KAMDEM-OUAFFO v. LEBLON et al

Filing 28

OPINION filed. Signed by Judge Anne E. Thompson on 12/18/2015. (eaj)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICKY EMERY KAMDEM OUAFFO
TIA KAMDEM GROUP,

Civ. No. 15-7481
OPINION

Plaintiff,

v.
HON. VINCENT LEBLON, TODD B.
BUCK, ESQ., TERRY D. JOHNSON,
ESQ., MARK A KRIEGEL, ESQ.,
ALLISON A. KRILLA, ESQ., ERIK
ANDERSON, ESQ., REARDON
ANDERSON, LLC, John and Jane Does l10, ABC Corporations 1-10,

RECEIVED
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Defendants.
THOMPSON. U.S.D.J.
This matter is before the Court upon the Motions of Defendants Todd B. Buck, Esq.,
Terry D. Johnson, Esq., and Mark A. Kriegel, Esq., to dismiss the present Complaint. (ECF Nos.
16, 17). Plaintiff Ricky Emery Ouaffo t/a Kamdem Group ("Plaintiff') opposes and moves to
file a second amended complaint. (ECF No. 22). The Court has decided these Motions based on
the parties' written submissions and without oral argument pursuant to Federal Rule of Civil
Procedure 78(b). For the reasons stated herein, Defendants' Motions to Dismiss will be granted.
BACKGROUND
Plaintiff is engaged in the business of creating, manufacturing, and distributing food
flavor ingredients and formulas. (Pl.'s Am. Compl. at 1, ECF No. 8). On August 27, 2013,
Plaintiff filed a complaint in the Superior Court ofNew Jersey against Hill's Pet Nutrition, Inc.

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Reardon Anderson, LLC and founding partner Erik Anderson are also defendants in this action.
(ECF No. 8).

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September 2015. Kamdem Ouaffo v. Naturasource Int'/, LLC, No. 15-6290, 2015 WL 5722837

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(D.N.J. Sept. 29, 2015). This Court held that it lacked subject matter jurisdiction, and remanded
the case to state court. Id. This Court is not aware of any further developments in the state
court. On October 14, 2015, Plaintiff filed a new complaint before this Court. (ECF No. 1).
Plaintiff amended his complaint ("Complaint") on November 4, 2015. (ECF No. 8). Plaintiff's
Complaint contains many counts, which will be discussed below, but his primary assertion is that
the defendants ''wanted to hold some unlawful hearings" after he had removed his case to federal
court, and that these hearings "resulted in Court Orders to dismiss Plaintiff's complaint for the
purpose of satisfying personal interests in the matter." (Pl.' s Am. Compl. at 18). In late
November 2015, Defendants Buck, Johnson, and Kriegel moved to dismiss the present
Complaint. (ECF Nos. 16, 17). Plaintiff opposed their motions and moved to file a second
amended complaint. (ECF No. 22). These Motions are presently before the Court.
LEGAL STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure l2{b)(6) tests the sufficiency
of the complaint, and the defendant bears the burden of showing that,no claim has been
presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). When assessing a Rule
12(b)(6) motion, district courts conduct a three-part analysis. Malleus v. George, 641F.3d560,
563 (3d Cir. 2011). "First, the court must 'take note of the elements a plaintiff must plead to
state a claim."' Id. (quoting Ashcroft v. Iqbal, 56 U.S. 662, 675 (2009)). Second, the court must
accept as true all of a plaintiff's well-pleaded factual allegations and construe the complaint in
the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d
Cir. 2009). The court may disregard any conclusory legal allegations. Id. Third, the court must
determine whether the "facts are sufficient to show that plaintiff has a 'plausible claim for
relief."' Id. at 211 (quoting Iqbal, 556 U.S. at 679). Bare allegations of entitlement to relief and

