Avraham v. Golden

CARLY AVRAHAM and JENNY SORENSEN, Plaintiffs, v. SPENCER GOLDEN a/k/a PETER CALDERON and SARAH MCCLATCHY, Defendants

Case No: 18-11795 (SDW) (JAD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

May 7, 2020

NOT FOR PUBLICATION

OPINION

WIGENTON, District Judge.

Before this Court are Defendants Spencer Golden's ("Golden") and Sarah McClatchy's ("McClatchy," collectively, "Defendants") Motions to Dismiss Plaintiffs Carly Avraham ("Avraham") and Jenny Sorensen's ("Sorensen," collectively, "Plaintiffs") Amended Complaint. Golden moves to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(2), (5), and (6), and McClatchy moves to dismiss pursuant to Rule 12(b)(1). (D.E. 86, 87.) Subject matter jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1332, and 1367. This opinion is issued without oral argument pursuant to Rule 78. For the reasons stated below, Golden's motion is GRANTED in part and DENIED in part and McClatchy's motion is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY¹

Jenny Sorensen and Spencer Golden began dating around November 2013 and in June 2014, moved into a Fort Lauderdale, Florida, condominium ("Condo") together. (D.E. 49 ¶¶ 17-23.) To purchase the Condo, they formed JS Global, Inc. ("JS Global"), incorporated in Florida, for which they hold equal shares under a shareholder agreement, entered on May 22, 2014 ("JS Global Agreement"). (Id. ¶¶ 22, 152-53.) After moving in, Golden became abusive and controlling, physically and sexually assaulting Sorensen multiple times. (Id. ¶¶ 106-114.)

In May 2015, Sorensen developed a social relationship with Carly Avraham, an MRI/CT Technologist. (Id. ¶¶ 24-26.) While Avraham was visiting Sorensen at the Condo on July 8, 2015, Golden physically attacked both, an act prompted by an argument between Golden and Sorensen several days earlier. (Id. ¶¶ 27-31.) Soon after, Sorensen asked Golden to move out of the Condo and began a romantic relationship with Avraham. (Id. ¶¶ 36-37.)

In the following months, Golden sent Sorensen and Avraham lewd, disparaging, and threatening texts, including insulting Avraham's Jewish ethnicity and her sexual orientation, and threatening to ruin Avraham's career. (Id. ¶¶ 34, 38-39, 41, 115.) In October 2015, in an effort to stop Golden, Sorensen visited him in New York, but there, he "enabled her drug and alcohol addictions" and stole her phone to control her Facebook and email. (Id. ¶¶ 116-19, 127-28.)

In November 2015, Golden created and distributed fliers falsely stating that Avraham was under investigation for Health Insurance Portability and Accountability Act ("HIPAA") violations, and used a picture of Avraham taken from her Facebook page ("Facebook Picture"). (Id. ¶¶ 44-46.) Around this time, Golden also sent a letter to Avraham's employer accusing her of misconduct, caused Google searches of her name to result in false information about her, and contacted members of her family accusing her of crimes and outing her sexual orientation. (Id. ¶¶ 48-49, 61-75.) Avraham was ultimately terminated from her job. (Id. ¶¶ 52.)

Around May 2016, Plaintiffs moved to New Jersey, and Avraham started working at St. Clare's Hospital ("St. Clare's") in October 2016. (Id. ¶¶ 77, 88.) There, on June 28, 2017,Avraham was to administer a CT scan with a colleague for Sarah McClatchy. (Id. ¶¶ 90-91.) As part of the procedure, Avraham and her colleague left the procedure room, but upon returning, Avraham found that McClatchy had unexpectedly left. (Id. ¶¶ 92-95.) Around August 2017, Defendants posted a review on Google ("August Review") falsely writing that Avraham "touched me in an inappropriate manner and hit on me." (Id. ¶¶ 97-99.) On August 11, 2017, Avraham was terminated from St. Clare's due to a complaint of "unprofessional behavior . . . during an exam." (Id. ¶ 96.) Golden compensated or encouraged McClatchy's conduct. (Id. ¶ 105.)

