ALD-158                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 10-3560
                                 ___________

                    AMERICAN CORPORATE SOCIETY;
                          DR. MAX ANTOINE

                                       v.

                 VALLEY FORGE INSURANCE COMPANY;
                     CNA-INSURANCE COMPANY;
                         JAMES WHITE, et al

                               Dr. Max Antoine,
                                            Appellant
                  ____________________________________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                           (D.C. Civil No. 09-cv-05568)
                  District Judge: Honorable William J. Martini
                  ____________________________________

               Submitted for Possible Summary Action Pursuant to
                    Third Circuit LAR 27.4 and I.O.P. 10.6
                                  April 7, 2011

          Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                         (Opinion filed: April 20, 2011)


                                   _________

                                   OPINION
                                   _________
PER CURIAM

       Appellant Max Antoine, proceeding pro se, appeals from the District Court‟s order

dismissing his complaint.1 For the reasons that follow, we will summarily affirm.

                                              I

       In April 2009, law enforcement officials conducted a raid on the Bloomfield, New

Jersey office of Antoine‟s company, ACS. Antoine was arrested during the raid. After

the raid, Antoine contacted ACS‟s property insurer, Valley Forge Insurance Company,

and submitted a claim for property damage, alleging that the office sustained damage

during and after the raid because authorities left it unsecured for three days afterwards.

Valley Forge investigated the matter, but ultimately denied ACS‟s claim because the

damage fell within the policy‟s “governmental action” exclusion -- i.e., ACS‟s policy did

not cover damage caused directly or indirectly “by order of governmental authority.”

       Antoine and ACS then filed in New Jersey Superior Court a complaint against

Valley Forge, claims adjuster James White, and “CNA Insurance Company,” which

included 10 counts:




       1
          To the extent that Antoine also seeks to appeal the District Court‟s order on
behalf of his company, American Corporate Society (“ACS”), he cannot do so because a
corporation may appear and be represented in this Court only by a licensed attorney who
is also a member of this Court‟s bar. See Simbraw, Inc. v. United States, 367 F.2d 373,
373-75 (3d Cir. 1966). Accordingly, as to any claims against ACS, the appeal is
dismissed.

                                              2
              Count 22: breach of contract and insurance fraud;

              Count 3: violation of good faith and fair finance dealing;

              Count 4: violation of the New Jersey Consumer Fraud Act and common
                    law fraud;

              Count 5: a claim for recission of contract that was the product of fraud,
                    deception and malice;

              Count 6: negligent hiring of adjuster James White;

              Count 7: malicious prosecution;

              Count 8: personal injuries resulting from the police raid;

              Count 9: discrimination under the New Jersey Law Against
                    Discrimination, Title VII of the Civil Rights Act of 1964, and the
                    Americans with Disabilities Act;

              Count 10: conspiracy; and

              Count 11: “Anti-Trust Law, Broad Defamation.”

The defendants removed the action to the District Court based on diversity of citizenship

and filed a motion to dismiss. The District Court granted the motion to dismiss, and

Antoine appealed.

                                             II

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm on any

grounds supported by the record, see Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir.

2001), and we may summarily affirm if Antoine does not raise a substantial question on


       2
         Count 1 of the complaint did not assert a cause of action; rather, it recounted
relevant background facts.
                                             3
appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. We review de novo a district

court‟s decision to dismiss a complaint for failure to state a claim upon which relief may

be granted.3 See Dique v. N.J. State Police, 603 F.3d 181, 188 (3d Cir. 2010). “In

deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken

as true and interpreted in the light most favorable to the plaintiffs, and all inferences must

be drawn in favor of them.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)

(internal citation and quotation marks omitted). To withstand a Rule 12(b)(6) motion to

dismiss, “a complaint must contain sufficient factual matter, accepted as true, to „state a

claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct.

1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. In addition to the complaint and any exhibits attached

thereto, we may also consider “an undisputedly authentic document . . . attache[d] as an

exhibit to [the] motion to dismiss if the plaintiff‟s claims are based on the document,”

such as ACS‟s insurance policy. See Pension Benefit Guar. Corp. v. White Consol.

Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

       The District Court first reasoned that Antoine lacked standing to assert, on his own


       3
          The District Court also reasoned that dismissal as to CNA-Insurance was
appropriate because it is a trademark not capable of being sued. Likewise, White was
dismissed as a defendant because, in the District Court‟s view, Antoine did not establish
that the District Court could exercise personal jurisdiction over White. We do not
address these issues because, as explained below, we agree that Antoine failed to assert
any claim for which relief could be granted.
                                              4
behalf, Counts 2, 3, 5, 6, and 9, which all stemmed from his dissatisfaction with Valley

Forge‟s denial of ACS‟s insurance claim. We agree. Under New Jersey law, which the

District Court was required to apply, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938), an individual not a party to a contract may not seek enforcement of that contract

“unless it is clear that the parties to the contract intended to confer upon him the right to

enforce it.” First Nat‟l State Bank of N.J. v. Carlyle House, Inc., 246 A.2d 22, 34 (N.J.

