EHRLICH v. ALVAREZ et al

Filing 22

OPINION. Signed by Judge Robert B. Kugler on 6/1/2021. (dmr)

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
__________________________________
:
JONATHAN S. EHRLICH,
:
:
Plaintiff,
:
:
Civil No. 20-6398 (RBK/KMW)
v.
:
:
OPINION
ALVAREZ, et al.,
:
:
Defendants.
:
__________________________________ :
KUGLER, United States District Judge:
Presently before the Court is Defendants’ Motion to Dismiss the Complaint (Doc. No. 7),
and Plaintiff’s Motion for an Entry of Judgment Against Defendants (Doc. No. 14). For the
reasons set forth below, Defendants’ Motion to Dismiss is GRANTED and Plaintiff’s Motion
(Doc. No. 14) is DENIED.
I.

BACKGROUND
Plaintiff Jonathan Ehrlich, the sole beneficiary of his uncle’s multi-million-dollar estate,

filed suit against various state court judges and administrators, the New Jersey Attorney General,
the Governor of New Jersey, and the Chief Justice of the New Jersey Supreme Court alleging a
statewide conspiracy to deprive him of his constitutional rights. Although framed as an attempt
to seek redress for the deprivation of his constitutional rights, the injuries complained of and
relief sought in the Complaint demonstrate that Plaintiff merely disagrees with the state court
decisions.
A. Factual Background

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Plaintiff Jonathan Ehrlich (“Mr. Ehrlich”) brought suit under 42 U.S.C. § 1983 against
eleven New Jersey state court judges, two county surrogates, two deputy surrogates, Governor
Murphy, Attorney General Grewal, the Acting Administrative Director of the Courts, the
Director of the Office of the Advisory Committee on Judicial Conduct, and two county surrogate
courts alleging they conspired to deprive him of his Fifth and Fourteenth Amendment rights to a
fair and impartial hearing and to discovery or cross-examination. (Doc. No. 8, Am. Compl. at ¶¶
74, 113–114).1 The crux of Mr. Ehrlich’s claim is that the Defendants conspired to protect one of
their own—Judge McInerney, who allegedly committed fraud while acting as administrator of
Plaintiff’s uncle’s estate—by denying any wrongdoing on his part and rejecting his legal
malpractice claim. (Id. at ¶¶ 28, 31, 38, 94–95). The byproduct of this alleged conspiracy was a
deprivation of Mr. Ehrlich’s constitutional rights. (See id. at ¶¶ 38, 61). Among other remedies,
Mr. Ehrlich seeks injunctive relief from this Court and requests that we order the Chief Justice of
the New Jersey Supreme Court to publish a public apology stating that the previous rulings bear
no resemblance to any verified facts of the case nor the truth.
The alleged conspiracy began in November of 2009, when after the passing of Richard
Ehrlich—a long-time estate attorney in New Jersey and Mr. Ehrlich’s uncle—then Assignment

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The named Defendants are as follows: (1) Gubir S. Grewal, New Jersey Attorney General; (2) John Tonelli, former
Director of the Office of the Advisory Committee on Judicial Conduct; (3) Philip Murphy, the Governor for the
State of New Jersey; (4) the Honorable Carmen Alvarez, presiding judge for the New Jersey Superior Court,
Appellate Division; (5) the Honorable Francine Axelrad, a New Jersey Superior Court judge; (6) the Honorable
Mary C. Jacobson, Assignment Judge for the New Jersey Superior Court; (7) the Honorable Karen Suter, judge for
the New Jersey Superior Court, Appellate Division; (8) the Honorable Michael Hogan, retired judge for the New
Jersey Superior Court; (9) the Honorable Michael Kassel, a New Jersey Superior Court judge; (10) the Honorable
Susan Maven, judge for the New Jersey Superior Court, Appellate Division; (11) the Honorable Stuart Rabner,
Chief Justice of the New Jersey Supreme Court; (12) the Honorable Ronald Bookbinder, former Assignment Judge
for the New Jersey Superior Court; (13) the Honorable Richard Geiger, judge for the New Jersey Superior Court,
Appellate Division; (14) the Honorable William Nugent, judge for the New Jersey Superior Court, Appellate
Division; (15) the Honorable Harry O’Malley, former Deputy Surrogate of Mercer County; (16) the Honorable
Diane Gerofsky, Surrogate for Mercer County; (17) the Honorable Bonnie Madera, Deputy Surrogate for Burlington
County; (18) the Hon. George Kotch, former Burlington County Surrogate; and (19) the Hon. Glenn A. Grant,
J.A.D., Acting Administrative Director of the Courts. (Id. at ¶¶ 2–5).

