ABULKHAIR v. THE OFFICE OF ATTORNEY ETHICS et al
OPINION. Signed by Judge Kevin McNulty on 05/24/2017. (ek)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Aseem A. ABULKHAJR
Civ. No. 2:16-03767-KM-JBC
THE OFFICE OF ATTORNEY ETHICS AND
STATE OF NEW JERSEY,
KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on the motion (ECF No. 12) of
the defendants, the State of New Jersey (“New Jersey”) and the Office of
Attorney Ethics (the “OAE”; collectively with New Jersey, the “State”) to
dismiss the Complaint (ECF No. 1) of the plaintiff, Aseem A. Abulkhair,
pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the
State’s motion to dismiss is granted and the Complaint is dismissed in
The plaintiff, Aseem A. Abulkhair, is a resident of New Jersey.
(Complaint, hereinafter “Compi.”, p.1). Mr. Abulkhair brings claims
under the United States Constitution and New Jersey statutory and
common law against the OAE, “an agency employed by the State of New
Jersey as a supervisor who is responsible for attorney unethical practice
and misconduct” and against New Jersey as the alleged “employer” of the
Mr. Abulkhair alleges that the OAE mishandled the investigation
and prosecution of grievances he filed against his former attorney,
William T. Smith. (Compi.
¶J 13-14) Mr. Abulkhair claimed Smith
collected attorney’s fees for representing him in three personal injury
actions without a written contract, in violation of Rule 1. 5c of the Rules
of Professional Conduct.’ Mr. Abulkhair also avers that Smith
abandoned certain of these cases, leading to their dismissal for lack of
Mr. Abulkhair insists that, based on Smith’s conduct, the OAE
should have drawn from the New Jersey Lawyers’ Fund for Client
Protection Fund (the “Fund”) to reimburse Mr. Abulkhair for
the $10,753.50 in fees he paid to Smith. Instead, he says, the OAE
struck a deal with Smith and only required him to take an educational
¶ 23) Mr. Abulkhair attributes this allegedly inequitable
resolution, in part, to the fact that the attorney the OAE appointed to
investigate Mr. Abulkhair’s grievance, Steven Ross, maintains an office
across the street from the office of a corrupt law firm. He also alleges
Rule 1.5(c) of the New Jersey Disciplinary Rules of Professional Conduct
A fee may be contingent on the outcome of the
matter for which the service is rendered, except in a
matter in which a contingent fee is prohibited by law
or by these rules. A contingent fee agreement shall
be in writing and shall state the method by which the
fee is to be determined, including the percentage or
percentages that shall accrue to the lawyer in the
event of settlement, trial or appeal, litigation and
other expenses to be deducted from the recovery, and
whether such expenses are to be deducted before or
after the contingent fee is calculated. Upon
conclusion of a contingent fee matter, the lawyer
shall provide the client with a written statement
stating the outcome of the matter and, if there is a
recovery, showing the remittance to the client and
the method of its determination.
Mr. Abullthair alleges that the “corrupt” law firm “produced two immoral
and moronic disqualified judges”—at least one of which, it seems, presided over
and dismissed an action Mr. Abulkhair brought against Smith in state court.
(Compl. ¶ 15) For clarity, I take judicial notice of Abulkhair v. Toskos, 430 F.
that Ross ignored evidence that Smith admitted to his misconduct during
a trial in New Jersey state court. (Id.
Further, Mr. Abulkhair alleges that Ross discriminated against him
based on his race, religion and the “strong language” he used in
reference to state court judges. (Id.
64, 78) Mr. Abulkhair alleges that,
although he responded to each of Smith’s requests for documentary
evidence, such as proof of payments to Smith and copies of motion
papers in which (Mr. Abulkhair alleges) Smith perjured himself (id. ¶j
19, 20), Ross fabricated facts in his report to the OAE on Mr. Abulkhair’s
grievance. These fabricated facts, Mr. Abulkhair alleges, protected and
benefitted Smith. (Id.
Mr. Abulkhair says he formally objected to the OAE’s handling of
his grievance against Smith and demanded that the OAE secure for him
reimbursement of the $10,753.50 he paid to Smith. (Id.
24) But, he
says, another OAE-appointed investigator, Paula Granuzzo, also ignored
evidence and neglected to take appropriate action. (Id.
was closed on May 5, 2016. (Id.
25) The matter
The primary purpose of this lawsuit seems to be the recoupment of
the fees Mr. Abulkhair paid Smith. He alleges that the OAE’s “arbitrary
jeopardized his property interest in his legitimate
reimbursement and compensation of his loss” and also subjected him to
fear of losing his rights to reimbursement and to the burden of filing this
65) In his brief in opposition to this motion, Mr. Abulkhair
contends he has a right to reimbursement pursuant to Rule 1:28 of the
New Jersey Rules of Court. (Abulkhair’s Brief in Opposition (ECF No. 13,
Appx 98 (3d Cir. 2011) (discussing Abullthair’s claims against New Jersey
Superior Court Judge Toskos for failure to recuse himself and conspiracy
claims against Smith and his law firm and affirming district court’s dismissal of
complaint for lack of federal jurisdiction and for failure to state a claim).
