NEMETH v. THE OFFICE OF THE CLERK OF THE SUPERIOR COURT OF NEW JERSEY OCCUPIED BY MICHELLE M. SMITH

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

ROBERT NEMETH, JR., :

: Civil Action No.: 19-16809 (FLW)

Plaintiff, :

: OPINION

vs. :

:

THE OFFICE OF THE :

CLERK OF THE NEW JERSEY :

SUPERIOR COURT, et al. :

:

Defendants. :

____________________________________:

WOLFSON, Chief Judge:

Pro se Plaintiff Robert Nemeth (“Plaintiff” or “Nemeth”), alleges that defendants the

Office of the Clerk of the Superior Court of New Jersey, Michelle M. Smith (“Ms. Smith”), the

Honorable Paul Innes (“Judge Innes”) (Office of the Clerk of the Superior Court, Smith, and Innes

collectively, “Judiciary Defendants1”), Eric S. Hausman (“Hausman”), the Law Offices of Steven

A. Varano, P.C. (Hausman and Law Offices of Steven A. Varano collectively, “Law Firm

Defendants”), the Middlesex County Sheriff’s Department, and Middlesex County Sheriff,

Mildred Scott (“Scott”) (Middlesex County Sheriff’s Department and Scott collectively,

1 In his opposition to Judiciary Defendants’ Motion to Dismiss, Plaintiff makes clear that he

has brought suit against Ms. Smith, in her individual capacity, as well as the Office of the Clerk of

the Superior Court of New Jersey.” See ECF No. 24, Pl. Opp. to Judiciary Defendants MTD, at

32. Plaintiff’s claims against Judge Innes, are also brought against him in his individual capacity.

Id. at 30. Plaintiff also challenges the Deputy Attorney General’s authority to represent Ms. Smith

and Judge Innes in their individual capacities. Id. at 3-4, 30-31. However, N.J. Stat. Ann. §

59:10A-2 plainly authorizes the Attorney General to “provide for the defense of any action brought

against such State employee or former State employee on account of an act or omission in the

scope of his employment.” Furthermore, Plaintiff’s arguments in that regard have no bearing on

the resolution of Defendants’ Motions.

“Middlesex County Defendants”) (all defendants collectively, “Defendants”) violated his Fifth2

and Fourteenth Amendment Due Process rights in connection with a foreclosure action in New

Jersey state court. Defendants move to dismiss Plaintiff’s claims under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim. Judiciary Defendants and Middlesex County

Defendants also move to dismiss under Federal Rule of Civil Procedure 12(b)(1) based on the

Rooker-Feldman Doctrine, and absolute immunity grounds. Additionally, Judiciary Defendants

move to dismiss Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(1) based on

Eleventh Amendment Sovereign Immunity. Plaintiff opposes the motions. For the reasons set

forth below, Defendants’ Motions to Dismiss are GRANTED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

For the purposes of this motion, the Court assumes as true the relevant facts derived from

Plaintiff’s Complaint and the documents attached thereto.

This action stems from the foreclosure and sale of Plaintiff’s residential property located

at 331 Schoolhouse Road, Monroe Township, New Jersey (the “Property”). On July 20, 2012,

Wells Fargo Bank (“Wells Fargo”) initiated a foreclosure action against Plaintiff in New Jersey

state court. On May 13, 2015, after granting summary judgment in Wells Fargo’s favor, the Hon.

Paul Innes of the Chancery Division of the Mercer County Superior Court entered a final

judgement of foreclosure against Plaintiff and others,3 in the amount of $371,284.90, which

2 Because Defendants are all state officials, state entities, or private citizens/entities, Plaintiff

may not allege a Fifth Amendment due process claim against them. Caldwell v. Beard, 324 F.

App’x 186, 189 (3d Cir. 2009) (“The due process clause under the Fifth Amendment only protects

against federal governmental action and does not limit the actions of state officials”). Plaintiff’s

claim arising under the Fifth Amendment is dismissed with prejudice.

3 There were three other defendants in the state court foreclosure matter, none of whom are

a party in the instant litigation. See ECF No. 4-1, Final Judgment.

included the principal of the initial mortgages, plus interest and litigation fees. See ECF No. 1-4,4

“Final Judgment.” The final judgement of foreclosure bore the stamp or electronic signature of

Judge Innes. Id. That same day, a Writ of Execution was filed in the Chancery Division of the

Middlesex County Superior Court, which authorized the Property to be sold at a Sheriff’s Sale.