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Judge of the Burlington Vicinage, Judge Bookbinder, appointed Judge Dennis P. McInerney as
temporary trustee of decedent’s law practice. (Id. at ¶ 57). Upon learning of his uncle’s death,
Mr. Ehrlich searched his uncle’s house for the will and found an unsigned, copy typed on his
uncle’s legal stationary. (Id. at ¶ 58). Due to its unsigned nature, a will contest ensued between
Mr. Ehrlich and his two siblings. (Id. at ¶ 60). In December of 2009, Judge McInerney was
appointed as temporary administrator of the contested estate by probate Judge Hogan and served
in this role until July of 2013. (Id. at ¶¶ 61, 70). This appointment allegedly created a conflict of
interest because Judge Hogan and McInerney were friends for almost 30 years.
On April 20, 2011, Judge Hogan ordered the will copy admitted and ordered that Judge
McInerney remain as administrator. (Id. at ¶ 78). The entire estate, less a token amount to
Plaintiff’s two siblings, was bequeathed to Plaintiff. (Id.). On June 1, 2011, Hogan denied a
motion for reconsideration on admission of the will to probate, and the appellate division
affirmed. (Id. at ¶ 80). This issue was appealed to the New Jersey Supreme Court but was
eventually settled in April of 2013. (Id. at ¶ 86).
While this appeal was pending, Judge Hogan was replaced by Judge Suter. (Id. at ¶ 81).
In early 2012, Judge Suter heard Plaintiff’s motion to remove Judge McInerney as temporary
administrator. (Id. at ¶ 82). Plaintiff sought removal of Judge McInerney because of his alleged
perjury but this allegation was considered and ultimately rejected. (Id. at ¶ 83). Judge Suter also
refused to find any basis to vacate Judge Hogan’s 2011 order admitting an allegedly fraudulent
accounting. (Id.).
Around the same time of Plaintiff’s motion to remove Judge McInerney, Judge Suter
granted Judge McInerney’s motion to sell the decedent’s riverfront property to a friend of Judge
McInernery for less than the fair market value of the land. (Id. at ¶ 84). She also granted Judge

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McInerney’s motion to pay a Burlington County politician a substantial settlement from the
estate. (Id.).
On July 5, 2013, Judge Bookbinder transferred the case to Mercer County with Judge
Jacobson presiding over the case. (Id. at ¶ 87). In a 64-page opinion, Judge Jacobson rejected Mr.
Ehrlich’s challenge to Judge McInerney’s second accounting, refused hisrequest to question
Judge McInerney, and denied his request to serve as temporary administrator of his uncle’s
estate. (Id. at ¶ 90). Judge Jacobson also allegedly ordered Mr. Ehrlich to sign a release fully
indemnifying Judge McInerney prior to transferring any remaining estate funds. (Id. at ¶ 92). Mr.
Ehrlich refused to sign this release. (Id. at ¶ 93).
An ancillary legal malpractice case was transferred from Mercer to Camden County in
2015. (Id. at ¶ 94). Judge Kassel dismissed the case on December 14, 2016, finding there was
nothing in the facts to overcome the rebuttable presumption that his uncle deliberately destroyed
the will. (Id. at ¶ 95). This decision and others were affirmed on appeal. (Id. at ¶ 99). However,
Mr. Ehlrich was hindered in his timely appeal of these decisions to the New Jersey Supreme
Court because Judge Alvarez, who presided over these appeals at the intermediate appellate
court, delayed mailing decisions. (Id. at ¶¶ 100–104).
The Surrogate Courts of Mercer and Burlington County were also wrapped up in this
conspiracy as they glossed over and rubber-stamped various erroneous accountings presented by
Judge McInerney. (Id. at ¶ 105). They also would “not return phone calls or acknowledge filings
by [Mr. Ehlrich’s] attorney while immediately accommodating [Judge] McInerney’s every
whim.” (Id. at ¶ 106).

