ARGEN et al v. KESSLER et al
Filing
26
OPINION. Signed by Judge Kevin McNulty on 9/28/2018. (ld, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PAUL ARGEN and SURENDER
MALHAN,
-
Civ. No. 18-963 (KMflJBC)
Plaintiffs,
OPINION
V.
DONALD KESSLER and GURBIR S.
GREWAL,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
The plaintiffs, Paul Argen and Surender Maihan, seek declaratory and
injunctive relief from a June 2015 court order (hereinafter, “Gag Order”) by the
Honorable Donald Kessler of the Superior Court of New Jersey. Judge Kessler
issued that Gag Order in the course of a divorce and custody dispute between
Malhan and his ex-wife, Alma Myronova. Plaintiffs have also named the
Attorney General of the State of New Jersey, Gurbir Grewal, as a defendant.
Plaintiffs initially moved for temporary restraints and a preliminary injunction.
I denied the request for temporary restraints but scheduled a hearing on the
preliminary injunction, after which I reserved decision. Defendants now move
to dismiss the complaint. I consolidated the preliminary injunction motion with
the motion to dismiss for purposes of decision. For the reasons explained
herein, I will grant defendants’ motion to dismiss the complaint in its entirety
as to Attorney General Grewal, and insofar as it seeks injunctive relief as to
Judge Kessler. In addition, and in the alternative, I deny plaintiffs’ motion for a
preliminary injunction as moot in light of those dismissals.
1
Summary’
I.
a. Factual history
This case stems from a long and contentious divorce and custody dispute
in New Jersey family court.2 Some but not all of the parties here are litigants in
that state case. First, there is Surender Malhan himself. Paul Argen, his co
plaintiff, is a reporter who covers family court “abuses” in New Jersey, among
other things. (Cplt.
¶
4.) He has appeared on television and produces digital
content for his reporting. (Id.) Donald Kessler, a judge of the Superior Court of
New Jersey, Essex County, Family Division, issued the Gag Order currently in
For ease of reference, certain key items from the record will be abbreviated as
follows:
=
Docket Entry’ in this case
“Cplt.”
=
Verified Complaint [DE no. 1]
“Def. Br.”
=
app.”
=
“DE no.
“P1.
—
“Def. Reply”
=
Brief in Support of Motion to Dismiss Verified
Complaint [DE no. 13)
Plaintiffs’ Opposition to Defendants’ Motion to
Dismiss [DE no. 17]
Reply Brief in Further Support of Motion to Dismiss
Verified Complaint fDE no. 23]
Malhan has pursued and is pursuing claims related to his divorce and custody
dispute in other federal court actions.
In Allen a Bello (consolidated with Edelglass v. New Jersey on appeal), Maihan
ad several other plaintiffs sought damages and injunctive relief against the New
Jersey family court system. Nos. 14-760/15-3519, 2016 WL 1670927, at * 1 (D.N.J.
Apr. 27, 2016). The plaintiffs claimed that they were deprived of substantive and
procedural rights afforded to them under the Fourteenth Amendment of the United
States Constitution. Id. at *17. Judge VTolfson denied their request for a preliminary
injunction as moot, because she determined that plaintiffs had an adequate remedy at
law. Id. at *1 (noting also that plaintiffs “[sought] to have this Court dramatically
change the legal landscape of New Jersey and the laws governing child custody
proceedings between parents”). Malhan also tried to litigate the gag order in that case
but relief was denied on the grounds that he had not adequately exhausted his appeal
rights after the denial of his request for interlocutory review by the Appeal Division. Id.
at *15_*16. The judgment of the District Court was affirmed by the Court of Appeals.
861 F.3d 433, 433 (3d Cir. 2017).
In November 2016, Malhan filed a case against Christopher Porrino, Attorney
General for New Jersey at the time, seeking to declare New Jersey’s Anti-Harassment
Statute, N.J.S.A. 2C:33-4, unconstitutional under the First, Second, and Fourteenth
Amendments. Malhan v. Pon-ino, No. 16-8889 (D.N.J.). That case is ongoing.
2
2
¶ 5.) Nancy Sivilli, a judge of the Family Division in Essex County,
issued earlier gag orders but later recused herself from Maihan’s case. (Id. ¶
dispute. (Id.
16, 26.) Gurbir Grewal is the Attorney General for the State of New Jersey. (Id.
¶ 6.) Alma Myronova is Maihan’s ex-wife; in the state court proceedings she
has sought full legal and physical custody of both of their children. (Id. ¶ 7.)
The events relevant to this case begins in February 2011, when the
family court awarded custody of the children to Myronova, while granting
Malhan limited visitation rights, (Cplt.
custody was restored. (Id.
¶ 11—12.) Later, in June 2012, joint
¶ 13.) On February 18, 2014, Malhan was
interviewed by a reporter regarding his custody battle, and the interview was
broadcast on the local television station, WWOR-TV (known as “Channel 9” or
¶ 15.) This interview led to the first gag order, issued by Judge
Sivilli on April 4, 2014. (Id. ¶ 16.) She prohibited Malhan from discussing with
“my9”). (Id.
the media or posting on the internet any material regarding the issues
surrounding his divorce or custody proceedings, and ordered him to remove
specific parts of a piece he had already posted on a website that criticized the
decisions of the court. (Id.
¶f 16—17.) Judge Sivilli’s order was later amended
on May 1, 2014, but the prohibition on posting online or discussing the case
with the media remained substantially the same. (Id. (Ex. B).)