This rule directs the Supreme Court of New Jersey to appoint seven
trustees to administer and operate the Fund, N.J.Ct. R. 1:28-1(a), and also
provides in relevant part:
The trustees in their sole discretion but on the
affirmative vote of 4 of them shall determine
which eligible claims merit reimbursement from
the Fund and the amount, time, manner,
reimbursement. In making such determinations
the trustees shall consider, among other
appropriate factors, the following:
(1) The amounts available and likely to
become available to the Fund for the
payment of claims and the size and
number of claims which are likely to be
(2) The amount of the claimant’s loss as
compared with the amount of losses
sustained by other eligible claimants;
(3) The degree of hardship suffered by the
claimant as a result of the loss;
(4) The degree of negligence, if any, of the
claimant which may have contributed to
(5) The potential for recovery from a
Id. 1:28-3(b). For a claim to be “eligible,” the attorney about whom a claim is
submitted must have “been suspended, disbarred or placed in disability
inactive status,  resigned with prejudice or  pleaded guilty to, or been
convicted of embezzlement or misappropriation of money or other property; or
an ethics committee [must have] certified a claim to the trustees as an
appropriate matter for their consideration.” Id. 1-28:3(2). Or, “[w]here an ethics
committee does not act and an attorney cannot be located, is deceased or
incapacitated, the trustees may consider timely application directly provided
that the trustees find that the claim is an appropriate matter for their
The State argues that this rule does not create a right to reimbursement
and therefore is not a basis for a claim of deprivation of due process. (Opp. 1819) I agree. See GE Capital Mortg. Set-us., Inc. v. New Jersey Title Ins. Co., 333
N.J. Super. 1, 5, 754 A.2d 558, 560 (App. Div. 2000) (“[T]he [New Jersey]
Supreme Court is vested with exclusive authority over the regulation of the Bar.
Pursuant to this authority, the Court created the Fund for the express purpose
of reimbursing, to a certain extent, the losses caused by the dishonest conduct
of members of the New Jersey bar. R. 1:28-1(a). Notably, though, the Court
mandated that ‘[n]o claimant or any other person or organization shall have any
Further, Mr. Abulkhair alleges that because the OAE’s “actions or
inactions and statements within their fabricated reports” implicitly
questioned the credibility of Mr. Abulkhair’s claims against Smith, the
State deprived him of “his reputation as an honest citizen.” (Id.
Mr. Abulkhair’s complaint asserts the following causes of action:
(1) deprivation of his Fourteenth Amendment right to equal
protection, in violation of 42 U.S.C.
1983 (“Section 1983”) (Id. ¶1127—53,
56, 60, 63—67);
(2) deprivation of his Fourteenth Amendment right to due process,
in violation of 42 U.S.C.
1983 (id. ¶1147—53, 56, 60, 63—67);
(3) conspiracy to deprive Mr. Abulkhair of equal protection under
the Fourteenth Amendment, in violation of 42 U.S.C.
(4) race-based discrimination in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”) (id.
(5) race-based discrimination in violation of the New Jersey law
Against Discrimination (“NJLAD”) (id.);
right in the Fund as beneficiary or otherwise.’ R. 1:28-3(d). Rather, the Court
directed it would be within the ‘sole discretion’ of the seven trustees appointed
to administer and operate the Fund to determine ‘which eligible claims merit
reimbursement from the Fund and the amount, time, manner, conditions and
order of payment of reimbursement.’ R. 1:28-3(b).” (citations omitted)); cf Town
of Castle Rock, Cob. u. Gonzales, 545 U.s. 748, 756, 125 S. Ct. 2796, 2803
(2005) (“To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire and more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to it.
recognize that a benefit is not a protected entitlement if government officials
may grant or deny it in their discretion.” (internal quotation marks and
Nevertheless, the issue is moot because Mr. Abulkhair’s Constitutional
claims are barred by the Eleventh Amendment. See discussion infra.
Several of the “counts” Mr. Abulkhair sets forth in the complaint allege
duplicative or multiple causes of action. Here, I have listed each cause of action
(6) religious discrimination in violation of the First Amendment (id.
(7) religious discrimination in violation of the NJLAD (id.);
(8) retaliation against Mr. Abulkhair in response to his “strong
language” against judges, in violation of the First Amendment (id. ¶j 78—
(9) intentional infliction of emotional distress (id.
(10) negligent infliction of emotional distress (id.
Mr. Abulkhair asks for damages, injunctive relief, and costs. (Id.
The State moves to dismiss only under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. I will also apply Rule 12(b)(1), because the
Mr. Abulkhair does not cite the statutory vehicle through which he
brings his First Amendment claims (Counts 6 and 8 described in text). I
construe them as Section 1983 claims. See Baker v. McCollari, 443 U.S. 137,
145, 99 S. Ct. 2689, 2695 (1979) (“It is for violations of.
statutory rights that 42 U.S.C. § 1983 authorizes redress; that section is not
itself a source of substantive rights, but a method for vindicating federal rights
elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.”).
In a jurisdictional statement in the Complaint, Mr. Abulkhair also
purports to bring claims under the Americans with Disabilities Act (“ADA”) and
for violation of Professional Rule of Conduct 1.5(c). In the section of the
Complaint dedicated to setting forth causes of action, however, Mr. Abulkhair
abandons these claims, and the Complaint lacks any factual allegations that
would support them.