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There was also repeated efforts to stonewall Mr. Ehlrich from contesting Judge
McInernery’s administration of the estate and almost every state court decision was made absent
a plenary hearing. (Id. at ¶¶ 113–114).
B. Procedural History
On May 1, 2020, Plaintiff filed a complaint against Defendants asserting violations of his
constitutional rights guaranteed by the Fifth and Fourteenth Amendment under 42 U.S.C. § 1983.
(Doc. No. 1). After Defendants moved to dismiss the complaint, Plaintiff filed an amended
complaint. (Doc. No. 7, 8). On October 23, 2020, Plaintiff filed another motion seeking an entry
of default and requesting that Defendants’ motion to dismiss be denied as moot. (Doc. No. 14).
II.

LEGAL STANDARD
A. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a court to dismiss a

complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Subject matter
jurisdiction is the Court’s authority to hear a case. If a case, as presented by the plaintiff, does
not meet the requirements of subject matter jurisdiction or if it is otherwise barred by law, then
the Court must dismiss the plaintiff’s action.
The plaintiff generally has the burden of establishing that the court has subject matter
jurisdiction. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009). The defendant can
challenge whether the plaintiff has done so, through either a facial challenge or a factual
challenge to the complaint. In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d 625,
632 (3d Cir. 2017).
In a facial challenge, the court looks to the face of the complaint and accepts as true the
facts alleged by the plaintiff. Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir.

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2016). If the court cannot conclude, based on face of the complaint, that jurisdictional
requirements are met, then the court must dismiss the complaint. In re Horizon Healthcare Servs.
Data Breach Litig., 846 F.3d at 633 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In other
words, a facial challenge “calls for a district court to apply the same standard of review it would
use in considering a motion to dismiss under Rule 12(b)(6).” Constitution Party v. Aichele, 757
F.3d 347, 358 (3d Cir. 2014). Thus, “‘[t]hreadbare recitals of the elements of [jurisdiction],
supported by mere conclusory statements, do not suffice.’” In re Horizon Healthcare Servs. Data
Breach Litig., 846 F.3d at 633 (quoting Iqbal, 556 U.S. at 678). In a factual challenge, however,
the plaintiff’s factual allegations are not presumed to be true, and the court “is free to weigh the
evidence and satisfy itself as to the existence of its power to hear the case.” Hartig Drug Co.,
836 F.3d at 268. A factual challenge may only be raised after an answer has been filed. Long v.
SEPTA, 903 F.3d 312, 320 (3d Cir. 2018). Thus, any motion to dismiss for lack of subject matter
jurisdiction filed prior to an answer is, by default, a facial challenge. Id.
B. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to
state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a
complaint survives a motion to dismiss if it contains enough factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).

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To make this determination, courts conduct a three-part analysis. Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the Court must “tak[e] note of the elements a
plaintiff must plead to state a claim.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
Second, the Court should identify allegations that, “because they are no more than conclusions,
are not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 680). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (quoting Iqbal, 556 U.S. at 678). Finally, “when there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 679). A complaint cannot survive
a motion to dismiss where a court can only infer that a claim is merely possible rather than
plausible. Id.
III.

DISCUSSION
Plaintiff seeks to hold Defendants liable for depriving him of his 5th and 14th Amendment

rights in violation of 42 U.S.C. § 1983. Defendants, being state officials and mostly judges,
move to dismiss the Complaint on sovereign immunity grounds under the 11th Amendment, the
absolute judicial immunity doctrine, the Rooker-Feldman doctrine, and under Rule 12(b)(6)
because the allegations are conclusory.2 Plaintiff contends that Defendants’ motion to dismiss is
rendered moot by virtue of his amended complaint and that this Court should enter default
judgment against Defendants because they have failed to respond to his amended complaint.
Both of Plaintiff’s arguments are meritless.