On May 6, 2014, Malhan brought suit in federal court seeking a
declaration that Judge Sivilli’s gag order was unconstitutional. (Id.
¶ 20.) Judge
Wolfson did not act upon Malhan’s motion for a temporary restraining order
against enforcement of the gag order, relying on the Rocker-Feldman doctrine.
(Id.) Malhan sought interlocutory appellate review of Judge Sivilli’s gag order in
state court, but review was denied. (Id.
¶ 21.)
In June 2014, Malhan joined with Paul Nichols, an investigative reporter
with The Bergen Dispatch, to bring a second federal court action to enjoin
enforcement of Judge Sivilli’s May 1, 2014 gag order, captioned Nichols v.
Sivilli, No. 14-3821 (D.N.J.). Defendants Judge Sivilli and Essex County
Superior Court brought a motion to dismiss, which was denied by the Hon.
3
William J. Martini of this Court.3 Judge Martini noted that Maihan and Nichols
alleged in their complaint that Judge Sivilli, when entering her gag order, had
failed to analyze whether other, less drastic remedies would effectively mitigate
any harm or prejudice resulting from publicity of the issues subject to that gag
order. (Id.
¶
24.) Judge Sivilli then scheduled an evidentiary hearing to weigh
the best interests of the children against Malhan’s First Amendment rights.
That hearing, however, was cancelled. (Id.
¶!
25—26.) Granting a motion by
Malhan, Judge Sivilli recused herself from further participation in the case,
which was reassigned to Judge Kessler.4 (Id.
¶1
26—27.)
Judge Kessler scheduled a plenary hearing on the Sivilli gag order for
June 18, 2015. (Id. ¶j 28, 29.) At the hearing, Myronova did not present any
witnesses or submit any evidence. (Id.
30.) After the hearing, Judge Kessler
¶
vacated the previous two orders and entered a new order.
That new order, dated December
,
2015 (the Gag Order now at issue)
barred both Malhan and Myronova “from speaking with, appearing for an
interview, or otherwise discussing any custody information to any reporters,
journalists, newscasters or other news media employees or from posting any
blogs or information not previously posted or disseminated relating to the
children or any custody issue in this case pending a further hearing.” (Id. (Ex.
A ¶1).) It is fair to say that Judge Kessler intended this Gag Order as an
interim measure to preserve the status quo while the parties compiled the
necessary record regarding the effect of publicity on the children. The Gag
Order was explicitly entered “pending a further hearing.” (Id.)
I do not summarize Judge Kessler’s statement of reasons, or the facts on
which the decision was based. Those confidential matters may be found at DE
9-1 pp. 6—18.
The order contemplated a period of 30 days to obtain a psychological
evaluation. Judge Kessler required that Malhan, Myranova, and the children
3
Nichols v. Sivilli, No. 14-3821, 2014 WL 7332020 (D.N.J. Dec. 19, 2014).
See Nichols u. Sivilli, 130 F. Supp. 3d 912, 914 (D.N.J. 2015).
4
attend evaluations conducted and scheduled by Dr. Ralph Fretz as part of an
effort to secure an expert psychological report, based upon
which
he could
make findings and modify the order as needed. (Kessler DecI. ¶‘j 3-4.) Maihan,
however, refused to cooperate. Initially, Malhan declined to attend the courtordered psychological evaluation sessions with Dr. Fretz at all. (Id.) Dr. Fretz
notified the court that he was moving out of state and could no longer finish
the report for the case, attributing his withdrawal in part to Malhan’s failure to
cooperate. (Id.
¶
5.) At a hearing on August 10, 2016, Judge Kessler expressed
concern about the resignation of Dr. Fretz and the lack of any psychological
evaluation of how publicity about the custody and divorce battle would affect
the well-being of the children. (Id.
¶
6.) He reminded the parties that he could
not consider the issue of modifying the restrictions until he had received such
an evaluation. (Id.
¶
7.)
Adding to Judge Kessler’s evident frustration was the difficulty in finding
a new psychological expert. One major obstacle was Malhan’s insistence on
tape recording any interview with any psychologist selected by the court, a
condition few psychologists would accept. (Id.
¶
8.) One psychologist, Dr.
Madeleine Milchman, stated that she would permit tape recording. Shortly
thereafter, however, she informed the court that she did not wish to participate
in the case. (Kessler Decl. ¶j 10—11.) The court attempted to engage a
psychological expert who had earlier been involved in the case, Dr. Mary
Pasternack. Dr. Pasternack informed the court that because of the numerous
difficulties she had encountered with Maihan in earlier sessions, she did not
wish to participate. (Kessler Deci.
¶
12.)
Judge Kessler concluded that further efforts to obtain a joint courtordered report about the psychological effect of publicity on the children would
be futile. At a February 24, 2017 case management conference, Judge Kessler
hit on a next-best alternative that did not require the parties to agree: he
bypassed the court-appointed expert and entered an order requiring Maihan
and Myronova to separately retain their own experts who could provide
3
separate expert opinions for the court’s consideration. Those opinions were to
include, inter alia, an assessment of “any adverse effect or harm to either of the
children by any publicity of this case or discussion with third parties which
may came within purview of the children’s knowledge.” (Id.
¶
13 & Ex. C
(order).) As of the date of Judge Kessler’s Declaration, neither side had
complied. (Id.
¶
14.)
Meanwhile, back in federal court before Judge Martini, Nichols had
amended his complaint to add Judge Kessler as a defendant. (Cplt.
¶J
40—43.)