See ECF No 1-5, “Writ of Execution”. The Writ of Execution was signed by defendant Ms. Smith,

the Clerk of the Superior Court, and was purportedly witnessed by Judge Innes. Id.

Plaintiff appealed the foreclosure judgement to the New Jersey Appellate Division, which

affirmed the trial court’s grant of summary judgment. See Wells Fargo Bank, N.A. v. Nemeth, No.

A-0928-15T3, 2017 WL 2920417, at *2 (N.J. Super. Ct. App. Div. July 10, 2017). After Plaintiff’s

unsuccessful appeal, the Property was sold at a sheriff’s sale in April 2019 and MTGLQ Investors,

L.P. (“MTGLQ Investors”) purchased the Property for $100. See ECF No. 1-9, Sheriff’s Deed of

Foreclosure. On May 8, 2019, defendant Scott, the Middlesex County Sheriff, executed a Sheriff’s

Deed of Foreclosure. ECF No 1-9, Sheriff’s Deed of Foreclosure. Subsequently, Law Firm

Defendants represented MTGLQ Investors in proceedings related to obtaining a writ of possession

to enforce MTGLQ Investors’ rights to the Property. On June 26, 2019, Ms. Smith executed a

Writ of Possession authorizing Wells Fargo or its assignee to recover possession of the Property.

See ECF No. 1-7, Writ of Possession. The Writ of Possession was purportedly witnessed by the

Honorable Vincent LeBlon, P.J.Ch. of the Superior Court of New Jersey. Id. Plaintiff asserts that

on July 19, 2019, a Deputy Sheriff from the Middlesex County Sheriff’s Office served him with a

Notice of Eviction, along with the Writ of Possession. Compl., p. 12.

4 Plaintiff’s Complaint includes several attachments, which are labeled as “Annexes.” In

the interest of clarity, the Court will refer to each document by its ECF Document Number.

In August 2019, Plaintiff filed the instant Complaint against Defendants. Plaintiff’s claims

largely involve the allegation that the relevant court documents, including the Final Judgement of

Foreclosure, the Writ of Execution, and the Writ of Possession, were forgeries.5 Specifically

Plaintiff asserts 1) that the Mercer County Superior Court lacked jurisdiction over the Property,

which is located in Middlesex County, New Jersey, Compl. p. 9; 2) Judge Innes’ signature on the

Final Judgement of Foreclosure was a forgery; 3) the Writ of Execution fraudulently lists Judge

Innes as a “witness” to the signature, Compl. p 13; 3) defendant Huasman prepared and filed, and

Ms. Smith signed, the Writ of Possession which also falsely identifies a sitting judge as a witness,

id.; and 4) the Property was sold for less than its true value at a “rigged Sheriff’s sale” in order to

create a deficiency, Compl., p. 15. Defendants have filed three separate motions to dismiss;

Plaintiff opposes all three motions.

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(1)

5 Plaintiff’s Complaint is far from a model of clarity, and it is not apparent to this Court

what causes of action Plaintiff is seeking to assert against Defendants. Plaintiff’s Complaint

purports to assert a claim for the “[d]eprivation, [e]ncroachment and [v]iolation of Complainant’s

Rights Under Amendment V and/or the XIV Amendment to the United States Constitution and

Inalienable Rights Re-Affirmed under Public Law 39-26.” See Compl. p.9. In that regard, Plaintiff

asserts that he “need not go to codified portions of Public Law 39-26 in order to invoke violations

of his rights” and that “Plaintiff specifically is not relying on the codified portions of Public Law

39-26 but relying on the positive public law itself.” Pl. Opp. Judiciary Def. MTD, at 23-24. The

Court is cognizant of Plaintiff’s pro se status, and construes Plaintiff’s reference to the Fourteenth

Amendment as raising due process claims. However, there is no cognizable cause of action under

“Public Law 39-26,” therefore that claim is dismissed with prejudice. Similarly, Plaintiff

purportedly seeks “declaratory and injunctive” relief under the “First Amendment, Petition Clause,

and Public Laws of the 80th Congress, 2nd Session, Ch. 646, § 2201,” Compl, p. 39, but neither

the Complaint’s factual allegations nor Plaintiff’s briefing suggest that Plaintiff has asserted a First

Amendment claim. Rather, the Court construes Plaintiff’s reference to the First Amendment as an

acknowledgement of his right to initiate this lawsuit and seek redress of the grievances allegedly

imposed upon him by Defendants.

Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a proceeding for

lack of subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), including lack of jurisdiction due

to Eleventh Amendment immunity. As the Court of Appeals for the Third Circuit has explained

“the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter

jurisdiction.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996) (citing

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–100, 1 (1984)). Once a Rule 12(b)(1)

challenge is raised, the plaintiff bears the burden of demonstrating the existence of subject matter

jurisdiction. See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006). A Rule

12(b)(1) motion to dismiss is treated as either a “facial or factual challenge to the court’s subject

matter jurisdiction.” Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).

Under a facial attack, such as here, the movant challenges the legal sufficiency of the claim, and

the court considers only “the allegations of the complaint and documents referenced therein and

attached thereto in the light most favorable to the plaintiff.” Id.

B. Federal Rule of Civil Procedure 12(b)(6)

Under Fed. R. Civ. P. 12(b)(6), a complaint may be dismissed for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss

on the pleadings, courts “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reason unable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,

233 (3d Cir. 2008) (quotations omitted). Under such a standard, the factual allegations set forth in

a complaint “must be enough to raise a right to relief above the speculative level.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

However, Rule 12(b)(6) only requires a “short and plain statement of the claim showing

that the pleader is entitled to relief” in order to “give the defendant fair notice of what the ... claim

is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. The complaint must include

“enough factual matter (taken as true) to suggest the required element. This does not impose a

probability requirement at the pleading stage, but instead simply calls for enough facts to raise a

reasonable expectation that discovery will reveal evidence of the necessary element.” Phillips,

515 F.3d at 234 (citation and quotations omitted); Covington v. Int’l Ass’n of Approved Basketball

Officials, 710 F.3d 114, 118 (3d Cir. 2013) (“[A] claimant does not have to set out in detail the

facts upon which he bases his claim. The pleading standard is not akin to a probability

requirement; to survive a motion to dismiss, a complaint merely has to state a plausible claim for

relief.” (citation and quotations omitted)).

In sum, under the current pleading regime, when a court considers a dismissal motion, three

sequential steps must be taken: first, “it must take note of the elements the plaintiff must plead to

state a claim.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quotations

omitted). Next, the court “should identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Id. (quotations omitted). Lastly, “when

there are well-pleaded factual allegations, the court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief.” Id. (quotations and brackets

omitted).

III. ANALYSIS

A. The Rooker-Feldman Doctrine

Asserting a facial challenge to subject-matter jurisdiction, Judiciary Defendants and

Middlesex County Defendants contend that this Court lacks subject-matter jurisdiction over

Plaintiff’s Complaint based on the Rooker-Feldman doctrine. See ECF No. 15-2, Middlesex Def.

MTD Br, at 20-21; ECF No. 25, Judiciary Def. MTD Br., at 17-21.

The Rooker-Feldman doctrine bars federal courts from hearing “controversies that are

essentially appeals from state-court judgments.” Williams v. BASF Catalysts LLC, 765 F.3d 306,

315 (3d Cir. 2014) (quotation marks and citation omitted). “Rooker-Feldman ... is a narrow

doctrine, confined to cases brought by state-court losers complaining of injuries caused by state-

court judgments rendered before the district court proceedings commenced and inviting district

court review and rejection of those judgments.” Id. (quotation marks and citation omitted).

In order for the Rooker-Feldman doctrine to deprive a federal court of subject matter

jurisdiction, the Third Circuit has held that four requirements must be satisfied: “(1) the federal

plaintiff lost in state court; (2) the plaintiff ‘complain[s] 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

& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (alterations in original)

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

Circuit has also explained that “[t]he second and fourth requirements are the key to determining

whether a federal suit presents an independent, non-barred claim, or whether the newly raised

claims are so inextricably intertwined that a favorable decision in federal court would require

negating or reversing the state-court decision.” Great W. Mining & Mineral Co., 615 F.3d at 165,

170 n.4; see In re Madera, 586 F.3d 228, 232 (3d Cir. 2009).

