiff Sciore was, until recently, a

New Jersey citizen, and, until this lawsuit, Ching lacked any

knowledge of how dining at Ardiente could possibly implicate New

Jersey.11 Id.; Amended Complaint, [Dkt. No. 55], at ¶ 5. Ching

claims that because he lacks any contacts with New Jersey he

would have no expectation of being brought before a New Jersey

court “for visiting and allegedly reviewing a restaurant that

was located in Pennsylvania.” Id. at 16. Accordingly, Ching

argues the Court lacks both specific and general jurisdiction,

making dismissal appropriate because the Court lacks personal

11 Sciore has since moved to Florida and claims citizenship of

that state. Proposed Second Amended Complaint, [Dkt. No. 127-

2], at ¶ 5.

jurisdiction over him. In response, Plaintiffs argue there is

specific jurisdiction but admit there is no general

jurisdiction. Ching Opp. Br., [Dkt. No. 98-6], at 2.

Jurisdiction, therefore, turns on whether the Court has

specific jurisdiction over Ching. In cases of intentional

torts, the court may exercise personal jurisdiction when the

Calder test is satisfied. Calder v. Jones, 465 U.S 783 (1984);12

see also Marten v. Godwin, 499 F.3d 290, 297 (3d Cir. 2007).

Defendants who satisfy the Calder test do not have to satisfy

the elements of the traditional test of personal jurisdiction.

See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 265 (3d Cir.

12 In Calder, petitioners, both Florida residents, wrote a

libelous article about a California resident, causing harm to

her reputation in California. “The article was drawn from

California sources, and the brunt of the harm, in terms both of

respondent's emotional distress and the injury to her

professional reputation, was suffered in California.” Calder,

465 U.S. at 788–89. In fact, petitioners' “intentional, and

allegedly tortious, actions were expressly aimed at California.”

Id. at 789. The Court thus found that petitioners wrote an

article knowing its “potentially devastating impact upon

respondent” in California. Id. “In sum, California [wa]s the

focal point both of the story and of the harm suffered.” Id. at

789. Accordingly, the Supreme Court in Calder held that

jurisdiction was proper “because of the[ ] intentional conduct

in Florida [was] calculated to cause injury to respondent in

California.” Id. at 791.

A proper application of Calder supports an entirely different

outcome on this record. The so-called defamatory restaurant

review was written about a Pennsylvania restaurant, which is the

state where any alleged harm to the restaurant’s reputation

would be primarily felt. There is nothing in the record to show

New Jersey was either the focal point of the review or the place

where any harm was suffered within the meaning of Calder.

1998) (reasoning that a party that satisfied the Calder test may

avail itself of a court's personal jurisdiction even if the

party would not satisfy the traditional test); see also Marten,

499 F.3d at 297.

Under this test, a plaintiff may show specific personal

jurisdiction if he or she demonstrates: (1) the defendant

committed an intentional tort; (2) “the plaintiff felt the brunt

of the harm in the forum such that the forum can be said to be

the focal point of the harm suffered by the plaintiff as a

result of that tort”; and (3) the defendant expressly aimed his

or her tortious conduct at the forum such that the forum can be

said to be the focal point of the tortious activity. IMO

Indus., Inc., 155 F.3d at 265-66; see also Marten, 499 F.3d at

297.

Although Plaintiffs note the Calder elements are the

appropriate standard to test for personal jurisdiction, they

fail to articulate an argument as to how each element is

satisfied. Rather, Plaintiffs only address the “express aiming”

requirement, claiming Ching aimed the allegedly defamatory Ching

review at Ardiente and Ardiente’s owner, namely Sciore, a New

Jersey resident. Plaintiffs argue the Court should discredit

Ching’s claims of ignorance as to Ardiente and Sciore’s ties to

New Jersey since, as Plaintiffs aver, Sciore is publicly well-

known and there are at least two online articles available

noting Sciore as the restaurant’s owner.13 Plaintiffs thus claim

that because information about Sciore’s relation to New Jersey

was publicly available, Ching should have been more diligent

before defaming a New Jersey citizen and should thus face a New

Jersey court.