Very shortly thereafter, in June 2016, Mr. Nichols passed away. None of Mr.
Nichols’s business associates or heirs wished to pursue the litigation, and the
federal court case was closed. (Id.’j’J 44—45.) The custody case continued in the
Family Division, but the issue of the 2015 Gag Order lay uncontested for some
time. (See Id. ¶‘j 46—47.)
Eventually, Argen, like Nichols a reporter, became interested in the case
and expressed a desire to conduct an interview with Maihan about his custody
battle. (Id.
¶
78.) Argen joined Malhan as plaintiff in filing this new action in
2018. It appears that Judge Kessler has now recused himself from the family
court proceeding. (Maihan u. Pan-mo, D.N.J., Civ. No. 16-8889, DE no. 48). The
state family court case is now being heard by Judge David Katz.
b. Procedural history
On January 23, 2018, Argen and Malhan brought suit seeking to prevent
the defendants from enforcing the Gag Order issued by Judge Kessler. (See
Cplt.) They immediately made a motion for a preliminary injunction and
Judge Kessler’s recusal may alter the form, but not the substance, of the issues
asserted. True, his recusal moots any claim for injunctive relief against him
personally. See Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (“[Al case is
moot if developments occur during the course of adjudication that eliminate a
plaintiffs personal stake in the outcome of a suit or prevent a court from being able to
grant the requested relief.” (internal quotations omitted)). Judge Katz, however, now
stands in the shoes of Judge Kessler. As necessary, any reference to arguments made
by the parties about Judge Kessler shall be deemed to apply to Judge Katz as
presiding judge.
5
6
temporary restraints. (DE no. 4.) I denied the request for temporary restraints
but scheduled a hearing on the preliminary injunction on February 20, 2018.
(DE no. 5.) At this motion hearing, the parties rested on their papers and did
not introduce testimonial evidence. Defendants did claim, however, that part of
the reason for the persistence of the Gag Order was Malhan’s refusal to
participate in a psychological evaluation to determine the potential harm to his
children from the publicity of the dispute. On April 6, 2018, 1 issued a
procedural order asking that counsel “report in writing on the progress being
made to furnish psychological reports as ordered by Judge Kessler” and
consolidated the preliminary injunction motion with the disposition of the
present motion to dismiss. (DE no. 16.)
In response to the procedural order, counsel for plaintiffs filed a
declaration explaining the status of the psychological reports, as well as a
curriculum vitae of Dr. Lidia Abrams and a transcript of a March 16, 2018
hearing before Judge Kessler. (DE no. 18.) In a letter, the defendants
responded to the Court’s request and plaintiffs’ submissions, stating that
“neither Mr. Malhan nor Ms. Myronova has complied with Judge Kessler’s
order.” (DE no. 19 at 1.) They also noted that “Judge Kessler had already
previously secured an expert who was to provide such expert opinion” and
argued that Malhan’s submissions to the court were irrelevant, as they dealt
with the issue of hiring a reunification therapist. (Id. at 2.)
Defendants lay out six arguments as to why the complaint should be
dismissed: (1) injunctive relief against Judge Kessler is not available under
Section 1983; (2) Judge Kesler is not a proper defendant under Section 1983;
(3) Judge Kessler enjoys absolute immunity; (4) the claims are barred by the
Rooker-Feldman doctrine; (5) the Court should abstain from hearing the claims
under the Younger doctrine; and (6) the claims are not ripe for consideration.
(See Def. Br.) I will discuss those issues in the following order.
In Section II, I briefly set forth the applicable standards of review.
In Section III, I deal with some threshold grounds for dismissal on
jurisdictional or abstention grounds: First I hold that the action should not be
7
dismissed for lack of subject matter jurisdiction under the Rooker-Feidman
doctrine (IIJ.a); next I hold that the action should be not be dismissed based on
Younger abstention (III.b); and then I hold that the action should not be
dismissed on ripeness grounds (III.c).
In Section IV, I discuss the remaining grounds for dismissal. Against a
sitting judge, I hold, injunctive relief is unavailable under
§ 1983 (IV.a. 1).
Against Attorney General Grewal, I find, no facts suggestive of liability have
been pled. (IV.a.2) Finally, I deny the motion for a preliminary injunction as
moot in light of the dismissals. (IV.b).
Standards of Review
H.
Rule 12(b)(1) governs jurisdictional challenges to a complaint. These may
be either facial or factual attacks. See 2 Moore’s Federal Practice
§ 12.30[41 (3d
ed. 2007); Modensen u. 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. Lincoln Ben. Life Co.
v. AEILife, LLC, 800 F.3d 99, 105 (3d Cir. 2015); Iwanowa v. Ford Motor Co., 67
F. Supp. 2d 424, 438 (D.N.J. 1999). 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. Iwanowa, 67 F. Supp.
2d at 438; Cardio—Med. Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721 F.2d 68,
75 (3d Cir. 1983). As to a facial jurisdictional attack, then, the standard is
similar to the one that applies to an ordinary motion to dismiss under Rule
12(b)(6).
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. u. China Minmetals Corp., 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
8
drawn in the favor of the plaintiff. New Jersey Carpenters & the Trustees
Thereof u. Tishman Const. Corp. of New Jersey, 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 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 AtI. 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.
III.