Golden continued to "regularly post[] invasive and injurious material" about Avraham online and added her email to distributions for pornographic materials. (Id. ¶¶ 135-39.) He also continued to post the Facebook Picture, including on October 10, 2018, after Avraham had registered a copyright for it, with an effective date of June 5, 2018. (Id. ¶¶ 137-38, 160.) Golden also responded to Sorensen in an email on March 7, 2018 by threatening Avraham, and sent Sorensen another email, on March 5, 2019, threatening her. (Id. ¶¶ 134, 144.) On March 6, 2019, Sorensen received a temporary restraining order in the Superior Court of New Jersey, Family Part ("Superior Court") against Golden. (Id. ¶¶ 144-48.) On May 8, 2019, the Superior Court declined to enter a final restraining order against Golden. (D.E. 86-2 at 185:4-12, 188:1-7.)

During this time, Golden had been renting out the Condo without compensating Sorensen, and in February 2019, he listed the Condo for sale without Sorensen's approval. (D.E. 49 ¶¶ 156-57.) Per the JS Global Agreement, JS Global would not "sell, lease, exchange or dispose of any of [JS Global's] assets," over $5,000, without "prior written approval of all the Shareholders." (Id. ¶ 154.) As of the filing of the Amended Complaint, the Condo's sale was pending. (Id. ¶ 157.)

Avraham filed the first Complaint before this Court on July 18, 2018 ("Original Complaint"). (D.E. 1.) Thereafter the parties briefed motions for default judgment and to vacatedefault, and the Court vacated the default. (D.E. 12, 24, 25, 34.)² Golden then filed a motion to dismiss on March 12, 2019, pursuant to Rules 12(b)(5) and (6). (D.E. 37.) In response, Avraham filed the Amended Complaint, adding Sorensen as a plaintiff and making new factual assertions and claims. (D.E. 49.) Defendants moved to dismiss on April 30, 2019 (D.E. 57, 58),³ and after a couple rounds of withdrawing and refiling their motions (D.E. 70, 81), both Defendants filed the instant motions to dismiss on November 22, 2019, and they were timely briefed. (D.E. 86-91.)

II. LEGAL STANDARDS

A motion to dismiss under Rule 12(b)(1) may present either a facial or factual attack to a court's subject matter jurisdiction. "A facial attack 'contests the sufficiency of the complaint because of a defect on its face,' whereas a factual attack 'asserts that the factual underpinnings of the basis for jurisdiction fail to comport with the jurisdictional prerequisites.'" Halabi v. Fed. Nat'l Mortg. Ass'n, Civ. No. 17-1712, 2018 WL 706483, at *2 (D.N.J. Feb. 5, 2018) (internal citations omitted). When reviewing facial attacks, "the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014) (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In contrast, with a factual attack, "a court may weigh and 'consider evidence outside the pleadings.'" Id. (citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)).

A defendant may move to dismiss a complaint for lack of personal jurisdiction under Rule 12(b)(2). Rule 4(e) authorizes federal courts to exercise "personal jurisdiction over non-resident defendants to the extent permissible under the law of the state where the district court sits."Pennzoil Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir.1998) (internal citations omitted). "New Jersey's long-arm statute provides for jurisdiction coextensive with the due process requirements of the United States Constitution." Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004) (citing N.J. Ct. R. 4:4-4(c)). In the context of a Rule 12(b)(2) motion to dismiss, "when the court does not hold an evidentiary hearing . . . the plaintiff need only establish a prima facie case of personal jurisdiction and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its favor." Miller Yacht Sales, Inc., 384 F.3d at 97.

Rule 12(b)(5) allows a district court to dismiss a case for insufficient service of process. "The party asserting the validity of service bears the burden of proof," Grand Entm't Grp. v. Star Media Sales, 988 F.2d 476, 488 (3d Cir. 1993), and district courts have "'broad discretion' when assessing" these motions. Wahab v. New Jersey Dep't of Envt'l. Prot., Civ. No. 12-6613, 2017 WL 4790387, at *5 (D.N.J. Oct. 24, 2017) (citing Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992)). "Where a plaintiff acts in good faith," but service was improper, "courts are reluctant to dismiss an action," and will instead "elect to quash service and grant plaintiff additional time to properly serve the defendant." Id. (internal citations omitted).

A defendant may also move to dismiss a complaint for failing to state a claim under Rule 12(b)(6). An adequate complaint must be "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

In considering a motion to dismiss under Rule 12(b)(6), a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 231 (external citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S....