Specifically, he requests (1) damages not less than the $10,753.50 in fees
he paid to Smith; (2) the return of all “extorted money/property” seized by the
State; (3) injunctive relief to compel the State to compensate Mr. Abulkhair for
the loss of his grievance case; (4) injunctive relief prohibiting the State from
depriving other aggrieved victims of their rights; (5) reasonable costs and fees
pursuant to 42 U.S.C. § 1988; (6) all costs and expenses stemming from the
State’s actions; (7) exemplary and punitive damages to deter the State from
engaging in wrongful conduct in the future; and (8) other relief as justice
requires. (Id. pp. 16—17)
State’s argument that Eleventh Amendment principles of sovereign
immunity bar Mr. Abulkhair’s claims implicates the Court’s subject
A. Rule 12(b)(6) Standard
Rule 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
defendant, as the moving party, bears the burden of showing that no
claim has been stated. Animal Science Products, Inc. v. China Minmetals
Coip., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a
motion to dismiss, the facts alleged in the complaint are accepted as true
and all reasonable inferences are drawn in favor of the plaintiff. N.J
Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J., 760
F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 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 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 complaint’s factual allegations must be sufficient to
raise a plaintiff’s right to relief above a speculative level, so that a claim
is “plausible on its face.” Id. at 570; see also Umland v. PLANCO Fin.
Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility
standard is met “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 “[t]he plausibility standard is not akin
to a ‘probability requirement’.
it asks for more than a sheer
possibility.” Iqbal, 556 U.S. at 678.
As the Third Circuit instructed post-Iqbal, “conclusory or ‘bare
bones’ allegations will no longer survive a motion to dismiss: ‘threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’ To prevent dismissal, all civil
complaints must now set out ‘sufficient factual matter’ to show that the
claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 662). “Nor does a complaint
suffice if it tenders ‘naked assertion[sl’ devoid of ‘further factual
enhancement.” Iqbal, 556 U.S. at 662 (citing Twombly, 550 U.S. at 555).
A plaintiff alleging a conspiracy must plead more than “vague
inferences and allegations.” Coulter v. Allegheny Cnty. Bar Ass’n, 496 F.
App’x 167, 169 (3d Cir. 2012) (citing Twombly, 550 U.S. at 556). “Bare
assertions of joint action or a conspiracy are not sufficient to survive
dismissal at the pleading stage.” Id. Rather, the plaintiff must
“demonstrate the existence of any concerted effort” among the
Mr. Abulkhair is appearing pro
A pro se 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, it must
meet some minimal standard. “While a litigant’s pro se status requires a
court to construe the allegations in the complaint liberally, a litigant is
not absolved from complying with Twombly and the federal pleading
requirements merely because s/he proceeds pro se.” Thakar v. Tan, 372
F. App’x 325, 328 (3d Cir. 2010) (citation omitted).
B. Rule 12(b)(1) Standard
A motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1) may be raised at any time. Iwanowa
v. Ford Motor Co., 67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). Rule
12(b)(1) challenges are either facial or factual attacks. See 2 JAMES WM.
MOORE, MOORE’S FEDERAL PRACTICE
§ 12.30 (3d ed. 2007). The
defendant may facially challenge subject matter jurisdiction by arguing
that the complaint, on its face, does not allege sufficient grounds to
establish subject matter jurisdiction. Iwanowa, 67 F. Supp. 2d at 438.
Under this standard, a court assumes that the allegations in the
complaint are true, and may dismiss the complaint only if it appears to a
certainty that the plaintiff will not be able to assert a colorable claim of
subject matter jurisdiction. Id.
I construe the State’s argument that it is immune from suit based
on the Eleventh Amendment to be a facial challenge to the Complaint’s
jurisdictional basis. Accordingly, as under Rule 12(b)(6), the Court will
take the allegations of the Complaint as true. See Gould Elecs., Inc. v.
U.S., 220 F.3d 169, 178 (3d Cir. 2000).
The government moves to dismiss the Complaint under the
Eleventh Amendment’s grant of sovereign immunity to state actors and
also on the ground that it is devoid of substantive factual allegations.
Because I find that Mr. Abulkhair’s Section 1983, Section 1985, and
state law claims are all barred by the Eleventh Amendment, this Court
lacks subject matter jurisdiction to hear all but Mr. Abulkhair’s Title VII
discrimination claim. As to that claim, because the Complaint does not
allege the most basic elements of a Title VII violation, I find that it fails to
state any plausible claim for relief.
A. Rule 12(b)(1): Eleventh Amendment Sovereign Immunity
The State argues that it has sovereign immunity from the Section
1983, Section 1985, and New Jersey common law tort claims. I agree. I
also find that the State has sovereign immunity from the NJLAD claims.
The Eleventh Amendment to the Constitution, which is of
jurisdictional stature, renders the States immune from certain claims in
federal court: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI.
Despite the limited scope of its wording, the Eleventh Amendment has for
over a century been held to incorporate a more general principle of
sovereign immunity. In general, it bars citizens from bringing suits for
damages against any state in federal court. Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 100-10 1 (1984); Kelley v. Edison Twp.,
No. 03-48 17, 2006 WL 1084217, at *6 (D.N.J. Apr. 25, 2006) (citing
Bennett v. City of Atl. City, 288 F. Supp. 2d 675, 679 (D.N.J. 2003)); see
also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Edelman
v. Jordan, 415 U.S. 651, 662-63 (1974); Hans v. Louisiana, 134 U.S. 1
“Eleventh Amendment immunity extends to the state’s agencies or
departments, provided that the state is the real party interest.” Garden
State Elec. Inspection Servs. Inc. v. Levin, 144 F. App’x 247, 250 (3d Cir.
2005) In Johnson v. State of N.J., Judge Wolin determined, as a matter of
first impression, that the New Jersey Superior Court is an “arm’ of the
state entitled to share in the state’s sovereign immunity.” 869 F. Supp.
