SOMERSET v. THE STATE OF NEW JERSEY et al

Filing 30

OPINION. Signed by Judge Kevin McNulty on 9/26/2017. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JERRY SOMERSET,

Plaintiff,

:

Civ. No. 17-993 (KM)

V.

OPINION

THE STATE OF NEW JERSEY,
et al.,

Defendants.
This action grows out of the dissolution of a business venture between
longtime friends, Jerry Somerset and Joseph Elam. Mr. Somerset sues under
the Americans With Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq..

Somerset, who is vision-impaired, alleges that he made the down payment on a
van for Elam to drive in connection with their floor refurbishing business.
Elam, he says, used the van in another business, in violation of their
agreement to share and share alike.
Somerset sued Elam in state court; the matter went to trial; and
judgment was entered in favor of Elam. Somerset v. Elam, No. DC-0631 1-15
(N.J. Superior Court, Law Division, Special Civil Part) (the “State Court
Action”). Now Somerset has brought suit in federal court against the State of
New Jersey; the Hon. Frank Covello, J.S.C., who presided in the State Court
Action; Lawrence D. Eichen, Elam’s attorney in the State Court Action; Joseph
Elam; Strategic Delivery Systems (a/k/a SDSR, the Healthcare Delivery
Specialists) (“SDSR”), seemingly the other business in which Elam used the
van; and Partners Pharmacy LLC.
Before this Court are motions to dismiss the complaint for lack of
jurisdiction or failure to state a claim, filed by Eichen (ECF no. 8); the State
and Judge Covello (ECF no. 24); and Partners Pharmacy (ECF no. 25). Partners

1

Pharmacy’s motion also includes an application to vacate default. For the
reasons stated herein, the motions will be granted.
I.

LEGAL STANDARD ON MOTION TO DISMISS
A.

Rule 12(b)(1)

The motions, in part, are motions to dismiss the complaint for lack of
jurisdiction under Fed. R. Civ. P. 12(b)(1). Rule 12(b)(1) challenges may be
either facial or factual attacks. See 2 Moore’s Federal Practice

§ 12.30[4j (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. Cardio—Med. Assoc., Ltd. v. Crozer—Chester Med. Ctr.,
721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438. “In reviewing
a facial attack, the court must only consider the allegations of the complaint
and documents referenced therein and attached thereto, in the light most
favorable to the plaintiff.” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99,
105 (3d Cir. 2015) (citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176
(3d Cir. 2000)).’
Because the Rule 12(b)(1) component of the defendants’ motions relies
only on the Complaint and documents properly considered on a Rule 12(b)(6)
motion to dismiss, I treat it as a facial challenge. I will not weigh the evidence,
but will construe the allegations in the light most favorable to the plaintiff.
B.

Rule 12(bfl6)

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,
A factual attack, on the other hand, permits the Court to consider and weigh
evidence extrinsic to the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169,
178 (3d Cir. 2000), holding mod Wed on other grounds by Simon v. United States, 341
F.3d 193 (3d Cir. 2003). Such a factual attack “does not provide plaintiffs the
procedural safeguards of Rule 12(bfl6), such as assuming the truth of the plaintiffs
allegations.” CNA u. United States, 535 F3d 132, 144 (3d Cir. 2008).

2

as 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
Rule 12(b)(6) motion, a court must take the allegations of the complaint as true
and draw reasonable inferences in the light most favorable to the plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiffs 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. u. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland a PLANCO Fin. Seru., 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.” Ashcrofl a Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[tjhe plausibility standard
it asks for more than a sheer
is not akin to a ‘probability requirement’
.

.

.

possibility.” Iqbal, 556 U.S. at 678.
Where the plaintiff, like Mr. Somerset here, 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 la;yers.”
Erickson a 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 a
Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “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 Twornbly and the
federal pleading requirements merely because s/he proceeds pro se” Thakar a
Tan, 372 F. App’x 325, 328 (3d Cir. 2010) (citation omitted).

3

C.

