HUSSIEN v. MATHIAS et al
MEMORANDUM/OPINION. Signed by Judge Kevin McNulty on 10/7/16. (DD, ) N/M
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 15-7166 (KM)
ROBERT R. MATHIAS, LOLITA
REALTY, ROBERT PAYNE, ANITA
The complaint in this action (the “Federal lawsuit”) arises from a prior
state court action, Mamdouh Hussien v. Lolita Realty Co., Robert Payne, and
Anita Payne, No. HUD-L-5607-12 (the “State lawsuit”). The pro se federal
complaint (“Cplt.”, ECF no. 1), while it cites no statute, is clearly intended as a
federal civil rights action under 42 U.S.C. § 1983, and it may be read to assert
a state law claim as well.’ Now before the court is the motion (ECF no. 10) of
Paragraphs 1 and 3 of the complaint read as follows:
1. This action is brought to enforce provision of title under federal civil
rights claims against the defendant Robert Mathis, Robert and Anita
Payne Lolita Realty Company for violation of substantive rights and for
violations of rights created by federal law. Which the court has
jurisdiction over the federal civil right claim p,4 additional jurisdiction.
3. The plaintiff complaint will state a claim under the federal law and the
federal civil right law which those Defendants named in the complaint
involving in violation of a right secured by the constitution and law of the
United States which the court have jurisdiction to hear this case.
(Cplt. ¶ 1, 3) There are many references to perjury and contempt, but these are
not private causes of action for which a plaintiff can sue. Those allegations
might, however, fall under a more general state law tort theory of fraud.
the defendants, Robert R. Mathias, Lolita Realty Co., Robert Payne, and Anita
Payne, to dismiss the complaint for lack of jurisdiction under Fed. R. Civ. P.
12(b)(1), or for failure to state a claim under Fed. R. Civ. P. 12(b)(6). For the
reasons stated herein, those motions are granted.
Rule 12(b)(1) Motion to Dismiss
Motions to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1) may be raised at any time. Iwartowa v. Ford Motor Co.,
67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). “[B]ecause subject matter
jurisdiction is non-waivable, courts have an independent obligation to satisfy
themselves of jurisdiction if it is in doubt. See Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 278, 97 S. Ct. 568, 50 L.Ed.2d 471 (1977). A
necessary corollary is that the court can raise sua sponte subject-matter
jurisdiction concerns.” Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76—77 (3d
Rule 12(b)(1) challenges may be either facial or factual attacks. See 2
Moore’s Federal Practice § 12.30 (3d ed. 2007); Mortensen v. First Fed. Say. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that
the complaint does not allege sufficient grounds to establish subject matter
jurisdiction. Iwanowa, 67 F. Supp. 2d at 438. A court considering such a facial
challenge assumes that the allegations in the complaint are true, and may
dismiss the complaint only if it nevertheless appears that the plaintiff will not
be able to assert a colorable claim of subject matter jurisdiction. Cardio—Med.
Assoc., Ltd. V. Crozer—Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983);
Iwanowa, 67 F. Supp. 2d at 438.
The distinction perhaps does not make much difference in this case. The
defendants’ motion attaches exhibits. These, however, are state court
pleadings. Even on a facial motion to dismiss, the court could take judicial
notice of such public records—not for the truth of statements contained
therein, but as a record of what was litigated in and decided by the State
court. The plaintiff had an adequate opportunity to respond to these exhibits,
and in fact did submit voluminous exhibits of his own in response to the
motion. (See ECF nos. 11, 14.)
Rule 12(b)(6) Motion to Dismiss
R. Civ. P. 12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if it fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a
to dismiss, a court must take all allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Warth v. Seldin, 422
490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc.,
F.3d 478, 483 (3d Cir. 1998); see also Phillips v. County of Allegheny, 515
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined
later Supreme Court Twombly case, infra).
FED. R. CIV. P. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
(O]n a motion to dismiss, we may take judicial notice of another court’s
opinion—not for the truth of the facts recited therein, but for the existence of
the opinion, which is not subject to reasonable dispute over its authenticity.
See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991); United States
v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991); see also Funk v. Commissione
163 F.2d 796, 800—0 1 (3d Cir. 1947) (whether a court may judicially notice
other proceedings depends on what the court is asked to notice and on the
circumstances of the instant case).
S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d
410, 42627 (3d Cir. 1999). See generally Fed. R. Evid. 201.
Even setting aside judicial notice, certain extrinsic documents may be
considered without converting a facial Rule 12(b)(l) challenge into a factual one,
Rule 12(b)(6) motion into one for summary judgment. See Schmidt v. Skolas
, 770 F.3d
241, 249 (3d Cir. 2014) (“However, an exception to the general rule is that ‘docum
integral to or explicitly relied upon in the complaint’ may be considered ‘witho
converting the motion to dismiss into one for summary judgment.’”) (quoting
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)) accord
Asbestos Products Liability Litigation (No. VI), 822 F’.3d 125, 134 & n.7 (3d Cir.
Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiff’s right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F’.3d 59, 64 (3d Cir. 2008). A claim has
“facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin to a
it asks for more than a sheer possibility.” Jqbal, 556
U.S. at 678 (2009).