Jurisdiction and Abstention
a. Rooker-Feidman
Defendants argue that the Court lacks jurisdiction to hear the plaintiffs’
claims under the Rooker-Feldman doctrine. (Def. Br. 18.) They describe
plaintiffs as impermissibly seeking federal district court review of an adverse
order from a state family court proceeding. This case has two plaintiffs, one of
whom, Malhan, disputes a ruling against him in the state case, but the other of
whom, Argen, is a third party asserting his rights as a member of the press.
The Rooker-Feldman grounds would not in any event apply to plaintiff Argen,
who is not a party to the state case. As to Malhan, the doctrine’s application is
at best doubtful, because the Third Circuit has explicitly reserved the issue of
whether it applies to interlocuton state court orders.
Under the Rocker-Feldman doctrine,6 district courts are prohibited from
exercising jurisdiction over “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.” Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005)). Four requirements must be met before the doctrine
The titular cases are Rooker tc Fidelity Trust Co., 263 U.S. 413 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
6
9
can apply: “(1) the federal plaintiff lost in state court; (2) the plaintiff complains
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.” Id. (quoting Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010)).
I first consider Argen, the clearer case. The Third Circuit has held that
non-parties to state court litigation—family court litigation, as it happened—
were not barred from pursuing claims about the constitutionality of gag orders
in federal court. FOCUS
i.’.
Allegheny
Cty.
Court of Common Pleas, 75 F.3d 834,
841 n.4 (3d Cir. 1996) (“Under Valenti [a Mitchell, 962 F.2d 288, 298 (3d Cir.
1992)], however, Rooker-Feldman does not prohibit third parties—such as
plaintiffs here—from challenging a state court gag order in federal court.”).7
Argen was not a state-court loser at all. It is true that technically, it remains an
open issue whether there may be some circumstances under which a nonparty’s claim can be barred by Rooker-Feldman. See Lance v. Dennis, 546 U.S.
459, 466 (2006) (noting that “[t]he Rook-er-Feldman doctrine does not bar
actions by nonparties to the earlier state-court judgment” when the nonparties
could be considered in
privity
with a party to the state court judgment, but
observing that the question of “whether there are any circumstances, however
limited, in which Rooker-Feldman may be applied against a party not named in
an earlier state proceeding” has not been decided). Still, no unusual factors are
proffered here, and FOCUS dictates that Argen is not barred from pursuing his
constitutional claims in federal court.
Whether Rooker-Feldman applies to Malhan is a more complicated
question. True, federal courts have routinely applied the doctrine to bar federal
court relitigation of decisions rendered by family courts. See, e.g., Johnson v.
City of New York, 347 F. App’x 850, 852 (3d Cir. 2009) (“[Tjo the extent that
I set aside the particulars of the third-party status in that case, where the
federal plaintiffs were currently pursuing an appeal of the denial of their motion to
intervene in the state court case. See FOCUS, 75 F.3d at 841.
10
Johnson actually seeks review of decisions rendered by the Queens County
Family Court, the Rocker-Feldman doctrine bars review.”); White v. Supreme
Court of New Jersey, 319 F. App’x 171, 172-73 (3d Cir. 2009) (affirming the
district court’s decision to not review, among other things, plaintiff’s denial of a
petition for certification, appealing her child custody case).
Malhan’s contention here, however, is that he is not seeking to review a
state court judgment, but an order issued against him during the course of
ongoing state court proceedings. (See P1.
Opp.
at 27.) Rooker-Feldman, he
argues, applies to final state court judgments, not to interlocutory orders.
Rooker-Feldman is most commonly applied where a state court judgment
precedes the filing of a federal action. Whether Rocker-Feldman also applies to
interlocutory state court orders is a vexed question.8 The state of the law in the
Third Circuit I would describe as almost-but-not-quite:
We have ordinarily applied the doctrine to prevent review of final
decisions of state courts. See GIVI Tntcks II, 134 F.3d at 143;
FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834,
840 (3d Cir. 1996). In Port Authority Police Benevolent Association v.
Pod Authority Police Department, 973 F.2d 169 (3d Cir.1992),
however, we found the doctrine precluded review of a preliminary
injunction issued by a state court. Id. at 178 (finding the doctrine
applicable because “the preliminary injunction issued by the New
resolved, at least for the moment, the dispute
York trial court
between the parties which forms the basis of the federal complaint
at issue in this case”).
...
The case law in other Circuits is to some degree split. Compare Pieper v. Am.
Arbitration Ass’n, Inc., 336 F.3d 458, 462 (6th Cir. 2003) (joining “with the majority of
circuits that have concluded that the Rooker—Feldman doctrine does apply to
interlocutory orders and to orders of lower state courts.”) (collecting cases), and Brown
& Root, Inc. v. Breclcenridge, 211 F.3d 194, 199 (4th Cir.2000) (observing that “[ut
cannot be the meaning of Roolcer—Feidman that, while the inferior federal courts are
barred from reviewing final decisions of state courts, they are free to review
interlocutory orders”), with Cruz v. Melecio, 204 F.3d 14, 21 n. 5 (1st Cir.2000)
(“[D]enying jurisdiction based on a state court judgment that is not eligible for review
by the United States Supreme Court simply would not follow from the jurisdictional
statute that invigorated the Rooker—Feldman doctrine in the first place.”).
