ARGEN et al v. KESSLER et al

Filing 37

OPINION. Signed by Judge Kevin McNulty on 5/10/2019. (sm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PAUL ARGEN and SURENDER
MALHAN,

Civ. No. 18-963 (KM)(JBC)

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 relief
under 42 U.S.C.

§

1983 and the Declaratory Judgment Act (“DJA”), 28 U.S.C.

§

2201, regarding 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 bitter divorce and child custody
dispute between Maihan and his ex-wife, Alma Myronova. The order limits the
ability of the parties to discuss publicly certain aspects of the custody dispute.

For ease of reference, certain key items from the record will be abbreviated as
follows;
Docket Entry in this case
=
“DE
I

“Def. Br.”

=

“P1. Opp.”

=

“Def. Reply”

=

“MTD Op.”

=

Brief in Support of Motion to Dismiss Complaint by
Judge Kessler (DE 30-1)
Plaintiffs’ Opposition to Judge Kessler’s Motion to
Dismiss (DE 31)
Reply Brief in Further Support of Motion to Dismiss (DE 32)
Opinion Dated September 28, 2018 (DE 26) (available as
Argen v. Kessler, No. 18-cv-963, 2018 WL 4676046 (D.N.J.
Sept. 28, 2018))
1

Plaintiffs have also named the Attorney General of the State of New Jersey,
Gurbir Grewal, as a defendant.
As outlined in more detail elsewhere (“MTD

Op.”,

DE 26), the parties do

not seem to dispute at least that a family court may enter an order requiring
confidentiality based on a proper showing as to the effect of public statements
on the welfare of the children involved in the dispute. Judge Kessler entered
what was intended to be a 30-day order based on the limited information
before him. The order clearly contemplated that further evidence would be
taken, and that it could be further tailored as necessary to its proper purpose
of protecting the children. His attempts to retain ajoint psychological report
from a court expert were frustrated by the parties’ inability to cooperate. He
then ordered that each party submit its own psychological report, on the basis
of which he would rule. That did not occur. (See MTD Op. at 4—6, DE 26).
Plaintiffs initially moved for temporary restraints and a preliminary
injunction. I denied the request for temporary restraints and scheduled a
hearing on the preliminary injunction, after which I reserved decision.
Defendants then moved to dismiss the complaint. (DE 13). On April 6, 2018, I
entered a procedural order that the two motions would be decided together. I
also directed that “counsel shall report in writing on the progress being made
to furnish psychological reports as ordered by Judge Kessler.” (DE 16). In a
certification dated April 18, 2018, counsel for plaintiffs stated that Maihan’s
custody expert had declared herself unqualified to provide a psychological
report with respect to the effect of publicity on the children, and that
Myronova’s designated psychologist had not yet submitted a report. (DE 18).
The Court has not received a further update on whether the parties have made
any alternative arrangements to furnish a psychological report.
In a written opinion, I granted defendants’ motion to dismiss the
complaint in its entirety as to Attorney General Grewal, and also insofar as it
sought injunctive relief against Judge Kessler. (MTD Op., DE 26; DE 27).
Additionally, and in the alternative, I denied plaintiffs’ motion for a preliminary

2

injunction. (MTD

Op.

at 18—2 1). This Opinion, which is supplemental to the

earlier one, should be read in the context of that earlier Opinion.
Now before the Court is the state-court Judge’s motion to dismiss what
remains of the complaint for lack of subject-matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(l).2 (DE 30). His main assertion is that
since the plaintiffs’ only remaining claim is one for declaratory relief under the
DJA, 28 U.S.C.

§

2201, and the DJA alone cannot provide a basis for federal

subject-matter jurisdiction, the complaint ought to be dismissed. As detailed
more extensively below, I will deny defendant’s motion to dismiss because the
remainder of plaintiffs’ claim under 42 U.S.C.

§

1983 provides a sufficient basis

for federal-question subject-matter jurisdiction.
Additionally, plaintiffs have brought a second motion for a preliminary
injunction. (DE 35). Largely for the reasons stated in my Opinion denying
plaintiffs’ first motion for a preliminary injunction (MTD Op. at 18—2 1), that
second motion is denied.
I.