289, 296—98 (D.N.J. 1994) (also finding “that the Administrative Office of
the Courts can cloak itself in the state’s sovereign immunity under the
Eleventh Amendment”). And in Hunter v. Supreme Court of New Jersey,
Judge Bassler held that both the Supreme Court of New Jersey and its
Advisory Committee on Judicial Conduct “enjoy Eleventh Amendment
Immunity.” Hunter v. Supreme Court of New Jersey, 951 F. Supp. 1161,
1177 (D.N.J. 1996), aff’d sub nom. Hunter v. Supreme Court of N.J., 118
F.3d 1575 (3d Cir. 1997).
Since then, judges in this district and elsewhere have consistently
considered the OAE, as a creation of the New Jersey court system, to be
one such “arm” of the state that enjoys sovereign immunity. See, e.g.,
Prall v. Supreme Court, No. CIV. 11-7004 JBS, 2013 WL 1405880, at *7
(D.N.J. Apr. 4, 2013) (“[Tjhe Eleventh Amendment prohibits actions
against state courts. The Superior Court of New Jersey and its vicinages
have been found to be part of the judicial branch of the State of New
Jersey, and are thus protected by the Eleventh Amendment.
Moreover, [the OAE is
“arm” of the Supreme Court of New Jersey
and likewise [is] entitled to share in the state’s sovereign immunity.”);
Cox v. Office of Attorney Ethics of the Supreme Court of New Jersey, No.
CIV. 05-1608 (AET), 2006 WL 3833470, at *4 (D.N.J. Dec. 29, 2006)
(holding the OAE immune from NJLAD claims); Feng Li v. Rabner, No.
15-CV-2484 KBF, 2015 WL 1822795, at *3 (S.D.N.Y. Apr. 22, 2015)
(Eleventh Amendment barred Section 1983 claims against the OAE
Disciplinary Review Board), aff’d, 643 F. App’x 57 (2d Cir. 2016).
“There are three primary exceptions to Eleventh Amendment
immunity: (1) congressional abrogation, (2) waiver by the state, and (3)
suits against individual state officers for prospective injunctive and
declaratory relief to end an ongoing violation of federal law.” Garden State
Elec. Inspection Servs. Inc. v. Levin, 144 F. App’x 247, 252 (3d Cir. 2005)
Here, Mr. Abulkhair does not name as a defendant or otherwise assert
any claims against individual state officers. Therefore, the Eleventh
Amendment bars his federal claims unless Congress has abrogated the
State’s sovereign immunity or the State has waived its sovereign
1. Section 1983 and 1985 Claims
With respect to Mr. Abulkhair’s federal claims, he sues under
Sections 1983 and 1985. Congress has overridden a state’s sovereign
immunity in certain statutes, but it did not do so when it enacted
Sections 1983 and 1985. Quem v. Jordan, 440 U.S. 332, 342 (1979)
(because the Civil Rights Act of 1871 did not abrogate the states’
sovereign immunity, a Section 1983 action barred); Gary v. Pennsylvania
Human Relations Comm’n, 497 F. App’x 223, 226 (3d Cir. 2012)
(sovereign immunity barred federal claims, which included a Section
1985 claim, against a state agency); Muhammad v. Dempsey, No. 3:11CV-350, 2011 WL4905513, at*3 (M.D. Pa. Oct. 14, 2011) (“[T]he
Supreme Court has rejected the idea that the Eleventh Amendment does
not apply to
§ 1983, and this would logically apply to § 1985 as well,
because both statutes are part of the Reconstruction Civil Rights Acts
and were passed with the same congressional intent.” (citing Quem, 440
U.S. at 345)), aff’d, 531 F. App’x 216 (3d Cir. 2013); Garcia v. Richard
Stockton Coil, of New Jersey, 210 F. Supp. 2d 545, 550 (D.N.J. 2002)
(“Nor has Congress expressly abrogated New Jersey’s immunity from suit
§ 1985(3). Therefore, New Jersey is immune from suit under that
Closely related is the principle that State entities are not “persons”
who may be subject to liability under Sections 1983 and 1985. Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 67-71, 109 S. Ct. 2304, 23102312 (1989); see also New Jersey Sand Hill Band of Lenape & Cherokee
Indians v. Corzine, No. CIV.A.09-683 (KSH), 2010 WL 2674565, at *6
(D.N.J. June 30, 2010) (“The Court agrees with the State Defendants that
§ 1983 and ‘persons’ in § 1985 have the same meaning.
Thus, because ‘two or more persons’ must conspire to be liable under
§ 1985, and because states and state officials sued in their official
capacities are not ‘persons’ and cannot be liable under § 1983, they
cannot be liable under § 1985 either.” (citations omitted)).
New Jersey has not waived its sovereign immunity with respect to
Sections 1983 and 1985. In Hyatt v. County of Passaic, addressing a
Section 1983 claim against Passaic County, the United States Court of
Appeals for the Third Circuit explained:
States may waive immunity by unequivocally
expressing consent to suit in federal court.
Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67
(1984). The [New Jersey Tort Claims Act], which
allows suits against public entities and their
employees in state courts, does not expressly
consent to suit in federal courts and thus is not
an Eleventh Amendment waiver. See N.J. Stat.
Ann. § 59:2—2(a)
340 F. App’x 833, 837 (3d Cir. 2009). See also Garcia v. Richard Stockton
Coil, of New Jersey, 210 F. Supp. 2d 545, 550 (D.N.J. 2002) (“The New
Jersey Tort Claims Act does not mention the State’s liability [under
Section 1985} in federal court, and this Court is not aware of any other
provision of law that might do so. See N.J. Stat. Ann.