Consideration of Complaint exhibits and State Court pleadings
on motion to dismiss

The Complaint and the motions to dismiss rely on matters that are,
strictly speaking, extrinsic to the pleadings. Mr. Somerset’s Complaint attaches
three letters; one of the defense motions attaches certain filings from the prior
State Court Action; and Somerset’s reply to Partners Pharmacy attaches part of
a transcript from the State Court Action. Both sides’ attachments are properly
considered on a motion to dismiss.
Attached to the Complaint as exhibits are three letters: one from the U.S.
Department of Justice, Civil Rights Division, and two from the United States
Attorney for this District. (ECP no. 1 at 8—10) Those letters concern Mr.
Somerset’s complaints about the conduct of Judge Covello and Mr. Elam in the
prior State Court Action.
A court considering a Rule 12(b)(6) motion is generally confined to the
allegations of the complaint, but it may also consider authentic documents
attached or integral to the complaint:
Although [the rule against considering extrinsic documents is}
phrased in relatively strict terms, we have declined to interpret this
rule narrowly. In deciding motions under Rule 22(b)(6), courts may
consider “document[s] integral to or explicitly relied upon in the
complaint,” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
2426 (3d Cir. 1997) (emphasis in original), or any “undisputedly
authentic document that a defendant attaches as an exhibit to a
motion to dismiss if the plaintiffs claims are based on the
document,” PBGC v. White Consol. Indus., 998 F.2d 1192, 1196 (3d
Cir. 1993).
In re Asbestos Products Liability Litigation (No. VI), 822 F.3d 125, 134 n.7 (3d
Cir. 2016). See also Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014); In re
Burlington Coat Factory, 114 F.3d at 1426); Pension Ben. Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). “The rationale
underlying this exception is that the primary problem raised by looking to
documents outside the complaint—lack of notice to the plaintiff—is dissipated
and has relied upon these documents in
‘[wjhere plaintiff has actual notice
...

4

framing the complaint.” In re Burlington, 114 F.3d at 1426 (quoting Watterson
v. Page, 987 F.2d 1, 3—4 (1st Cir. 1993) (quoting Cortec Indus., Inc. v. Sum
HoldingL.P., 949 F.2d 42, 48 (2nd Cir. 1991)).
The authenticity of these three letters does not appear to be disputed.
They are attached and integral to the Complaint, which in effect incorporates
them by reference. Although these letters are of limited significance in relation
to the issues on these motions to dismiss, it is permissible to consider them.
The State and Judge Covello attach to their motion to dismiss certain
papers from that State Court Action: the complaint, the judgment, a post-trial
motion filed by Mr. Somerset, and the State court’s order denying that motion.
(ECF no. 24-7) Mr. Somerset’s Reply attaches part of a transcript from the
State Court Action. (ECF no. 27-1) Although not attached to the Complaint,
these documents may be considered integral to its claims, which refer to and
are based on the judgment and proceedings in the State Court Action.
In addition, these State court filings are public records of which a court
may take judicial notice:
[O]n a motion to dismiss, we may take judicial notice of another
courts 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. Commissioner, 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.

t,’.

Wah Kwong Shipping Op. Ltd., 181 F. 3d

410, 426-27 (3d Cir. 1999). See generally Fed. R. Evid. 201.
Mr. Somerset cites the transcript excerpt in support of his contentions
against Partners. (ECF no. 27 at 2) Defendants cite the court documents in
support of their contentions that, under the Rooker-Feldman doctrine and
principles of resfudicata, this action is barred by the prior state court
judgment. The documents are relevant, not for facts contained therein, but in

5

order to establish the nature of the prior proceedings and the rulings of the
State court, For that limited purpose, I will take notice of them.
II.

PROCEDURAL BACKGROUND
A.

The Prior State Court Action

On November 12, 2015, Mr. Somerset filed the complaint against Joseph
Slam in the State Court Action. Somerset

ii.

Elam, No. DC-0631 1-15 (N.J.

