ARGEN et al v. KESSLER et al

Filing 93

OPINION. Signed by Judge Susan D. Wigenton on 7/8/2021. (ams, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PAUL ARGEN and SURENDER MALHAN,
Civil Action No: 18-963(SDW)(LDW)

Plaintiffs,

OPINION

v.
DAVID KATZ,

July 8, 2021

Defendant.

WIGENTON, District Judge.
Before this Court are the parties’ cross-motions for summary judgment pursuant to Federal
Rule of Civil Procedure (“Rule”) 56. Jurisdiction is proper pursuant to 28 U.S.C. § 1331. Venue
is proper pursuant to 28 U.S.C. § 1391. This opinion is issued without oral argument pursuant to
Rule 78. For the reasons stated herein, Defendant’s motion for summary judgment is GRANTED
in part and DISMISSED AS MOOT in part and Plaintiffs’ motion for summary judgment is
DENIED.
I.

BACKGROUND AND PROCEDURAL HISTORY
As the parties are familiar with the facts and procedural history of this dispute, this Court

addresses only those facts necessary for the resolution of the instant motions. Since 2011, Plaintiff
Surender Malhan (“Malhan”) has been engaged in contentious divorce/custody proceedings with
his wife, Alina Myronova, which have spawned extensive litigation in both state and federal

1

courts. 1 As part of those proceedings, on June 18, 2015, New Jersey Superior Court Judge Donald
A. Kessler (“Judge Kessler”) entered a gag order (“Gag Order”) precluding the parties 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 further hearing.” (D.E. 89-3 Ex. A.) 2 When entering the Gag Order, Judge
Kessler noted that he had considered the interest of the parties, including Malhan’s First
Amendment rights, as well as “the best interest of the [two minor] children” (D.E. 86-16 at 7-8,
29.) In the following years, Judge Kessler and Defendant Judge David Katz (“Judge Katz”), to
whom the case was later transferred, 3 continued to enforce the Gag Order, noting numerous times
that it was necessary in order to protect the best interests of Malhan’s minor children. (See, e.g.,
D.E. 89-3 Ex. F at 2-6, Ex. G at 4-6, Ex. H at 4-10.) The custody proceedings are ongoing. (See
D.E. 89-3 Ex. B (order dated April 6, 2021 from the New Jersey Supreme Court directing that the
custody “trial commence anew” and providing “procedural terms to govern future proceedings”).)
On January 23, 2018, Malhan and Paul Argen (“Argen”), (collectively, “Plaintiffs”) filed
suit in this Court challenging the constitutionality of the Gag Order. (D.E. 1.) Argen’s connection
to this case is purportedly as a member of the media, an “investigative journalist,” and “advocate.”

See e.g., Family Civil Liberties Union v. New Jersey, 837 F. App’x 864 (3d Cir. 2020); Malhan v. Katz, 830 F. App’x
369 (3d Cir. 2020); Malhan v. Sec'y United States Dep't of State, 938 F.3d 453 (3d Cir. 2019); Allen v. Debello, 861
F.3d 433 (3d Cir. 2017); Edelglass v. New Jersey, Civ No. 14-760, 2015 WL 225810 (D.N.J. Jan. 16, 2015); Malhan
v. Katz, Civ. No. 20-8955.

1

Citations to “D.E.” refer to the docket entries for the parties’ motion papers, including briefs, affidavits, declarations,
and statements of undisputed facts, and the documents attached to and referenced therein.
2

Judge David Katz, who is the sole remaining named defendant in this matter, handled the case until it was transferred
to Bergen County Superior Court. (D.E. 89-5 ¶ 30; D.E. 90 ¶ 30.)

3

2

(D.E. 86-3 at 1, 3.) On April 2, 2021, Plaintiffs moved for partial summary judgment. (D.E. 861.) Defendants cross-moved and all briefing was timely filed. (D.E. 89-1, 90-1.)
II.

LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a). The
“mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis
in original). A fact is only “material” for purposes of a summary judgment motion if a dispute
over that fact “might affect the outcome of the suit under the governing law.” Id. at 248. A dispute
about a material fact is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. The dispute is not genuine if it merely involves “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986).
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts
showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir.
2001). “In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s

3

evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
The nonmoving party “must present more than just ‘bare assertions, conclusory allegations
or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d
584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party
is required to “point to concrete evidence in the record which supports each essential element of
its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If
the nonmoving party “fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which . . . [it has] the burden of proof,” then the moving party
is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322–23. Furthermore, in
deciding the merits of a party’s motion for summary judgment, the court's role is not to evaluate
the evidence and decide the truth of the matter, but to determine whether there is a genuine issue
for trial. Anderson, 477 U.S. at 249. The nonmoving party cannot defeat summary judgment
simply by asserting that certain evidence submitted by the moving party is not credible. S.E.C. v.
Antar, 44 F. App’x 548, 554 (3d Cir. 2002).
III.

DISCUSSION
Although Plaintiffs ask this Court to find the Gag Order unconstitutional and enjoin its

enforcement, this Court must abstain from reaching the merits of Plaintiffs’ claims. The Younger
abstention doctrine requires federal courts “to abstain in certain circumstances from exercising
jurisdiction over a claim where resolution of that claim would interfere with an ongoing state
proceeding.” Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010). This doctrine “operates as an
exception to a federal court’s ‘virtually unflagging’ obligation to hear and decide cases over which
it has jurisdiction.” Silver v. Ct. of Common Pleas of Allegheny Cnty., 802 F. App’x 55, 58 (3d

4

Cir. 2020) (quoting Sprint Commc’ns., Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (internal citation
omitted).) Younger abstention is, therefore, a limited doctrine that should be invoked only in
exceptional circumstances where federal action would unduly interfere with pending state
proceedings such as “‘civil proceedings involving certain orders that are uniquely in furtherance
of the state court’s ability to perform their judicial functions.’” Silver, 802 F. App’x at 58 (internal
citation omitted).
Here, ruling on Plaintiffs’ challenge to the Gag Order would improperly interfere with the
state court’s ability to limit the conduct of a litigant during proceedings, which is necessary to
further that “court’s ability to perform its judicial functions.” Id. In addition, as the Third Circuit
recently noted in Silver when affirming a district court’s invocation of Younger abstention
regarding a gag order issued by a family court in a custody case, such an order also “seeks to
preserve the state court’s power to further one of its uniquely judicial functions – promoting and
protecting the best interests of a child . . ..” Id. Although Silver involved a gag order imposed
after custody had been adjudicated by the court, its holding is equally, if not more applicable,
where the issue of custody is still being determined and the best interests of minor children are still
being evaluated.
Having determined that the state court proceeding is exceptional, “three more showings –
commonly referred to as the Middlesex factors – are required for Younger abstention.” Id.; see
also Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). Those
factors require that state proceedings: 1) are “ongoing . . . and judicial in nature”; 2) “implicate
important state interests”; and 3) “afford an adequate opportunity to raise federal claims.” Silver,
802 F. App’x at 59. Here, all three factors are met. First, the custody case is still being litigated

5

in the New Jersey Superior Court. 4 Second, the state litigation involves the adjudication of “family
relations” which are “a traditional area of state concern” and which imposes a duty on the state to
ensure the best interests of children in custody disputes. Id. Third, there is nothing that precludes
Plaintiffs from raising their constitutional concerns in the New Jersey state courts and this Court
is confident that the Superior Court can “fairly and fully adjudicate[e] the federal issues before it.”
Id. (citing Kugler v. Helfant, 421 U.S. 117, 124-25 (1975)). Therefore, this Court must follow the
dictates of Younger and its progeny and abstain from reaching the merits of Plaintiffs’ claims.
IV.

CONCLUSION
For the reasons set forth above Plaintiffs’ motion for summary judgment will be DENIED.

Defendant’s motion for summary judgment will be GRANTED insofar as it seeks dismissal of
this matter pursuant to the Younger abstention doctrine and DISMISSED AS MOOT as to the
remainder. An appropriate order follows.
___/s/ Susan D. Wigenton_____
SUSAN D. WIGENTON, U.S.D.J.
Orig: Clerk
cc:
Leda D. Wettre, U.S.M.J.
Parties

The fact that Argen is not a party to the state proceedings does not change this analysis. Argen’s claims are entirely
derivative of and dependent on Malhan’s because Argen wishes to publish information that Malhan would ostensibly
share with him regarding the custody dispute. Whether or not that is possible will depend on whether or not the state
court continues to enforce the Gag Order.
4

6