Where, as here, the plaintiff is proceeding pro Se, the complaint is “to be
liberally construed,” and, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “[A] litigant is not absolved
from complying with Twombly and the federal pleading requirements merely
because s/he proceeds pro Se.” Thakar u. Tan, 372 F. App’x 325, 328 (3d Cir.
2010) (citation omitted).
The allegations of the complaint, which are assumed to be true for
purposes of the motion to dismiss, are as follows.
Mr. Hussien resided in an apartment on Garrison Avenue in Jersey City.
(Cplt. ¶ A) In the State lawsuit, Mr. Hussien sued defendants Lolita Realty,
Robert Payne, and Anita Payne for personal injury. Lolita and the Paynes were
represented in that action by defendant Robert R. Mathias, Esq. (Cplt. B)
In the State Lawsuit, Hussien sought a default judgment, asserting that
he had duly served Lolita and the Paynes by certified mail, and that they had
also been notified of the action by their insurer, but nevertheless had not
answered the complaint. (Cplt.
C) The State court granted the motion for
default in July 2013, and scheduled a hearing on damages for September 30,
2013. (Cplt. ¶J D, E)
Robert Mathias, Esq., then “filed a false claim that [Hussieni never
served the complaint,” despite evidence of mailing submitted by Hussien. (Cplt.
¶ F) He also allegedly perjured himself on September 30, 2013, when he stated
to the State court that he did not represent Lolita, but only the insurer. (Cplt
¶J G, H) The complaint cites evidence that Mathias in fact represented Lolita,
Robert Payne, and Anita Payne. Mathias is alleged to have directed the actions
of the other defendants to such a degree that he should be held answerable for
violation of Mr. Hussien’s constitutional rights, (Cplt.
The complaint may be read liberally to assert a claim under 42 U.S.C.
1983, and would therefore invoke this court’s federal-question jurisdiction
under 28 U.S.C.
1331. Defendants assert, however, that this court’s
assertion of jurisdiction is barred by the Rooker-Feidman doctrine.
A federal district court does not sit to hear appeals from state court
judgments. Thus Rooker-Feidman holds that lower federal courts cannot
entertain federal claims that (1) were previously adjudicated in state court or
(2) are inextricably intertwined with a prior state court decision. See District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 416 (1923); Guarino v. Larsen, 11 F.3d 1151,
1156—57 (3d Cir. 1993); Port Auth. Police Benev. Ass’n v. Port Auth., 973 F.2d
169, 178 (3d Cir. 1992). The first alternative, actual adjudication, requires little
explication. As for the second, a federal claim is “inextricably intertwined” with
a prior state court decision if “granting the relief requested in the federal action
requires determining that the state court’s decision is wrong or would void the
The complaint does not allege, and it cannot be inferred from the complaint or
the circumstances, that the parties are citizens of different states. The case therefo
does not rest on this court’s diversity jurisdiction under 28 U.S.C. 1332.
state court’s ruling.” FOCUS v. Allegheny County Court of Common Pleas., 75
F.3d 834, 839-40 (3d Cir. 1996).
Rooker-Feldman thus operates to prevent a disgruntled party in state
court litigation from collaterally attacking the results of that litigation in federal
court, claiming constitutional or other error. See also B.S. v. Somerset County,
704 F.3d 250 (3d Cir. 2013). To put it another way, Rooker-Feldman bars
“cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus., Inc., 544 U.S. 280, 284 (2005).
Defendants’ contentions in this regard are weighty. Their motion
attaches pleadings from the State lawsuit (ECF no. 10-2, Certification of
Thomas R. Kobin, Esq., and attached pleadings), which demonstrate the
following: The motion to vacate default was granted; the State court found that
service had not been properly accomplished and directed that defendants be
served. (ECF no. 10-2 at 1 1—12). The State lawsuit then proceeded in due
course. On June 12, 2015, the State court entered summary judgment in favor
of Lolita and the Paynes, and against Hussien. (ECF no. 10-2 at 21) Hussien
filed a motion for reconsideration, which was denied on July 10, 2015. (ECF
no. 10-2 at 35) Hussien filed a motion for relief from judgment, which was
denied on August 21, 2015. (ECF no. 10-2 at 63) Hussien filed a motion to
reopen argument, which was denied on October 9, 2015. (ECF no. 10-2 at 72)
Hussien filed another motion to reinstate the State lawsuit, which was denied
on November 20, 2015. (ECF no. 10-2 at 75) In a supplemental submission,
Mr. Hussein points out that on May 9, 2016, he filed another motion to
reinstate the State lawsuit. (ECF no. 14)
To a great degree, this Federal lawsuit is an impermissible attempt to
appeal issues litigated and lost in the State lawsuit; the complaint seems to
rest on a theory that the default should not have been vacated, and therefore
Mr. Hussein should have won the State lawsuit by default. To the extent that
this complaint seeks to overturn the judgment of the state court, it is
But the complaint also seems to assert that Mr. Mathias, acting on
behalf of Lolita and the Paynes, deprived him of civil rights by the manner in
which he litigated the claims in the State lawsuit. Construing this pro se
complaint liberally, I might find that it contains an independent claim, not
barred by Rooker-Feldman. I therefore proceed past the jurisdictional analysis,
and consider the Rule 12(b)(6) motion to dismiss.