Defendants also argue Plaintiff’s claims are barred because they are not “persons” within the meaning of 42 U.S.C.
§ 1983. Although we will briefly address Section 1983 because of its overlap with sovereign immunity, we need not
address this argument or the Rooker-Feldman doctrine in full because the other arguments resolve this matter.
2

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First, we cannot grant Plaintiff’s request for entry of default judgment because there is
not entry of default by the Clerk of the Court. J & J Sports Prods., Inc. v. Archie, No. 1:17-CV00745, 2019 WL 1125876, at *1 (M.D. Pa. Mar. 12, 2019). Second, although an amended
complaint can render a motion to dismiss moot, when the same deficiencies that were present in
the original complaint remain in the amended complaint, the Court may treat the motion to
dismiss as being addressed to the amended complaint. Jordan v. City of Philadelphia, 66 F.
Supp. 2d 638, 641 n.1 (E.D. Pa. 1999) (noting “Defendants . . . ‘are not required to file a new
motion to dismiss simply because an amended pleading was introduced while their motion was
pending. If some of the defects raised in the original motion remain in the new pleading, the
court simply may consider the motion as being addressed to the amended pleading.’”) (quoting 6
Charles A. Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure §
1476 (2nd ed. 1990)). Therefore, because the same deficiencies that pervaded Plaintiff’s original
complaint remain in his amended complaint, we will treat Defendants’ motion to dismiss as
being addressed to the amended complaint.
A. Section 1983 and Sovereign Immunity
As you might remember, Plaintiff sued eleven New Jersey state court judges, two county
surrogates, two deputy surrogates, Governor Murphy, Attorney General Grewal, the Acting
Administrative Director of the Courts, the Director of the Office of the Advisory Committee on
Judicial Conduct, and two county surrogate courts under Section 1983. Defendants contend that
they are state officials and therefore this this Court lacks subject matter jurisdiction, a Rule
12(b)(1) challenge, due to the Eleventh Amendment. We agree that the majority of Plaintiff’s
claims are barred by sovereign immunity. However, where we depart from Defendants is their
overbroad argument that they are entitled to sovereign immunity for all of Plaintiff’s claims.

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This is not so. Plaintiff has managed to thread the needle and avoid a complete dismissal of his
Complaint on sovereign immunity grounds by asserting a claim against Defendants in their
individual capacities for money damages.
The Eleventh Amendment “is a jurisdictional bar which deprives federal courts of subject
matter jurisdiction” over actions against a State. Grohs v. Yatauro, 984 F. Supp. 2d 273, 280
(D.N.J. 2013). The state’s immunity from suit also extends to “arms” of the state, such as
agencies or departments. Id. The Superior Court of New Jersey and its vicinages are part of the
judicial branch of the State of New Jersey and are thus protected by the Eleventh Amendment.
See Johnson v. State of New Jersey, 869 F.Supp. 289, 296–98 (D.N.J.1994); see also Hunter v.
Supreme Court of New Jersey, 951 F.Supp. 1161, 1177 (D.N.J.1996), aff’d, 118 F.3d 1575 (3d
Cir.1997). Therefore, to the extent that Plaintiff seeks to sue the two county surrogate courts—
courts created by the New Jersey constitution—we find his claims barred the Eleventh
Amendment. See Matter of Conda, 72 N.J. 229, 234 (1977) (finding the surrogate to be a judicial
officer performing important judicial functions in our court system and therefore subject to the
administrative oversight of the Chief Justice and the Supreme Court); N.J. Const. art. VII, § 2;
Hernandez v. Switzer, No. CIVA 09-2758 NLH KMW, 2009 WL 4730182, at *3 (D.N.J. Dec. 4,
2009) (concluding a New Jersey Municipal Court is entitled to sovereign immunity); Kapitanova
v. Ameriprise Tr. Co., No. 19-CV-5886 (CM), 2019 WL 2918133, at *2 n.1 (S.D.N.Y. July 8,
2019) (noting a plaintiff cannot assert a Section 1983 claim against the surrogate court because it
is an arm of the state).
State officials are also entitled to immunity from suit for monetary damages when acting
in their official capacities. Stephens v. Kenney, 802 F. App’x 715, 719 (3d Cir. 2020); A.W. v.
Jersey City Pub. Sch., 341 F.3d 234, 238 (3d Cir. 2003). These principles are consistent with the

