GURVEY et al v. GRANT et al

Filing 4

OPINION. Signed by Judge Susan D. Wigenton on 9/8/2021. (ld, )

Case 2:21-cv-16397-SDW-JSA Document 4 Filed 09/08/21 Page 1 of 4 PageID: 130

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
H. SCOTT GURVEY and AMY R.
GURVEY,
Plaintiffs,

Civil Action No. 21-16397(SDW)(JSA)
WHEREAS OPINION

v.
HONORABLE GLENN A. GRANT, et al.

September 8, 2021

Defendants.
THIS MATTER having come before this Court 1 upon the filing of Plaintiffs H. Scott
Gurvey and Amy R. Gurvey’s (collectively, “Plaintiffs”) Complaint and Motion for Order to Show
Cause, and this Court having considered Plaintiffs’ submissions, and having reached its decision
without oral argument pursuant to Federal Rule of Civil Procedure 78; and
WHEREAS Plaintiffs are parties to two separate lawsuits in the New Jersey state court,
both of which involve the foreclosure on Plaintiffs’ home in Montclair, New Jersey by Defendant
M&T Bank (“M&T”). The first suit was initiated by Plaintiffs against M&T in the Superior Court
of New Jersey, Essex County, Law Division (Dkt. No. ESX-L-4337-17) (“State Action”), to
challenge M&T’s basis for foreclosing. That action is currently scheduled to go to trial on October

As an initial matter, this Court notes that Plaintiffs filed a letter requesting that a different judge be assigned to this
case. (See D.E. 3.) Plaintiffs do not allege that I am biased or conflicted from hearing this matter, rather, the sole
basis for their request appears to be that I entered an order adopting a Report and Recommendation from Magistrate
Judge Cathy L. Waldor in Civil Action No 18-12701 without considering their opposition brief. (Id.) It is true that,
because of a delay in docketing Plaintiffs’ brief, I issued my initial order without considering Plaintiffs’ opposition.
However, as Plaintiffs are aware, after their brief was docketed, I reviewed their arguments and issued a revised order.
(See D.E. 19.) This being the only basis for Plaintiffs’ request, I see no grounds to recuse myself from this case.

1

Case 2:21-cv-16397-SDW-JSA Document 4 Filed 09/08/21 Page 2 of 4 PageID: 131

25, 2021. 2 The second suit is M&T’s formal foreclosure action against Plaintiffs in the Superior
Court of New Jersey, Essex County, Chancery Division (Dkt. No. SWC-F-014035-18)
(“Foreclosure Action”); 3 and
WHEREAS Plaintiffs now bring suit in this Court seeking injunctive relief as to those two
matters. Specifically, Plaintiffs argue that the electronic filing system in place in the New Jersey
Superior Court (“eCourts”) violates their federal and state constitutional, statutory, and common
law rights because it prevents them, as pro se litigants, from immediately filing documents
electronically, which they contend hinders their ability to effectively prosecute their claims and/or
defend their interests. (See generally D.E. 1.)

As a result, Plaintiffs ask this Court “to grant

Plaintiffs immediate access to eCourts,” to vacate the Foreclosure Action, and to declare the
eCourts system unconstitutional. (See D.E. 1 generally and ¶ 25); and
WHEREAS a party seeking a preliminary injunction pursuant to Rule 65 must show: “(1)
a likelihood of success on the merits; (2) he or she will suffer irreparable harm if the injunction is
denied; (3) granting relief will not result in even greater harm to the nonmoving party; and (4) the
public interest favors such relief.” Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d
Cir. 2010) (quoting Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010)) (internal quotation marks
omitted); Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 131 (3d Cir. 2017); Ferring Pharm., Inc.
Plaintiffs subsequently filed suit in this Court alleging the same essential facts and raising the same legal claims as
the State Action. (See Gurvey v. M&T Bank, Civ. No. 20-7831.) This Court dismissed that action on abstention
grounds on December 17, 2020 and denied Plaintiffs’ motion for reconsideration on February 4, 2021. (See Civ. No.
20-7831 D.E. 20, 21, 27, 28.) That matter is closed, but Plaintiffs have moved to vacate the judgment and to amend
their complaint.
2

Plaintiffs unsuccessfully attempted to remove the Foreclosure Action to this Court, and it was remanded on March
29, 2019. (See Civ. No. 18-12702, D.E. 1, 14, 15, 16, 19.) Their appeal to the Third Circuit was dismissed. (See Civ.
No. 18-12702 D.E. 22, 26; see also D.E.18-1 Ex. D (indicating that the Third Circuit dismissed the appeal on July 25,
2019 and denied Plaintiffs’ petition for en banc and panel rehearing on August 21, 2020).) Default was entered against
Plaintiffs in that matter and their attempt to vacate the default and have the case dismissed was unsuccessful.
3

2

Case 2:21-cv-16397-SDW-JSA Document 4 Filed 09/08/21 Page 3 of 4 PageID: 132

v. Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014). The Third Circuit “has placed particular
weight on the probability of irreparable harm and the likelihood of success on the merits elements
of the standard” instructing that it will not “‘sustain a preliminary injunction ordered by the district
court where either or both of [those] prerequisites are absent.’” Scholastic Funding Grp., LLC v.
Kimble, Civ. No. 07-557, 2007 WL 1231795, at *10 (D.N.J. Apr. 24, 2007) (quoting Hoxworth v.
Blinder, Robinson & Co., 903 F.2d 186, 197 (3d Cir. 1990)); see also The Doris Behr 2012
Irrevocable Trust v. Johnson & Johnson, Civ. No. 19-8828, 2019 WL 1519026, at *3 (D.N.J. Apr.
8, 2019). “Delay in filing the OTSC undermines any arguments of immediate irreparable harm.”
Doris Behr, 2019 WL 1519026 at *4; and
WHEREAS Plaintiffs have not shown irreparable harm because they are not precluded
from filing documents in either state court case, rather, they are merely prevented from accessing
the eCourts system in the same way registered attorneys do. Although Plaintiffs’ filings are not
immediately accessible to the state court or opposing counsel, those documents do become
available, and nothing precludes Plaintiffs from showing that they timely filed documents for the
court’s consideration. In addition, Plaintiffs filed the State Action in 2017 and have been subject
to the limits of the eCourts system since that time yet waited four years after they initiated suit to
seek injunctive relief. 4 Because the element of irreparable harm requires a showing of imminent
injury that must be remedied by expedited relief, Plaintiffs’ delay is a sufficient and independent
reason to reject their application for an injunction. See, e.g., EMSL Analytical, Inc. v. Testamerica
Analytical Testing Corp., Civ. No. 05-5259, 2006 WL 892718, at *12 (D.N.J. Apr. 4, 2006)

Plaintiffs also failed to avail themselves of the state court appellate process. Any alleged failure on the state court’s
part to properly consider materials submitted by Plaintiff should be raised on appeal in the appropriate state tribunal.

4

3

Case 2:21-cv-16397-SDW-JSA Document 4 Filed 09/08/21 Page 4 of 4 PageID: 133

(recognizing that “[w]here a Plaintiff delays in seeking preliminary injunctive relief, such delay is
evidence that speedy relief is not needed”);
WHEREAS for the reasons set forth above, this Court will deny Plaintiffs’ motion;
IT IS, on this 8th day of September, 2021,
ORDERED that Plaintiffs’ Motion for Order to Show Cause is DENIED.
SO ORDERED.
__/s/ Susan D. Wigenton____
United States District Judge
Orig: Clerk
cc:
Jessica S. Allen, U.S.M.J.
Freda L. Wolfson, Chief Judge
Parties

4