Comunale v. Gemma

Background

Patsy Comunale sued individually and as administrator of the estate of Joseph A. Comunale. She asserted a New York common-law right of sepulcher, which the court described as the next of kin’s right to immediate possession of a deceased person’s body for preservation and burial. The defendants were Gordon N. Gemma and Suzanne M. Dilione.

The amended complaint alleged that Joseph Comunale was murdered in New York City and that his body was later dismembered, burned, and disposed of in New Jersey. It further alleged that, after learning of their sons’ involvement, Gemma and Dilione participated in a conspiracy to conceal the crime by lying to law enforcement and Joseph Comunale’s family and by encouraging their sons to create an alibi.

Personal Jurisdiction

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(2), which permits dismissal when a court lacks personal jurisdiction, meaning legal power over the defendants.

The court held that it had neither general nor specific personal jurisdiction over Gemma or Dilione. For general jurisdiction, the court noted that neither defendant was domiciled or served in New York, and neither consented to jurisdiction there. The court also found that their other alleged connections did not make them effectively at home in New York.

As to Gemma, the court considered allegations that he performed consulting work on one Brooklyn real-estate project and provided legal advice to his son. It found those contacts insufficient because Gemma had no New York office or employees, did not conduct or solicit other New York business, and had not entered an appearance as counsel in the referenced New York action. The court noted that Dilione was alleged to have no other personal or professional contacts with New York.

The court also rejected specific jurisdiction. It found that the alleged cover-up, communications between the defendants and their children, police interviews, and disposal of the body occurred in New Jersey. The court concluded that the defendants had not committed the alleged tort in New York or committed an out-of-state tort causing injury to a person or property in New York. It also rejected jurisdiction based on the alleged conspiracy because no acts advancing that conspiracy occurred in New York.

The court denied the need for an evidentiary hearing concerning the extent of Gemma’s New York consulting work. Even accepting Comunale’s account of that work, the court concluded that the contacts were insufficient. The court also explained that the case would be dismissed under Rule 12(b)(6) even if personal jurisdiction could be established.

Choice of Law and Failure to State a Claim

The court separately analyzed the defendants’ Rule 12(b)(6) motions, which challenge whether a complaint states a legally sufficient claim. Sitting in a diversity case, the court applied New York’s choice-of-law rules. It found an actual conflict because New York recognizes the common-law right of sepulcher, while New Jersey does not.

Applying New York’s interest-analysis approach to tort claims, the court held that New Jersey law governed. Although the murder occurred in New York, the court found that the alleged tort centered on the disposal and concealment of the body. The defendants and their alleged co-conspirators resided in New Jersey, the body was disposed of and remained there, and the relevant conversations with detectives and police investigation occurred there. The court therefore concluded that New Jersey had the greater interest in regulating the alleged conduct.

Because New Jersey does not recognize the common-law right of sepulcher and that right was the only cause of action asserted, the court held that the complaint failed to state a claim under Rule 12(b)(6). The court noted that whether New Jersey might recognize some similar right was beyond the scope of the motions and would not overcome the lack of personal jurisdiction.

Disposition

Judge Andrew L. Carter, Jr. held that the court could not exercise personal jurisdiction over either defendant and that the asserted right did not exist under the applicable New Jersey law. The court granted the defendants’ motions to dismiss under Rules 12(b)(2) and 12(b)(6) and directed the clerk to close case No. 18-CV-12104 and related case No. 18-CV-12246. The opinion does not state that the dismissal was with or without prejudice.