S
11
In re Diet Drugs, 282 F.3d 220, 241 (3d Cir. 2002)9
In the Pod Authority case cited in the quotation, the precise issue
presented was not whether Rooker-Feldman applied to a state trial court’s
interlocutory orders; the plaintiffs were arguing that it did not apply to trial-
level orders at all. See 973 F.2d at 177. There, a New York State trial court had
entered a preliminary injunction rejecting a First Amendment challenge and
enforcing a Port Authority rule prohibiting the Police Benevolent Association
(“PBA”) from soliciting contributions from Port Authority tenants. The PBA filed
an appeal to the Appellate Division. At the same time, the PBA filed an action
in this federal court, seeking on First Amendment grounds to enjoin the Port
Authority from enforcing the no-solicitation rule. The Third Circuit had little
difficulty rejecting the proposition that Rooker-Feldman does not apply to
decisions of trial-level state courts:.
The PBA and Trotter argue that the Rooker—Feidman doctrine
does not apply in the instant case because, in their view, that
doctrine only precludes federal review of orders issued by a state’s
highest court, and does not apply to cases where, as here, litigants
seek federal review of an order issued by a lower state court.
However, if federal district courts are precluded, as they are, from
reviewing the decisions of a state’s highest court, even when those
decisions appear to the district court to have been plainly in
violation of the Constitution, then federal district courts are
certainly also precluded from reviewing decisions of lower state
FOCUS, while permitting a non-party to challenge an interlocutory gag order in
federal court, seemed to indicate that a party to the state family court litigation would
have been barred by Rooker-Feidman from doing so:
9
The defendants argue that Rooker—Feidman bars the [third-party advocacy
group’sj federal claims in part because the First Amendment issues were
“inextricably intertwined” with the judge’s gag order decisions. That is correct
inasmuch as the parties to the [state family courtj case could not bring a First
Amendment case in federal court challenging the gag orders.
75 F.3d at 841 n.4. FOCUS, however, did not specifically discuss the issue of Rooker
Feldman’s application to interlocutory versus final orders.
12
courts, which are subject to correction and modification within the
state court system. Indeed, most courts of appeals to consider the
issue have held that the Rooker—Feidman doctrine applies with
equal force when litigants seek federal review of the orders of lower
state courts.
973 F.2d at 177.
That said, the Port Authority Court did recognize the state court order as
interlocutory. Id. at 175—77. Its rationale was tied up in its explicit approval of
the reasoning of an earlier Eighth Circuit case applying Rooker-Feidman to
interlocutory orders:
In Keene Corp. v. Cass, 908 F.2d 293 (8th Cir.l990), for example, the
Court of Appeals for the Eighth Circuit affirmed, under the Rooker—
Feldman doctrine, a federal district court’s dismissal of Keene Corp.’s
federal complaint, in which Keene Corp. had challenged the
constitutionality of a state trial court’s discovery order in a pending state
trial. The court, noting that “[wie agree with the decisions of other
circuits holding that the Feldman doctrine applies to state court
judgments that are not yet final,” id. at 297 n. 3, explained that Keene
Corp sought precisely what the Rooker—Feldman doctrine prohibits:
[w]here a litigant attempts to circumvent the requirement of
seeking direct review in the United States Supreme Court by
casting her lawsuit as a section 1983 action, Feldman’s
jurisdictional bar applies.
Id. at 297. The court thus applied the Rooker—Feidman doctrine in a
context quite similar to that which confronts us in the present case: the
PBA and Trotter, like Keene Corp., desired federal district court review
over the interlocutory order of a lower state court. Like the Eighth
Circuit, we hold that the Rooker—Feldman doctrine precludes such
review.
Port Auth. PBA, 973 F.2d at 177—78. And finally, albeit in the alternative, Port
Authority explicitly stated that “the interlocutory nature of the New York state
court’s order [a preliminary injunction] does not preclude the application of the
Rooker—Feidman doctrine in the instant case.” Id. at 178.
Nevertheless, In re Diet Drugs treated the Port Authority language as
dictum, an interpretation I accept as authoritative. That, the age of the case,
13
and subsequent developments in the Rooker-Feldman Supreme Court case law
raise significant doubts in my mind as to the applicability of Rocker-Feldman to
the claims of Malhan here.’° Mindful of the Third Circuit’s admonition that the
doctrine is to be construed narrowly, I will not apply it in this doubtful case.
I will therefore deny the motion to dismiss the case on jurisdictional
grounds as to both Argen and Maihan. As to both (although admittedly
dubitante as to Malhan) I proceed to consider the remaining issues.
b. Younger abstention
Defendants ask the Court to refrain from hearing this case under the
Younger’ abstention doctrine. Younger abstention requires dismissal of certain
federal claims for injunctive or declaratory’ relief that would interfere with
pending state court proceedings. See Younger, 401 U.S. at 41; Samuels v.
Mackell, 401 U.S. 66, 73 (1971) (“[W]here an injunction would be impermissible
under fYounger’sJ principles, declaratory relief should ordinarily be denied as
well.”); Moore u. Sims, 442 U.S. 415, 423-26 (1979). This doctrine “reflects a
strong federal policy against federal-court interference with pending state
judicial proceedings absent extraordinary circumstances.” Cresci v. BCB
Community Bank, 728 F. App’x 145, 148 (3d Cir. 2018) (quoting Gwynedd
Properties, Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 1200 (3d Cir. 1992)).
For the reasons stated below, I deny’ the motion to dismiss on Younger grounds
with respect to both Argen and Malhan. As in the case of Rooker-Feidman,
however, the analysis differs as between Argen as a non-party and Malhan as a
party to the state litigation.
