                                                                   NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                        No. 09-3635
                                        ___________

                                    EDDY M. MOREAU,
                                                  Appellant

                                              v.

                                    WALGREEN CO.
                         ____________________________________

                       On Appeal from the United States District Court
                              for the District of New Jersey
                            D.C. Civil Action No. 06-cv-03347
                               (Honorable Jose L. Linares)
                        ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      July 16, 2010
                Before: SCIRICA, JORDAN and VANASKIE, Circuit Judges.

                                    (Filed: July 21, 2010 )
                                         ___________

                                 OPINION OF THE COURT
                                      ___________

PER CURIAM.

          Eddy Moreau, proceeding pro se, appeals two District Court orders granting the

Defendant/Appellee Walgreen Co.’s (“Walgreen’s”) motion for summary judgment and

denying Moreau’s motion for reconsideration. For the reasons that follow, we will

affirm.
                                              I

         This case arose from a June 2006 incident in which Moreau visited a Walgreen’s

pharmacy in Belleville, New Jersey.1 Moreau entered the store with a duffel bag, which

he placed in a shopping cart. Seufus Mendez, the store’s assistant manager, witnessed

Moreau place several items in the cart. Later, Moreau attempted to return some items

with a non-matching receipt. Mendez remembered that Moreau had done the same thing

a day or two before, believed that Moreau was running a scam, and refused to accept the

items. Mendez also noticed that Moreau’s duffel bag was partially filled, and accused

Moreau of shoplifting. Moreau fled, and Mendez contacted the police. Moreau was

stopped by an officer a short while later and, after Mendez identified him, Moreau was

arrested for shoplifting.

         During municipal proceedings about two weeks later, Mendez agreed to drop the

shoplifting charge against Moreau if he promised not to return to the store. Moreau

agreed and the charge was dismissed.

         In July 2006, Moreau filed a complaint in the District Court. He alleged that he

had not done anything wrong at the Walgreen’s, and that by causing him to be arrested,

Walgreen’s defamed him, caused him emotional distress, and aggravated his preexisting

mental illness.2 Moreau sought $25 million in damages. Walgreen’s filed a motion for

   1
    Unless otherwise noted, the facts as described were not disputed by the parties in the
District Court.
   2
       Moreau admits he has suffered from depression and schizophrenia since the 1980s.

                                              2
summary judgment on all three claims, and the District Court granted the motion.

Moreau filed an unsuccessful motion for reconsideration, followed by a notice of appeal.

                                              II

       We have jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing a district

court’s grant of summary judgment, we exercise plenary review, viewing the facts in the

light most favorable to the non-moving party. See Dee v. Borough of Dunmore, 549 F.3d

225, 229 (3d Cir. 2008). We apply the same standard that governs in district court

proceedings, under which “a party is entitled to summary judgment only ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(c)). Because the District Court correctly exercised diversity jurisdiction over the case,

we apply the substantive law of New Jersey, the forum state. See Lafferty v. St. Riel, 495

F.3d 72, 76 (3d Cir. 2007).

       Regarding Moreau’s defamation claim, the District Court reasoned that

Walgreen’s was entitled to summary judgment based on New Jersey’s special interest

privilege. The special interest privilege creates a defense to a charge of defamation when

the party communicating has an interest in the communication and relates the allegedly

defamatory statement to a person with a corresponding interest or duty. See Govito

v.West Jersey Health Sys., Inc., 753 A.2d 716, 724 (N.J. Super. Ct. App. Div. 2000).



                                              3
“The critical elements of this test are [1] the appropriateness of the occasion on which the

defamatory information is published, [2] the legitimacy of the interest thereby sought to

be protected or promoted, and [3] the pertinence of the receipt of that information by the

recipient.” Bainhauer v. Manoukian, 520 A.2d 1154, 1170 (N.J. Super. Ct. App. Div.

