MICHAEL J. MANDELBAUM VS. JACK ARSENEAULTÂ (L-0927-15, SOMERSET COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1042-15T4
    MICHAEL J. MANDELBAUM,
    Plaintiff-Appellant,
    v.
    JACK ARSENEAULT,
    Defendant-Respondent.
    ________________________________
    Argued December 20, 2016 – Decided September 28, 2017
    Before Judges Ostrer and Leone.
    On appeal from Superior Court of New Jersey,
    Law Division, Somerset County, Docket No. L-
    0927-15.
    Joel M. Silverstein argued the cause for
    appellant (Stern & Kilcullen, LLC, attorneys;
    Mr. Silverstein and Michael Dinger, on the
    briefs).
    Nace Naumoski argued the cause for respondent
    (Stewart Bernstiel Rebar & Smith, attorneys;
    Cathleen   Kelly  Rebar,   of  counsel;   Mr.
    Naumoski, on the brief).
    PER CURIAM
    This case arises out of the divorce of plaintiff Michael J.
    Mandelbaum and Debra A. Mandelbaum.                 One of Debra's lawyers,
    defendant Jack Arseneault, sent filings in the divorce litigation
    to The Wall Street Journal (WSJ), resulting in their widespread
    publication.    Michael sued Arseneault for abuse of process (count
    one), libel (count two), invasion of privacy — false light (count
    three), invasion of privacy — public disclosure of private facts
    (count four), and civil conspiracy (count five).   Michael appeals
    an October 30, 2015 order granting Arseneault's motion to dismiss
    Michael's complaint without prejudice for failure to state a claim,
    and granting his motion to strike paragraphs 4-12, 29, 41, and 52
    of the complaint.    We affirm the dismissal without prejudice of
    count one, reverse the dismissal of counts two through five, and
    reverse the striking of the paragraphs.
    I.
    "Because this appeal comes to us on a Rule 4:6-2(e) motion
    to dismiss, we accept as true all factual assertions in the
    complaint."    Smith v. SBC Communs., Inc., 
    178 N.J. 265
    , 268-69
    (2004).      Thus, the following facts are drawn from    Michael's
    complaint.
    The complaint's paragraphs 4-12 alleged as follows.      Debra
    secretly decided to divorce Michael to claim as much of Michael's
    family's money as possible.      In preparation, she attempted to
    obtain and hide assets; opened secret personal safe deposit boxes;
    tried to taunt him to hit her by hitting him in the groin and by
    2                         A-1042-15T4
    initiating verbal altercations; and falsely told others he abused
    her.    On December 17, 2013, Debra removed expensive jewelry from
    their house and hid it in her personal safe deposit box.   The next
    day, Michael discovered she removed the jewelry and insisted they
    go to the bank the morning of December 19 to retrieve it.        They
    argued.    Later, Debra researched post-concussion syndrome, and
    arranged for their older son to take their youngest child to school
    so she and Michael would be alone in the house before the bank
    opened on December 19.
    On the morning of December 19, Michael and Debra argued. When
    Michael tried to walk away, Debra hit, grabbed and blocked him,
    and confronted him in the hallway.      "There, Debra stepped away
    from Michael, gave him a strange look as she continued backwards
    toward the staircase landing, and slid down the stairs feet-first
    on her stomach, mocking him with facial gestures as she began her
    slide down the stairs."
    Michael immediately attended to Debra, called a doctor, and
    later called 911.    After the police arrived, Debra lied to police
    that Michael had "grabbed her and pushed her, causing her to lose
    her balance and fall down the stairs."    Michael was arrested.
    When Debra was taken to the hospital, she lied to a police
    officer that Michael abused her for years.    She also lied that he
    "advanced toward her in a threatening manner and grabbed her upper
    3                          A-1042-15T4
    arms," that she fell down the stairs "as she began to back away
    from Michael, in an attempt to free herself," and that while he
    "didn't specifically push her down the stairs[,] she would not
    have fallen if she wasn't afraid of what he was going to do as he
    grabbed her arms and threatened to kill her."
    While   at   the   hospital,   Debra   telephonically   completed   a
    domestic violence complaint upon which a municipal court judge
    relied in issuing a temporary restraining order (TRO).          She lied
    to the judge that Michael "was pushing and shoving and screaming,"
    that she stepped back from his aggressiveness, "lost [her] balance
    and fell down the stairs."          She stated that Michael "did not
    physically have his hands on my body and push me but he kept . . .
    grabbing me and pushing me and, . . . taking threatening steps,"
    "grabbing me on my arms," face, and shoulders and "stepp[ing]
    towards me with his hands outstretched."
    By December 25, Debra contradicted those false allegations.
    She admitted to her sister-in-law that "Michael did not push her
    or lay a hand on her," and that she fell down the stairs because
    she "slipped or lost her balance."          Debra told a contractor that
    "Michael did not lay a hand on me."          Debra told another sister-
    in-law that Michael did not push her down the stairs. Nonetheless,
    on January 6, 2014, the Prosecutor's Office filed a criminal
    4                           A-1042-15T4
    complaint-arrest warrant charging Michael with aggravated assault,
    N.J.S.A. 2C:12-1(b)(7).