The parties do not disagree that as to a non-party member of the press
like Argen, abstention is generally inappropriate. Abstention is inappropriate
10
Rocker-Feldman has been refined in the years since Port Authority and Diet
Drugs were decided, and courts have warned against overbroad application of the
doctrine. See, e.g., atcon Mobil Corp. u. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005); Great W. Mining & Mineral Co. u. Fox Rothschild LLP, 615 F.3d 159, 166 (3d
Cir. 2010).
11
The reference is to Younger v. Harris, 401 U.S. 37 (1971).
14
because such a person is not a party to the state proceeding, so an injunction
will not interfere with the adjudication of his or her state-law rights. See
FOCUS, 75 F.3d at 843 (explaining that “there must be an ongoing state
judicial proceeding to which the federal pIaintff is a party and with which the
federal proceeding will interfere” (emphasis added)). As to Argen, then, I would
not dismiss this action on Younger grounds.
Maihan, however, is a party to the state case, so a more substantive
analysis is required. Younger is based on principles of federalism and comity. A
federal court should not abstain “simply because a pending state-court
proceeding involves the same subject matter.” Sprint Communications, Inc. v.
Jacobs, 571 U.S. 69, 72 (2013). However, there are “certain instances in which
the prospect of undue interference with state proceedings counsels against
federal relief.” Id. The Supreme Court has extended Younger abstention “to
particular state civil proceedings... that implicate a State’s interest in enforcing
the orders and judgments of its courts.” Id. at 72-73. Those circumstances are
“exceptional” and are limited to (1) state criminal prosecutions; (2) civil
enforcement proceedings; and (3) civil proceedings involving certain orders that
are uniquely in furtherance of the state courts’ ability to perform their judicial
functions.” Id. at 78; see also Hamilton v. Broàiley, 862 P.3d 329, 337 (3d Cir.
2017).
The case here clearly does not fall into either of the first two categories; it
does not involve a state criminal prosecution nor does it involve a civil
enforcement proceeding. The question is whether the matter can appropriately
be deemed a civil proceeding in the third category, involving orders that are
“uniquely in furtherance of the state courts’ ability to perform their judicial
functions.”
Post-Sprint, district courts have split over the question of whether to
apply Younger when the pending state action involves domestic relations. See
Wigley v. Wigley, No. 17-425, 2018 WL 2172507, at *1, n.2 (W.D. Va. May 10,
2018) (collecting cases); Lawn Managers, Inc. v. Progressive Lawn Managers,
15
Inc., No. 16-144, 2017 WL 76898, at *3 (E.D. Mo. Jan. 9, 2017)
(“jIlt appears
that this state order [dividing marital propertyj, as a domestic relations decree,
is of a kind uniquely in furtherance of the state courts’ ability to perform their
judicial functions.”) (internal quotation marks omitted); but see, e.g., Strom v.
Corbett, No.14-15 18, 2015 WL 4507637, at *9 (W.D. Pa. July 24, 2015) (ruling
that, after Sprint, Younger does not apply when the pending state action is a
divorce proceeding). Some of the caes that do apply Younger abstention in the
domestic relations context I find unpersuasive because they may have given
Sprint short shrift and relied on the pre-Sprint, Middlesex factors. See Cole v.
Montgomery, No. 14-4462, 2015 WL 2341721, at *7 (D.S.C. May 12, 2015)
(applying Younger abstention to property claims brought in federal court
against ex-husband when the same property was the subject of ongoing state
divorce proceedings but not mentioning the Sprint factors); Key v. Lilley, No.
16-130, 2016 WL 8292132, at *3 (E.D. Va. June 29, 2016) (applying Younger
abstention to federal action alleging constitutional violations arising from state
divorce proceedings when those proceedings were still ongoing but not
mentioning the Sprint factors).
Judge Wolfson of this Court addressed the question in the context of
family court proceedings and the earlier gag order:
The Family Court proceedings underlying the present case do not
fall under any of the three categories delineated by the Supreme
Court in Sprint. The same is true of the ‘gag order’ against Malhan.
These proceedings were not criminal proceedings. Nor were
they civil enforcement proceedings, as there was no claim that
Plaintiffs violated any civil statute. Finally, the Family Court
proceedings and orders at issue here are not analogous to
contempt hearings, and therefore do not fall into the category of
proceedings which further the state’s ability to perform judicial
functions.
Edelglass, No. 14-760, 2015 WL 225810, at 11, affd sub nom. Allen v.
DeBello, 861 F.3d 433 (3d Cir. 2017); see also Juidice v. Vail, 430 U.S. 327,
335 (1977) (noting that the contempt power “lies at the core of the
16
administration of a state’s judicial system.”). I agree with Judge Wolfson’s
analysis and similarly hold that Maihan’s case does not fall into any of the
“exceptional” categories to which Younger abstention applies. Therefore,
defendants’ motion to dismiss on this ground is denied.
After separately analyzing the issue as to each plaintiff, as is necessary
in this context, I find that Younger abstention is not appropriate for either in
light of both FOCUS and Sprint.
c. Ripeness
Defendants move that the complaint be dismissed on ripeness grounds,
urging that the Gag Order could be modified at any time and moot the issues.
(Def. Br. at 23.)
Dismissal on ripeness grounds is not appropriate here. “The function of
the ripeness doctrine is to determine whether a party has brought an action
prematurely, and counsels abstention until such time as a dispute is
sufficiently concrete to satisfy the constitutional and prudential requirements
of the doctrine.” Wayne Land & Mineral Grp. LLC v. Delaware River Basin
Comm’n, 894 F.3d 509, 522-23 (3d Cir. 2018) (quoting Peachlum v. City of York,
333 F.3d 429, 433 (3d Cir. 2003)). A claim is ripe for review if (1) it is fit for
judicial decision and (2) withholding court consideration of the issue would
constitute a hardship to the parties. Id. In the context of a declaratory
judgment, for example, application of the ripeness doctrine is guided by three
main considerations: “the adversity of the parties’ interests, the conclusiveness
of the judgment, and the practical utility of that judgment.” Id. I take those
factors as a guide.