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demonstrations of a "mere possibility of misconduct" are insufficient; rather, the facts must
allow a court reasonably to infer ''that the defendant is liable for the misconduct alleged." Id. at
210-11 (quoting Iqbal, 556 U.S. at 678-79).
Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend the pleadings is
generally given freely. Alvin v. Suzuki,, 227 F.3d 107, 121 (3d Cir. 2000). Nevertheless, the
Court may deny a motion to amend where there is undue delay, bad faith, prejudice to the
opposing party, or amending the pleading would be futile. Id.
DISCUSSION
In a case brought by a pro se plaintiff, the Court must construe the complaint liberally in
favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Liberal construction does
not, however, require the Court to credit a prose plaintiffs "bald assertions" or "legal
conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Prose
litigants must allege sufficient facts to support a claim and avoid dismissal. Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
Plaintiffs Complaint contains 14 counts. His first count describes how his state court
case continued after he had removed it to federal court, and it contains various conclusory
statements such as: "As a result of the Defendants' action the Plaintiff lost civil litigation rights,
or privileges secured under the laws, statutes and codes of the United States." (Pl. 's Am. Compl.
at 22). Specifically, Plaintiffs first count alleges a violation of 28 U.S.C. § 1446(d). (Id. at 19).
Section 1446(d) governs removal of civil actions to federal court. In order for a litigant to bring
suit based on another individual's violation of a federal statute, there must be a private right of
action in the statute that authorizes such suits. See Wisniewski, v. Rodale, Inc., 510 F .3d 294,

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296-97 (3d Cir. 2007). There is no private right of action under 28 U.S.C. § 1446. Therefore,
Plaintiffs first count must be dismissed.
Plaintiff's second count is: "Rights to Justice and/or Fair, Impartiality and Equitable
Justice." (Pl. 's Am. Compl. at 24). This count essentially repeats the same facts and conclusory
statements as the first count, which are also repeated in all subsequent counts. The second count
does not cite any additional authorities that could provide a basis for suit. Construing this count
liberally in deference to Plaintiffs prose status, Plaintiff could be alleging a Fourteenth
Amendment due process claim against Judge LeBlon. However, since Plaintiff includes a
Fourteenth Amendment claim at the end of his Complaint, that claim will be explored below.
Count two otherwise fails to state a claim upon which relief may be granted.
Counts three through five allege violations of the New Jersey Code of Judicial Conduct.
(Pl. 's Am. Compl. at 28-39). Violations of ethical rules do not give rise to causes of action.

Stahl v. Twp. ofMontclair, No. 12-3244, 2013 WL 1867036, at *3 (D.N.J. May 2, 2013); Baxt v.
Liloia, 714 A.2d 271, 275 (N.J. 1998); In re Mazer, No. CP-089-01, 2001WL36242584 (N.J.
Super. Ct. Ch. Div., Sept. 10, 2001). Therefore, these counts fail to state a claim upon which
relief may be granted. For the same reason, counts six through ten, which allege violations of the
Rules of Professional Conduct, cannot survive a 12(b)(6) challenge. (Pl.'s Am. Compl. at 3955). Moreover, Plaintiff fails to offer "enough facts to state a claim to relief that is plausible on
its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Bare allegations such as
"defendants offered evidence that the lawyers knew to be falsity [sic]," (Pl.'s Am. Compl. at 40),
are insufficient to support a claim for relief.
Count eleven is: "A Litigant's Time Sensitive Rights and Privileges to Renew, Reargue,
or Appeal Judgment Orders." (Pl. 's Am. Compl. at 56), In this count, Plaintiff appears to be

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concerned that he may be time-barred from certain actions in state court. (See id. at 57-58).
However, Plaintiff does not allege any new facts or cite any additional authorities in this count
that this Court is able to construe as a valid cause of action. Therefore count eleven fails to pass
the Rule 12(b)(6) bar.
Counts twelve and thirteen allege negligence and gross negligence. (Pl.' s Am. CompI. at
60, 63). In New Jersey, the elements of a negligence claims are: (1) a duty of care owed by the
defendant to the plaintiff; (2) breach of that duty; (3) proximate cause; and (4) actual damages.

