                                NOT FOR PUBLICATION WITHOUT THE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-2576-17T4

KATHLEEN Q. FABLE,

          Plaintiff-Appellant,

v.

DENNIS DOROS and AMY HELLER,

     Defendants-Respondents.
_________________________________

                    Argued December 5, 2018 – Decided December 28, 2018

                    Before Judges Koblitz, Ostrer, and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-7258-16.

                    Keith J. Roberts argued the cause for appellant (Brach
                    Eichler, LLC, attorneys; Keith J. Roberts, of counsel
                    and on the briefs; Shannon Carroll, on the briefs).

                    Stephen R. Katzman argued the cause for respondents
                    (Methfessel & Werbel, attorneys; Stephen R. Katzman,
                    of counsel and on the brief).

PER CURIAM
       Plaintiff Kathleen Q. Fable appeals from a June 20, 2017 order dismissing

her complaint with prejudice against defendants Dennis Doros and Amy Heller.

We affirm.

       This case involves the election of plaintiff to the Northern Valley Regional

Board of Education (BOE) and her controversial views as a BOE member.1

Plaintiff had emphatic positions on various issues, including supporting random

drug testing of students in the school district. Defendants, as well as other

parents, had diametrically opposing views to many of the positions espoused by

plaintiff while she served on the BOE.

       As a member of the BOE, plaintiff posted her views about random drug

testing of students on her private Facebook page. One defendant was able to

view plaintiff's Facebook posts as part of a Facebook group.

       Plaintiff's proposal to randomly test students for drugs was presented at a

BOE hearing on September 23, 2013. Defendants, and others, opposed the

proposal. Defendants claimed plaintiff wrote in her Facebook posts that "anyone

who opposes random drug testing smokes pot with their kids."

       A week later, an online news source, the Record, posted an article entitled

"A Bad Fable." Plaintiff believed defendants contributed to the online article


1
    Plaintiff took office as a BOE member in January 2013.
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although there was no attribution of authorship associated with the article. The

critique noted plaintiff's comments regarding drug testing on her Facebook page

and at the BOE hearing. The news item demanded an apology from plaintiff for

her statement that those who opposed drug testing smoked marijuana with their

children. Plaintiff claimed defendants reposted the article on the internet and

Facebook on October 29, 2013.

      The relationship between plaintiff and parents, including defendants, did

not improve during plaintiff's term in office. In October and November of 2015,

plaintiff claimed defendants accused her of violating the School Ethics Act,

N.J.S.A. 18A:12-21, having a conflict of interest, and publicly shaming students.

She further alleged defendants circulated petitions aimed at defeating her bid for

re-election to the BOE in November 2015 and encouraged students to file

Harassment, Intimidation, and Bullying (HIB) complaints against plaintiff .2 In

addition, plaintiff accused defendants of using social media to proclaim school

children were "victimized by plaintiff's cruelty," and plaintiff was a "nightmare

for parents, children, and schools."



2
   The HIB complaints were investigated by the district's HIB specialist, who
issued an investigative report regarding the HIB complaints in November 2013.
No action against plaintiff was recommended as a result of the HIB
investigation.
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                                        3
      In October 2016, plaintiff filed a complaint, asserting defamation and

tortious interference with prospective economic and business relations (October

2016 complaint). The allegations in the October 2016 complaint focused on

defendants' statements and conduct in September 2013 related to plaintiff's

views on the random drug testing of students.

      In lieu of filing an answer, defendants moved to dismiss the October 2016

complaint for failure to state a claim upon which relief may be granted.

Defendants argued the complaint was not filed within the one year period of

limitations for a defamation action. The motion judge denied the motion, but

ordered the parties to conduct limited discovery for ninety days to address the

statute of limitations.

      In December 2016, prior to the expiration of the ninety-day period,

plaintiff filed an amended complaint (December 2016 complaint).          In the

amended complaint, plaintiff alleged defamation, abuse of process, malicious

prosecution, and intentional and negligent infliction of emotional distress. The

December 2016 complaint omitted allegations against defendants related to

plaintiff's random drug testing views. Instead, the December 2016 complaint

focused on defendants' statements and actions in October and November 2015.




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                                       4
      Defendants filed a motion to dismiss the December 2016 complaint

pursuant to Rule 4:6-2(e). Plaintiff opposed the motion. After considering the

arguments of counsel, the motion judge granted defendants' motion, finding the

December 2016 complaint raised entirely new claims that did not relate back to

the October 2016 complaint pursuant to Rule 4:9-3, the newly asserted

defamation claim was not filed within the one year statute of limitations, and the

remaining claims were time-barred because they were derivative of the

defamation claim.

      On appeal, plaintiff contends the claims in the December 2016 complaint

related back to the October 2016 complaint and thus were filed within the

applicable period of limitations. She also argues her remaining claims were not

derivative of the defamation claim.