§ 59:1 to: 14.”).
Accordingly, I conclude that this federal district court lacks
jurisdiction. The Eleventh Amendment bars this court from hearing Mr.
Abulkhair’s Section 1983 and 1985 claims.
ii. NJLAD and Infliction of Emotional Distress
Sovereign immunity may bar state-law claims, too. Even where
jurisdiction is otherwise proper, the Eleventh Amendment denies a
federal court jurisdiction to hear state-law claims that a state or its
agencies violated state law. See Pennhurst State School & Hosp., 465 U.s.
With respect to the NJLAD, the State argues only that the
Complaint fails to state a claim. But the NJLAD counts in the Complaint
suffer from a still more basic infirmity: New Jersey has not waived its
sovereign immunity from NJLAD claims. See Heine v. Comm’r of The
Dep’t of Cmty. Affairs of the State of New Jersey, No. 2:11-5347
(KM)(JBC), 2016 WL 7042069, at *8 (D.N.J. Dec. 1, 2016) (finding NJLAD
claim barred by the Eleventh Amendment); Heine v. Comm’r of Dep’t of
Cmty. Affairs of New Jersey, No. CIV. 2:11-5347KM, 2014 WL 4199203,
at *5 (D.N.J. Aug. 22, 2014) (“Other judges of these Courts have
persuasively held that, at least where the state is not sued in its capacity
as an employer, New Jersey has not waived sovereign immunity in the
NJLAD.” (citing Rudolph v. Adamar of New Jersey, Inc., 153 F. Supp. 2d
528, 542 (D.N.J. 2001));8 Cox, 2006 WL 3833470, at *4 (holding the OAE
immune from NJLAD claims); Garcia, 210 F. Supp. 2d at 550 (“[A]
plaintiff may not sue the State of New Jersey, or its alter egos, under the
NJLAD in federal court. Although the NJLAD clearly identifies the State
as a potential defendant, see N.J. Stat. Ann.
private suits “in Superior Court,” id.
§ 10:5—5(e), and authorizes
§ 10:5—13, it makes no mention of
federal court.”). Therefore, the Eleventh Amendment bars NJLAD claims
and I need not reach whether the Complaint actually states a claim for
The Eleventh Amendment’s grant of sovereign immunity applies to
state common law causes of action as well, see College Savings Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 355 n.l
(3d Cir. 1997) (noting that a claim of common law unfair competition
“obviously could not be asserted successfully [against an instrumentality
of the state] in light of the Eleventh Amendment”), aff’d, 527 U.S. 666
(1999); Doe v. Division of Youth & Family Servs., 148 F. Supp. 2d 462,
492 (D.N.J. 2001) (common law negligence claim barred by the Eleventh
Amendment), including claims that fall within the limits of the New
Jersey Tort Claims Act.
Although Mr. Abulkhair’s Complaint makes no mention of the New
Jersey Tort Claims Act (the “TCA”), the TCA necessarily affects his claims
for infliction of emotional distress, because it provides that public entities
can be sued only for certain torts, and under certain conditions. See
Fuchilla v. Layman, 109 N.J. 319, 339, 537 A.2d 652 (1988) (Handler, J.,
In Rudolph, Judge Orlofsky cited State cases for the proposition that
“[s]uits brought against the State as an employer are clearly within the scope of
the explicit waiver of sovereign immunity contained in N.J.S.A. § 10:5—5(e); §
10:5—12(a),(c).” 153 F. Supp. 2d at 542. Mr. Abulkhair is not employed by the
State, and he does not sue the State as his employer. At any rate, in Garcia,
210 F. Supp. 2d at 550 n.4, Judge Orlofsky cautioned that his dicta in Rudolph
should not be taken out of context. Rudolph, he wrote, did not stand for any
general principle “that the State of New Jersey had waived its sovereign
immunity in federal court when acting as an employer.” Id.
concurring) (noting that “public entities shall only be liable for their
negligence within the limitations of the Torts Claim Act”); N.J. Stat. Ann.
§ 59: 1-2 (West) (“[It] is hereby declared to be the public policy of this
State that public entities shall only be liable for their negligence within
the limitations of this act and in accordance with the fair and uniform
principles established herein.”)
Subject to certain conditions, then, the TCA “expressly waives
sovereign immunity as to certain claims.” Wamett v. Corr. Med. Servs.,
No. CIV. A. 07-129 1 JHR, 2008 WL 930739, at *6 (D.N.J. Mar. 31, 2008).
For several reasons, however, that waiver does not encompass Mr.
Abulkhair’s claims here.
Most broadly, the Third Circuit, albeit in a non-precedential
opinion, stated that “[tjhe TCA, which allows suits against public entities
and their employees in state courts, does not expressly consent to suit in
federal courts and thus is not an Eleventh Amendment waiver.” Hyatt v.
