Judge Robert Kugler said in Ciemniecki v. Parker McCay, 1:09-CV-06450, that he could not hold as a matter of law that the firm’s comments to police about plaintiff Sheila Ciemnicki were not “highly offensive,” the New Jersey Law Journal reports.
The case stems from an alarm activation on the third floor of the firm’s Marlton, New Jersey, offices last year. The day after the alarm was pulled, Ciemniecki was called into a conference room by the firm’s director of finance, met by two police officers who said security camera footage showed her pull the alarm, was dismissed, led away in handcuffs, charged with activating a false public alarm in violation of N.J.S.A. 2A:33-3, and subsequently released.
The firm’s surveillance cameras actually produced two videotapes – one, a series of still images captured at regular intervals, which appears to show Ciemniecki near the alarm just before it was set, and a second “continuous feed” that showed a man pulling the alarm. The firm contacted the Burlington County prosecutor’s office about the second video and took steps to say there was no substance to the charges.
Ciemnicki says her arrest was in retaliation for complaining to the firm’s human resources director about getting a small raise and for arguing with her supervisor about her work schedule.
Parker McCay argued that Ciemnicki’s defamation claim was not pleaded with sufficient specificity, that absolute and qualified privilege attach to the alleged defamatory statement, that the statement is not defamatory, and that the complaint does not allege actual malice. Counsel for Parker McCay maintained that Ciemnicki was subject to the heightened New Jersey pleading standard for a libel action.
However, Kugler found the pleading standard for the circumstances was articulated by Rule 8(a) of the Federal Rules of Civil Procedure, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Kugler wrote: “Despite their protestations to the contrary, the Parker McCay defendants are on notice of what Ms. Ciemniecki believes Mr. DiSanto said about her to the police (that she committed the crime of falsely pulling a fire alarm), and why she believes Mr. DiSanto bears fault for allegedly having made it (because Mr. DiSanto either lied to the police to frame Ms. Ciemniecki or purposefully ignored the videotape evidence exonerating her for a similar reason).”
Kugler also said Ciemniecki’s statements that she was falsely implicated in retaliation, if believed, “are sufficient to support to a finding that the qualified privilege does not apply (because Mr. DiSanto did not accuse Ms. Ciemniecki in good faith and with the purpose of helping solve crime) or that the privilege had been abused (because Mr. DiSanto knew the accusation to be false),” according to the news report.
Kugler also rejected Parker McCay’s assertion that absolute privilege applies to statements made to a police officer for the purpose of bringing a criminal to justice, citing case law in which the state Supreme Court declined to offer such immunity.