    Since December 21, 2013, Arseneault served as Debra's co-
    counsel in the divorce case and represented Debra in the criminal
    case.   By January 9, 2014, he knew Michael's arrest, the TRO, and
    the criminal complaint-arrest warrant (collectively the "Process")
    were based on Debra's accusations "she had fallen down the stairs
    as a result of Michael pushing, shoving, and grabbing her, and
    that those accusations were false."         In a January 9 email to
    Michael's counsel, Arseneault acknowledged Debra's admission "that
    her husband did not push her down the stairs."
    Nonetheless, Arseneault conspired with Debra to exploit her
    false allegations and abuse the Process as leverage to extort a
    settlement from Michael and his family that was larger than she
    legally deserved in the divorce case.       The complaint's paragraph
    29 alleged Arseneault's compensation included a percentage of any
    settlement Debra received in the divorce case.
    Arseneault   also   used   Debra's   false   allegations   and   the
    resulting Process to coerce Michael into signing a January 23,
    2014 consent order in which Debra agreed to dismiss the TRO and
    Michael agreed to pay her $25,000 per month plus household and
    transportation expenses and $140,000 in legal and other costs.
    5                             A-1042-15T4
    When   Michael   moved   to   dismiss     the   divorce   complaint,
    Arseneault included in the June 12, 2014 opposition papers a
    certification by Debra, in which she resurrected her false and
    abandoned allegation that Michael pushed, shoved, and grabbed her,
    causing her to fall down the stairs.             Arseneault also included
    exhibits, including the police officer's probable-cause affidavit
    repeating that allegation and describing Michael's arrest, and a
    joint tax return of Debra and Michael in which Michael's social
    security number was unredacted.
    The complaint's paragraph 41 alleged that in an August 6,
    2014   letter,   Arseneault     threatened   a   "public   undressing"     of
    Michael and his family if he did not accede to Debra's monetary
    demands.
    In September 2014, Arseneault followed through on that threat
    by contacting the WSJ and providing it with certain filings in the
    divorce case, including Debra's certification and the exhibits
    stating Michael had "grabbed and pushed her, causing her to lose
    her balance and fall." Although Arseneault knew Debra's accusation
    was false, he decided not to advise the WSJ's reporter.1
    1
    The parties have supplied us with Debra's certification and over
    200 pages of exhibits Arseneault admittedly supplied to the WSJ,
    but have not supplied us with the WSJ's resulting article.
    6                              A-1042-15T4
    As a result, the WSJ published an online article which quoted
    Debra's false accusation and provided electronic links to Debra's
    certification and the exhibits.   The article stated that Michael,
    son of a part owner of the Minnesota Vikings, had been charged
    with aggravated assault and that Debra had obtained a TRO.
    The WSJ story was picked up by numerous other publications,
    including Sports Illustrated, the New York Post, The Star-Ledger,
    and online sites, each of which reported that Michael pushed Debra
    down the stairs.     That resulted in a "firestorm of negative
    publicity" for Michael and his family, death threats to Michael,
    and harassing phone calls to his father.
    The complaint's paragraph 52 alleged that in early 2014,
    Michael asserted that Debra failed to pay certain expenses that
    were her responsibility under the consent order.   Michael proposed
    that he reduce his next $25,000 monthly payment accordingly.
    In a December 14, 2014 letter, Debra's other divorce counsel
    responded by threatening that if Michael "withholds so much as one
    dollar from [Debra's] monthly support payments," he would be
    "publicly disgraced once again." The other counsel was "instructed
    to so respond by Arseneault and/or his co-conspirator, Debra."
    Michael filed a complaint against Arseneault in the Law
    Division.   Arseneault successfully moved to dismiss the complaint
    7                          A-1042-15T4
    under Rule 4:6-2(e), and to strike the above-mentioned paragraphs
    of the complaint under Rule 4:6-4(b).              Michael appeals.
    II.
    We first review the motion court's grant of Arseneault's
    motion to strike.          Rule 4:6-4(b) permits a court to dismiss a
    pleading that is "scandalous, impertinent, or . . . abusive," or
    to strike any part of a pleading "that is immaterial or redundant."
    The rule is similar to Fed. R. Civ. P. 12(f), which permits federal
    courts   to   strike   "any     redundant,      immaterial,    impertinent,      or
    scandalous matter."          Under that rule, the federal courts review
    orders on motions to strike "for an abuse of discretion."                     See,
    e.g., Operating Eng'rs Local 324 Health Care Plan v. G&W Constr.
    Co., 
    783 F.3d 1045
    , 1050 (6th Cir. 2015); United States v. Coney,
    
    689 F.3d 365
    , 379 (5th Cir. 2012).                 We will hew to the same
    standard of review.
    The motion court ruled the complaint's paragraphs 4-12, 29,
    41, and 52 were "not relevant to the underlying claims.                 Moreover,
    the   court   does     not    recognize       events   prior   to     defendant's
    involvement    in    the   matter,   or       Defendant's   alleged    motive    as
    sufficiently related to those claims being asserted here."                 To the
    contrary, as set forth above, those paragraphs were relevant
    because the facts alleged were "of consequence to the determination
    of the action."      See N.J.R.E. 401.
    8                               A-1042-15T4
    Paragraphs   4-12     alleged    how    and     why    Arseneault's   co-
    conspirator Debra prepared to stage her fall down the stairs.                The
    complaint claims Arseneault intentionally misrepresented why Debra
    fell,    making   relevant    Debra's       "motive,    opportunity,    intent,
    preparation[ and] plan."        See N.J.R.E. 404(b); see also State v.