Cty. of Passaic, 340 F. App’x 833, 837 (3d Cir. 2009) (non-precedential)
(emphasis added). Even setting that aside, the TCA retains the State’s
sovereign immunity from Mr. Abulkhair’s intentional infliction of
emotional distress claim; “[c]ourts in this District have interpreted
Section 59:2-10 of the [TCA] to bar public entities [as opposed to public
employees] from liability for claims of intentional torts, including claims
for intentional infliction of emotional distress.” Id. at *7 (citation omitted);
see also Soto v. City of Newark, 72 F. Supp. 2d 489, 497 (D.N.J. 1999)
The New Jersey legislature specifically enacted the TCA to address “the
inherently unfair and inequitable results which occur in the strict application of
the traditional doctrine of sovereign immunity,” while also recognizing the
prerogatives of the sovereign:
While a private entrepreneur may readily be held
liable for negligence within the chosen arnbit of his
activity, the area within which government has the
power to act for the public good is almost without
limit and therefore government should not have the
duty to do everything that might be done.
N.J. Stat. Ann. § 59:1-2 (West).
(“N.J.Stat.Ann. 59:2—lO provides that ‘[a] public entity is not liable for the
acts or omissions of a public employee constituting a crime, actual fraud,
actual malice, or willful misconduct.”’).
As to the claim of negligent infliction of emotional distress, the TCA
also fails to articulate any clear waiver. Under the TCA, public entities
are generally immune from liability for an injury arising out of an act or
omission of the public entity, a public employee, or any other person.
N.J.S.A. 59:2-1; Greenway Dev. Co., Inc. v. Borough of Paramus, 163 N.J.
546, 552, 750 A.2d 764 (2000).
Even setting aside such generic immunity for classes of claims, the
State is entitled to, and did, prescribe the procedural preconditions to a
suit against itself. Mr. Abulkhair’s claims would also fail for lack of
compliance with the TCA’s notice requirement. As a New Jersey appellate
court has explained:
In enacting the TCA, the Legislature intended to
adjudicating tort claims against public entities.”
Fuchilla v. Layman, 109 N.J. 319, 333, 537 A.2d
652, 659, cert. denied, 488 U.S. 826, 109 S.Ct.
75, 102 L.Ed.2d 51 (1988). Under the TCA, “a
public employee is liable for injury caused by his
act or omission to the same extent as a private
person.” N.J.S.A. 59:3—1(a).
Included in the statutory scheme within which
to assert a tort claim against a public entity are
notice requirements, which are a jurisdictional
precondition to filing suit.” Bonitsis v. N.J. Inst.
of Tech., 363 N.J.Super. 505, 516, 833 A.2d 679,
The [New Jersey Supreme] Court [has] held
that the notice provisions of the TCA apply to
intentional, as well as negligent conduct.
Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 343—44, 853 A.2d 288,
294 (App. Div. 2004).
There is nothing in Mr. Abulkhair’s Complaint setting forth any
factual allegation as to a notice of tort claim. Queensbury v. Petrone, No.
14-CV-7230 RMB/AMD, 2015 WL 4715323, at *5 (D.N.J. Aug. 7, 2015)
(dismissing tort claims for failure to file the requisite notice under the
TCA); see also N.J.S.A.
§ 59:8—3, 59:8—8 (requiring notice of tort claim to
be filed with public entity within 90 days of accrual and permitting
claimant to file suit only after the expiration of six months from the day
the public entity receives the notice). Assuming the other grounds for
dismissal can be overcome, however, if a notice of claim was filed, Mr.
Albukhair can so allege in an amended pleading.
Thus, on multiple grounds, this Court lacks jurisdiction over
Abulkhair’s infliction of emotional distress claims. 10
Moreover, Mr. Abulkhair’s intentional infliction of emotional distress
claim would fail under Rule 12(b)(6) because he does not plausibly allege that
he has suffered any emotional distress “so severe that no reasonable person
could be expected to endure it.” Leang v. Jersey City Bd. of Educ., 198 N.J. 557,
587, 969 A.2d 1097, 1115 (2009) (“[TIhe court decides whether as a matter of
(citation omitted)); see also
law such emotional distress can be found.
Saving Fund Soc., 111 N.J. 355, 366, 544 A.2d 857, 863
Buckley v. Trenton
(1988) (“Generally speaking, to establish a claim for intentional infliction of
emotional distress, the plaintiff must establish intentional and outrageous
conduct by the defendant, proximate cause, and distress that is severe.”).
Likewise, the complaint is completely devoid of allegations giving rise to a
claim for negligent infliction of emotional distress. Cf Jablonowska v. Suther,
195 N.J. 91, 103—104, 948 A.2d 610, 6 17—18 (2008) (“A plaintiff now can
maintain an independent cause of action for negligent inifiction of emotional
distress where (1) the defendant’s negligence caused the death of, or serious
physical injury to, another; (2) the plaintiff shared a marital or intimate, familial
relationship with the injured person; (3) the plaintiff had a sensory and
contemporaneous observation of the death or injury at the scene of the
accident; and (4) the plaintiff suffered severe emotional distress.
negligent conduct placed the
al plaintiff can demonstrate that the defendant’s
plaintiff in reasonable fear of immediate personal injury, which gave rise to
emotional distress that resulted in a substantial bodily injury or sickness.”).
iii. Mr. Abulkhair’s Challenges to Application of the
Mr. Abulkhair uses his opposing brief to fling insults against the
State; against various members of, and courts within, the New Jersey
and federal judiciary; and against the legal profession generally.” He
also raises a host of legal theories that would appear to have no basis.
From this collection of allegations, I am able to glean four arguments as
to why, according to Mr. Abulkhair, his constitutional claims must
survive Rule 12(b) (1) scrutiny.
First, Mr. Abulkhair argues that New Jersey never ratified the
Eleventh Amendment. (Opp. 11) He cites no case law for this principle—
only an exhibited copy of a webpage that reports which of the states did
ratify the Eleventh Amendment. (See Opp. Ex. A-3) New Jersey is absent
from this list.