In opposition, Ching reiterates his prior arguments that

both he and the Ching review have no connection to New Jersey.

In assessing the Calder elements, Ching argues Ardiente was a

Pennsylvania restaurant and therefore Pennsylvania is the focal

point of the restaurant’s reputational interest. Any harm felt

by Ardiente from Ching’s review was thus directed at and felt in

Pennsylvania, not New Jersey – a jurisdiction implicated only by

virtue of Sciore’s domicile (who was not mentioned by name in

13 Plaintiffs did not provide the Court with copies of the

articles; therefore, the Court is unable to assess the articles’

content and supposed publication dates (which Plaintiffs claim

as occurring prior to the Ching review). Moreover, as Ching

notes, Plaintiffs fail to argue the articles mention Sciore as a

New Jersey citizen, and, according to Ching, the articles do not

in fact contain such information.

In addition to rejecting Plaintiffs’ arguments premised on the

articles, and for the sake of completeness, the Court similarly

rejects Plaintiffs’ argument that Sciore is a well-known New

Jersey citizen making the Ching review’s reference to Ardiente’s

owner an intentional attack of a New Jersey citizen meant to

harm Sciore in New Jersey. The Court rejects the argument as a

bald assertion, which is buttressed by the fact Plaintiffs

provide no factual or legal support to the claim. This is not

surprising as Plaintiffs’ also assert that “it would be

completely implausible for Plaintiff Sciore . . . to be

considered a public figure.”

the review). As the activities underling Plaintiffs’ claims

occurred in Pennsylvania, Ching claims the Court lacks personal

jurisdiction under Calder. The Court agrees with Ching.

Even assuming Plaintiffs meet the first Calder element of a

plausible claim against Ching of defamation, trade libel, and

tortious interference, see Remick v. Manfredy, 238 F.3d 248, at

258 (3d Cir. 2001) (noting that the mere allegation of

defamation satisfies the first element), Plaintiffs fail to

demonstrate the remaining two elements. Ardiente was a

Philadelphia restaurant. By definition, as a restaurant review,

the Ching review was directed at Ardiente. If Ardiente lost any

customers as a result of the Ching review, as is thinly alleged

in the complaint, said diners would have been in Philadelphia,

Pennsylvania. Thus a court in Pennsylvania, not New Jersey, has

personal jurisdiction over the claims against Ching. This is

true because personal jurisdiction is only proper if the forum

state is “the focus of the activities of the defendant out of

which the suit arises.” Marten, 499 F.3d at 298.

Beyond the obvious fact that Pennsylvania is the focal

point, there are no facts that show Ching’s review was

specifically targeted at New Jersey. Nothing is alleged in the

Amended Complaint to even suggest Ching’s review targeted Sciore

or that Ching knew Sciore to be a New Jersey citizen. Thus, the

“express aiming” argument advanced by Plaintiffs directs the

Court to dismiss for lack of jurisdiction, since the specific

facts here fail to show Ching targeted New Jersey. Id.;

Christie v. Nat’l Inst. for Newman Stud., 258 F. Supp. 3d 494,

504 (D.N.J. 2017) (“[I]n tort cases that involve ‘harmful

communications, courts have held that the ‘express aiming’

requirement of the ‘effects test’ remains satisfied when the

defendant is alleged to have engaged in wrongful conduct

targeted at a plaintiff whom the defendant knows to be a

resident of the forum state’”) (citations omitted).

At best, Plaintiffs argue that since the effect of harm was

felt by Sciore in New Jersey, then this alone is enough to

establish specific jurisdiction. However, this argument was

already considered and expressly rejected by the Third Circuit

in IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 261-63 (3d Cir.

1998). There, the Third Circuit considered Calder and various

cases from other Circuit courts, finding they “all stand for the

proposition that the mere allegation that the plaintiff feels

the effect of the defendant’s tortious conduct in the forum

because the plaintiff is located there is insufficient to

satisfy Calder.” Id. at 263. The prevailing issue throughout

this case, as in IMO Indus., Inc., is that “the plaintiffs

failed to point to other actions that adequately demonstrated

that the defendants targeted (or “expressly aimed” their conduct

at) the forum, and thereby showed that the forum was the focal

point of the tortious activity.” Id. Therefore, Plaintiffs do

not demonstrate the second and third elements of the Calder

test, and the Court cannot exercise specific jurisdiction over

Defendant Ching.