A federal claim is “inextricably intertwined” with an adjudicated issue in state court when

either of the following two conditions are satisfied: “(1) the federal court must determine that the

state court judgment was erroneously entered in order to grant the requested relief, or (2) the

federal court must take an action that would negate the state court’s judgment ....” In re Knapper,

407 F.3d 573, 580 (3d Cir. 2005). Moreover, in determining whether a claim is “inextricably

intertwined” with a state court judgment, the Third Circuit has explained that “[a] useful guidepost

is the timing of the injury, that is, whether the injury complained of in federal court existed prior

to the state-court proceedings and thus could not have been ‘caused by’ those proceedings.” Great

W. Mining & Mineral Co., 615 F.3d at 167 (citations omitted); see Turner v. Crawford Square

Apts. III, L.P., 449 F.3d 542, 547 (3d Cir. 2006).

Here, the first and third elements of the Rooker-Feldman analysis are met because Plaintiff

was the “loser” in state court, and the state court judgment was completed before the instant lawsuit

was filed. Nonetheless, I find that Rooker-Feldman does not constitute a jurisdictional bar to

Plaintiff’s claims, because certain aspects of Plaintiff’s claims do not meet either the second or

fourth elements of the Rooker-Feldman analysis.

Plaintiff alleges that the Mercer County Superior Court, i.e. Judge Innes, lacked jurisdiction

over the Property, which is located in Mercer County. Any claims based on that assertion are

clearly barred under Rooker-Feldman, because they constitute a collateral attack on the state court

foreclosure judgment. In other words, Plaintiff plainly seeks to challenge the outcome of the

underlying state court proceedings. See Fraize v. Gov’t Nat'l Mortg. Ass’n, No. 14-7152, 2016

WL 958392, at *5 (D.N.J. Mar. 14, 2016) (“A federal claim that the state foreclosure court entered

its judgment in the absence of personal jurisdiction is likewise barred by Rooker-Feldman”).

Analyzing whether the state court possessed jurisdiction over the Property would essentially

constitute impermissible appellate review over the Chancery Court and the Appellate Division

decisions finding that the foreclosure was proper. See Johnson v. De Grandy, 512 U.S. 997, 1005–

06 (1994) (“[A] party losing in state court is barred from seeking what in substance would be

appellate review of the state judgment in a United States district court, based on the losing party’s

claim that the state judgment itself violates the loser’s federal rights.”). Thus, to the extent

Plaintiff’s claims are based on the allegation that Judge Innes lacked jurisdiction over the Property,

this Court lacks subject-matter jurisdiction over those claims, and they are dismissed.

However, the bulk of Plaintiff’s claims involve the allegation that his constitutional rights

were violated because the state court judgement was procured by fraud; that claim does not fall

within the scope of the Rooker-Feldman doctrine. Plaintiff’s alleged injury in that regard does not

stem directly from the substance of the state court judgement, but rather, Defendants’ allegedly

fraudulent conduct. While Plaintiff’s alleged injuries include the deprivation of the Property as a

result of the foreclosure judgement, it is not the judgment itself which caused Plaintiff’s injury;

Plaintiff’s claims arise from the allegedly fraudulent conduct through which the judgment was

procured. See Shibles v. Bank of Am., N.A., 730 F. App’x. 103, 105-06 (3d Cir. 2018) (holding

that Rooker-Feldman did not bar Plaintiff from pursuing a common law fraud claim against bank

which obtained a foreclosure judgment against her in a prior state court proceeding because

plaintiff’s claims were based on the bank’s allegedly deceptive conduct, and thus, “the source of

the injury [was] the defendant’s actions,” as opposed to the state court foreclosure judgment.”);

Luft v. Clerk of the Superior Court of New Jersey, No. 19-11728, 2020 WL 967857, at *5 (D.N.J.

Feb. 28, 2020) (finding that second element of Rooker-Feldman was not satisfied where plaintiff

alleged that defendants committed fraud while procuring state court foreclosure judgment, because

“it was [d]efendants’ activity, not the judgments themselves, that are the source of [plaintiffs’]

alleged injury.”). Thus, the second element of the Rooker-Feldman analysis is not met.

Similarly, the fourth element is not satisfied because, although Plaintiff’s claims potentially

implicate the validity of the foreclosure judgement, ruling on Plaintiff’s claims does not require

this Court to review and reject the substance of the state court judgment. See Luft, No. 19-11728,

2020 WL 967857, at *5 (finding that plaintiff’s claims did not implicate fourth Rooker-Feldmman

prong even though, “much of that relief would undo the effect of the state court foreclosure

judgment,” because”none of [plaintiff’s] requested relief asks for the Court to review or reject the

foreclosure judgment itself.”). Rather, Plaintiff’s Complaint seeks to vindicate the alleged

constitutional violations caused by the alleged forgeries, which occurred during the course of the

foreclosure proceeding.