Mr. Abulkhair’s argument may furnish the answer to a
constitutional trivia question, but it has no legal consequences. The
Eleventh Amendment is alive and well in the jurisprudence of federal
courts addressing claims against New Jersey, as much of the case law
cited in this opinion demonstrates. See also, e.g., Duhne v. State of New
Jersey, 251 U.S. 311, 313, 40 S. Ct. 154 (1920); Meyer v. State of N. J.,
460 F.2d 1252, 1253 (3d Cir. 1972) (“The Eleventh Amendment to the
Constitution bars an action for money damages in a federal court against
The State of New Jersey cannot be sued under the Civil
Rights Act, 42 U.S.C.
§ 1983.”) (citations and quotations omitted);
The State asks me to strike or decline to consider portions of Mr.
Abulkhair’s opposition brief that use “scandalous and abusive language.”
(State’s Reply (ECF No. 14, hereinafter, “Reply”) 3) Mr. Abulkhair’s sharp
language does not affect the issues to be decided, but it does convey the
intensity of this pro se litigant’s sense of grievance. I therefore see no need to
The parties also quibble over the timing and service of their motion
papers. (Opp. 2—3; Reply 1—2) Because I consider the State’s moving and reply
brief and Mr. Abulkhair’s opposing brief in full, there is also no reason to
resolve this dispute.
Citizens’ Comm. for Envtl. Prot. v. U S. Coast Guard, 456 F. Supp. 101,
112 (D.N.J. 1978) (“The State of New Jersey may not be sued without its
consent in a federal trial court by one of its own citizens under the
Eleventh Amendment”). More generally, individual States are not
permitted to opt out of parts of the Constitution that they did not vote
for; an amendment, once duly ratified, becomes part of the Constitution,
and binds all of the States. See U.S. Const., art. V (“amendments.
shall be valid to all intents and purposes, as part of this Constitution,
when ratified by the legislatures of three fourths of the several states, or
by conventions in three fourths thereof....”); Harris v. Soto, No.
CV162551KMJBC, 2016 WL 7391037, at *4 (D.N.J. Dec. 21, 2016)
(McNulty, J.) (rejecting the argument that New Jersey’s failure to ratify
renders the Eleventh Amendment inapplicable).
Second, Mr. Abulkhair argues that because he seeks
reimbursement from the Fund, rather than from the treasury of New
Jersey, the Eleventh Amendment does not apply. (Opp. 19) It is true that
the Fund is not sourced from New Jersey’s general treasury but from fees
collected annually from licensed attorneys. See N.J. Ct. R. 1:28-2(a). Mr.
Abulkhair also correctly observes that one factor courts consider when
deciding whether an entity partakes of the State’s sovereign immunity is
“whether or not any damage award against the agency would be paid
from the state’s coffers.” Johnson v. State of N.i, 869 F. Supp. 289, 297
But this funding factor is just one of three, all of which receive
equal weight in the sovereign immunity analysis, Bowers v. Nat’l
Collegiate Athletic Ass’n, 475 F.3d 524, 546 (3d Cir. 2007), amended on
reh’g (Mar. 8, 2007), and the case law has consistently held that the OAE
be treated as an arm of the State for Eleventh Amendment purposes. I
am persuaded by this authority, and I do not regard this as an open
issue. See supra p. 10—11.
The issue is not altered by re-characterizing the monetary relief
sought as an injunction requiring the OAE to find in Abulkhair’s favor or
to pay him. (See Compi. p. 17 (requesting “an injunction relief [sicj to
compel the Defendants to compensate [Abulkhair] for the loss of his (3)
meritorious cases due to dishonest conduct committed by their member
of the Bar.” (brackets in original) (See also n.3, supra.) “[Tjhe Eleventh
Amendment by its terms clearly applies to a suit seeking an injunction, a
remedy available only from equity.” Cory v. White, 457 U.S. 85, 91, 102
S. Ct. 2325, 2328—29 (1982). The United States Supreme Court has
expressly rejected the notion that “the Eleventh Amendment never
applies unless a judgment for money payable from the state treasury is
sought.” Id. “It would be a novel proposition indeed,” the Court reasoned
in Cory v. White, “that the Eleventh Amendment does not bar a suit to
enjoin the State itself simply because no money judgment is sought.” Id.
at 2329. Rather, “[tjhe general rule is that a suit is against the sovereign
if ‘the judgment sought would expend itself on the public treasury or
domain, or interfere with the public administration,’ or if the effect of the
judgment would be ‘to restrain the Government from acting, or to compel
it to act.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102,
104 S. Ct. 900, 909 (1984) (quoting Dugan v. Rank, 372 U.S. 609, 620,
83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citations omitted))).
Third, in so many words, Mr. Abulkhair argues that because the
State acts through natural persons, it must itself be regarded as a
“person” for purposes of Section 1983. (Id. 20) And fourth, Mr. Abulkhair
contends that the Fourteenth Amendment’s guarantee of rights
superseded the Eleventh Amendment’s grant of immunity. (Opp. 23)
Again, he cites no case law to support his arguments and the cases cited
above belie them.
The Eleventh Amendment, however, does not remove this Court’s
jurisdiction over Mr. Albukyair’s claim under Title VII of the Civil Rights
Act of 1964 that the State discriminated against him based on race. (This
is listed as claim no. 4, see p. 5, supra.) The United States Supreme
Court has held that Congress, when it enacted Title VII, purposely
abrogated the states’ sovereign immunity. Fitzpatrick v. Bitzer, 427 U.s.