Seeming to recognize the weaknesses inherent in their

claims of specific jurisdiction over Ching, Plaintiffs make two

last-ditch requests as alternatives to dismissal of this action.

First, Plaintiffs request that the Court transfer venue to the

United States District Court for the Eastern District of

Pennsylvania, pursuant to 28 U.S.C. § 1631. Cross Motion to

Transfer, [Dkt. No. 98], at 14-16. Section 1631 authorizes a

transfer of venue for lack of personal jurisdiction, providing

that a “court shall, if it is in the interest of justice,

transfer such action or appeal to any other such court . . . in

which the action or appeal could have been brought at the time

it was filed.” 28 U.S.C. § 1631. However, dismissal in lieu of

transfer best serves “the interests of justice” where it is

clear that transfer would be “a futile waste of judicial and

party resources.” United States v. Foy, 803 F.3d 128, 136 n.7

(3d Cir. 2015); see also Qayyum v. Tillerson, 2018 WL 2095603,

at **3-4 (D.N.J. May 7, 2018).

Plaintiffs contend that Ching would be subject to personal

jurisdiction in Pennsylvania because he resides there and the

events underlying the case occurred in Philadelphia, thus there

would be no issue of personal jurisdiction. Plaintiffs also

note that transfer is in the interests of justice since

Plaintiffs timely initiated this action in New Jersey and

anything short of transfer (namely dismissal) will result in a

time bar to Plaintiffs’ ability to bring a timely suit in the

United States District Court for Eastern District of

Pennsylvania.14 In opposition, Ching argues the Court should

dismiss the case and deny the motion to transfer since “all the

claims of Plaintiffs lack merit and should be dismissed on the

merits.” Ching emphasizes that transferring to the Eastern

District of Pennsylvania will only prolong the inevitable,

namely dismissal of Plaintiffs’ frivolous claims.

The Court, again, agrees with Ching. Although, the Court

abstains from ruling on the merits of Ching’s Rule 12(b)(6)

motion as the Court lacks jurisdiction over him, the Court may

consider whether transfer would be futile. See Qayyum, 2018 WL

2095603, at **3-4. Here, transfer of this action would be

futile because the allegedly defamatory Ching review is likely

14 The Court notes that Plaintiffs filed an action in the United

States District Court for the Eastern District of Pennsylvania

against Defendants Ching and Thao Tran, “asserting similar

claims as set forth herein.” That action is entitled Sciore v.

Tran, Civil Case No. 2:21-cv-04403-MMB. The Court will not

comment on that matter any further, as resolution of that case

is left to the sound discretion of Judge Baylson. However, the

mere existence of that case calls into question Plaintiffs’

argument that dismissal will cause a time bar that unjustly

prejudices their ability to assert a claim against Ching.

to found to be nothing more than opinion - a defense that

necessitates dismissal. Id. (Ruling transfer “would clearly be

futile,” since the plaintiff’s claim fails as a matter of law,

“making any curative amendment unlikely.” The Court, further

held that “because the remaining defendants named in the

Complaint have not been served, and it is not apparent on the

face of the Complaint that personal jurisdiction exists over

those defendants in any forum to which transfer of the action

against Defendant Price would appropriate, it is likely that the

severance of the case, and the maintenance of separate

proceedings with substantially overlapping issues of law and

fact would give rise to judicial inefficiency.”).

Much of the Court’s analysis above regarding the Ly review

is applicable to the Ching review, since the Ching review’s

contents, context, and verifiability makes the statement highly

unlikely to rise to the level of defamation and thus the other

claims too are likely to fail.15 Even a cursory examination of

the Ching review evinces the futility of Plaintiffs’ claims.

For example, breaking the Ching review into its component

sentences shows:

1. Had high expectations after perusing their menu and

reading prior reviews beforehand.