Accordingly, I find that Rooker-Feldman’s jurisdictional bar does not preclude Plaintiff’s

constitutional claims against Judiciary or Middlesex County Defendants, in this matter.

B. Eleventh Amendment Sovereign Immunity

Judiciary Defendants assert that they are entitled to Eleventh Amendment immunity, thus

this Court lacks subject matter jurisdiction over Plaintiff’s claims against them. The Eleventh

Amendment provides that “[t]he judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted against one of the United States by

citizens of another state, or by citizens or subjects of any foreign state.” U.S. Const. amend. XI.

The Amendment affords states and state entities immunity from suits brought by citizens in federal

court, regardless of whether legal or equitable relief is sought. See Pennhurst State School &

Hosp., 465 U.S. at 89,100-101; see also Thorpe v. New Jersey, 246 F. App’x 86, 87 (3d Cir. 2007)

(“The Eleventh Amendment of the U.S. Constitution protects a state or state agency from a suit

brought in federal court by one of its own citizens regardless of the relief sought. . . .”).

Because Plaintiff’s claims against Judge Innes and Ms. Smith are brought against them in

their individual capacities, the Eleventh Amendment does not bar those claims. Slinger v. New

Jersey, 366 F. App'x 357, 360 (3d Cir. 2010) (“[T]he Eleventh Amendment does not bar suits

brought against state officials in their individual capacities, even if the actions which are the subject

of the suit were part of their official duties.”); see also Alden v. Maine, 527 U.S. 706, 757

(1999)(“Even a suit for money damages may be prosecuted against a state officer in his individual

capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long

as the relief is sought not from the state treasury but from the officer personally”).

However, the Office of the Clerk of the New Jersey Superior Court is indisputably a

component of the State of New Jersey and is entitled to the protections of the Eleventh

Amendment. See Robinson v. New Jersey Mercer County Vicinage-Family Div., 514 F. App’x

146, 149 (3d Cir. 2013) (explaining that county courts are “clearly a part of the state of New

Jersey,” thus, “both the court itself and its employees in their official capacities were unconsenting

state entities entitled to immunity under the Eleventh Amendment”) (citing Benn v. First Judicial

Dist. of Pa., 426 F.3d 233, 240 (3d Cir. 2005)); see also Dongon v. Banar, 363 F. App’x. 153, 156

(3d Cir. 2010) (“state courts, its employees, and the judges are entitled to immunity under the

Eleventh Amendment because they are part of the judicial branch of the state of New Jersey, and

therefore considered ‘arms’ of the state.”). Accordingly, the Office of the Clerk of the New Jersey

Superior Court is not subject to suit, unless an exception to sovereign immunity applies.

Exceptions to sovereign immunity apply primarily in three circumstances “(1)

congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for

prospective injunctive and declaratory relief to end an ongoing violation of federal law.”

Pennsylvania Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).

Under the Ex Parte Young doctrine, Eleventh Amendment immunity is waived when

officers of a state are sued for prospective injunctive relief to end an ongoing violation of federal

law. Pa Fed’n of Sportsmen's Clubs, Inc., 297 F.3d at 323; see also Ex Parte Young, 209 U.S.

123, 159-60 (1908). In order for the Ex Parte Young exception to be applicable, “[t]he relief sought

must be prospective, declaratory, or injunctive relief governing an officer’s future conduct and

cannot be retrospective, such as money damages.” MCI Telecomm. Corp. v. Bell Atl.

Pennsylvania, 271 F.3d 491, 506 (3d Cir. 2001). To determine whether application of the doctrine

is appropriate, “a court need only conduct a straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.”

Pennsylvania Fed’n of Sportsmen's Clubs, Inc., 297 F.3d at 323 (quoting Verizon Maryland, Inc.

v. Public Service Commission of Maryland, 5353 U.S. 635, 645 (2002)).