Superior Court, Law Division, Special Civil Part) (ECF no. 24-7 at 2) The State
Court Action complaint says that Slam did not act properly as Somerset’s
business partner in that, inter cilia, he cheated Somerset and “took the van for
his purpose only.” The complaint demanded $15,000 in damages.
The matter was tried without ajuiy on April 20, 2016. (See ECF no. 271, ECF no. 24-7 at 5) The presiding judge was Hon. Frank Covello, J.S.C. Mr.
Somerset appeared pro se; Mr. Slam was represented by Lawrence D. Sichen,
Esq.
In the limited transcript excerpts, Mr. Somerset testifies that he and Mr.
Slam agreed to start a business and to reinvest profits in the business. He
shows the court and opposing counsel documentation of the price of the van,
which was $10,000. (ECF no. 27-1)
At the close of the plaintiffs case, Judge Covello granted the motion of
Mr. Slam for entry of judgment in his favor. (ECF no. 24-7 at 15) Slam’s
counterclaim was dismissed on condition that Somerset tender the van keys to
the van to Elam.2 (ECF no. 24-7 at 5)
After trial, Mr. Somerset moved for reconsideration. The motion states
that Somerset was not given the opportunity to present evidence of Elam’s
breach of contract in relation to their business, S&B Carpet Cleaning & Floor
Care Co. He cites a statement in Slam’s counterclaim to the effect that the two
entered into an agreement to purchase a used 2007 Ford Econoline van for use
in their business. He states that their implied agreement did not permit the van
to be used for the transportation of medical equipment and supplies. Rather, it
2

The nature of the counterclaim is not stated.
6

was to be used in the parties’ joint business, and proceeds were to be shared.
Somerset stresses he is not licensed to drive, and says that Elam took
advantage of his disability. (ECF no. 24-7 at 8, 10—11)
On October 31, 2016, Mr. Somerset evidently sent a letter or letters to
the United States Attorney’s Office for the District of New Jersey (USAO). The
USAO sent two letters, both dated November 28, 2016, in response. (ECF no. 1
at

g—io) The letters note

that Somerset has lodged complaints against Judge

Covello and Joseph Elam in relation to a possible violation of the ADA. The
USAO letters state that the Office will not take further action, but has referred
the complaints to the appropriate agencies.
Whether directly from Mr. Somerset, or by referral from the USAO, the
U.S. Department of Justice, Civil Rights Division, received a complaint that
Judge Covello had violated the ADA. In a letter dated December 5, 2016, the
Division declined to take further action. (ECF no. 1 at 8)
All three letters state that they are not determinations on the merits.
B.

Complaint in This Action

On February 14, 2017, Mr. Somerset filed his Complaint in this federal
court action. (“Complaint,” cited as “Cplt.,” ECF no. 1) Its allegations, taken as
true for purposes of these motions, are as follows:3
In the iggo5, Mr. Somerset was diagnosed with diabetes. Despite
surgery, his vision was irreparably damaged.
At some point, Somerset entered into an implied contract with Elam, an
old and trusted friend. The two were to engage in the business of repairing
damaged floors. Somerset’s other main source of income is Social Security
disability income benefits (SSDI), but he wished to be self-sufficient.
Somerset made the down payment to purchase a 2007 Ford Econoline
van for use in the floor refurbishing business. The purchase was financed by

This pro se complaint is not set forth in numbered paragraphs. In summarizing
the allegations, I have taken facts from various parts of the Complaint and organized
them. Further citation, however, is impractical.
3

7

Leaders Financial Company. He implies that the source of the down payment
was his SSDI income, which is deposited to his bank account.
The van was titled to Slam. This was done only because Somerset cannot
drive. There was never any agreement that Slam would be the sole owner of the
van. The van was insured under the name of S&B Carpet Cleaner and Floor
Care Company.
Slam agreed to do the driving and agreed that the proceeds from the
exploitation of the van would be split between them. Somerset was assured
that Slam would not use the van for any other business. Slam, however, used
the van to deliver medical equipment and supplies. Somerset alleges that Slam
received profits from that business that he did not share.
Defendant SDSR was aware of the contract and Somerset’s disability, but
nevertheless used Elam and the van to deliver their products. Defendant
Partners Pharmacy was also aware of the contract and Somerset’s disability.
Defendant Lawrence D. Sichen was the attorney for Slam in the State
Court Action. He acknowledged in court papers and on the record that
Somerset and Slam had an implied contract. He also was aware that
Somerset’s income came from SSDI.
Count 1 alleges that defendant Frank Covello, the judge in the State
Court Action, “impaired the obligation of my contract between Joseph Slam
and me.” Elsewhere, the Complaint levels the same accusation at Slam, and
cites the Constitution’s prohibition on impairment of contracts. U.S. Const.,
art. 1,

§

10.