Polzo v. County ofEssex, 960 A.2d 375, 384 (N.J. 2008). Plaintiff fails to plead that the
defendants owed him any duty of care, nor are there any facts that suggest the defendants owed
him a duty of care. 2 Therefore, counts twelve and thirteen fail to state a claim upon which relief
may be granted.
Plaintifr s fourteenth and final count is "The Fourteenth Amendment Due Process Clause
- Procedural and/or Substantive." (Pl. 's Am. Compl. at 66). Plaintiff did include a citation to 42
U.S.C. § 1983 in his twelfth count, but as§ 1983 has no relevance to a negligence claim, the
Court will discuss§ 1983 here. Litigants may only bring suit under§ 1983 or the Fourteenth
Amendment against state actors or individuals acting "under color of state law," such that the
individuals' actions are fairly attributable to the state. See Krynicky v. Univ. ofPittsburgh, 742
F.2d 94, 97 (3d Cir. 1984). Plaintiff is suing multiple private attorneys and a judge. "Attorneys
performing their traditional functions will not be considered state actors solely on the basis of
their position as officers of the court." Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277
(3d Cir. 1999). However, attorneys who illegally conspire with judges may be found to be acting

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Excepting Plaintiff's former lawyer and her firm, neither of which were involved in the events
Plaintiff describes in his Complaint.
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under color of state law. Dennis v. Sparks, 449 U.S. 24, 28 (1980). In his opposition papers,
Plaintiff states that all the defendants "conspired to act under the color of the State of New
Jersey'' and therefore are state actors. (ECF No. 22 at 12). In his Complaint, Plaintiff accuses
the defendants of "concealing documents" (Pl.' s Am. Compl. at 66) and "holding hearings and
meetings so that defendants could create some kind of paperwork whereby defendants would
subsequently represent that the Plaintiff felt that he was going to lose and was looking for a
second bite at the pie." (Id. at 16). He suggests that bribery "may'' have occurred. (Id. at 59).
Such vague allegations of conspiracy or bribery do not satisfy the plausibility standard of Rule
12(b)(6). Iqbal, 556 U.S. at 678 (holding that a claim must contain enough facts to be plausible
on its face). Therefore the attorney defendants cannot be treated as state actors, and Plaintiff's
claim fails as to all defendants except Judge LeBlon.
Judges performing their duties have absolute immunity from suit. Mireles v. Waco, 502
U.S. 9, 12 (1991). Courts use a two-part test to determine if judicial immunity is applicable.
First, was the action taken in the judge's judicial capacity, and second, was the action taken "in
the complete absence of all jurisdiction"? Gal/as v. Supreme Court ofPennsylvania, 211 F .3d
760, 768 (3d Cir. 2000) (quoting id.). An act is taken in a judge's judicial capacity if it is "a
function normally performed by a judge." Id. The actions that Plaintiff's claim are based on,
namely Judge LeBlon's holding a hearing and ruling on a summary judgment motion, are clearly
functions normally performed by a judge.
On the second prong, the Third Circuit has explained that "the complete absence of all
jurisdiction" is a high bar: "we hold that a judge does not act in the clear absence of all
jurisdiction when the judge enters an order at least colorably within the jurisdiction of her court
even though a court rule or other procedural constraint required another judge to act in the

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matter." Id. at 771. Because Superior Court judges have jurisdiction to rule on summary
judgment motions in civil matters, Judge LeBlon's actions were colorably within the jurisdiction
of his court. See Figueroa v. Blackburn, 208 F.3d 435, 444 (3d Cir. 2000) (quoting an example
from Stump v. Sparkman, 435 U.S. 349, 357 n. 7 (1978), where a probate judge who tries a
criminal case is in complete absence of all jurisdiction because probate judges lack jurisdiction
over criminal cases, but a criminal court judge who convicts a defendant of a nonexistent crime
is not in complete absence of all jurisdiction, and retains judicial immunity). Therefore the sole
remaining defendant, Judge LeBlon, has immunity from Plaintiff's due process claim, and the
count must be dismissed as to all defendants.
Lastly, the Court must address Plaintiffs motion to amend his Complaint, in which he
seeks to add 11 additional counts. (ECF No. 22). Amending Plaintiffs complaint would be
futile. His additional 11 counts simply repeat the same underlying facts with new labels for each
count, while citing no new authorities aside from two state statues, neither of which establish a
cause of action. (ECF No. 23-1 at 200, 209). Therefore, the amended complaint would still fail
to state a claim upon which relief could be granted, so leave to amend shall be denied. Shane v.

Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
CONCLUSION
For the reasons described above, Defendants' Motions to Dismiss will be granted. An
appropriate order will follow.

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