Here, the Ex Parte Young doctrine is inapplicable to Plaintiff’s claims. As an initial matter,

Plaintiff’s Complaint seeks monetary damages, in the amount of $1 million per claim, against each

Defendant, presumably including the Office of the Clerk of the New Jersey Superior Court. See

Compl., IX. Furthermore, although Plaintiff’s Complaint also purportedly seeks injunctive relief,

the requested relief would not be prospective because Plaintiff seeks to have this Court decree that

the state court judgments related to the foreclosure are unconstitutional, which falls outside the

scope of the Ex Parte Young doctrine. See Rich v. New Jersey, No. 14-2075 FLW, 2015 WL

2226029, at *9 (D.N.J. May 12, 2015) (finding that the Ex Parte Young doctrine was inapplicable

because Plaintiffs were “in sum, asking for a declaration from this Court that the conduct allegedly

done by Defendants was discriminatory.”); Heine v. Comm’r of The Dep't of Cmty. Affairs of the

State of New Jersey, No. 2:11-5347, 2016 WL 7042069, at *7 (D.N.J. Dec. 1, 2016) (“Even a claim

that nominally seeks injunctive or declaratory relief will not circumvent the Eleventh Amendment

prohibition if, in its actual substance, it seeks retrospective relief.”). Here, Plaintiff has not asserted

that there is a continuing violation of the law that he seeks to redress, such that his claim could fall

within the Ex Parte Young doctrine. Accordingly, Plaintiff’s claims against the Office of the New

Jersey Superior Court are dismissed for lack of subject matter jurisdiction, on the basis of Eleventh

Amendment Sovereign Immunity. 6

C. Judicial Immunity and Quasi-Judicial Immunity

Judge Innes, a retired superior Court judge, and Ms. Smith, the Clerk of the Superior Court,

both assert that they are entitled to judicial, and quasi-judicial immunity, respectively, on

Plaintiff’s claims against them. Judiciary Defendants MTD Br. at 17-21. Similarly, Middlesex

County Defendants assert that they are entitled to judicial immunity, because their actions were

taken pursuant to the Writ of Execution issued by the Superior Court. Middlesex Def. MTD Br,

at 21-24. I find that these Defendants are immune from suit based on these doctrines.

Absolute judicial immunity applies to all claims, whether official-capacity or personal-

capacity, that are based on judicial acts. See Dongon v. Banar, 363 F. App’x 153, 155 (3d Cir.

2010) (“[J]udges are entitled to absolute immunity from liability based on actions taken in their

official judicial capacity.”) (citing Briscoe v. LaHue, 460 U.S. 325, 334 (1983)). “A judge will not

be deprived of immunity because the action []he took was in error, was done maliciously, or was

6 In addition to Plaintiff’s arguments on the merits, Plaintiff contends that Judiciary

Defendants’ motion to dismiss should be denied because a motion to dismiss is not a “responsive

pleading” and cannot be filed at this phase of the litigation. Pl. Opp. to Judiciary Defendants MTD,

at 6. Plaintiff is patently incorrect. The Federal Rules of Civil Procedure permit a defendant to

assert defenses based on lack of subject matter jurisdiction and failure to state a claim in a pre-

answer motion to dismiss. See Fed. R. Civ. P. 12(b),(h)(2).

in excess of [his] authority ....” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). The immunity

is not vitiated by “allegations of malice or corruption of motive.” Gromek v. Maenza, 614 F. App’x

42, 45 (3d Cir. 2015) (quoting Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d Cir. 2000).

There are two exceptions to absolute judicial immunity: (1) “a judge is not immune from liability

for nonjudicial actions” and (2) “a judge is not immune for actions, though judicial in nature, taken

in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11-12. “Determining whether

an act by a judge is a ‘judicial’ one relate[s] to the nature of the act itself, i.e., whether it is a

function normally performed by a judge, and to the expectations of the parties, i.e., whether they

dealt with the judge in his judicial capacity.” Gallas, 211 F.3d at 768–69 (internal citations and

quotation marks omitted).

Like judges, court administrators and sheriffs who carry out activities, which are “an

integral part of the judicial process” and are “charged with the duty of carrying out facially valid

court orders,” are also entitled to immunity and “enjoy quasi-judicial immunity from liability for

damages in a suit challenging conduct prescribed by that order.” Addlespurger v. Corbett, 461 F.

App'x 82, 85–86 (3d Cir. 2012). Even when sued in their individual, rather than their official

capacities, such individuals may receive the benefit of quasi-judicial immunity. Hamilton v.