Count 2 primarily relies on the ADA. It cites both Title II and Title III.
Elsewhere, the Complaint alleges that defendants Slam and Covello deprived
Somerset of due process of law, subjected him to an “ex parte hearing,” and
denied him the right to be heard under the ADA.4

The meaning is not clear. Even the few pages from the trial transcript submitted
by Mr. Somerset establish that he was present at the trial and that he participated. He
may be objecting to the Court’s dismissal of the action at the close of his case-in chief.
That procedure, however, is not ex pafle; the plaintiff has had the opportunity to
S

Because Mr. Somerset is suing pro se, I will construe the Complaint
liberally. I interpret it as interpreting a claim under the ADA as well as a civil
rights claim under 42 U.S.C.

III.

§

1983.

JUDGE COVELLO
At the outset, I dismiss all claims as to Judge Covello. Judges are

entitled to absolute immunity from suits based upon the performance of their
judicial functions. Mireles v. Waco, 502 U.S. 9, 9-10 (1991); Briscoc v. Laffue,
460 U.S. 325, 334 (1983); Stump

ii.

Sparkman, 435 U.S. 349, 359 (1978);

Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir.
2009). There can be no doubt that the plaintiffs claims against Judge Covello
arise from his official acts and rulings in connection with the State Court
Action. It is not claimed, for example, that he had any involvement in the
underlying events involving the van.
A disappointed litigant’s remedy is not to sue the judge, but to appeal.
Judge Covello enjoys absolute immunity, and the Complaint is dismissed as to
him.5

IV.

ROOKER-FELDMAN AND RES JUDICATA
A.

Rooker-Feidman

Mr. Somerset, having lost the State Court Action, is attempting to
overturn that result by suing the defendant (as well as the defendant’s counsel,
the State, the presiding State judge, and others). The Rooker-Feldman doctrine

present evidence. Mr. Somerset at one point refers to an “an ex parte [] hearing for
reconsideration.” This may refer to the State court’s decision on his post-trial motions
without oral argument. Again, deciding a motion without oral argument is within the
Court’s discretion; it is not an exparte proceeding.
I add, for clarity, that dismissal of Judge Covello would seemingly dispose of the
claims based on alleged “ex pane” or unfair proceedings in the State Court. Those
claims, it seems, would necessarily be directed at the Judge.
The remaining discussion in this Opinion, to the extent it touches on the Judge,
may be regarded as setting forth alternative grounds for dismissal.
9

bars any such attempt to use the federal trial courts as a court of appeal from
state court judgments. See District of Columbia Court of Appeals u. Feldman,
460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 US. 413, 416
(1923).
A federal district court does not sit in review of state court judgments.
Rooker-Feidman 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 B.S. v. Somerset County, 704
F.3d 250 (3d Cir. 2013). To put it another way, Rooker-Feidman bars “cases
brought by state-court losers complaining of injuries caused by state-court
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).
Rooker-Feidman has four essential prerequisites:
(1) the federal plaintiff lost in state court; (2) the plaintiff
“complain[s] of injuries caused by [the] state-court judgments; (3)
those judgments were rendered before the federal suit was filed;
and (4) the plaintiff is inviting the district court to review and reject
the state judgments.
Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166
(3d Cir. 2010).
This case fits the bill; much if not all of it is barred by the
Rooker/ Feldman doctrine. The judgment in the State Court Action was adverse,
and was rendered before this action was filed. The plaintiff, Mr. Somerset,
complains of the State court judgment and seeks to have this Court review and
reject it.
It is true, of course, that Mr. Somerset has refashioned his contract
claims as claims under the ADA or the Constitution. Rooker-Feldman is not so
narrow as to be avoided by a switch of legal theories or a claim that the state
proceedings were unfair. Under Rooker-Feldman, 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 Quarino u.
10

Larsen, 11 F.3d 1151, 1156—57 (3d Cir. 1993); Port Auth. Police Bencu. Ass’n

ii.

Port Autft, 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 state court’s ruling.” FOCUS v. Allegheny
County Court of Common Pleas., 75 F.3d 834, 839-40 (3d Cir. 1996). In the
context of “inextricably intertwined” claims, the court must apply Rooker
Feldman with caution. The doctrine does not operate to preclude all claims that
are related to the state court judgment; it applies only to claims that were the
basis of, or injuries allegedly caused by, the state court judgment. See Cueuas
u. Wells Fargo Bank, N.A., 643 F. App’x 124, 126 (3d Cir. 2016) (citing Great W.
Mining & Mineral Co.

p.

Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010)).

To the extent that the federal action presents “some independent claim,” i.e.,
one that does not implicate the validity of the state court judgment, the
doctrine does not apply. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544
U.s. 280, 292, 125 S. Ct. 1517 (2005), quoted in Turner v. Crawford Square
Apartments 1ff, L.P., 449 F.3d 542, 547—48 (3d Cir. 2006)).
The grievance at the heart of this federal-court complaint is that the
State trial court denied Mr. Somerset’s claim of breach of contract. He wishes
to overturn that result. He insists here, as he did there, that he had an implied
agreement with Elam. The State court, he says, should have recognized that
Elarn had title to the van only because Somerset is blind and cannot drive. He

argues that the State court’s judgment cannot be reconciled with opposing
counsel’s acknowledgement that the parties had an agreement.6 He alleges that
the State court judge and Mr. Elam “impaired” his rights under the contract.

Mr. Somerset implies that this endUed him to prevail. Of course, the existence
of an agreement is not the only element of a contract claim, and entitlement to
possession of the van, too, may have depended on many other factors. At any rate, a
claim that a judgment was against the evidence is properly brought on appeal, not in a
separate federal-court action against the judge and the adversary party.
S

11

He alleges that the remaining defendants knew about the contract and
permitted or participated in the breach. He alleges that the procedures in the
State trial were unfair, and that he was denied the right to be heard. Overall,
he argues, the result of the State trial was erroneous.
These claims amount to a complaint that Mr. Slam, the court, and others
failed to respect Somerset’s rights under the agreement or acknowledge the
merit of his contract claim. The claim here is that Mr. Somerset should have
prevailed on that state-law claim. The relief sought, realistically speaking, is
that this Court should undo the result of the State trial. But where a party
asserts that his adversary should not have won, or that the presiding judge
erred, the proper recourse is to file an appeal within the State court system—
not to sue his adversary’ again, or sue his adversary’s lawyer, or the court.
The Complaint is less than clear. In the alternative, then, I reserve the
possibility that some aspect of the claims—those involving nonparties to the
State Court Action, denials of due process, or some sort of independent
violation of ADA, for example—might be treated as independent for purposes of
Rocker-Feldman. Such claims, however, are barred on multiple other grounds.
B.

Res Judicata

Claims that survive scrutiny under Rocker-Feldman may nevertheless be
barred by doctrines of resjudicata. See Ayres-Fountain v. E. Say. Bank, 153 F.
App’x 91, 93 (3d Cir. 2005) (“[E]ven if review of the complaint were not barred
by Rooker—Feidman, we agree with the District Court that Ayres—Fountains
claims were barred by res judicata.”). I therefore consider the res judicata effect
of the judgment in the prior State Court Action.7
The preclusive effect of a state court judgment in a subsequent federal
action is governed by the law of the state that adjudicated the original action.

Although resjudicata is an affirmative defense, it may be considered on a
motion to dismiss if its applicability can be determined from the face of the complaint
and documents properly considered on a Rule 12(b)(6) motion. See Rycoline Products,
Inc. a C & WUnlimited, 109 F.3d 883, 886 (3d Cir. 1997); Bethel a Jendoco Constr.
Corp., 570 F.2d 1168, 1174 (3d Cir. 1978).
7