    Louf, 
    64 N.J. 172
    , 177 (1973) ("the acts and declarations of any
    of the conspirators in furtherance of the common design may be
    given in evidence against any other conspirator").
    Paragraph 29 alleged Arseneault had a financial motive to
    take these actions to maximize Debra's settlement.                    Motive is
    relevant. See State v. Calleia, 
    206 N.J. 274
    , 293 (2011). Indeed,
    "the court must look to the motivation of the attorney" to resolve
    an abuse of process claim.       LoBiondo v. Schwartz, 
    199 N.J. 62
    , 109
    (2009).
    Paragraph 41 alleged Arseneault's letter threatened a "public
    undressing" of Michael and his family shortly before Arseneault
    sent    the   certification    and   exhibits     to    the   WSJ.2    Finally,
    paragraph 52 alleged Michael's proposal that triggered a threat
    2
    Arseneault contends paragraph 41 misread his letter, which stated
    Debra had made "a good-faith effort to avoid a 'public undressing'
    of the family's assets." However, Arseneault's letter concluded
    that Michael's position "leaves her with no alternative but to"
    "air the family finances." Drawing all reasonable inferences in
    Michael's favor, the letter may be read as a threat of a "public
    undressing."
    9                               A-1042-15T4
    he would be "publicly disgraced once again," allegedly at the
    behest of conspirators Arseneault and Debra.           The facts concerning
    these threats are relevant.
    As    these    paragraphs      are    relevant,     "[t]here     is     no
    justification for striking" them.            DeGroot v. Muccio, 115 N.J.
    Super. 15, 19 (Law Div. 1971). Arseneault claims it was scandalous
    to allege he entered into a contingency fee in a family matter in
    violation of R.P.C. 1.5(d). However, "[n]o matter how the language
    may vilify defendants, it will not be 'scandalous' within the
    meaning of the cited rule unless it is irrelevant."                 
    DeGroot, supra
    , 115 N.J. Super. at 19 (citing Chew v. Eagan, 
    87 N.J. Eq. 80
    , 81-82 (Ch. 1916)); see also 
    Coney, supra
    , 689 F.3d at 380
    (holding   the   "pleadings   are   not    scandalous    because    they   are
    directly relevant").
    Accordingly,    the   motion    court    abused    its   discretion     in
    striking those paragraphs.       Thus, we consider those paragraphs in
    reviewing whether the complaint states a claim.
    III.
    We next address the motion court's dismissal of the complaint
    without prejudice for "failure to state a claim upon which relief
    can be granted."    R. 4:6-2(e).      Our Supreme Court has instructed
    trial courts "to approach with great caution applications for
    dismissal under Rule 4:6-2(e)," which "should be granted in only
    10                                A-1042-15T4
    the rarest of instances." Printing Mart-Morristown v. Sharp Elecs.
    Corp., 
    116 N.J. 739
    , 772 (1989).
    "The standard traditionally utilized by courts to determine
    whether to dismiss a pleading for failure to state a claim on
    which relief may be granted is a generous one" for plaintiffs.
    Green v. Morgan Props., 
    215 N.J. 431
    , 451 (2013).              The standard
    is "whether a cause of action is 'suggested' by the facts" alleged
    in the complaint.       Printing 
    Mart-Morristown, supra
    , 116 N.J. at
    746   (citation     omitted).    "[A]    reviewing    court   'searches    the
    complaint in depth and with liberality to ascertain whether the
    fundament of a cause of action may be gleaned even from an obscure
    statement     of    claim,   opportunity    being     given   to   amend    if
    necessary.'"       
    Ibid. (citation omitted). Our
    examination of the
    complaint should be one "that is at once painstaking and undertaken
    with a generous and hospitable approach."            
    Ibid. "We review a
    grant of a motion to dismiss a complaint for
    failure to state a cause of action de novo, applying the same
    standard under Rule 4:6-2(e) that governed the motion court."
    Wreden v. Township of Lafayette, 
    436 N.J. Super. 117
    , 124 (App.
    Div. 2014).    We address each count of the complaint in turn.
    A.
    Count one charges Arseneault with abuse of process, namely
    Michael's arrest, the criminal complaint-arrest warrant, and the
    11                               A-1042-15T4
    TRO.    We affirm the dismissal of this count on the ground that
    Arseneault did not use or threaten the use of process in a coercive
    manner as required by our precedent.
    We have defined "process" as the "procedural methods used by
    a court to 'acquire or exercise its jurisdiction over a person or
    over specific property,'" including "the 'summons, mandate, or
    writ used by a court to compel the appearance of the defendant in
    a legal action or compliance with its orders,'" as well as the
    "'arrest of the person and criminal prosecution.'"             Ruberton v.
    Gabage, 
    280 N.J. Super. 125
    , 131 (App. Div.) (citations omitted),
    certif. denied, 
    142 N.J. 451
    (1995); see Wozniak v. Pennella, 
    373 N.J. Super. 445
    , 461 (App. Div. 2004).