Background
a. Factual summary
I write for the parties and incorporate by reference the factual

background found in the first motion to dismiss Opinion dated September 28,

2018 (MTD Op at 2—8; DE 27). For clarity, I note at the outset that Judge
Kessler recused himself from the family court proceedings and was replaced by
Judge David Katz. (MTD Op. at 6). As in the MTD Opinion, I find that Judge
Katz’s substitution does not alter the substance of the issues. (Id. at 6 n.5).
References herein to Judge Kessler should be read, as appropriate, to include
Judge Katz as his successor.

Defendants do not explicitly cite any particular federal rule as the basis for their
motion. (See generally DE 30, DE 32). Because the motion to dismiss is premised on a
challenge to subject-matter jurisdiction, I treat it as one under Fed. R. Civ. P. 12(b)(1).
2

3

b. Relevant procedural history
I incorporate by reference the procedural history related in the MTD
Opinion. (MTD

Op.

at 2—7). In that Opinion, I granted defendants’ motion to

dismiss the complaint as to all claims against Attorney General Grewal and as
to the claim for injunctive relief against Judge Kessler. Those dismissals were
entered without prejudice to the submission of a properly supported motion for
leave to amend the complaint within 30 days, Le., by October 29, 2018. (DE 26;
DE 27). Because the plaintiffs have not filed a motion to amend the complaint,
those dismissals have ripened into dismissals with prejudice.
On November 9, 2018, Judge Kessler filed a motion to dismiss the
remainder of the complaint for lack of jurisdiction, the motion now before the
Court. (DE 30). Additionally, on April 12, 2019, plaintiffs filed a second motion
for injunctive relief, which is also before the Court. (DE 35).
H.

Standards of Review
Rule 12(b)(1) governs jurisdictional challenges to a complaint. These may

be either facial or factual attacks. See 2 Moore’s Federal Practice

§ 12.30141 (3d

ed. 2007); Mortensen a 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. Lfc Co.
v. AEI Life, 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 Rule 12(b)(1) standard is
similar to that for an ordinary motion to dismiss for failure to state a claim
under Rule 12(b)(6). For purposes of a motion to dismiss, the facts alleged in
the complaint are accepted as true and all reasonable inferences are drawn in

4

favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v. 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 At!.
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.

Analysis
a. Defendants’ motion to dismiss

Defendants argue that the Declaratory Judgment Act (“DJA”) does not
support federal subject-matter jurisdiction if no other cognizable federal claims
are pending. (See Def. Br.). Plaintiffs accept that premise, but offer three
responses: (1) Since

§

1983 provides a basis for federal subject-matter

jurisdiction, the DJA is not the sole putative jurisdictional hook here; (2)
defendants’ motion is barred by Fed. R. Civ. P. 12(g)(2) because it was omitted
from the prior motion to dismiss; and (3) defendant is judicially estopped from
asserting that declaratory relief is unavailable because he argued the opposite
position in the prior motion to dismiss. (See generally P1. app.).
Issues (2) and (3), raising threshold bars to the motion, need not detain
the Court.3 I proceed to the substance of the motion, issue (1).
I disagree with plaintiffs’ argument that defendants’ motion is barred by Fed. R.
Civ, P. 12(g)(2):
Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a
party that makes a motion under this rule must not make another
motion under this rule raising a defense or objection that was available
to the party but omitted from its earlier motion.
Rule 12(g)(2) explicitly cross-references Rule 12(h)(3) as an exception to its general
rule. Rule 12(h)(3) states that “[i}f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” (Emphasis added.)
Defendant’s motion is a challenge to subject-matter jurisdiction and therefore falls
within that 12(h)(3) exception. More generally, of course, this court cannot proceed in
the absence of subject matter jurisdiction, so “[tjhe objection that a federal court lacks
5

The DJA provides that, in “a case of actual controversy” within its
jurisdiction, a federal court may issue declaratory relief regarding the rights or
legal relations of the parties. 28 U.S.C.