1987). However, a plaintiff may overcome this privilege by demonstrating that the

defendant abused it, i.e., that the defendant “[1] knows the statement is false or . . . acts in

reckless disregard of its truth or falsity; [2] the publication serves a purpose contrary to

the interests of the qualified privilege; or [3] the statement is excessively published.”

Govito, 753 A.2d at 726 (quotation marks and citations omitted).

       The District Court reasoned that even if Mendez’s report to the police that Moreau

was shoplifting was defamatory, it clearly fell within the special interest privilege. We

agree. In New Jersey, “citizens have a qualified privilege to make statements to

authorities for the prevention and detection of crime.” Dairy Stores, Inc. v. Sentinel

Publ’g Co., 516 A.2d 220, 226 (N.J. 1986). Before the District Court, Moreau did not

dispute that Mendez genuinely believed he was shoplifting. Although Moreau stated in

his motion to reconsider, opening brief, and reply brief that Mendez was lying, Moreau

presented no evidence in the District Court that Mendez’s conduct fell outside the special

interest privilege.

       As for Moreau’s emotional distress claim, the District Court reasoned that he could

not prevail on either an intentional infliction of emotional distress theory or a negligent



                                               4
infliction of emotion distress theory. In negligent infliction cases, distress must be

genuine and substantial. See Decker v. Princeton Packet, Inc., 561 A.2d 1122, 1128 (N.J.

1989). Where “complaints amount to nothing more than aggravation, embarrassment, an

unspecified number of headaches, and loss of sleep,” such distress is, as a matter of law,

an insufficient basis for liability. Id. (citations omitted). In intentional infliction cases,

“for conduct to be actionable, the emotional distress . . . must be so severe that no

reasonable [person] could be expected to endure it.” Tarr v. Ciasulli, 853 A.2d 921, 924

(N.J. 2004). Under either cause of action, the plaintiff must demonstrate that the

defendant’s actions proximately caused the alleged distress. See id.; Decker, 561 A.2d at

1128. Here, the District Court noted that Moreau merely complained of embarrassment,

humiliation, anger, anxiety, and lack of sleep, which are not sufficiently severe to support

a cause of action under New Jersey law. Even if they were, Moreau did not present

medical evidence of these problems, while the medical records in evidence do not

establish any causal relationship between Walgreen’s actions and Moreau’s alleged

distress. Thus, we agree that summary judgment as to Moreau’s emotional distress claim

was appropriate.

       Finally, the District Court granted summary judgment with regard to Moreau’s

claim that Walgreen’s aggravated his preexisting mental illness. In a personal injury

action, the plaintiff bears the burden of demonstrating that the defendant’s actions

aggravated a preexisting condition. See O’Brien (Newark) Cogeneration, Inc. v.



                                                5
Automatic Sprinkler Corp. of Am., 825 A.2d 524, 530 (N.J. Super. Ct. App. Div. 2003).

He must also differentiate between preexisting damages attendant to the condition and

injuries suffered as a result of the defendant’s aggravating conduct. See id. Although the

record before the District Court contains evidence relating to Moreau’s treatment

following the arrest, the District Court reasoned that none of the records showed that his

mental condition was aggravated as a result of Walgreen’s conduct. Nor did Moreau

differentiate between problems attendant to his preexisting conditions and aggravation

attributable to Walgreen’s. After reviewing Moreau’s medical records, we agree with the

District Court.

       In his motion to reconsider, Moreau challenged the District Court’s grant of

summary judgment as to each claim, essentially restating the arguments from his

opposition to the summary judgment motion. He also alleged, as he did in his opposition,

that he could obtain additional medical records to show that his mental illness was

aggravated. The District Court denied the motion, reasoning that Moreau’s disagreement

with the District Court’s decision was an improper basis for reconsideration, and, to the

extent Moreau sought to introduce new evidence, he failed to explain why he could not

have obtained the evidence before. We agree. See Max’s Seafood Cafe ex rel. Lou-Ann,

Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

       Accordingly, we will affirm the judgment of the District Court.




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