    "The   tort   of   malicious   abuse   of   process   lies   not   for
    commencing an improper action, but for misusing or misapplying
    process after it is issued."      Hoffman v. Asseenontv.Com, Inc., 
    404 N.J. Super. 415
    , 431 (App. Div. 2009); see Earl v. Winne, 
    14 N.J. 119
    , 128-29 (1953).        "The tort is defined in Ash v. Cohn, 
    119 N.J.L. 54
    , 58 (E. & A. 1937)."         Tedards v. Auty, 
    232 N.J. Super. 541
    , 549 (App. Div. 1989).       A plaintiff claiming malicious abuse
    of process must allege "(1) that defendants made an improper,
    illegal and perverted use of the process, i.e., a use neither
    warranted nor authorized by the process, and (2) that in use of
    12                             A-1042-15T4
    such a process there existed an ulterior motive."         
    Ash, supra
    , 119
    N.J.L. at 58.
    As the motion court stated, Michael alleged three instances
    of malicious abuse of process.        First, Michael alleged "Debra and
    Arseneault successfully used the Process – especially the Domestic
    Violence TRO and the thinly veiled threat that Debra would again
    reverse course [and] cooperate with the prosecutor . . . as
    leverage to cause Michael to enter into the Consent Order."
    Specifically, Michael cited Debra's earlier statements, to Michael
    and   their   children   that   she    was   not   cooperating   with   the
    prosecution "at this time."           Michael alleged Debra made those
    statements on Arseneault's advice.        Even if Debra's statements are
    attributed to Arseneault, they were not abuse of process.
    As the motion court recognized, "[i]n order for there to be
    'abuse' of process, . . . a party must 'use' process in some
    fashion, and that use must be 'coercive' or 'illegitimate.'"
    
    Hoffman, supra
    , 404 N.J. Super. at 431 (quoting 
    Ruberton, supra
    ,
    280 N.J. Super. at 130-31).      "There must be such use of it as in
    itself is without the scope of the process and hence improper."
    Gambocz v. Apel, 
    102 N.J. Super. 123
    , 130 (App. Div.)(quoting Earl
    v. Winne, 
    34 N.J. Super. 605
    , 614-16 (Law Div. 1955)), certif.
    denied, 
    52 N.J. 485
    (1968).      "If the process is not used at all
    no action can lie for its abuse." 
    Ruberton, supra
    , 
    280 N.J. Super. 13
                                  A-1042-15T4
    at 131 (quoting 
    Earl, supra
    , 34 N.J. Super. at 615).                    "Some
    definite act or threat not authorized by the process, or aimed at
    an objective not legitimate in the use of the process, is required;
    and there is no liability where the defendant has done nothing
    more than carry out the process to its authorized conclusion, even
    though with bad intentions."        
    Gambocz, supra
    , 102 N.J. Super. at
    128 (quoting Prosser, Law of Torts, § 115, pp. 876-77 (3d ed.
    1964)).
    Debra's statements did not mention, use, or threaten to use
    the arrest or the criminal complaint-arrest warrant.           Even if her
    statement   could   be   regarded   as   a   threat   to   "carry    out   the
    [criminal] process to its authorized conclusion," it was not abuse
    of process.   
    Ibid. Second, Michael alleged
    that Arseneault "again leverag[ed]
    the Process in a further attempt to extort from Michael and his
    family [an] outlandish settlement" when Arseneault sent the WSJ
    filings in the divorce case, in particular Debra's certification
    and the exhibits, including the TRO, the criminal complaint-arrest
    warrant, and the probable-cause affidavit describing Michael's
    arrest.   However, publicizing process is not abuse of process.
    The New Jersey cases which have found abuse of process have
    involved active use of the process "to 'acquire or exercise its
    jurisdiction over a person or over specific property.'"             Ruberton,
    14                                
    A-1042-15T4 supra
    , 280 N.J. Super. at 131; see, e.g., 
    Ash, supra
    , 119 N.J.L.
    at 55-56, 59 (finding creditors arranged for writs of execution
    to be returned unsatisfied to set up a debtor's arrest and coerce
    payment of a debt); 
    Wozniak, supra
    , 373 N.J. Super. at 461-62
    (finding a landlord filed a criminal complaint, leading to a
    tenant's booking under threat of arrest, to get the tenants to
    dismiss a civil complaint); 
    Tedards, supra
    , 232 N.J. Super. at
    543-44, 548-49 (finding wife's attorney misused a writ of ne exeat
    by threatening to arrest the husband to coerce payment of a debt);
    see also Restatement (Second) of Torts, § 682 cmt. a, illus. 1-3
    (1977).   "There must be an unlawful interference with the person
    or property under color of process."   
    Earl, supra
    , 34 N.J. Super.
    at 615.   No New Jersey case has found publicizing process is abuse
    of process.
    Michael cites a trial court decision from New York holding:
    Threats to give wide publicity to the contents
    of a complaint, in order to coerce and extort
    payments from the defendant in the action,
    motivated by a desire to escape adverse
    publicity, and the consummation of such
    threats do not constitute a legitimate and
    proper use of the process of the court.
    [Cardy v. Maxwell, 
    169 N.Y.S.2d 547
    , 550 (Sup.
    Ct. 1957).]
    However, New York's highest court later held a similar claim
    — that a lawsuit "was totally without basis in fact and was begun
    15                          A-1042-15T4
    solely for the purpose of ruining his business reputation by
    widespread publication of the complaint" — did "not state a cause
    of action for abuse of process."           Williams v. Williams, 
    246 N.E.2d 333
    , 335 (N.Y. 1969).       The high court ruled "there must be an
    unlawful interference with one's person or property under color
    of process in order that action for abuse of process may lie."
