BAREL v. JUDICIARY COURTS OF THE STATE OF NEW JERSEY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF MARTIN LUTHER KING COURTHOUSE

SUSAN D. WIGENTON 50 WALNUT ST.

UNITED STATES DISTRICT JUDGE

NEW 97A 3R -6K 45, -N 5J 9 00 37 101

February 7, 2020

Ariel Barel

114 Warbler Drive

Wayne, NJ 07470

Pro Se Plaintiff

Andrew Munger, Esq.

Office of the Attorney General of New Jersey

P.O Box 116

Trenton, NJ 08625

Attorney for Hon. Paul Innes, P.J.Ch.;

Michelle Smith, Clerk of the Superior Court;

Superior Court of New Jersey, Office of Foreclosure; and

State of New Jersey Judiciary, Administrative Office of the Courts

Joseph M. Wenzel, Esq.

Friend & Wenzel, LLC

1000 Clifton Avenue

Clifton, NJ 07013

Attorney for Passaic County Sheriff’s Office and

Passaic County Sheriff Richard Berdnick

LETTER OPINION FILED WITH THE CLERK OF THE COURT

Re: Barel v. Judiciary Courts of the State of New Jersey, et al.

Civil Action No. 18-17567 (SDW) (LDW)

Litigants:

Before this Court is Hon. Paul Innes, P.J.Ch.; Michelle Smith, Clerk of the Superior Court;

Superior Court of New Jersey, Office of Foreclosure; and State of New Jersey Judiciary,

Administrative Office of the Courts’s (collectively, “State Judiciary Defendants”) Motion to

Vacate Default pursuant to Federal Rule of Civil Procedure (“Rule”) 55(c) and Dismiss pro se

Plaintiff Ariel Barel’s (“Plaintiff”) Second Amended Complaint (“SAC,” D.E. 13) pursuant to

Rules 12(b)(1) and 12(b)(6). Also before this Court is Passaic County Sheriff’s Office and Passaic

County Sheriff Richard Berdnik’s (collectively, “Sheriff Defendants”) (State Judiciary Defendants

and Sheriff Defendants, collectively, “Defendants”) Motion to Dismiss the SAC pursuant to Rule

12(b)(1). For the reasons discussed below, the Defendants’ motions are GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff’s allegations stem from a foreclosure complaint that was filed against him in the

Superior Court of New Jersey on November 26, 2014. (SAC at 10.) A final foreclosure judgment

was entered on January 17, 2018, bearing the stamp/electronic signature of Judge Paul Innes. (Id.;

id. at Annex C (“Final Judgment”).)1 The lienholder, Ditech Financial, LLC, successfully bid

$100 for Plaintiff’s foreclosed property at a Sheriff’s sale on May 29, 2018, and subsequently

assigned the bid to Federal National Mortgage Association (“Fannie Mae”). (See SAC at 18,

Annex F.) Plaintiff later filed suit in this Court, on December 26, 2018. (D.E. 1.)2

The SAC, filed February 20, 2019, is difficult to comprehend; Plaintiff appears to allege

that his federal constitutional due process rights pursuant to the Fifth and Fourteenth Amendments

were violated by the deprivation and taking of his property. (SAC at 2.) Specifically, Plaintiff

alleges that Judge Innes and Michelle Smith, the clerk of the Superior Court of New Jersey, acted

outside the scope of their authority by allowing clerks who work in the Office of Foreclosure to

affix Judge Innes’s signature on final judgments and other foreclosure documents using stamps

and/or electronic signatures. (Id. at 13–14.) Plaintiff alleges that as a result of this practice, the

Final Judgment entered in his foreclosure proceeding was “signed by a state court employee in an

act of impersonating a judge and without judicial authority.” (Id. at 13 (emphasis removed).)

Plaintiff further alleges that the Sheriff Defendants and Brian Fishman (an attorney for Fannie

Mae) subsequently violated his constitutional rights by holding an “inside rigged sale” pursuant to

“false fraudulent documents styled ‘Final Judgement,’ ‘Writ of Execution’ and ‘Writ of

Possession.’” (Id. at 16, 32.)