Leavy, 322 F.3d 776, 782–783 (3d Cir. 2003)

Here, each of Plaintiff’s arguments against the application of judicial immunity are

unavailing. First, Plaintiff asserts that because Judge Innes has retired, and is being sued in his

“individual capacity,” he is not entitled to absolute judicial immunity. See Pl. Opp. to Judiciary

Defendants MTD. At 30. Plaintiff is mistaken. Judicial immunity extends to suits in judges’

individual capacities, namely suits for damages, as Plaintiff seeks here. See Larsen v. Senate of

the Commonwealth, 152 F.3d 240, 249 (3d Cir. 1998). Further, that Judge Innes retired subsequent

to issuing the orders at issue is irrelevant; judges retain absolute immunity for actions taken within

their judicial capacity. See Leverett v. Carchman, No. 09-1903, 2010 WL 606041, at *6 (D.N.J.

Feb. 18, 2010) (dismissing claims against retired judge based on judicial immunity); Reardon v.

New Jersey, No. 13-5363, 2014 WL 2921030, at *4 (D.N.J. June 27, 2014) (same). Finally,

Plaintiff asserts that immunity cannot attach because Judge Innes lacked jurisdiction to hear a

foreclosure matter involving a property located in Middlesex County. However, Judiciary

Defendants correctly argue that under New Jersey’s Court Rules, Judge Innes was authorized to

hear all uncontested foreclosure actions in New Jersey, including the foreclosure at issue,

irrespective of the county in which the Property was located. See N.J. Ct. R. 1:34-6(a) (authorizing

the Chief Justice of the New Jersey Supreme Court to designate a superior Court judge to review

the Office of Foreclosure’s disposition of all uncontested foreclosure matters); see ECF No. 22-2,

Certification of Michael T. Moran, Ex A, Foreclosure Case Summary (indicating that defendant

Nemeth’s answer was stricken and thus the foreclosure was unopposed.)7. Thus, there is no basis

to find that Judge Innes was acting in the clear absence of jurisdiction such that he should be

stripped of judicial immunity.

The crux of Plaintiff’s complaint is conduct that occurred during the course of the

foreclosure litigation, a judicial proceeding. Plaintiff challenges the procedures utilized by

Judiciary Defendants, namely the use of a signature stamp or electronic signature to sign Judge

Innes’ name on the final Judgement of foreclosure, and Ms. Smith’s attestation that Judge Innes

7 The Court takes judicial notice of the docket foreclosure case summary from the state court

proceeding. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (“In

evaluating a motion to dismiss, [courts] may consider documents that are attached to or submitted

with the complaint . . . and any matters incorporated by reference or integral to the claim, items

subject to judicial notice, matters of public record, orders, [and] items appearing in the record of

the case.” (internal citations and quotation marks omitted)(second alteration in original)).

and Judge Leblon witnessed the signing of the Writ of Possession and Writ of Execution,

respectively. In that regard, Judiciary Defendants argue that employees of the Office of

Foreclosure are authorized to use Judge Innes’s electronic or signature stamp after Judge Innes has

approved an uncontested foreclosure. See Judiciary Def. MTD Br. at 10. Notably, Plaintiff’s own

Complaint asserts facts which acknowledge that the signatures are not frauds or forgeries but rather

products of procedures routinely utilized by the Office of Foreclosure. See Compl., ECF No 1-2,

Transcript of Motion Hearing in Dietech Financial v. Karen Barel; ECF No. 1-3, Transcript of

Telephone Call between Ariel Barel and Office of Foreclosure.8 While Plaintiff’s Complaint is

rife with allegations of fraud and forgery, in essence, Plaintiff seeks to assert that his constitutional

rights were violated by virtue of the procedures utilized in executing the relevant judicial orders.

Mireles, 502 U.S. at 13 (“[T]he relevant inquiry is the ‘nature’ and ‘function’ of the act, not the

‘act itself.’ In other words, we look to the particular act’s relation to a general function normally

performed by a judge ....”). Thus, Plaintiff seeks redress for deeds which were clearly “judicial

acts” and to which judicial and quasi-judicial immunity attach.