Super. Ct. Ch. Div. 1968). As the District Court noted, the Valley Forge policy applies

solely to ACS, and nothing in the policy indicates that the parties intended for Antoine to

have a personal right of enforcement. Accordingly, the District Court properly dismissed

Counts 2, 3, 5, 6, and 9 as to Antoine.

       Count 4 was also properly dismissed. Antoine alleged that Valley Forge‟s conduct

amounted to fraud under the New Jersey Consumer Fraud Act, N.J. Stat. Ann. §§ 56:8-1,

et seq., and at common law. To establish a prima facie case under the Consumer Fraud

Act, a litigant must show: “1) unlawful conduct by the defendant; 2) an ascertainable

loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the

ascertainable loss.” Bosland v. Warnock Dodge, Inc. 964 A.2d 741, 749 (N.J. 2009). We

perceive no error in the District Court‟s determination that dismissal was appropriate

because, at base, Antoine‟s allegation stemmed from his disagreement with the basis for

denying ACS‟s insurance claim, not allegedly unlawful conduct. Likewise, Antoine‟s

claim of common law fraud failed because he did not identify a material

misrepresentation by Valley Forge. See Gennari v. Weichert Co. Realtors, 691 A.2d 350,
                                              5
367 (N.J. 1997). Valley Forge‟s mere denial of his claim is not evidence of fraudulent

misconduct, given the language of the policy exclusion.

         The District Court also properly dismissed Antoine‟s malicious prosecution claim.

Antoine alleged that, after denying ACS‟s claim, Valley Forge initiated unwarranted

criminal charges against him. A litigant alleging malicious prosecution, in violation of

federal or New Jersey law, must demonstrate, inter alia, criminal proceedings brought by

the defendants against the plaintiff that ended in the plaintiff‟s favor. See Estate of Smith

v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003) (federal claims); Lind v. Schmid, 337 A.2d

365, 368 (N.J. 1975). Antoine did not allege that any criminal complaint Valley Forge

may have filed resulted in criminal charges, or that such charges were resolved in his

favor.

         As to Count 8, which includes Antoine‟s claim against Valley Forge for physical

and psychological injuries resulting from the police raid, we agree with the District Court

that the claim must fail. Antoine did not allege that Valley Forge had any role in the raid;

therefore Valley Forge could not be subjected to liability for personal injuries he incurred

during the raid.

         We turn next to Antoine‟s Count 11, which alleges “Anti-Trust Law, Broad

Defamation.” As the District Court noted, despite the reference to “anti-trust law,”

nothing in Antoine‟s complaint suggests that Valley Forge violated the Sherman Antitrust

Act. Rather, Antoine claimed that Valley Forge defamed him by filing a criminal


                                              6
complaint against him.4 To make out a prima facie case of defamation under New Jersey

law, Antoine had to demonstrate, inter alia, that any allegedly false statement by Valley

Forge caused him harm. However, his bare assertion that Valley Forge‟s alleged

statements “have proximately caused great public harms to the plaintiffs [sic] public

image, and business strata,” Complaint, 11, is insufficient under Iqbal to survive a motion

to dismiss.

       Finally, we consider Count 10, in which Antoine alleges that Valley Forge entered

into a conspiracy against him. In New Jersey, a civil conspiracy is:

              a combination of two or more persons acting in concert to
              commit an unlawful act, or to commit a lawful act by
              unlawful means, the principal element of which is an
              agreement between the parties to inflict a wrong against or
              injury upon another, and an overt act that results in damage.

Banco Popular N. Am. v. Gandi, 876 A.2d 253, 263 (N.J. 2005) (internal quotation marks

omitted). “The gist of the claim is not the unlawful agreement, but the underlying wrong

which, absent the conspiracy, would give a right of action.” Id. (internal quotation marks

omitted). We agree with the District Court that, because Antoine failed to state any other

claim for which relief could be granted, he could not prevail on a civil conspiracy claim,

and dismissal was appropriate.

       Further, we agree with the District Court that it would have been futile for Antoine

to amend his complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d


       4
         We note that Valley Forge denied filing any complaint -- criminal or civil --
against Antoine or ACS.
                                             7
Cir. 2002); Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to amend a

complaint is futile when the complaint as amended would still be properly dismissed or

be immediately subject to summary judgment for the defendant.”). To the extent

Antoine‟s complaint included claims stemming from the police raid and the denial of

ACS‟s insurance claim, granting him leave to amend his complaint would have been

futile, as he could have presented no additional facts that would have established a basis

on which he could assert a claim for relief. As to his defamation claim, Antoine failed to

allege, in both his complaint and counseled response to the defendants‟ motion to

dismiss, any facts indicating that the defendants made a defamatory statement or that he

suffered any harm as a result.

       Accordingly, we will summarily affirm.




                                             8