12

See Oreenleaf v. Oarlock, Inc., 174 F.3d 352, 357 (3d Cir. 1999) (“To determine
the preclusive effect of [the plaintiffs] prior state action we must look to the
law of the adjudicating state.”). See also Allen v, McC’urry, 449 U.S. 90, 96, 101
S. Ct. 411, 415 (1980) (“Congress has specifically required all federal courts to
give preclusive effect to state-court judgments whenever the courts of the State
from which the judgments emerged would do so.”). Here, that State is New
Jersey.
Claim preclusion in the traditional sense tends to be subsumed by New
Jersey’s broad “entire controversy” rule. The entire controversy rule
emphasizes, not just claims within the scope of the prior judgment, but all
claims and parties that a party could have joined in a prior case based on the
same transaction or occurrence. The entire controversy doctrine thus “requires a
party to bring in one action ‘all affirmative claims that [it] might have against
another party, including counterclaims and cross-claims,’ and to join in that
action ‘all parties with a material interest in the controversy,’ or be forever
barred from bringing a subsequent action involving the same underlying facts.”
Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 885 (3d Cir. 1997)
(quoting Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280, 662
A.2d 509, 513 (1995)).
We have described the entire controversy doctrine as “New
Jersey’s specific, and idiosyncratic, application of traditional res
judicata principles.” Rycoline Prods., Inc. v. C & W Unlimited, 109
P.3d 883, 886 (3d Cir. 1997). A mainstay of New Jersey civil
procedure, the doctrine encapsulates the state’s longstanding
policy judgment that “the adjudication of a legal controversy
should occur in one litigation in only one court[.j” Cogdell v. Hosp.
Ctr. at Orange, 560 A.2d 1169, 1172 (N.J. 1989); see also N.J.
Const. art. VI, § 3, ¶ 4 (“[L]egal and equitable relief shall be granted
in any cause so that all matters in controversy between the parties
may be completely determined.”); Smith v. Red Top Taxicab Corp.,
168 A, 796, 797 (N.J. 1933) (“No principle of law is more firmly
established than that a single or entire cause of action cannot be
subdivided into several claims, and separate actions maintained
thereon.”)....
Ricketti v. Barry, 775 F.3d 611, 613 (3d Cir. 2014).
13

The entire controversy doctrine applies across the state/federal court
divide; that is, it bars an action in federal court “when there was a previous
state-court action involving the same transaction.” Bennun v. Rutgers State
Univ., 941 F.2d 154, 163 (3d Cir. 1991). Thus the doctrine extinguishes any
subsequent federal-court claim that could have been joined, but was not raised
in the prior state action:
Under the entire controversy doctrine, a party cannot
withhold part of a controversy for separate later litigation even
when the withheld component is a separate and independently
cognizable cause of action. The doctrine has three purposes: (1)
complete and final disposition of cases through avoidance of
piecemeal decisions; (2) fairness to parties to an action and to
others with a material interest in it; and (3) efficiency and
and delay. See DiTrolio v. Anfiles, 142 N.J. 253,
avoidance of
662 A.2d 494, 502 (N.J.1995). As an equitable doctrine, its
application is flexible, with a case-by-case appreciation for fairness
to the parties.
waste

Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999).
The preclusive effect of the rule, as to both claims and parties not joined
in the prior action, is explicit: “Non-joinder of claims or parties required to be
joined by the entire controversy doctrine shall result in the preclusion of the
omitted claims to the extent required by the entire controversy doctrine....” N.J.
Ct. I?. 4:30A.
In the State Court Action, Mr. Somerset asserted a breach of contract
claim. There is no reason, however, that he could not have asserted his ADA or
Constitutional claims.
In the State Court Action, Mr. Somerset sued only Mr. Elam. There is no
reason, however, that he could not have joined other defendants.
Even setting aside Rocker-Feldman, then, the entire controversy doctrine
substantially or wholly bars the current action.

V.

THE STATE
Once again, I reserve an issue. I consider the possibility that claims

against the State might escape the reach of Rocker/Feldman or the entire
14

controversy doctrine. Other grounds, however, amply justify dismissal of claims
against the State.
A.

Eleventh Amendment Immunity

The Eleventh Amendment to the U.S. Constitution, which is of
jurisdictional stature, renders the states immune from certain claims: “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. For more than a century, the Eleventh Amendment has 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. Haldennan, 465 U.S. 89, 100-101
(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 (189O).
Congress may, however, abrogate the States’ Eleventh Amendment
immunity. Claims against the State are therefore barred only if Congress has
not excepted them from the scope of the Eleventh Amendment immunity. As to
that question, the analysis is simple as to

§

1983, but somewhat more complex

as to the ADA.
Considering the Complaint in its guise as a

§

1983 action, I hold that

dismissal is required. Although Congress may in some circumstances possess
This immunity would apply to Judge Covello as well. See Robinson v. New
Jersey Mercer County Vicinage-Family Div., 514 Fed. App’x 146, 149 (3d Cit. 2013)
(New Jersey county court was “clearly a part of the state of New Jersey,” so “both the
court itself and its employees in their official capacities were unconsenting state
entities entitled to immunity under the Eleventh Amendment”) (citing Benn v. First
Judicial Dist. Of Pa., 426 F.3d 233, 240 (3d Cir. 2005)); Dongon v. Banar, 363 Fed.
App’x 153, 156 (3d Cir. 2010) (“[Tjhe state courts, its employees, and the judges are
entitled to immunity under the Eleventh Amendment....”).
8