      Our review of a motion to dismiss a complaint for failure to state a claim

upon which relief may be granted is de novo. Smerling v. Harrah's Entm't, Inc.,

389 N.J. Super. 181, 186-87 (App. Div. 2006). In assessing the dismissal of a

complaint under Rule 4:6-2(e), we "search 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.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005) (quoting


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                                        5
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).

"[I]f the complaint states no basis for relief and discovery would not provide

one, dismissal is the appropriate remedy." Banco Popular N. Am., 184 N.J. at

166 (citing Pressler, Current N.J. Court Rules, cmt. 4.1 on R. 4:6-2 (2005)).

      N.J.S.A. 2A:14-3 provides "[e]very action at law for libel or slander shall

be commenced within [one] year next after the publication of the alleged libel

or slander." "[L]ibel is defamation by the written or printed word[.]" W.J.A. v.

D.A., 210 N.J. 229, 238 (2012).      "Whether a cause of action is barred by a

statute of limitations is a question of law . . . reviewed de novo." Catena v.

Raytheon Co., 447 N.J. Super. 43, 52 (App. Div. 2016) (citing Estate of

Hanthaler v. Zurich Commercial Ins., 387 N.J. Super. 318, 325 (App. Div.

2006)).

      Rule 4:9-3 governs when an amended complaint relates back to the filing

of an original complaint. The Rule provides, "[w]henever the claim or defense

asserted in the amended pleading arose out of the conduct, transaction or

occurrence set forth or attempted to be set forth in the original pleading, the

amendment relates back to the date of the pleading[.]" R. 4:9-3. A claim arises

out of the "conduct, transaction, or occurrence" asserted in a prior pleading when

it "constitutes the same matter more fully or differently laid, or [when] the gist


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                                        6
of the action or the basic subject of the controversy remains the same . . . . '"

Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 498 (2006) (quoting Harr v.

Allstate Ins. Co., 54 N.J. 287, 299 (1969)). If an amendment asserts a "distinctly

new or different claim," the new claim will not be permitted if the statute of

limitations for asserting the claim has expired. See Wimmer v.Coombs, 198

N.J. Super. 184, 187-88 (App. Div. 1985) (quoting Harr, 54 N.J. at 299). As we

determined in Young v. Schering Corp., "an entirely new and distinctly different

cause of action cannot by means of an amendment of the pleadings be introduced

after the statute has tolled the action." 275 N.J. Super. 221, 230 (App. Div.

1994) (quoting Welch v. Bd. of Ed. of Tewksbury Twp., 7 N.J. Super. 141, 145

(App. Div. 1950)). While Rule 4:9-3 is to be construed liberally, it does not

save claims that are new or different from the claims previously asserted. See

Notte, 185 N.J. at 499.

      The claims in plaintiff's October 2016 complaint and December 2016

complaint do not arise from the same transaction or occurrence. The October

2016 complaint is premised upon defendants' statements and activities in

September 2013 regarding plaintiff's views on random drug testing of students.

The December 2016 complaint never mentions defendants' activities in 2013 and

is based on wholly different statements, events, and postings by defendants in


                                                                          A-2576-17T4
                                        7
October and November 2015. Because plaintiff filed an amended complaint in

December 2016, based on new allegations related to defendants' activities in

October and November 2015, her defamation claim in that action does not relate

back and is barred by the one year period of limitations under N.J.S.A. 2A:14.

      Plaintiff's argument that the two complaints articulate a single defamatory

"attack campaign" against her is unavailing. The claims in the two complaints

are based on distinctly different acts from different time periods.

      We next consider plaintiff's contention that her newly added causes of

action in the December 2016 complaint should not have been dismissed as

derivative of her defamation claim. Defenses to a defamation claim retain their

status to derivative claims based on the alleged defamatory conduct.          See

Rainer's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 563–64 (1955). If

the alleged defamation is not actionable, then "its consequences are also not

actionable." Lobiondo v. Schwartz, 323 N.J. Super. 391, 417 (App. Div. 1999).

"It would obviously be intolerably anomalous and illogical for conduct that is

held not to constitute actionable defamation nevertheless to be relied on to

sustain a different cause of action based solely on the consequences of that

alleged defamation." Ibid.




                                                                         A-2576-17T4
                                        8
      Plaintiff's defamation claim in the December 2016 complaint was properly

dismissed because it asserted distinctly new claims based on wholly different

conduct and consequently did not relate back to the October 2016 complaint.

Moreover, the alleged defamatory conduct asserted in the December 2016

complaint occurred in October and November 2015 and is thus barred by the

statute of limitations.   Since the defamation claim in the December 2016

amended complaint is not actionable, the consequences flowing from the

defamatory action, including plaintiff's claims for emotional distress, tortious

interference with business relations, abuse of process, and malicious prosecution

are not actionable.

      Affirmed.




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