§

2201. The DJA only “enlarge[s] the

range of remedies available in the federal courts [and does) not extend their

jurisdiction.” Skelly Oil Co. z’. Phillips Petroleum Co., 339 U.S. 667, 671, 70
S.Ct. 876 (1950). The U.S. Court of Appeals for the Third Circuit has held
unequivocally that the DJA does not provide a standalone basis for federal
subject-matter jurisdiction. Allen v. DeBello, 861 F.3d 433, 444, n.57 (3d Cir.
2017) (“The Declaratory Judgment Act does not.

.

.

provide an independent

basis for subject-matter jurisdiction; it merely defines a remedy.”) (collecting
cases). To state it differently, the DJA is not itself an independent cause of
action sufficient to invoke the court’s federal-question jurisdiction; the
availability of relief under the DJA “presupposes the existence of a judicially
remediable right.” Schilling v. Rogers, 363 U.S. 666, 677, 80 S. Ct. 1288, 1296
(1960).

may be raised at any stage in the litigation.” Arbaugh
subject-matter jurisdiction.
v. Y&H Corp., 346 U.S. 500, 500, 126 S. Ct. 1235, 1236 (2006)).
Because in this section 1 have accepted plaintiffs’ substantive argument, see
infra, I need not reach theft contention that the defendants are judicially estopped
from asserting that declaratory relief is unavailable. There is something to the notion,
however, that defendants’ successful invocation of the statutory bar to injunctive relief
where declaratory relief is available would thenceforth place the case on a declaratory
track. See 42 U.S.C. § 1g83 (“[I]n any [ 1983] action brought against ajudicial 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.”). See alson.6, infra; MTD Op. at 18—21.
“Prior to [the enactment of the Declaratory Judgment ActJ, a federal court would
entertain a suit on a contract [for example] only if the plaintiff asked for an
immediately enforceable remedy like money damages or an injunction, but such relief
could only be given if the requisites of jurisdiction, in the sense of a federal right or
diversity, provided foundation for resort to the federal courts. The Declaratory
Judgment Act allowed relief to be given by way of recognizing the plaintiffs right even
though no immediate enforcement of it was asked. But the requirements of
jurisdiction—the limited subject matters which alone Congress had authorized the
District Courts to adjudicate—were not impliedly repealed or modified.” Ske fly Oil Co,
339 U.S. 667, 671—72.
.

.

6

The underlying “judicially remediable right” here can only be the

§ 1983. Thus the viability of the declaratory’
judgment claim depends on whether any portion of the plaintiffs’ § 1983 claim
plaintiffs’ claim under 42 U.S.C.

remains intact in the wake of the earlier MTD Opinion. If it does, then the
defendant’s argument fails because the DJA would not be the sole federal
jurisdictional hook; a
under 28 U.S.C.

§ 1983 claim would support federal-question jurisdiction

§ 1331 and 1343. See Suarez v. City of Bayonne, 566 F. App’x

181, 184 (3d Cir. 2014) (acknowledging that the District Court had federalquestion jurisdiction pursuant to 28 U.S.C.
Envtl. H

i’.

§ 1331 for § 1983 claims); Khodara

Chest Twp., No. 02-cv-96, 2007 WL 4375929, at *13 (W.D. Pa. Nov.

30, 2007).
The plaintiffs are correct in saying that one component of their

§ 1983

claim is still pending. The earlier dismissal did not rule either way on whether
the complaint alleged an underlying constitutional violation; it rested on

§

1983’s statutory limitation on the availability of injunctive relief. Argen i-’.
Kessler, No. 18-cv-963, 2018 WL 4676046, at *11 (D.N.J. Sept. 28, 2018), MTD
Op. at 21 (“The complaint is.

.