    
    Ibid. As "it is
    unclear what strength Cardy v. Maxwell carries"
    in New York, we decline to follow it.            Chrysler Corp. v. Fedders
    Corp., 
    540 F. Supp. 706
    , 729 (S.D.N.Y. 1982) (declining to follow
    Cardy); see Holiday Magic, Inc. v. Scott, 
    282 N.E.2d 452
    , 457
    (Ill. App. Ct. 1972) (same; "Cardy is actually a legal anomaly").
    Third, Michael alleged Arseneault "and/or" Debra instructed
    her other divorce counsel to threaten Michael that he would be
    "publicly disgraced once again," with the intent "to abuse and
    leverage   the   Process   to   (a)   coerce     Michael   to   refrain   from
    enforcing his rights under the terms of the Consent Order, and (b)
    thereby continue exacting [excessive] payments from Michael."
    Again, this alleged threat did not mention any Process, instead
    threatening publicity.      That was inadequate to allege abuse of
    process, even if it was done to prompt a civil settlement.                 See
    
    Ruberton, supra
    , 280 N.J. Super. at 130-31.
    Michael notes that, in some circumstances, "it is what is
    done in the course of negotiation, rather than the issuance or any
    16                              A-1042-15T4
    formal use of the process itself, which constitutes the tort."
    
    Gambocz, supra
    , 102 N.J. Super. at 128 (quoting 
    Prosser, supra
    ).
    We   agree    "maliciously   threatening       [misuse   of]   process    in    an
    existing case could be as unfairly coercive as abusing process in
    some more direct way."           
    Hoffman, supra
    , 404 N.J. Super. at 432.
    However, "[s]ome definite act or threat not authorized by the
    process, or aimed at an objective not legitimate in the use of the
    process, is required."           
    Gambocz, supra
    , 102 N.J. Super. at 128
    (quoting 
    Prosser, supra
    ).          Here, the other counsel's letter, like
    Arseneault's previous "public undressing" letter, made no definite
    threat the Process would be actively misused.                  See Baglini v.
    Lauletta, 
    338 N.J. Super. 282
    , 296-97 (App. Div. 2001).
    Thus, we affirm the motion court's dismissal of count one for
    failure to state a claim for malicious abuse of process against
    Arseneault.     However, we do not agree with the court's assertions
    that   "the   claim    exists     almost    entirely   against   Debra,"     that
    Arseneault's alleged actions were "proper," "consistent with his
    responsibilities as Debra's attorney," and "taken in the normal
    course   of    his    duties,"    or   that   he   "acted   appropriately       in
    representing his client."         The complaint alleged Arseneault acted,
    knowing the Process was based on false statements, for the ulterior
    motive of extorting money from Michael and his family.               Although
    the complaint did not adequately allege the actions were an abuse
    17                                A-1042-15T4
    of process, they "may have been otherwise tortious or violated
    ethical standards."    
    Ruberton, supra
    , 280 N.J. Super. at 132.
    B.
    Count two charges Arseneault with libel by providing the WSJ
    with the false statements in Debra's certification and the exhibits
    that "(1) Michael had pushed, shoved, and grabbed her, causing her
    to fall down the stairs and (2) Michael had thereby committed a
    'felony,' 'an aggravated assault,' or other crime."
    "'[L]ibel is defamation by written or printed words.'" W.J.A.
    v. D.A., 
    210 N.J. 229
    , 238 (2012) (citation omitted).         "[T]he
    elements of the cause of action for defamation [are] '(1) the
    assertion of a false and defamatory statement concerning another;
    (2) the unprivileged publication of that statement to a third
    party; and (3) fault amounting at least to negligence by the
    publisher.'"    Leang v. Jersey City Bd. of Educ., 
    198 N.J. 557
    , 585
    (2009) (citation omitted).
    The motion court dismissed Michael's libel claim because of
    his "inability to demonstrate fault."      However, on a motion to
    dismiss under Rule 4:6-2(e), "the [c]ourt is not concerned with
    the ability of plaintiffs to prove the allegation contained in the
    complaint[.]"   
    Green, supra
    , 215 N.J. at 452.   Michael's complaint
    adequately alleged that "Arseneault made and published each of
    these written accusations and statements against Michael with
    18                          A-1042-15T4
    actual knowledge that they were false, with reckless disregard of
    their falsity, or with negligence in failing to ascertain the
    falsity of the statement before communicating it."
    The motion court found Arseneault "had no reason not to
    believe the sworn affidavit of a Police Officer, or numerous other
    sworn   certifications    that     formed      the   basis   of     his   belief."
    However, the complaint did not concede Arseneault believed Debra's
    statements were true.
    To the contrary, the complaint alleged "Arseneault was aware
    that Debra's accusations against Michael set forth in . . . Debra's
    Certification   were     false."         The    complaint    further       alleged
    "Arseneault knew that Michael's arrest and the issuance of the
    criminal complaint-arrest warrant and of the Domestic Violence TRO
    were based on Debra's accusations that she had fallen down the
    stairs as a result of Michael pushing, shoving, and grabbing her,
    and that those allegations were false."               The complaint alleged
    Arseneault    was   aware        Debra      repeatedly       made     admissions
    contradicting her accusations, but sent her contrary accusations
    to the WSJ without advising the WSJ of her admissions.