445, 457, 96 5. Ct. 2666, 2672 (1976); Patterson v. PA Office of Inspector
Gen., 243 F. App’x 695, 696 (3d Cir. 2007) (non-precedential) (“[I]t is true
that Congress abrogated the states’ Eleventh Amendment immunity in
passing Title VII.”).
In sum, then, all of the claims asserted in the Complaint, except
the Title VII claim, are dismissed for lack of subject matter jurisdiction.
B. Rule 12(b)(6): Title VII Discrimination Claims
As noted above, only one cause of action remains: Mr. Abulkhair’s
claim of racial discrimination under Title VII of the Civil Rights Act of
1964. (See claim no. 4, listed at p. 5, supra.) I therefore consider
whether, for purposes of Fed. R. Civ. P. 12(b)(6), the Complaint states a
viable Title VII claim.
As the Third Circuit Court of Appeals has explained,
Title VII prohibits discriminatory employment
practices based upon an individual’s “race, color,
religion, sex, or national origin.” 42 U.S.C.2000e—
2(a)(1). A plaintiff carries the initial burden of
establishing a prima facie case. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a
prima facie case, [a plaintiff] must demonstrate
that: 1) she belongs to a protected class; 2) she
was qualified for the position; 3) she was subject
to an adverse employment action; and 4) the
adverse action was under circumstances giving
rise to an inference of discrimination. Sarullo v.
U.S. Postal Serv., 352 F.3d 789, 797 (3d
Cir.2003). If [the plaintiff] establishes a prima
facie case, the State must provide a legitimate,
non-discriminatory reason for the adverse
employment action. Jones v. Sch. Dist. of
Philadelphia, 198 F.3d 403, 410 (3d Cir.1999). If
the State is able to proffer such a reason, [the
plaintiff] must show that it is a pretext for
Shahin v. Delaware, 424 F. App’x 90, 92--93 (3d Cir. 201 1).
Mr. Abulkhair’s Complaint says nothing about employment. It does
not indicate whether Mr. Abulkhair was employed at all, let alone
employed by the State. It focuses solely on his dissatisfaction with the
OAE’s handling of his grievance against his attorney, Smith. Accordingly,
Mr. Abulkhair has failed to allege any plausible basis for relief under
The State also argues that Mr. Abulkhair has not stated a claim
under Title II of the ADA. (State’s Brief (ECF No. 12-2) 23 & n.3) As noted
at n.5, supra, I do not think Mr. Abulkhair intended to state a claim
under the ADA. To the extent he did, however, I would agree with the
State.’ The Complaint contains no reasonably specific factual allegation
that Mr. Abulkhair is disabled. See generally 42 U.S.C. § 12101 et seq.
The only arguable exception is one vague, passing reference that
contains no facts. (See Compl.
¶ 53 (alleging “[e]very Defendant in their
official capacity knowingly, or grossly negligently.
Congress abrogated Eleventh Amendment immunity in Title II of the
ADA—at least to the extent a plaintiff states a claim for actual violations of
rights guaranteed under the Fourteenth Amendment. United States v. Georgia,
546 U.S. 151, 159, 126 S. Ct. 877, 882 (2006) (“[I]nsofar as Title II creates a
private cause of action for damages against the States for conduct that actually
violates the Fourteenth Amendment, Title II validly abrogates state sovereign
immunity”); see also Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 556
(3d Cir. 2007) (amended on reh’g Mar. 8, 2007); Gattuso v. New Jersey Dep’t of
Human Serus., 881 F. Supp. 2d 639, 647—48 (D.N.J. 2012).
ignor[edj Plaintiff’s disability barrier from the beginning and retaliating
against him thereafter
The conclusory statements in this Complaint fall far short of the
Iqbal and Twombly pleading standard. That is as true here as it was in
Abulkhair v. U.S. Postal Service, 610 F. App’x 96, 97 (3d Cir. 2015) (“The
complaint fails to rise above general allegations and conjecture to offer
any factual allegations that could plausibly support Abulkhairs alleged
tort claims.”); Abulkhair v. President of US., 494 F. App’x 226, 230 (3d
Cir. 2012) (“Abulkhair’s conclusory statements that only Muslims
experienced delays was not enough to state a claim under the Fifth
Amendment.”); and Abulkhair v. Bush, 413 F. App’x 502, 507 (3d Cir.
2011) (“As in Iqbal, Abulkhair’s conclusory assertions against the federal
officials have not ‘nudged [his] claims of invidious discrimination across
the line from conceivable to plausible,’ so as to be entitled to a
presumption of truth, as is required to survive a motion to dismiss.”
(citing Iqbal, 129 S. Ct. at 1950—5 1)).
Accordingly, I will dismiss Mr. Abulkhair’s Title VII claim (and, to
the extent it may have been intended, his ADA claim) for failure to state a
claim upon which relief may be granted, pursuant to Rule 12(b)(6).
For the foregoing reasons, the State’s motion to dismiss the
complaint is GRANTED and the complaint is DISMISSED. This dismissal
is WITH PREJUDICE as to the Court’s lack of jurisdiction under Rule
12(b)(1). As to the failure to state a claim under Rule 12(b)(6), the
dismissal is WITHOUT PREJUDICE to the filing of a proposed amended
complaint within 30 days.
Dated: May 24, 2017
United States District Judge
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