15 As explained more fully above in the Court’s analysis of the

context of restaurant reviews and Yelp reviews, the context of

the Ching review, as a Yelp restaurant review, is unlikely to

support a finding of defamation.

2. However, not only was I disappointed but insulted by how

our party was treated from the owner himself.

3. Food itself was mediocre and too salty to be palatable.

4. Our first 5-6 courses of the tasting menu consisted of

underwhelming veggie or carb dishes.

5. The last two courses were supposed to be the short ribs

and Cornish hen but they ran out after serving only a few

morsels of each.

6. How this restaurant failed to prepare for this event with

a month’s notice is beyond me and will steer clear from

this place indefinitely.

Of these six sentences, numbers 1, 2, 3, 4, and 6 are

opinion. Sentence 1 concerns Ching’s opinion regarding his

“expectations” about Ardiente. Sentence 2 concerns Ching’s

opinion about his experience dining at Ardiente, expressing his

feelings of disappointment and insult. Likewise, Sentence 3

concerns Ching’s opinion about the poor quality of food,

remaking it was “mediocre and too salty to be palatable.”

Sentence 4 addresses the food’s quality, remarking the courses

were “underwhelming veggie or carb dishes.” Sentence 6

expresses a rhetorical question, again demonstrating Ching’s

frustration with the dining experience.16 Not one of these

16 Ching’s phrase, “How this restaurant failed to prepare for

this event with a month’s notice is beyond me” is not defamatory

because it is an opinion premised upon the earlier sentence that

Ardiente ran out of short ribs and Cornish hens. See Kotlikoff,

89 N.J. at 72-73 (holding a defendant will not be held liable

for an opinion that is “accompanied by its underlying

nondefamatory factual basis”). Although Plaintiffs counter that

statements, taken on their own, expresses a factual statement

that can be objectively verified. Rather, these are all

subjective opinions expressing Ching’s belief that the food,

service, and dining experience overall were bad quality. Absent

verifiable facts, a reviewing court would find Ching’s review as

an expression of his subjective opinion, albeit with some

hyperbolic language, as in the phrase “too salty to be

palatable.”

sentence 6 contains statements of fact that are objectively

verifiable, this Court is unpersuaded. Instead, a transferee

court would likely determine that the statement includes

language that is ostensibly hyperbolic (of course Ching is not

claiming the restaurant totally failed to prepare), and, when

read in full context with the other sentences as a restaurant

review posted on Yelp, an ordinary reader would understand that

the sentence means Ching opined that the restaurant did not

prepare enough because it did not serve enough food – which is a

subjective opinion. See Lynch, 161 N.J. at 167-68 (finding

statements to be nondefamatory if it can be construed as either

fact or opinion, which is interpreted based upon the statement’s

fair and natural meaning from a reasonable reader).

Moreover, there is nothing alleged in the Amended Complaint to

show the falsity of this statement, rendering it nondefamatory.

The Amended Complaint does not claim Plaintiffs were fully

prepared for the party, such that Ardiente ordered, prepared,

and served each diner a full portion of short rib and Cornish

hen. Further, given the passage of time between Ching’s posting

of the review on Yelp and Ardiente’s closure to the present,

Plaintiffs will likely be unable to prove the restaurant did not

run out of short ribs and Cornish hen the night of the birthday

dinner (and thus prove there was enough food and the restaurant

prepared enough for the event). Therefore, even if sentence 6

contains statements of fact, said statements are unverifiable.

See Lynch, 161 N.J. at 167.

In contrast, sentence 5 uniquely stands out as it not pure

opinion like the others. There, Ching states, “The last two

courses were supposed to be the short ribs and Cornish hen but

they ran out after serving only a few morsels of each.” Unlike

the other sentences, sentence 5 is a mixed opinion as it

contains both statements of fact and opinion. There are

arguably two statements of fact: (1) “the last two courses were

supposed to be the short ribs and Cornish hen,” and (2) “but

they ran out after serving” some short ribs and Cornish hen.

While such statements are capable of being proven true or

false, a review of the Amended Complaint fails to demonstrate

any averments of fact to undermine the validity of these facts.