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interpretation of a “person” under Section 1983; “neither a State nor its officials acting under
their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989).
There are only three exceptions to Eleventh Amendment immunity: “(1) abrogation by an
Act of Congress, (2) waiver by state consent to suit; and (3) suits against individual state officials
for prospective relief to remedy an ongoing violation of federal law.” M.A. ex rel. E.S. v. StateOperated Sch. Dist., 344 F.3d 335, 345 (3d Cir. 2003). Moreover, Eleventh Amendment
immunity does not bar suits against state officials sued in their individual capacity. See Hafer v.
Melo, 502 U.S. 21, 26 (1991) (holding state officials sued in their individual capacity are
“persons” for purposes of § 1983); Walker v. Beard, 244 Fed. App’x. 439, 440 (3d Cir. 2007).
The first exception, congressional abrogation, does not apply in this case because
“Congress did not abrogate states’ sovereign immunity when it enacted 42 U.S.C. § 1983.”
Walker v. Beard, 244 Fed. App’x. 439, 440 (3d Cir. 2007). The second exception, state waiver,
also does not apply in this case because Plaintiff, as the party with the burden to prove subject
matter jurisdiction, has not raised this issue. Therefore, we are left with the last two avenues
which provide a means to vitiate a state official’s immunity.
A plaintiff may sue a state official, individually, for a constitutional violation under the
legal fiction of Ex parte Young, so long as they seek prospective injunctive or declaratory relief.
Ex parte Young, 209 U.S. 123, 159–60 (1908); see Alden v. Maine, 527 U.S. 706, 757 (1999). In
order to do so, however, the claim must be against a state official for ongoing violations of
federal law. Wheeling & Lake Erie R. Co. v. Pub. Util. Comm’n of Com. of Pa., 141 F.3d 88, 91
(3d Cir. 1998). Moreover, Eleventh Amendment immunity does not bar suits against state
officials sued in their individual capacity. See Hafer v. Melo, 502 U.S. 21, 26 (1991) (holding

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state officials sued in their individual capacity are “persons” for purposes of § 1983); Walker v.
Beard, 244 Fed. App’x. 439, 440 (3d Cir. 2007). Because damage remedies from a state official
acting in his or her individual capacity would come from that individual’s personal assets, the
state would not be the real party of interest. Id. “In determining whether [a plaintiff has sued an
official] in her personal capacity, official capacity, or both, [courts] . . . look to the complaints
and the course of proceedings.” Garden State Elec. Inspection Servs. Inc. v. Levin, 144 F. App’x
247, 251 (3d Cir. 2005).
Although not expressly stated in the body of the Complaint, it appears Plaintiff is suing
Defendants in both their official and individual capacity. With the exception of Governor
Murphy and Attorney General Grewal—who are only sued in their official capacity—Plaintiff
labels each Defendant in the caption of the Complaint as being sued “in their individual and
official capacity.” Likewise, Plaintiff seeks monetary damages not only from the State of New
Jersey but also from each Defendant. Garden State Elec. Inspection Servs. Inc. v. Levin, 144 F.
App’x 247, 251 (3d Cir. 2005) (considering who the plaintiff sought damages from in order to
determine whether the defendants were being sued in their official or individual capacities).
Therefore, we will construe Plaintiff’s complaint as asserting claims against the Defendants in
both their official and individual capacities.
It is beyond peradventure that Plaintiff’s claims against the state Defendants in their
official capacities for money damages are barred by sovereign immunity. Reardon v. New Jersey,
No. CIV. 13-5363 NLH, 2014 WL 2921030, at *4 (D.N.J. June 27, 2014) (explaining that as
officers of the state of New Jersey, state court judges enjoy sovereign immunity); Green v. Essex
Cty. Superior Ct. Clerk, No. CIV.A. 02-1872 (GEB), 2006 WL 932055, at *3 (D.N.J. Apr. 6,
2006) (dismissing a claim against the Essex County Superior Court Clerk because of sovereign