The Clerk of the Court issued Certificates of Default as to Judge Innes with respect to the

initial complaint on September 12, 2019, and with respect to the SAC on September 30, 2019.

(D.E. 40, 44).3 The State Judiciary Defendants filed their motion to vacate the default against

Judge Innes and dismiss the claims against them on September 16, 2019. (D.E. 41.) The Sheriff

1 Plaintiff filed a Motion to Vacate the Final Judgment, which was denied by the Superior Court of New Jersey on

April 18, 2019. (SAC at Annex A.) Plaintiff appealed the Final Judgment and the denial of his Motion to Vacate the

Final Judgement to the Superior Court of New Jersey, Appellate Division, which denied his appeal on September 17,

2019. Ditech Fin., LLC v. Barel, No. A-2922-17T1, 2019 WL 4440120. Notably, Plaintiff raised the same argument

on appeal that he makes here, that “the judge that entered the judgment, Office of Foreclosure, and Clerk of the

Superior Court erred by authorizing ‘ex-parte robo-signed’ entry of final judgment and writ of possession.” Id. at *3.

The Supreme Court of New Jersey denied Plaintiff’s application for a stay of his eviction pursuant to that decision on

September 24, 2019. (D.E. 48 at 13.)

2 This Court denied Plaintiff’s motions to enjoin his eviction on January 22, 2019, and October 17, 2019. (D.E. 11,

49.) Additional factual background is provided in this Court’s January 22, 2019, letter opinion. (D.E. 11.)

3 The Clerk of the Court also issued a Certificate of Default as to defendant Mr. Fishman and the initial complaint on

September 12, 2019. (D.E. 40.) Certificates of Default as to Ms. Smith with respect to the SAC were issued on

September 30, 2019. (D.E. 42, 43.)

Defendants filed their motion to dismiss the claims against them on October 21, 2019. (D.E. 50.)

Plaintiff opposed both motions and no replies were filed. (D.E. 45, 54, 57.)4

II. DISCUSSION

A. Motion to Vacate Default

As an initial matter, this Court questions the validity of the entries of default entered against

Judge Innes and Ms. Smith with respect to the SAC, as these were entered two weeks after Judge

Innes and Ms. Smith filed their motion to dismiss. (D.E. 41–44.) Assuming, arguendo, that these

entries are valid, and for the reasons discussed below, this Court finds good cause to grant the State

Judiciary Defendants’ motion to vacate the default entered against Judge Innes and to sua sponte

vacate the defaults entered against Ms. Smith and Mr. Fishman.

Entries of default are not favored in this Circuit and courts must resolve doubtful cases in

favor of the party opposing their entry. United States v. $55,518.05 in U.S. Currency, 728 F.2d

192, 194–95 (3d Cir. 1984). In deciding whether to vacate an entry of default, courts are to

consider “(1) whether the plaintiff will be prejudiced if the default is lifted; (2) whether the

defendant has a meritorious defense; and (3) whether the default was the result of the defendant’s

culpable conduct.” Clauso v. Glover, Civ. No. 09-05306, 2010 WL 3169597, at *1 (D.N.J. Aug.

11, 2010) (quoting Zawadski De Bueno v. Bueno Castro, 822 F.2d 416, 419–20 (3d Cir. 1987)).

All three factors are met here. First, there is no prejudice to Plaintiff. “The question of

prejudice, when determining whether to vacate a default, concerns the loss of available evidence,

whether there is increased potential for collusion or fraud, and whether the plaintiff substantially

relied upon the default.” See id. (citing Feliciano v. Reliant Tooling Co. Ltd., 691 F.2d 653, 657

(3d Cir. 1982)). Here, there is no indication that Plaintiff has suffered a loss of available evidence

or that he substantially relied upon the entries of default. Nor is there any reason to believe that

vacating the entries of default will lead to an increased potential for collusion or fraud.