    The motion court erred in finding facts contrary to the
    complaint's allegations. On a motion for failure to state a claim,
    the "inquiry is limited to examining the legal sufficiency of the
    facts alleged on the face of the complaint."                      Printing Mart-
    19                                    A-1042-15T4
    Morristown, 
    supra, 116 N.J. at 746
    .        The court was required to
    "'accept as true the facts alleged in the complaint.'"         Maeker v.
    Ross, 
    219 N.J. 565
    , 569 (2014) (citation omitted).
    The   motion     court   further   found   Arseneault's   supposed
    "reliance on sworn affidavits was reasonable."        The court noted
    the "New Jersey Disciplinary Rules of Conduct permit a lawyer who
    is participating in the litigation of a matter to state information
    contained in a public record unless the lawyer knows, or reasonably
    should know his statement will likely materially prejudice the
    proceeding," citing R.P.C. 3.6(a), (b)(2).      However, the complaint
    alleged Arseneault knew the information in Debra's certifications
    and the exhibits was false.
    Nothing in the Rules of Professional Conduct states that it
    is ethical for a lawyer to publicize as true statements the lawyer
    knows to be false.3    Indeed, the ethical rules "include reasonable
    restrictions upon [attorneys'] extrajudicial speech to discourage
    and prevent extraneous matters from being insinuated" which "could
    3
    Under the Rules, lawyers may not knowingly "offer evidence that
    the lawyer knows to be false," R.P.C. 3.3(a)(4), or "counsel or
    assist a witness to testify falsely," R.P.C. 3.4(b). Moreover,
    lawyers may not knowingly "(1) make a false statement of material
    fact or law to a third person; or (2) fail to disclose a material
    fact to a third person when disclosure is necessary to avoid
    assisting a criminal or fraudulent act by a client."       R.P.C.
    4.1(a).
    20                            A-1042-15T4
    divert the search for truth."   In re Hinds, 
    90 N.J. 604
    , 625 (1982)
    (discussing R.P.C. 3.6's predecessor, D.R. 7-107).
    In any event, R.P.C. 3.6 is no defense to tortious conduct.
    Nor was Michael required "to make out a violation of the New Jersey
    Disciplinary Rules of Professional Conduct," as the motion court
    stated.    Like the ABA model rules, New Jersey's ethical "[r]ules
    are designed to provide guidance to lawyers and to provide a
    structure for regulating conduct through disciplinary agencies.
    They are not designed to be a basis for civil liability."        Baxt
    v. Liloia, 
    155 N.J. 190
    , 197 (1998) (quoting Model Rules of
    Professional Conduct, Scope (Am. Bar Ass'n 1992)).       Similarly,
    "state disciplinary codes are not designed to establish standards
    for civil liability."    
    Id. at 202.
    Arseneault argues Debra's statements in the documents he
    submitted with his motion to dismiss establish her accusations
    were true.    "In evaluating motions to dismiss, courts consider
    'allegations in the complaint, exhibits attached to the complaint,
    matters of public record, and documents that form the basis of a
    claim.'"   Banco Popular N. Am. v. Gandi, 
    184 N.J. 161
    , 183 (2005)
    (citation omitted).     Arseneault cites Debra's certification, the
    officer's probable cause affidavit, and the TRO transcript, which
    were all referenced in the complaint as bases for Michael's claim.
    "[A] court may consider documents specifically referenced in the
    21                          A-1042-15T4
    complaint 'without converting the motion into one for summary
    judgment.'"    Myska v. N.J. Mfrs. Ins. Co., 
    440 N.J. Super. 458
    ,
    482 (App. Div. 2015) (citation omitted), appeal dismissed, 
    224 N.J. 523
    (2016).
    However, the complaint alleged Debra's statements in those
    documents were false. In the TRO transcript, Debra claimed Michael
    "was pushing and shoving," "grabbing me and pushing me," and
    physically "grabbing me on my arms," face, and shoulders, causing
    her to lose her balance and fall.    The probable-cause affidavit
    related Debra's statements that Michael "grabbed and pushed her,
    causing her to lose her balance and fall down the stairs."   Debra's
    certification said Michael "physically pushed and shoved me,"
    "continued to grab my arms and shake and shove me, causing me to
    lose my balance" and fall.
    Arseneault argues Debra's statements in the documents were
    consistent with her later "admissions" that Michael did not push
    her or lay a hand on her.    To the contrary, a fact finder could
    find Debra's accusations in the documents were inconsistent with
    her later admissions, and were thus "'false and defamatory.'"
    
    Leang, supra
    , 198 N.J. at 585 (citation omitted).      On a motion
    under Rule 4:6-2(e), Michael is "entitled to every reasonable
    inference of fact."   Printing 
    Mart-Morristown, supra
    , 116 N.J. at
    746.
    22                           A-1042-15T4
    We reject the motion court's reasoning for dismissing the
    libel claim raised in count two, and reverse.              The court also
    dismissed counts three and four            primarily based on the same
    reasoning.    We similarly reject that reasoning as to counts three
    and four, and now consider the court's secondary reasons for
    dismissing those counts.
    C.
    In   count   three,   Michael    claimed   Arseneault    invaded    his
    privacy by portraying him in a false light when he provided to the
    WSJ   documents     containing   Debra's     accusations      that   he   had
    "physically abused his wife, causing her to fall down a flight of
    stairs, and was, therefore, guilty of domestic violence and a
    crime."