Failure to state a claim
The complaint fails to allege state action, an essential element of a claim
under 42 U.S.C.
§ 1983. To the extent the claims pass the Rooker-Feidman
jurisdictional bar, they will be dismissed under Rule 12(b)(6) for failure to state
Title 42, United States Code, Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress.
§ 1983. Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the Constitution or laws of the
United States, and second, that the alleged deprivation was committed or
caused by a person acting under color of state law. See Harvey v. Plains Twp.
Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West
v. Atkins, 487 U.S. 42, 48 (1988). It follows that “[t]o establish a claim under
1983, a plaintiff ‘must establish that she was deprived of a federal
constitutional or statutory right by a state actor. “ Frierson v. St. Francis Med.
Ctr., 525 F. App’x 87, 90 (3d Cir. 2013) (quoting Kach v. Hose, 589 F.3d 626,
646 (3d Cir. 2009)) (emphasis added); see also Veggian v. Camden Bd. of Educ.,
No. 05-0070, 2007 WL 2900413, at *3 (D.N.J. Oct. 2, 2007) (“It is well
established that in order to maintain a § 1983 claim for an alleged
constitutional violation, it must be brought against a ‘state actor.”) (citatio
The complaint contains no allegation that these defendants are
associated in any way with State government. Mathias and the Paynes are
private individuals, not government officials. Lolita is a private real estate
company, not a government agency. Such Section 1983 claims against private
parties are routinely dismissed; I cite a few recent examples. See Dougherty
Adams-Dougherty, No. CV 15-854 1 (JBS/AMD), 2016 WL 5219460, at *7
(D.N.J. Sept. 21, 2016) (dismissing
§ 1983 allegations that ex-spouse’s family
members conspired with courts and police to deprive plaintiff of his rights
divorce proceedings); Barker v. Our Lady of Mount Cannel Sch., No. CV
124308, 2016 WL 4571388, at *14 (D.N.J. Sept. 1, 2016) (private school does
become state actor by virtue of receiving government funds, nor do individ
become state actors by making false statements about availability of
government services); Roy v. Cumberland Mut. Fire Ins. Co., No. CV 15-817
(JBS/AMD), 2016 WL 4435670, at *2 (D.N.J. Aug. 17, 2016) (insurance
company alleged to have wrongfully denied a claim was not a state actor
purposes of § 1983). Nor are these defendants alleged to have acted inform
on behalf of the State or under color of State authority. Nor does appear
court convert a private person, even an appointed attorney, into a state
See Xenos v. Slojund, 424 F. App’x 80 (3d Cir. 2011) (citing Polk County
A private party may be found to act for the State in rare circumstances.
“Although it is possible for a private party to violate an individual’s 1983
individual alleging such a violation is not relieved of the obligation to establi
sh that the
private party acted under color of state law.” Munoz u. City of Union City, 481
754, 761 (3d Cir. 2012) (footnote omitted) (quoting Kost v. Kozakiewicz,
1 F.3d 176,
184 (3d Cir. 1993)). “This requires the plaintiff to show ‘a sufficiently close
between the actions of the private party and the State to warrant treating
actions as those of the State.” Id. (citing Kost, 1 F.3d at 184). The required
be found where “(1) the private party performed a function typically perform
ed by the
state; (2) the private party acted in concert with the State; or (3) the State
interdependent with the private party.” Id. (citing Kach v. Hose, 589 F.3d
626, 646 (3d
Cir. 2009)). The complaint contains no allegations that would establish
such a nexus.
Dodson, 454 U.S. 312, 325 (1981)); Mondelli v. Berkeley Heights Police Dep’t,
No. 14-6196 (KSH) (CLW), 2016 WL 4923508, at *3 (D.N.J. Sept. 14, 2016)
(“The law is well established that private attorneys acting on behalf of their
clients are not State actors.”) (citation omitted).
Whatever Section 1983 claims survive the Rooker-Feidman jurisdictional
analysis must therefore be dismissed.
As noted above, the complaint may intend to assert state law claims.
These must be dismissed as well. Where all federal claims are dismissed
trial, “the district court must decline to decide the pendent state claims
considerations of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so. Hedges v. Musco, 204
109, 123 (3d Cir. 2000) (quoting Borough of W. Mzfjlin v. Lancaster, 45 F.3d
780, 788 (3d Cir. 1995)) (emphasis in original)). No such considerations
counsel for retaining jurisdiction here, where the federal claims lack any
substance, and even the state claims are at best vaguely alleged. Within
discretion, then, the court declines to exercise supplemental jurisdiction
any state law claims. See 28 U.S.C.
For the foregoing reasons, the defendants’ motion to dismiss the
complaint for lack of jurisdiction and failure to state a claim is GRAN
appropriate order is filed herewith.
Dated: October 7, 2016
H N. KEVIN MCNULTY, U.S).J.
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