Second, for the reasons discussed below in connection with the motions to dismiss, Judge

Innes, Ms. Smith, and Mr. Fishman have a meritorious and complete defense against this action,

namely the Rooker-Feldman doctrine. Plaintiff also fails to state a claim against Mr. Fishman, and

his claims against Judge Innes and Michelle Smith must additionally be dismissed under the

doctrines of absolute judicial immunity and absolute quasi-judicial immunity, respectively.

Finally, this Court finds no reason to conclude that Judge Innes, Ms. Smith, or Mr. Fishman

caused default by engaging in “culpable conduct.” Such conduct requires willfulness or bad faith,

not mere negligence, and there is no such showing here. See Ali v. Jersey City Parking Auth., Civ.

No. 13-02678, 2014 WL 1494578, at *3 (D.N.J. Apr. 16, 2014) (internal citations omitted), aff’d,

594 F. App’x 730 (3d Cir. 2014). Even if such a showing could be made, the Court is persuaded

that, in weighing the three factors, vacating the entries of default is the appropriate course of action

here in view of the existence of meritorious defenses and the absence of prejudice to Plaintiff. See

Hritz v. Woma Corp., 732 F.2d 1178, 1188 (3d Cir. 1984) (Garth, J., concurring) (“[T]his court’s

4 Although Plaintiff’s opposition to the Sheriff Defendants’ Motion to Dismiss was not timely filed, the Court will

consider it in view of Plaintiff’s pro se status.

overriding preference is the disposition of litigated matters on the merits rather than by default—

and to this extent we encourage liberality in vacating default judgments . . . .”); Nationwide Mut.

Ins. Co. v. Starlight Ballroom Dance Club, Inc., 175 F. App’x 519, 522 (3d Cir. 2006) (noting that

“the meritorious-defense factor [is] the threshold issue” (internal quotation marks omitted)); Bailey

v. United Airlines, 279 F.3d 194, 204 (3d Cir. 2002) (“A decision to set aside an entry of default

pursuant to Fed.R.Civ.P. 55(c) is left primarily to the discretion of the district court.” (internal

citation and quotation marks omitted)). For these reasons, the entries of default in this matter shall

be vacated and the matter shall be decided on the merits.

B. Motions to Dismiss5

A defendant may move to dismiss a complaint for lack of subject matter jurisdiction under

Rule 12(b)(1) by challenging jurisdiction facially or factually. Const. Party of Pa. v. Aichele, 757

F.3d 347, 357 (3d Cir. 2014). A facial challenge to subject matter jurisdiction “considers a claim

on its face and asserts that it is insufficient to invoke the subject-matter jurisdiction of the court.”

Id. at 358. “A factual attack, on the other hand, is an argument that there is no subject matter

jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.” Id. In a

factual attack, “the court may consider and weigh evidence outside the pleadings to determine if it

has jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000), modified

on other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003).

Defendants mount a facial challenge to the SAC, arguing that it must be dismissed under

the Rooker-Feldman doctrine because all of Plaintiff’s alleged injuries stem from the foreclosure

judgment entered against him in New Jersey state court. “The Rooker-Feldman doctrine bars

federal district courts from hearing cases ‘that are essentially appeals from state-court judgments.’”

Nest v. Nationstar Mortg., LLC, Civ. No. 16-4282, 2016 WL 4541871, at *2 (D.N.J. Aug. 31,

2016) (quoting Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 165 (3d Cir.

2010)). The Rooker-Feldman doctrine applies when “(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.” Great W. Mining, 615 F.3d at 166 (some punctuation

omitted) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).

All four factors are met here. First, a foreclosure action was instituted against Plaintiff in

the Superior Court of New Jersey, which resulted in a final foreclosure judgment against him.

(SAC at 10.) Second, Plaintiff’s injuries, though couched in allegations of judge impersonation

and bid-rigging, were directly caused by the foreclosure judgment entered against him in New

Jersey state court. Third, the Final Judgment was entered against Plaintiff on January 17, 2018,

and Plaintiff filed suit in this Court almost a year later, on December 26, 2018. (Id.; D.E. 1.)