    A defendant commits false-light invasion of privacy when he
    gives publicity to a matter concerning another
    that places the other before the public in a
    false light [if]
    . . . .
    (a) the false light in which the other
    was placed would be highly offensive to
    a reasonable person, and
    (b) the actor had knowledge of or acted
    in reckless disregard as to the falsity
    of the publicized matter and the false
    light in which the other would be placed.
    [Romaine v. Kallinger, 
    109 N.J. 282
    , 294
    (1988) (quoting 
    Restatement, supra
    , § 652E);
    23                             A-1042-15T4
    accord Durando v. Nutley Sun & N. Jersey Media
    Grp., Inc., 
    209 N.J. 235
    , 249 (2012).]
    The motion court's secondary reason for dismissing count
    three was that "the publicity element of the false light claim is
    absent when the matter was previously publicized."            However, no
    New Jersey case makes prior publication a defense to publicizing
    a matter portraying someone in a false light.            Neither the court
    nor Arseneault cited any authority for such a defense.
    The 
    Restatement, supra
    , contains no prior-publication defense
    for publicity portraying a person in a false light.               It simply
    provides that publicity "means that the matter is made public, by
    communicating it to the public at large, or to so many persons
    that the matter must be regarded as substantially certain to become
    one of public knowledge."       
    Id. § 652D
    comment a; see 
    id. § 652E
    comment a.     "[A]ny publication in a newspaper or a magazine, even
    of small circulation, or in a handbill distributed to a large
    number of persons, or any broadcast over the radio, or statement
    made in an address to a large audience, is sufficient to give
    publicity within the meaning of the term as it is used in" those
    sections.      
    Restatement, supra
    , § 652D cmt. a.
    We need not decide whether there is a prior-publication
    defense   to    false-light   invasion   of   privacy.     Even   if     prior
    publication could be a defense, there was no basis in the complaint
    24                                  A-1042-15T4
    for the motion court's "finding that the facts were previously
    published."    Thus, it could not be a proper basis for dismissal
    under Rule 4:6-2(e).      See Printing 
    Mart-Morristown, supra
    , 116
    N.J. at 746.
    The motion court referenced an article in The Star-Ledger.
    This apparently referred to a January 7, 2014 article in The Star-
    Ledger,   which   Arseneault   attached   to   his   motion   to   dismiss
    Michael's complaint.    However, the article was not referenced in
    the complaint, was not a basis of Michael's claims, and was not a
    "public record."     Cf. Banco 
    Popular, supra
    , 184 N.J. at 183.
    Arseneault argues the article became a public record because it
    was attached to a brief Debra submitted in the divorce case.
    However, "[b]riefs are not filed in the technical sense," "do not
    become part of the docketed case file," and are "not an acceptable
    vehicle for the presentation of facts or documents not of record."
    Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:6-
    5 (2017).
    "If, on a motion to dismiss based on [Rule 4:6-2(e)], matters
    outside the pleading are presented to and not excluded by the
    court, the motion shall be treated as one for summary judgment and
    disposed of as provided by R. 4:46[.]" R. 4:6-2. Summary judgment
    was inappropriate here.
    25                               A-1042-15T4
    Even if prior publication could be a defense to portraying a
    person in a false light, the prior publication was in a Newark
    newspaper, and essentially repeated only the allegations in the
    probable-cause affidavit.        By contrast, the complaint alleged
    Arseneault sent the WSJ not only the probable-cause affidavit but
    also   Debra's   certification    and   the   exhibits,   including   the
    criminal complaint-arrest warrant and the TRO.            The complaint
    further alleged that, based on Arseneault's disclosure, the WSJ
    published an online article which was "picked up by numerous other
    publications, including, without limitation, Philly.com, the Star
    Ledger, the New York Post, Sports Illustrated, Vikings Territory,
    and Mail Online," and that they all published additional details.
    The motion court took the position that "[i]n no way does the
    [relative] size [of the circulation] of The Star-Ledger prohibit
    the court from finding that the facts were previously published."
    The court also asserted "that the news was published by a 'local
    New Jersey newspaper' is of no consequence," and that the WSJ
    "published facts not in The Star-Ledger article has no effect."
    We disagree.   Even if prior publication could be a defense,
    knowingly or recklessly causing publicity reaching many additional
    people placing someone in a false light could result in additional
    damages and give rise to a cause of action against the person
    causing the additional publicity.       Otherwise, a person could take
    26                            A-1042-15T4
    false matter someone had "posted in the window of [a] shop," and
    knowingly   and      recklessly     give   the   false     matter     widespread
    publicity to many millions in newspapers, magazines, or websites
    of   national   or    global    circulation,     without    liability.          See
    
    Restatement, supra
    , § 652D cmt. a, illus. 2.                     Moreover, the
    relative    circulations       of   The    Star-Ledger,    the      WSJ,    Sports
    Illustrated, the New York Post, and the other websites mentioned
    in the complaint are not before us.           That itself is sufficient to
    prevent summary judgment.4
    Summary judgment may be granted only if "there is no genuine
    issue as to any material fact challenged."          R. 4:46-2(c).          Because
    of this "inadequate record, we are unable to conclude that there
    is no genuine issue as to any material fact."              Lyons v. Township
    of Wayne, 
    185 N.J. 426
    , 437 (2005).          Moreover, "when viewed in the
    light most favorable to the non-moving party," the evidence was
    not "'so one-sided that [Arseneault] must prevail as a matter of
    law.'"   Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 523,
    4
    Thus, we need not resolve whether the additional facts disclosed
    by Arseneault to the WSJ and subsequently publicized were
    themselves sufficient to cause additional damages and give rise
    to a cause of action.      However, we note that "a fundamental
    requirement of the false light tort is that the disputed publicity
    be in fact false, or else 'at least have the capacity to give rise
    to a false public impression as to the plaintiff.'"       