Plaintiff’s claim against Middlesex County Defendants are similarly insufficient to strip

those defendants of quasi-judicial immunity. Taking as true Plaintiff’s allegations that the Writ of

Execution and Possession were both somehow invalidated by the use an electronic signature,

Middlesex County Defendants are nonetheless entitled to quasi-judicial immunity for taking action

pursuant to what was reasonably perceived as a valid judicial directive.” Villarreal v. New Jersey,

No. 19-1426, 2020 WL 864143, at *3 (3d Cir. Feb. 21, 2020) (affirming district court’s finding

8 In support of his claims that the relevant orders were not signed by judges but rather by

clerks in the Office of Foreclosure, Plaintiff’s Complaint recounts portions of transcripts which

were purportedly submitted as evidence in an unrelated and unidentified proceeding in district

court. See Compl. p. 2.

that county sheriff was entitled to quasi-judicial immunity “for enforcing foreclosure judgment

and conducting the sale of foreclose property” despite plaintiff’s claim that sale was unlawful);

Conklin v. Anthou, 495 F. App’x 257, 264 (3d Cir. 2012) (affirming district court’s finding that

sheriff was entitled to quasi-judicial immunity in connection with Sheriff’s sale because the sale

was at the direction of a “facially valid court order.”). Although Plaintiff also alleges that the April

24, 2019 sheriff’s sale was “rigged” Plaintiff has not alleged any support for that contention, aside

from the price of the sale. Plaintiff’s conclusory allegations regarding the value of the property

are insufficient to overcome the application of quasi-judicial immunity.

Accordingly, Plaintiff’s claims against Judiciary and Middlesex County Defendants are

dismissed because those defendants are entitled to judicial and quasi-judicial immunity.

D. Plaintiff’s Claims Against the Law Firm Defendants

Law Firm Defendants move to dismiss based on Rule 12(b)(6), arguing that Plaintiff has

not provided any factual assertions in support of his “bald allegations” that Law Firm Defendants

fraudulently obtained the Writ of Possession for the Property. Def. Br. at 8-9. These defendants

argue that they complied with all applicable New Jersey court rules, laws and procedures, and

highlight New Jersey Court Rule 1:32-2A(c) which permits the use of the use of electronic

signatures. I agree.

First, Plaintiff’s Complaint purportedly seeks to assert constitutional claims against Law

Firm Defendants; although Plaintiff has not identified a statutory basis for those claims,

presumably they are brought pursuant to 42 U.S.C. §1983 (“Section 1983”). See Compl. p. 34

(“on June 26, 2019 and every day to the present, Defendant Law Offices of Steven A. Varano, PC

and its actions deprive Complainant of constitutional protections of due process of law afforded to

Complainant under the V and/or the XIV Amendments to the United States Constitution[.]”).

Section 1983 does not create substantive rights; rather, it provides an avenue of recovery

for the deprivation of established federal constitutional and statutory rights. See Kneipp v. Tedder,

95 F.3d 1199, 1204 (3d Cir.1996); However, to recover against a defendant under Section 1983, a

plaintiff must establish that the defendant acted under “color of [state] law” to deprive him of a

right secured by the federal Constitution or laws. See Groman v. Twp. of Manalapan, 47 F.3d 628,

633 (3d Cir.1995). “The color of state law ... is a threshold issue; there is no liability under

[Section] 1983 for those not acting under color of law.” Id. at 638. The color of state law element

in a section 1983 action requires that “the conduct allegedly causing the deprivation of [the

plaintiff's rights] be fairly attributable to the State.” Lugar v. Edmonson Oil Co., 457 U.S. 922,

937 (1982). For the conduct to be “fairly attributable” to the State: (1) the deprivation must be

caused by (a) the exercise of some right or privilege created by the State, or (b) by a rule of conduct

imposed by it or by a person for whom the State is responsible; and (2) the defendant must be a

person who may fairly be said to be a state actor, either because the person (a) is a state official,

(b) acted together with or has obtained significant aid from state officials, or (c) performed conduct

otherwise chargeable to the State. See id. at 936–39.

Here, Plaintiff’s claims against Law Firm Defendants are dismissed because Plaintiff has

not alleged that Law Firm Defendants were state actors or acting “under color of law.” Generally,

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). Here, the attorneys in this case were performing their required functions

on behalf of their client, and filed a motion for a writ of possession pursuant to the applicable New

Jersey Court Rules and statutes. Law Firm Defendants’ mere participation in the litigation process

did not transform them into state actors, and thus, Plaintiff’s claims against them are dismissed.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED. Plaintiff’s

claims against all Defendants are dismissed WITH PREJUDICE.

Date: May 19, 2020

/s/ Freda L. Wolfson

Hon. Freda L. Wolfson

U.S. Chief District Judge