15

the power to override a state’s sovereign immunity, it did not do so when it
enacted Section 1983. Quem a Jordan, 440 U.S. 332, 342 (1979).
Constitutional claims that Mr. Somerset was denied due process or a hearing
at trial, or that the judgment violated the prohibition on impairment of
contracts, for example, cannot be maintained against the State.
As to the ADA, the Eleventh Amendment analysis is more complex, and it
may turn on the precise claim being asserted. See Tennessee v. Lane, 541 U.S.
509, 517, 124 S. Ct. 1978, 1985 (2004) (Title II of ADA abrogates States’
immunity as to action for damages based on denial of access to the courts);
United States a Georgia, 546 U.S. 151, 126 S. Ct. 877 (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”); Board of Trustees of Univ. of Ala. a Garrett, 531

U.S. 356, 121 5. Ct. 955 (2001) (Title I of ADA did not abrogate the States’
immunity with respect to employment-related claims).
The allegations of the Complaint are not specific enough to permit a
Eleventh Amendment analysis of Mr. Somerset’s ADA claims against the State.
I therefore set that issue aside.
B.

Failure to State a Claim

There remains the problem that the Complaint fails to allege any facts
from which the State’s liability could be inferred.
Title II of the ADA’° provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a public
entity or be subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132.

Closely related is the principle that the State, its entities, and its officials are
not “persons” subject to liability under 42 U.S.C. § 1983. Will a Michigan Dept. of State
Police, 491 U.S. 58, 70-7 1 (1989). I do not discuss it separately.
10
Mr. Somerset could also be asserting a parallel claim under Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a). Because the standards are virtually identical,
see Disability Rights N.J., Inc. a Comm’r, N.J. Dep’t of Human Serus., 796 F.3d 293,
301 n.3 (3d Cir. 2015), I do not discuss it separately.
g

16

The Complaint’s references to the ADA concern a “right to be heard”; a general
sense that some defendant or defendants took advantage of Mr. Somerset’s
blindness; and an allegation that the deposit money for the van came from his
SSDI benefits. These allegations are not sufficient to plausibly suggest that the
State excluded Mr. Somerset from some program or benefit, or discriminated
against him, in violation of the ADA. Indeed, it is difficult to discern what the
State’s involvement, if any, is alleged to have been.
Another of Mr. Somerset’s claims is that the Judge and Mr. Elam
impaired the obligations under his contract with Elam, in violation of Article I,
section 10 of the U.S. Constitution.” Because that provision, by its terms,
applies only to a “State,” I discuss it here, in relation to the State’s liability.
The Contracts Clause, so called, provides that “No State shall
any.

.

.

.

.

.

pass

Law impairing the Obligation of Contracts.” Id. By its plain language,

this Clause has no application to a private party’s breach of contract, or even to
a State court’s erroneous denial of a claim of breach of contract. Rather, it
prohibits a particular kind of expostfacto legislation, impairing contractual
obligations already entered into. The Contracts Clause “applies only to
exercises of legislative power.” Mubey Bridge & Shore, Inc. v. Schoch, 666 P.3d
862, 874 (3d Cir. 2012) (citing Ross v. Oregon, 227 U.S. 150, 162, 33 S. Ct. 220
(1913) (clause is “aimed at the legislative power of the state, and not at the
decisions of its courts, or the acts of administrative or executive boards or
officers, of the doings of corporations or individuals”)).
There are no facts alleged that tend to suggest that the State, whether
through Judge Covello or in any other way, violated the Contracts Clause.

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of
Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and
silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law,
or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
17

VI.

EICHEN AND PARTNERS PHARMACY

Defendants Eichen and Partners Pharmacy have separately moved to
dismiss the Complaint. The foregoing grounds, standing alone, may suffice to
require dismissal, but I briefly discuss additional grounds raised in their
motions.
A.