    Romaine, supra
    , 109 N.J. at 294 (citation omitted).
    27                                   A-1042-15T4
    533 (1995) (citation omitted). Thus, the court erred in dismissing
    count three.
    D.
    In count four, Michael claimed Arseneault invaded his privacy
    by public disclosure of a private fact as follows: "At least some
    of the facts Arseneault disclosed to the Wall Street Journal,
    including, without limitation, Michael's Social Security Number,
    were actually private."    Michael was "forced to take protective
    measures because of the possible attempt of an imposter to use his
    social security number to open credit cards in his name."     As a
    "result of Arseneault's disclosure of such private facts, Michael
    has suffered and will continue to suffer substantial pecuniary and
    other harm and damages."
    The complaint adequately set forth a cause of action for
    invasion of privacy by publicizing a private fact.
    One who gives publicity to a matter concerning
    the private life of another is subject to
    liability to the other for invasion of [the
    other's] privacy, if the matter publicized is
    of a kind that (a) would be highly offensive
    to a reasonable person, and (b) is not of
    legitimate concern to the public.
    [Castro v. NYT Television, 
    384 N.J. Super. 601
    ,   610-11  (App.   Div.  2006) (quoting
    
    Restatement, supra
    , § 652D); see G.D. v.
    Kenny, 
    205 N.J. 275
    , 309 (2011).]
    28                          A-1042-15T4
    The    motion    court's   secondary       reason    for   dismissing     the
    private-fact count was that Michael "did not set forth facts in
    support of that claim, and any potential damages would be pure
    speculation."    However, Michael's allegation that he had to take
    protective measures and suffered pecuniary damages was sufficient
    under the lenient standard of Rule 4:6-2(e).               See Printing Mart-
    
    Morristown, supra
    ,    116    N.J.   at   760    (finding     an    allegation
    "plaintiffs    lost    any   gain   from"   a     job    sufficiently    alleged
    damages).     The issue of damages "should await the development of
    a record," and thus "we will not permit the complaint to be
    stricken at this juncture."         
    Id. at 770.
    Arseneault argues there can be no liability because the joint
    tax return bearing Michael's unredacted social security number was
    an exhibit to the certification Debra filed in the divorce action.
    Generally, "there is no liability for giving publicity to facts
    about the plaintiff's life that are matters of public record, such
    as . . . the pleadings that [the plaintiff] has filed in a lawsuit."
    
    Dzwonar, supra
    , 348 N.J. Super. at 178 (emphasis omitted) (quoting
    
    Restatement, supra
    , § 652D cmt. b).             However, the Rules of Court
    may have excluded the tax return from public access.                 See R. 1:39-
    3(d)(1), 5:5-2(d); see also Pressler & Verniero, supra, cmt. 5 on
    R. 5:5-2.     The rules also provide a social security number is "a
    confidential personal identifier" that generally may not be set
    29                                 A-1042-15T4
    forth "in any document or pleading submitted to the court."                      R.
    1:38-7(a), (b).         "[I]f the record is one not open to public
    inspection, as in the case of income tax returns, it is not public,
    and   there   is   an   invasion    of    privacy   when    it   is   made    so."
    
    Restatement, supra
    , § 652D cmt. b.
    Arseneault    contends   he    relied    on   Debra's      other    divorce
    counsel to redact the social security numbers.               The motion court
    found Arseneault's "reliance on the requirement that attorneys not
    set forth confidential personal identifiers in any document or
    pleading submitted to the court was similarly reasonable in shaping
    his belief that forwarding the records to WSJ was not a violation
    of the Rules of Professional Conduct."              However, nothing in the
    complaint suggested that Arseneault relied on that requirement or
    other counsel, or had that belief.            Moreover, a violation of the
    ethics rules was not a required element of invasion of property
    by publicity of private facts.
    As   Michael's    allegations      concerning   his    social      security
    number was sufficient to state a claim, the motion court erred in
    dismissing count four.5
    E.
    5
    Thus, we need not address Michael's argument that the TRO was
    also private information under R. 1:38-3(d)(9).
    30                                  A-1042-15T4
    Count five alleged Arseneault and Debra conspired to commit
    the torts alleged in counts one, two, three, and four.   The motion
    court ruled that "[a]s a result of Counts One through Four being
    dismissed, Count Five – civil conspiracy – is DISMISSED WITHOUT
    PREJUDICE on the premise that there is no valid underlying tort
    to substantiate the claim."    As we have reversed the dismissal of
    counts two, three, and four, there are underlying torts which
    Arseneault allegedly conspired to commit.   Accordingly, we reverse
    the dismissal of count five.    See State, Dep't of Treasury, Div.
    of Inv. ex rel. McCormac v. Qwest Commc'ns Int'l, Inc., 387 N.J.
    Super. 469, 486 (App. Div. 2006).
    Affirmed in part, reversed in part, and remanded for further
    proceedings.   We do not retain jurisdiction.
    31                         A-1042-15T4