Plaintiffs baldly claim “[i]t is not possible that the

allegations in the Kevin C. Defamatory Review are true.

Plaintiff Ardiente provided the services and goods for which it

was hired, namely a tasting menu for a private birthday party.

The food provided was palatable.” Amended Complaint, [Dkt. No.

55], at ¶ 81. Thus, there is nothing alleged to show the

falsity of the statement, making it nondefamatory. Even putting

aside the lapse in time and the fact that Ardiente closed months

after the review was written, a court is still unlikely to find

Plaintiffs capable of proving that the restaurant did not run

out of short ribs and Cornish hen the night of the birthday

dinner. Therefore, the phrase is an unverifiable statement of

fact that cannot constitute an actionable basis for defamation.

See Lynch, 161 N.J. at 167.

Further supporting this interpretation of sentence 5 as a

nondefamatory statement is the fact that it contains Ching’s

opinion regarding the amount and portions of short ribs and

Cornish hens served (namely, “only a few morsels of each”).

This language is ostensibly hyperbolic, and, when read in full

context as a restaurant review posted on Yelp, an ordinary

reader would likely understand that the sentence means the

restaurant did not serve enough food – which is a subjective

opinion. See Lynch, 161 N.J. at 167-68 (finding a statement to

be nondefamatory if it can be construed as either fact or

opinion, which is interpreted based upon the statement’s fair

and natural meaning from a reasonable reader). Accordingly, a

court is likely to find that the Ching review contains only

opinion, making it an inapposite basis for defamation.

Since the Ching review is not defamatory, and for the

reasons explained above regarding the Ly review, the Ching

review cannot also support an actionable claim of trade libel or

tortious interference. Transfer, therefore, is not in the

interest of justice since the claims are clearly futile.

Dismissal is the only appropriate remedy for the Court’s lack of

personal jurisdiction over Defendant Ching.

Second, Plaintiffs ask for an opportunity to conduct

jurisdictional discovery, arguing there may be a basis for

jurisdiction because there may be additional information

regarding Ching’s attempt to target Plaintiffs.17 However, to

obtain leave to conduct jurisdictional discovery, a plaintiff

must present “factual allegations that suggest ‘with reasonable

particularity’ the possible existence of the requisite contacts

between [the party] and the forum state.’” Eurofins Pharma US

Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 157 (3d Cir.

2010) (quoting Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d

446, 455 (3d Cir. 2003) (alteration in original)).

Here, Plaintiffs have not made this showing. Plaintiffs

fail to allege Ching has any contacts with New Jersey, let alone

demonstrate with particularity what limited discovery is likely

to reveal. Given Ching’s representations regarding his lack of

New Jersey contacts and based on the Court’s determination that

Plaintiffs’ tort claims regarding the Ching review are futile,

any fishing expedition into jurisdictional discovery is

frivolous. Toys “R” Us, Inc., 318 F.3d at 456 (holding that

17 Specifically, Plaintiffs seek discovery regarding “(1)

Defendant’s personal contacts in New Jersey, (2) Defendant’s

business contact in New Jersey, (3) if Defendant had

communications with anyone in [sic] about Plaintiffs, (4)

Defendant’s blog posts, websites, LinkedIn, or private and/or

direct messaging, referring to Plaintiffs or Plaintiffs [sic]

services and/or business[,] and (5) Defendant’s Internet search

history regarding Plaintiffs.”

although the plaintiff bears the burden to present facts to

support personal jurisdiction, courts “are to assist the

plaintiff by allowing jurisdictional discovery unless the

plaintiff’s claim is ‘clearly frivolous’”). Thus, the Court

will not grant Plaintiffs’ request to conduct jurisdictional

discovery.

CONCLUSION

For the foregoing reasons, Defendant Ly’s Rule 12(b)(6)

motion will be granted. Defendant Ching’s motion to dismiss

pursuant to Rule 12(b)(2) will also be granted. Plaintiffs’

cross motion to transfer their claims against Ching will be

denied.

An appropriate Order will follow.

Date: March 30, 2022 s/ Noel L. Hillman

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