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immunity); Matter of Conda, 72 N.J. 229, 234, 370 A.2d 16, 18 (1977) (explaining the surrogate
acts as both a judicial officer and a clerk of the court); see also Newton. v. New Jersey, No. CV
15-6481 (JLL), 2017 WL 27457, at *4 (D.N.J. Jan. 2, 2017) (concluding that sovereign
immunity prohibited a § 1983 claim against the Acting Administrative Officer of the Courts);
Capogrosso v. The Supreme Ct. of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (concluding the
State Advisory Committee on Judicial Conduct and its employees were entitled to sovereign
immunity from § 1983 claims); Smith v. Smith, No. CV 20-9120 (RBK/AMD), 2020 WL
4199782, at *4 (D.N.J. July 22, 2020) (dismissing Section 1983 claims against Governor Murphy
and Attorney General Grewal because they were state officials sued in the official capacity and
therefore entitled to sovereign immunity).
Moreover, Plaintiff cannot maintain a claim against the state official Defendants for
prospective injunctive relief to end an ongoing violation of federal law. To determine whether
application of the Ex parte Young doctrine is appropriate, “a court need only conduct a
straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” Pennsylvania Fed’n of Sportsmen's
Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002). Although nominally characterized as
prospective injunctive relief, in substance Plaintiff seeks to have this Court compel the state
courts to act in a certain manner. For instance, he requests this Court to order the New Jersey
state courts to hold proper hearings with oversight from an impartial and independent body. This
runs afoul of the principle that a federal court lacks jurisdiction in a suit brought by an individual
to compel a state to act. Heine v. Comm’r of The Dep’t of Cmty. Affs. of the State of New Jersey,
No. 2:11-5347 (KM) (JBC), 2016 WL 7042069, at *7 (D.N.J. Dec. 1, 2016) (concluding a
plaintiff’s request that the court order the state of New Jersey to set up a program and funding for

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persons affected by rooming house regulations ran afoul of the rule that a federal court cannot
compel a state to act in a suit brought by an individual). Nor does Plaintiff identify any ongoing
violation of federal law. Nemeth v. Off. of the Clerk of the New Jersey Superior Ct., No. CV 1916809 (FLW), 2020 WL 2537754, at *6 (D.N.J. May 19, 2020) (dismissing claims against the
New Jersey Superior Court because the plaintiff did not assert there was a continuing violation of
federal law). Accordingly, Plaintiff’s claims against the state Defendants for prospective
injunctive relief are dismissed for lack of subject matter jurisdiction on the basis of 11th
Amendment sovereign immunity.
This leaves Plaintiff’s claims against the state official Defendants in their individual
capacity for damages, which as Defendants point out, are mostly barred by the doctrine of
absolute judicial immunity or quasi-judicial immunity.3
B. Absolute Judicial Immunity
Defendants claim, and we agree, the doctrine of absolute judicial immunity bars
Plaintiff’s claims against the named state court judges. They also contend that this doctrine or its
counterpart, quasi-judicial immunity, shields Defendants John Tonelli and Glenn Grant from
liability. We concur in this reasoning as well. However, neither of these doctrines prevents the
surrogates or deputy surrogates from being amenable to suit. Nevertheless, we find the claims
against these state actors to be conclusory and therefore subject to dismissal under Rule 12(b)(6).
To the extent that Plaintiff seeks to hold the state judicial Defendants liable for monetary
damages in their individual capacities, these claims are barred by absolute immunity. As a
general rule, judges acting in their judicial capacity are absolutely immune (in both their
individual and official capacities) from suit for monetary damages under the doctrine of judicial

3

Governor Murphy and Attorney General Grewal were only sued in their official capacity.