.

dismissed insofar as it seeks injunctive relief

against Judge Kessler. Defendants’ motion does not, however, address the
claim for declaratory relief, which remains.”) (emphasis added). By “claim for
declaratory relief,” I necessarily meant

“g 1983 claim for declaratory relief’;

there is no such thing as a claim for declaratory relief untethered to some
underlying cause of action. Because there remains an undismissed portion of

§ 1983 claim, federal-question jurisdiction is properly asserted under 28
U.S.C. § 1331 and 1343.
I next consider another asserted limitation on § 1983 declaratory relief

the

that arises from the nature of the judicial function. A litigant does not stand in
an adverse, case-or-controversy relation to a neutral state judge who is merely
ruling on the state-law issues in a case. That is so even if those rulings are
unfavorable to that particular litigant and favorable to his or her opponent; the
remedy for error, if any, is an appeal, not a civil action against the judge. Thus

7

in a case challenging the constitutionality of a statute, “a judge who acts as a
neutral and impartial arbiter of a statute is not a proper defendant to a Section
1983 suit.” Allen, 861 F.3d 433, 440 (emphasis added). However, a plaintiff can
bring a claim for declaratory relief under

§ 1983 against a judge when that

judge acts “as an enforcer or administrator of a statute.” Id. (emphasis added)
(citing In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 18 (1st Cir.
1982) (hereinafter, “In re Justices”)).
3 (D,N.J.
Nichols v. Sivilli, No. 14-cv-3821 (WJM), 2014 WL 7332020, at
Dec. 19, 2014), was a nearly identical case brought by Malhan and a different
journalist (Paul Nichols) challenging the constitutionality of an earlier gag order
issued by one of the former judges (Judge Sivilli) assigned to Malhan’s state
court custody proceedings. There, the district court, per Judge Martini,
distinguished In re Justices and permitted a declaratory judgment claim to
stand. Even setting aside the opinion’s persuasive force, the demands of
consistency (if not precisely the law-of-the-case doctrine) weigh in favor of my
adopting Judge Martini’s reasoning, and I do.
Judge Martini reasoned that there was ajusticiable controversy because
Judge Sivilli was acting as an “enforcer or administrator” of her (prior) gag
order, rather than as an “arbiter” of state law issues:
The Court finds that the present case is distinguishable from
In re Justices and concludes that a case or controversy exists
between Nichols and Judge Sivilli. First, the In re Justices Court
partially rested its conclusion on the fact that the Justices in that
case were not responsible for enforcing the statute that was being
challenged. In contrast, New Jersey law empowers Judge Sivilli to
enforce the Gag Order should the parties fail to comply with its
terms. See N.J. 1?. 1:10; Board of Ethic., Tp. Of Middletown tp.
Educ. Ass’n, 352 N.J. Super. 501, 509—10, 800 A.2d 286 (N.J.
Super. Ct. Ch. Div.2001) (“The power of the court to enforce an
nor is it questionable.”).
order has neither been put in question
Because Judge Sivilli is responsible for enforcing her Order, it
cannot be said that her relationship to the Order is merely
adjudicative. See In re Justices, 695 F.2d at 22.
...

8

It is also significant that Judge Sivifli drafted the terms of
the Gag Order. As In re Justices and its progeny point out, judges
will seldom have a personal stake in a constitutional challenge to a
statute because they rarely have any role in the enactment of the
statute. The Gag Order in this case, however, is a product of Judge
SiviUi’s creation. Judge Sivilli drafted the terms of the Gag Order
and entered the Order so as to give it legal effect. (See SAC, Ex. A).
In fact, Judge Sivilli exercised her plenary power over the Gag
Order by modifying its terms one month after she initially entered
it. (See SAC at ¶ 20). These factors all support the conclusion that
Judge Sivilli has adverse legal interests to a party who seeks to
challenge the Gag Order. Therefore, Nichols’ suit against Judge
Sivilli meets Article III’s case or controversy requirement.
To be sure, Judge Katz might be deemed a nominal or “relief’ defendant,
as opposed to a legal adversary in the usual sense. Nevertheless, as Judge
Martini noted, “federal courts bound by Article III’s case or controversy
requirement routinely hear challenges to gag orders that name judges as
defendants.” Nichols, 2014 WL 7332020, at *4 n.3 (collecting cases). That
analysis is instructive in explaining why declaratonr relief is available under

§

1983 here. In this context, Judge Kessler (or Katz) is more accurately deemed
“an enforcer or administrator” of his own Gag Order rather than an “arbiter” of
state-law claims as such. See Allen, 861 F.3d 433, 440. This Court therefore
does not lack jurisdiction to hear a claim for declaratory relief.
For these reasons and the ones outlined in the MTD Opinion, the