Finally, Plaintiff’s motion asks this Court to review and invalidate the Final Judgment entered in

a foreclosure proceeding that was fully litigated in state court and subsequently effectuated by a

5 Plaintiff argues that the Sheriff Defendants’ motion to dismiss must be denied because it was filed without

authorization and after the Sheriff Defendants filed an answer. (D.E. 54 at 2; see D.E. 21.) However, a court may

“determine[] at any time that it lacks subject-matter jurisdiction,” and, if it does, “the court must dismiss the action.”

Rule 12(h)(3).

Sheriff’s sale. (SAC at 38.) Plaintiff’s assertion that he is “not asking to overturn the decision of

[the] state court and is not asking for an affirmative action” is contradicted by his request that this

Court enjoin his eviction. (SAC at 9 (emphasis removed), 38.) Such relief cannot be granted

without invalidating the state court’s foreclosure decision, which the Third Circuit has specifically

barred. See Gage v. Wells Fargo Bank, NA AS, 521 F. App’x 49, 51 (3d Cir. 2013) (dismissing

claims under Rooker-Feldman because plaintiff’s attack on lienholder’s “fraudulent actions” were

“in essence an attack on the state court judgment of foreclosure”); see also Otto v. Judiciary Courts

of N.J., Civ. No. 17-3424, 2018 WL 452161, at *4 (D.N.J. Jan. 16, 2018) (“Rooker–Feldman bars

any claims that were previously adjudicated in, or are inextricably intertwined with, [a] state

foreclosure proceeding.”). Accordingly, the Rooker-Feldman doctrine bars Plaintiff’s suit in its

entirety.6, 7, 8

III. CONCLUSION

For the reasons set forth above, the State Judiciary Defendants’ Motion to Vacate Default

and Dismiss the SAC and the Sheriff Defendants’ Motion to Dismiss the SAC are GRANTED.

The SAC is DISMISSED WITH PREJUDICE. An appropriate order follows.

/s/ Susan D. Wigenton

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc: Parties

Leda D. Wettre, U.S.M.J.

6 Judge Innes is also absolutely immune to “‘civil actions for [his] judicial acts, even when such acts are in excess of

[his] jurisdiction, and are alleged to have been done maliciously or corruptly.’” Figueroa v. Blackburn, 208 F.3d 435,

440 (3d Cir. 2000) (quoting Stump v. Sparkman, 435 U.S. 349, 355–56 (1978)). Similarly, Ms. Smith, as a public

official of the New Jersey Superior Court, is entitled to absolute quasi-judicial immunity for actions taken in the

exercise of judicial functions. See Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006) (“Quasi-judicial absolute

immunity attaches when a public official’s role is functionally comparable to that of a judge.” (internal citation and

quotation marks omitted)). Plaintiff alleges that Judge Innes and Ms. Smith acted outside the scope of their authority

by allowing clerks to affix Judge Innes’s signature on final judgments and other foreclosure documents. (SAC at 13–

14.) Such actions, if they occurred, were clearly judicial actions undertaken in Judge’s Innes’s capacity as a judge

and in Ms. Smith’s capacity as a clerk of the court. Plaintiff’s claims against them, therefore, cannot be sustained and

must be dismissed.

7 The claims against Sheriff Berdnik must also be dismissed because he is entitled to qualified immunity, which

“protects government officials from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (internal citation and quotation marks omitted). “[T]he sale of [Plaintiff’s] property did not

violate any clearly established rights because the Sheriff acted pursuant to a valid state court judgment.” Gage, 521

F. App’x at 51.

8 Because this Court dismisses Plaintiff’s suit in its entirety under the Rooker-Feldman doctrine, it also dismisses the

claims against Mr. Fishman. Even if the Rooker-Feldman doctrine did not apply to Mr. Fishman, the claims against

him would be dismissed for failure to state a claim, as the SAC does not allege any facts that support an inference of

fraud. See Rule 12(b)(6); Rule 9(b); Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002) (sua sponte dismissal appropriate

if the basis for dismissal is “apparent from the face of the complaint”).