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immunity. See Mireles v. Waco, 502 U.S. 9, 9 (1991). “A judge will not be deprived of immunity
because the action [s]he took was in error, was done maliciously, or was in excess of [her]
authority . . .” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). Nor is immunity vitiated by
“allegations of malice or corruption of motive.” Forrester v. White, 484 U.S. 219, 227 (1988).
There are two exceptions to absolute judicial immunity: (1) “a judge is not immune from
liability for nonjudicial actions” and (2) “a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11–12. The
defendant who seeks protection under the doctrine of judicial immunity has the “burden of
showing that such an exemption is justified.” Montana v. Connor, 817 F. Supp. 2d 440, 445
(D.N.J. 2011). With respect to the first inquiry, “the factors determining whether an act by a
judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is a function normally
performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Stump, 435 U.S. at 362. Our task is to “draw the line between
truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been
done by judges,” such as administrative acts. Gallas v. Supreme Ct. of Pennsylvania, 211 F.3d
760, 769 (3d Cir. 2000).
The first exception is inapplicable. All of the allegations against the state judicial
Defendants pertain to conduct or actions undertaken in their judicial capacity, such as probate
Judge Hogan appointing a temporary administrator for an estate, Judge Alvarez affirming a
lower court’s decision, Judge Kassel dismissing Plaintiff’s legal malpractice case, Judge
Jacobson refusing to discharge Judge McInerney as administrator of the estate, or Judge Suter
refusing to vacate Judge Hogan’s order. However wrong these actions may be in the eyes of
Plaintiff, they are quintessential judicial functions—authoritatively adjudicating private rights—

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shielded from liability. Gallas v. Supreme Ct. of Pennsylvania, 211 F.3d 760, 770 (3d Cir. 2000)
(finding a judge’s act of issuing a protection from abuse order was a judicial act, not an
administrative one). The fact that the decisions may have been unfair, incorrect, or animated by
malice will not vitiate the shield of immunity. Id. at 769. Therefore, even though Plaintiff’s
polemic against the state judges characterizes their decisions as “outlandishly flawed,” “more
fairy tale than fact,” or colored by a conflict of interest, we cannot say that these actions were
“nonjudicial.”
The second exception is equally inapplicable. With respect to the second inquiry, we
must distinguish between acts in the “clear absence of all jurisdiction,” which do not enjoy the
protection of absolute immunity, and acts that are merely in “excess of jurisdiction,” which do
enjoy that protection. Gallas, 211 F.3d at 769. Even when a judge violates a rule of court
procedure by taking the action, so long as the judge had general subject matter jurisdiction over
the action, the act is not stripped of its judicial immunity. Montana v. Connor, 817 F. Supp. 2d
440, 446 (D.N.J. 2011). In other words, “a judge does not act in the clear absence of all
jurisdiction when the judge enters an order at least colorably within the jurisdiction of her court
even though a court rule or other procedural constraint required another judge to act in the
matter.” Gallas, 211 F.3d at 771.
Although difficult to discern from the Complaint, Plaintiff seems to suggest that the state
judicial Defendants acted in clear absence of all jurisdiction by violating certain administrative
directives and failing to make correct decisions. This latter point was already addressed above
and is rejected. The former argument is also fatally flawed because it effectively amounts to a
concession that Defendants acted in excess of jurisdiction rather than in clear absence of all
jurisdiction. Plaintiffs argument is not that Defendants did not have subject matter jurisdiction to