Here, the Gag Order is unquestionably in effect, not merely threatened. It
is true that it was entered on an interim basis, pending the parties’ submission
of psychological reports, which has not occurred. Nevertheless, the plaintiffs’
claims are sufficiently concrete in relation to an actual, not hypothetical order
(albeit one that is subject to modification, and might be modified if the plaintiff
17
would cooperate with the court’s fact-gathering efforts). The relief sought
would, if granted, potentially settle the parties’ legal relations.
It is the prospect of mootness or modification, not the Gag Order itself,
that is speculative or unripe. I therefore do not dismiss these claims on
ripeness grounds.
IV.
Other Grounds
a. Defendant-specific grounds for 12(b)(6) dismissal
I next consider dismissal on grounds specific to these particular
defendants. Judge Kessler (or his successor, Judge Katz), claims that
injunctive relief is not available against a judge under
§
1983. Attorney General
Grewal asserts that no facts suggestive of liability are pled against him. On
both scores, I agree.
1. Judge Kessler
The background to any
§
1983 action against a judge is that judges enjoy
absolute immunity from claims for damages based on judicial acts.’2 Section
1983 expands that principle by explicitly disallowing injunctive relief against
judicial officers in most cases:
[I]n any [ 1983] action brought against a judicial officer for an act
or omission taken in such officer’s judicial capacity, injunctive
relief shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable.
42 U.S.C.
§
1983. See also Mikhail v. Khan, 572 F. App’x 68, 71 (3d Cir. 2014)
(upholding dismissal of 1983 claims against state judge based on rulings
involving “Pennsylvania’s Protection From Abuse statute, and its divorce,
custody, and visitation laws” where the plaintiff does not allege that the judge
violated a declaratory decree or that declaratory relief was not available in his
case); Patel v. DeCarolis, 701 F. App’x 590, 592 (9th Cir. 2017) (upholding
dismissal of
§
1983 claim for injunction against state judge’s conduct in
See Stump u. Sparkman, 435 U.S. 349, 362 (1978); Dongon u. Banar, 363 F. App’x
153, 155 (3d dr. 2010) (citing case law).
12
18
plaintiffs “state marital dissolution proceedings”); Rashduni u. Dente, No. 16240, 2016 WL 4035437, at *1 (D.N.J. July 26, 2016) (granting motion to
dismiss claim for injunctive relief against New Jersey court judge for
“wrongfully vacat[ing] a joint custody agreement,” allegedly in violation of
plaintiffs constitutional rights); see also Ludwig a Berks Cty., Pa., 313 F. App’x
479, 482 (3d Cir, 2008) (affirming the dismissal of a suit against a state court
judge over alleged actions in a divorce proceeding and noting that all three
doctrines—the Section 1983 exception for judicial officers, Eleventh
Amendment immunity, and judicial immunity—applied).
Judge Kessler’s issuance of the Gag Order was a judicial act taken in his
judicial capacity. See Affeldt v. Can, 628 F. Supp. 1097, 1101 (N.D. Ohio 1985)
(describing how “the issuance of gag orders” is a judicial act because it is a
“prerogative[] of a judge”); see also Stump v. Sparkman, 435 U.S. at 362 (“The
relevant cases demonstrate that the factors determining whether an act by a
judge is a judicial’ one relate to the nature of the act itself, i.e., whether it is a
function normally performed by a judge, and to the expectations of the parties,
i.e., whether they dealt with the judge in his judicial capacity.”). Although
plaintiffs allege procedural deficiencies relating to the issuance of the Gag
Order, a judicial act “does not lose its judicial character merely because it...is
imbued with procedural error.” Gallas a Supreme Court of Pennsylvania, 211
F.3d 760, 770, n.8 (3d Cir. 2000); see also Stump, 435 U.S. at 359 (“A judge is
absolutely immune from liability for [his or her] judicial acts even if [his or her]
exercise of authority is flawed by the commission of grave procedural errors.”).
Consequently, the only way Maihan could obtain injunctive relief against
a state court Judge for issuing or not modifying) the Gag Order would be to
demonstrate that the Judge violated a prior declaratory judgment or that
declaratory relief is unavailable. See 42 U.S.C.
§ 1983; Mikhail, 572 F. App’x at
71. In that regard, Maihan asserts that “Judge Martini’s decision was the
effective equivalent of a declaratory ]udgment[,] yet Judge Kessler failed to
comply with the federal court’s December 2014 ruling that Lthe] Gag Order
19
could[
]
only be entered after more extensive proceedings.” (Cplt.
¶
91)1 take
this as a claim that the 2015 Gag Order violated a declaratory judgment
entered by Judge Martini.
I do not agree. Judge Martini’s opinion was not a declaratonr judgment or
the “effective equivalent” of one. The opinion itself does no more than deny a
motion to dismiss made by the State Judge and the Superior Court, and it
analyzes the issues within a Rule 12(b)(6) framework. See Nichols z’. Sivilli, No.
14-382 1, 2014 WL 7332020, at *6 (D.N.J. Dec. 19, 2014). Judge Martini
examined the complaint and the gag order then at issue, and found that
Nichols had sufficiently pled that the order violated the First Amendment. Id.