Motion of Defendant Eichen

Defendant Lawrence D. Eichen, Esq., is the attorney who represented
Elam in the State Court Action.
There is no cause of action under the ADA based on an attorney’s
representation of a disabled person’s adversary in a breach of contract suit.
The Complaint alleges that Mr. Eichen “was a Title III Private Entity,” and that
at one point he acknowledged the existence of an implied contract between
Somerset and Elam. Nothing in Title III would appear to apply to Eichen’s
alleged conduct here.
To the extent a section 1983 claim may have been intended, it could not
apply to Eichen, a private party, as a matter of law. Steward u. Meeker, 459
F.2d 669, 669-70 (3d Cir. 1972) (private attorney was not a state actor under
Section 1983); Polk County v. Dodson, 454 U.S. 312 (198 1)(even courtappointed defense attorneys do not act under the color of state law for
purposes of Section 1983).
For these additional reasons, the claims against Eichen are dismissed for
failure to state a claim.
B.

Motion of Defendant Partners Pharmacy

Partners Pharmacy, LLC moves to set aside default and to dismiss the
Complaint for failure to state a claim.
The Complaint was filed on February 14, 2017. The docket contains
proof of service on March 31, 2017. (ECF no. 13) Partners Pharmacy failed to
answer or othenvise move in response to the Complaint, and default was
entered by the Clerk on May 8, 2017. (Entry following ECF no. 23) No default
judgment has been sought or entered.

18

A clerk’s entry of default may be set aside for “good cause.” Fed. R. Civ.
p. 55(c). 1 construe that Rule in keeping with the spirit of the Federal Rules
that cases should be decided on the merits. Doubtful cases will therefore be
resolved against default. Laurier u. D’flio, No. 3: l5-CV-6043-BRM-TJB, 2017
WL 3229065, at *1 (D.N.J. July 31, 2017).
A court’s determination of “good cause” must take into account the
following three factors:
“(1) whether the plaintiff will be prejudiced;
(2) whether the defendant has a meritorious defense;
(3) whether the default was the result of the defendant’s culpable
conduct.”
Gold Kist, Inc. u. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985) (line breaks
added for clarity); accord United States v. $55,518.05 in US. Currency, 728 F.2d
192, 195 (3d Cir. 1984).
As to factor (1), there is no particular prejudice to Mr. Somerset here. The
case is in its early stages. No discovery has been taken. Partners Pharmacy
seems to be a marginal defendant whose liability is likely to rise or fall with
that of the others. I have no evidence that, in the interim, any relevant evidence
was lost, or anything occurred that would hinder the plaintiff’s presentation of
his case.
As to factor (3), Partners Pharmacy has little to offer by way of
explanation; it hypothesizes that if the summons and complaint were served,
someone mislaid them. Still, there are no indications of anything beyond
negligence. See Hritz v. Woma Corp., 732 F.2d 1178, 1183 (3d Cir. 1984)
(negligence does not satisfy culpable conduct standard). In particular, there are
no indicia of willful or bad faith conduct, and Partners appears to have
responded with alacrity once the default came to its attention. Indeed, this
motion was filed on June 7, 2017, about one month after the default was
entered on the docket.
As to factor (2), Partners Pharmacy points to a meritorious defense, or at
least a meritorious motion to dismiss.
19

As to this defendant, the Complaint makes two allegations: (1)
“Defendant Partners Pharmacy, LLC failed to Imake] payment for the use of my
vehicle as agreed upon the contractual relationship with Joseph
Elam [for] the use of my vehicle”; and (2) “Partner[s] Pharmacy LLC [and
another defendant]

.

.

.

are Title III private entities under the Americans with

Disabilities Act of 1990.”
These allegations, however liberally read, come nowhere near stating a
claim against Partners Pharmacy. It is alleged that Partners failed to pay, but it
is impossible to discern why Partners would be liable to pay. It is not alleged
what, if anything, Partners did in relation to Elam; what services, if any, Elam
performed for Partners; and what obligations Partners could have had under
the agreement, which was between Somerset and Elam. It is not alleged that
Partners discriminated against Somerset or denied him access to anything.
For these reasons, the motion of Partners Pharmacy to vacate default
and dismiss the Complaint for failure to state a claim is GRANTED.

CONCLUSION

For the foregoing reasons, the motions to dismiss filed by the State and
Judge Covello (ECF no. 24) and Eichen (ECF no. 8), are GRANTED. The motion
of Partners Pharmacy (ECF no. 25) to vacate default and dismiss the Complaint
is GRANTED. An appropriate order accompanies this opinion.
Dated: September 26, 2017

MCNULfl
United States District Judge

20