15

hear his case—such as a probate judge trying a criminal case—but rather that they violated some
administrative rule by acting contrary to its directive. Figueroa v. Blackburn, 208 F.3d 435, 444
(3d Cir. 2000) (explaining if a probate judge should try a criminal case, he would be acting in the
clear absence of jurisdiction, but if a judge of a criminal court were to convict a defendant of a
non-existence crime, he would be acting in excess of jurisdiction). Therefore, even if we were to
accept Plaintiff’s allegations that Defendants violated administrative directives by failing to
transfer a matter out of the vicinage where a judge sits when there is a conflict of interest and
report unethical attorney conduct, such procedural errors would, at most, constitute acts in excess
of their jurisdiction. Mireles, 502 U.S. at 13 (holding that a judge merely acted in excess of his
authority in ordering police officers to use excessive force in bringing an attorney to his
courtroom for a calendar call); see also Figueroa v. Blackburn, 208 F.3d 435 (3d Cir.2000)
(concluding a New Jersey municipal court judge had absolute judicial immunity for her act in
holding a party in contempt and jailing him without granting a stay as required by court rule even
though in hearing the case she acted contrary to a Supreme Court of New Jersey directive that
required her to transfer the case to another judge). Therefore, even accepting Plaintiff’s
allegations as true, we cannot find that the state judicial Defendants acted in the clear absence of
jurisdiction. Accordingly, they are entitled to absolute judicial immunity and the claims asserted
against them in their personal capacity for monetary damages will be dismissed with prejudice.
With respect to Plaintiff’s claims against Defendants John Tonelli and Glenn Grant, they
are barred by the doctrine of quasi-judicial immunity or prosecutorial immunity. “[T]he
protections of judicial immunity extend to officials who perform quasi-judicial functions.”
Campbell v. Supreme Ct. of New Jersey, No. CIV.A. 11-555 ES, 2012 WL 1033308, at *10
(D.N.J. Mar. 27, 2012). “‘When judicial immunity is extended to officials other than judges, it is

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because their judgments are functional[ly] comparab[le] to those of judges—that is, because
they, too, exercise a discretionary judgment as a part of their function.’” Kwasnik v. Leblon, 228
F. App’x 238, 244 (3d Cir.2007). The acts complained of here seem to involve the exercise of
discretion on the part of Defendants. Plaintiff asserts that Judge “McInerney’s extensive
misconduct—including perjury, fraud, deception, and bigotry demonstrated in his personal life—
was formally complained about” to the Acting Administrator of the Court and the Office of the
Advisory Committee on Judicial Conduct but no action was taken beyond reply letters finding no
misconduct. Thus, to the extent that Plaintiff is challenging the ACJC’s finding of no
misconduct, this decision smacks of judicial discretion and entitles Defendants to quasi-judicial
immunity from suit. Kwasnik v. LeBlon, 228 F. App’x 238, 244 (3d Cir. 2007). Similarly, to the
extent these actions are prosecutorial in nature—that is, refusing to bring charges against an
individual for misconduct—the Defendants are protected by prosecutorial immunity. Id.
Finally, Plaintiff’s claims against the surrogates and deputy surrogates fail under Rule
12(b)(6) because they are extremely conclusory. Plaintiff alleges these Defendants “would often
not return phone calls or acknowledge filings by plaintiff’s attorney while immediately
accommodating [Judge] McInerney’s every whim.” Clearly this allegation does not challenge the
surrogate’s conduct as a judge, nor does it implicate quasi-judicial immunity. Russell v.
Richardson, 905 F.3d 239, 247 (3d Cir. 2018) (explaining quasi-judicial immunity extends to
those who make discretionary judgments functionally comparable to judges, those who perform
a somewhat different function in the trial process but whose participation is equally
indispensable, and those who serve as arms of the court fulfilling a quasi-judicial role at the
court’s request). Nevertheless, it still fails to even raise the specter of a conspiracy. GrossQuatrone v. Mizdol, 811 F. App’x 95, 100 (3d Cir. 2020) (concluding that an allegation two

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defendants were at the same meeting and that one stated he wanted to see the other later did not
evince concerted action). Accordingly, Plaintiff’s claims against the surrogate and deputy
surrogate Defendants are dismissed without prejudice under Rule 12(b)(6).
IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s claims against all Defendants except for the

surrogates and deputy surrogates are dismissed with prejudice. Plaintiff’s claims against the
surrogates and deputy surrogates are dismissed without prejudice. Therefore, Defendants’ motion
to dismiss is granted and Plaintiff’s motion for entry of judgment is denied.

Dated: 6/1/2021

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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