Far from suggesting a foundation for injunctive relief, Judge Martini’s opinion
explicitly denied Nichols’s request for injunctive relief under Section 1983. Id.
Nowhere in the opinion is there an order styled as a declaratory judgment (or
indeed affording affirmative relief of any kind). That Judge Sivilli or Judge
Kessler, in the spirit of Judge Martini’s ruling, later attempted to hold hearings
and gather evidence in connection with the gag order is not evidence that the
federal court had ordered declaratonr relief or enjoined them to do so. At most
it is evidence that the state court was tnring, with precious little cooperation
from the litigants, to gather evidence of potential harm to the children that
would justify continuation, modification, or dissolution of the gag order.
Judge Martini denied a motion to dismiss, permitting the action to
proceed with respect to the First Amendment challenge. Following the death of
Mr. Nichols, the case never went any further, and was effectively abandoned.’3
In September 2015, Judge Martini denied a motion for default judgment but
granted a cross-motion to dismiss by Judge Sivilli (who had already recused herself
from the custody and divorce dispute at this point in the case). Nichols v. Sivilli, 130 F.
Supp. 3d 912, 915—16 (D.N.J. 2015). The order of dismissal was granted on mootness
grounds because the gag order had been vacated in its then-current form, but with
leave to amend. Id. In June 2016, Judge Martini denied another motion to dismiss
(this time by the Honorable Jane Qallina-Mecca of the Superior Court), denied a
motion to reinstate claims against Judge Sivilli by Nichols, and granted another
motion to amend the complaint by Nichols. Nichols v. Sivifli, No. 14-382 1, 2016 WL
3388296, at *l*4 (D.N.J. June 14, 2016).
13
20
Losing Nichols as a plaintiff, however, is not the same as saying that
declaratory relief was, or became, “unavailable” within the meaning of 1983.
Without a violation of a declaratory judgment and without a showing that
declaratonr relief is otherwise unavailable, Malhan cannot obtain injunctive
relief against the Judge in the state court action. See 42 U.S.C.
§ 1983;
Milchail, 572 F. App’x at 71.
The complaint is therefore dismissed insofar as it seeks injunctive relief
against Judge Kessler. Defendants’ motion does not, however, address the
claim for declaratory relief, which remains.
2. NJ Attorney General Grewal
As to the State Attorney General, the theory of the Complaint is difficult
to discern. Plaintiffs do not explain what role, if any, Attorney General Grewal
did or would play in obtaining or enforcing the Gag Order. Nor do the plaintiffs
really even justify the presence of AG Grewal as what a securities lawyer might
call a “relief defendant,” i.e., one whose presence is necessary for the fashioning
of effective relief. The only mention of AG Orewal in the body of the complaint is
that he is “charged with defending the constitutionality of [the] state action and
state laws” and that he is “sued in his official capacity.” (Cplt.
¶
6) Plaintiffs’
opposition briefing adds little in the way of explanation: “[T]he Attorney General
is a proper defendant,” they say, because “the Attorney General is tasked
generally with defending the State and State officers who act
unconstitutionally, and defending State statutes in particular.” (P1. Opp. at 3638) Plaintiffs unconvincingly attempt to connect that generalized statement of
the Attorney General’s duties as attorney for the State to Judge Kessler’s
statement that he had been acting pursuant to his statutory obligation in
issuing the Gag Order. (Id.)
In short, the Complaint fails to allege factually what AG Grewal
supposedly did wrong, how it connects to a
§ 1983 cause of action, or what
effective relief could or should be ordered as against him. The complaint thus
fails to plead “factual content that allows the court to draw the reasonable
21
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). On this
basis, the Complaint is dismissed as against Attorney’ General Grewal under
Rule 12(b)(6) for failure to state a claim.
b. Injunctive relief
Finally, I hold that the motion for preliminary injunctive relief is denied
as moot. For the reasons stated in the preceding sections (IV.a. 1 and IV.a.2),
the plaintiffs do not state a viable injunctive claim, let alone establish
likelihood of success.’4
Conclusion
V.
For the reasons set forth above; I will grant defendants’ motion to
dismiss the complaint in its entirety as to Attorney General Grewal, and insofar
as it seeks injunctive relief as to Judge Kessler. In addition, and in the
alternative, I deny plaintiffs’ motion for a preliminan’ injunction as moot.
Because this is an initial dismissal, it is without prejudice to the submission of
a properly supported motion to amend the complaint. An appropriate order
follows.
Dated: September 28, 2018
Kevin McNulty
United States District Judge
Plaintiffs who seek preliminary injunctive relief must establish (1) that they are
likely to succeed on the merits; (2) that they are likely to suffer irreparable harm in the
absence of preliminary injunctive relief; (3) that the balance of equities tips in their
favor; and (4) that an injunction is in the public interest. Fethng Pharm., Inc. v. Watson
Pharm.. Inc., 765 F.3d 205, 210 (3d Cir. 2014). The plaintiff bears the burden of
showing that these four factors weigh in favor of granting the injunction. Id. (citing
Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990)). A
court will consider all four factors, but the first two are essential: A court may not
grant injunctive relief, “regardless of what the equities seem to require,” unless
plaintiffs carry their burden of establishing both a likelihood of success and
irreparable harm. Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir. 2000);
accord Honuorth ti. Blinder, Robinson & Co., 903 F.2d 186, 197 (3d Cir. 1990).
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