§

1983

claim, to the extent it seeks declaratory relief, will not be dismissed. Issues
concerning whether and to what extent such relief should be awarded, of
course, remain to be determined. The motion to dismiss the complaint on these
jurisdictional grounds, however, is denied.
b. Plaintiffs’ motion for injunctive relief
On April 12, 2019, plaintiffs filed a second motion for injunctive relief.
(DE 35). On April 15, 2019, defendants filed a letter in reply (DE 36),
particularly noting that the plaintiffs’ legal arguments were similar to those

9

made in support of their first, denied request for injunctive relief (DE 4; DE
10).
The plaintiffs’ second motion for injunctive relief is indeed largely
duplicative of their first motion for injunctive relief. Moreover, plaintiffs’ moving
papers articulate no persuasive reason that the Court should abandon the
analysis in its earlier MTD Opinion and Order. Now as before, for example, I
have found that declaratory relief is not unavailable; it follows that injunctive
relief is statutorily barred. (See, e.g., MTD Op. at 18-2 1 (“jT]he only way Malhan
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.”) (citing 42
U.S.C.

§

1983; Mikhail a Khan, 572 F. AppS 68, 71 (3d Cir. 2014)).°

The plaintiffs do not meaningfully grapple with the Court’s prior ruling.
Instead, they again press the merits of their First Amendment claim, assert
that the preliminary injunction factors weigh in their favor, and argue that
Malhan has not violated the Gag Order by posting online about Judge Katz and
the custody proceedings. (See DE 35-1). These updated, but essentially
recycled, arguments require no further discussion.7

In that connection, the defendants incorporate by reference their briefs in
opposition to the first injunction motion. (DE 36).
o
To be fair, this seemingly repetitive application for injunctive relief may merely
have served a protective function. My prior ruling denying an injunction rested, in
part, on the availability of declaratory relief. See 42 U.S.C. § 1983 (“[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.”). The current motion to dismiss, supra,
attempts to exploit that ruling, while separately asserting that declaratory relief is not
available—a heads-I-win, tails-you-lose proposition, possibly for both sides. I here
reaffirm my earlier ruling that a declaratory judgment, whether or not ultimately
granted, is at least generically available as a form of relief.
5

In addition, I remain skeptical as to the equities, as well as any claim of
irreparable harm, because the state court’s attempts to address any claimed
overbreadth in the Gag Order have been frustrated by the parties’ noncooperation with
the court expert and seeming inability or unwillingness to supply theft own. (See MTD
Op. at 3—7).
7

10

Consequently, plaintiffs’ motion for injunctive relief is denied for the
same reasons articulated previously. fMTD Opinion at 18—2 1).

IV.

Conclusion
For the reasons set forth above, I will deny defendants’ motion to dismiss

what remains of the complaint—Le., a

§

1983 claim seeking declaratory relief—

following my earlier MTD ruling. I will also deny plaintiffs’ motion for injunctive
relief. An appropriate order follows.
Dated: May 10, 2019

LL

(

Kevin McNulty’
United States District JudgJ

So the question is not really whether the state judge’s gag order can ultimately
be justified by a showing of danger to the welfare to the children. It is whether the
state judge could enter what was intended to be a 30-day order based on the
information before him, require psychological evidence to inform his opinion as to how
the order should be tailored, and leave that order in place until such evidence is
forthcoming.
It now appears that in an internet posting, Maihan has now called Judge Katz a
“child predator,” insinuated that the Judge is a “terrorist,” and stated that the Judge
“kidnapped [Maihan’s] children.” See DE 35-1 at 2, 14—15; DE 35-3 at 17. In their
brief, plaintiffs request that the requested injunctive relief extend to an order
prohibiting Judge Katz from punishing Maihan for this posting. DE 35-1 at 16. It does
not appear, however, that there have been any judicial repercussions to date. Even if
injunctive relief were available, I would not grant it on the speculative basis of
anticipated rulings. This Court, moreover, is not going to assume ongoing supervision
of proceedings in a state court of coordinate jurisdiction.
11